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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 (FEE REQUIRED)
For the fiscal year ended December 31, 1997
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
For the transition period from to
Commission file number 1-2227
Crown Cork & Seal Company, Inc.
(Exact name of registrant as specified in its charter)
Pennsylvania 23-1526444
(State or other jurisdiction of (Employer
incorporation or organization) Identification No.)
One Crown Way, Philadelphia, PA 19154
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 215-698-5100
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SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Title of each class Name of each exchange on which registered
Common Stock $5.00 Par Value
4.5% Convertible Preferred Stock New York Stock Exchange & Paris Bourse
$41.8875 Par Value
Common Stock Purchase Rights
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SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NONE
(Title of Class)
--------------
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filings
requirements for the past 90 days.
Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
As of March 14, 1997, 128,505,232 shares of the Registrant's Common Stock,
excluding shares held in Treasury, and 12,432,094 shares of the Registrant's
4.5% Convertible Preferred Stock were issued and outstanding, and the aggregate
market value of such shares held by non-affiliates of the Registrant on such
date was $7,571,765,310.
DOCUMENTS INCORPORATED BY REFERENCE
Notice of Annual Meeting and Proxy Statement dated March 24, 1997 is
incorporated by Reference into Part III hereof. Only those specific portions so
incorporated are to be deemed filed as part of this Form 10-K Annual Report.
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<PAGE>
Crown Cork & Seal Company, Inc.
1996 FORM 10-K ANNUAL REPORT
TABLE OF CONTENTS
PART I
Item 1 Business............................................................1
Item 2 Properties..........................................................6
Item 3 Legal Proceedings...................................................7
Item 4 Submission of Matters to a Vote of Security Holders.................7
PART II
Item 5 Market for Registrant's Common Stock and Related
Stockholder Matters..............................................7
Item 6 Selected Financial Data.............................................8
Item 7 Management's Discussion and Analysis of Financial Condition
and Results of Operations.......................................10
Item 8 Financial Statements and Supplementary Data........................22
Item 9 Disagreements on Accounting and Financial Disclosure...............48
PART III
Item 10 Directors and Executive Officers of the Registrant.................48
Item 11 Executive Compensation.............................................49
Item 12 Security Ownership of Certain Beneficial Owners and Management.....49
Item 13 Certain Relationships and Related Transactions.....................49
PART IV
Item 14 Exhibits, Financial Statement Schedules and Reports
on Form 8-K.....................................................50
SIGNATURES...................................................................55
<PAGE>
Crown Cork & Seal Company, Inc.
PART I
ITEM 1. BUSINESS
GENERAL
Crown Cork & Seal Company, Inc. (the "Company" and the "Registrant") is one of
the world's leading manufacturers of packaging products with 1996 consolidated
net sales of $8.3 billion. More than 60% of 1996 net sales were derived from
operations outside the United States with approximately 75% of the non- U.S.
revenues derived in Europe. The Company believes that it is well positioned
within its industry having the ability to supply food, beverage and aerosol
containers to multinational consumer marketers on a global basis. As a
multinational packaging producer, the Company benefits from, but is exposed to,
the fluctuations of world trade. The Company currently operates 282 plants, as
well as sales and service facilities in 59 countries and employs approximately
45,000 people. The Company continually reviews its operations, especially in
terms of their competitiveness and the appropriate number, size and location of
its plants, emphasizing service to customers and rate of return to investors.
Financial information concerning the Company's operations in its two principal
industry segments, Metal Packaging and Plastic Packaging, and within geographic
areas is set forth in Part II of this Report on pages 44 and 45 under Note S to
the Consolidated Financial Statements entitled "Segment Information by Industry
Segment and Geographic Area."
The Company's products include steel and aluminum cans for food, beverage,
brewing, household and other consumer products; plastic containers for beverage,
processed food, household, personal care and other products; metal and plastic
packaging products for health and beauty care applications including cosmetics,
fragrances and pharmaceuticals; metal specialty and promotional packaging
products; a wide variety of caps, crowns, closures, pumps and dispensing
systems; and composite containers. The Company also manufactures filling and
material handling machinery, primarily for the beverage and brewing industries,
as well as machinery used in can-making.
Under current management, the Company has pursued a strategy of growth through
acquisition within the global packaging industry. Over the past seven years, the
Company has completed twenty acquisitions of companies with aggregate net sales
of approximately $8 billion. The largest acquisitions over this period include
CarnaudMetalbox ("CMB") (February 1996), Van Dorn Company (April 1993), CONSTAR
International (October 1992), Continental Can International (May 1991),
Continental Can's U.S. food and beverage can businesses (July 1990) and
Continental Can Canada (December 1989). This strategy has contributed to an
increase in the Company's net sales from $1.9 billion in 1989 to $8.3 billion in
1996. The Company's acquisition strategy has resulted in numerous benefits to
the Company, including improved market positions, product and geographic
diversification, and cost savings.
Information about the Company's acquisitions over the most recent three years
appears in Part II herein on pages 31 and 32 under Note H to the Consolidated
Financial Statements. Information about the Company's acquisition of CMB appears
in Part II herein on pages 17 and 18 under "Acquisition of CarnaudMetalbox"
within Item 7, "Management's Discussion and Analysis of Financial Condition and
Results of Operations."
The Company has invested in capital projects to (i) create additional
manufacturing capacity for beverage can production in emerging markets and for
polyethylene terephthalate (PET) containers globally, (ii) improve production
efficiencies, (iii) improve product quality and (iv) lower manufacturing costs.
-1-
<PAGE>
Crown Cork & Seal Company, Inc.
DISTRIBUTION
As of December 31, 1996, the Company's products were manufactured in 87 plants
within the United States and 195 plants outside the U.S. The Company markets and
sells products to customers through its own sales and marketing staff located
centrally within each division. The divisions' sales staff are supported by
regional sales personnel. Most of the Company's products are sold in highly
competitive markets, primarily based on price, service, quality and performance.
The majority of the Company's sales are to companies which have leading market
positions in the packaged food, beverage, aerosol, health and beauty and
specialty businesses. Contracts with global suppliers are centrally negotiated,
although products are ordered through and distributed directly by each plant.
In each of the years in the period 1994 through 1996, no one customer of the
Company accounted for more than ten percent of the Company's net sales.
RESEARCH AND DEVELOPMENT
The Company's principal Research, Development & Engineering ("RD&E") centers are
located in Alsip, Illinois and Wantage, England. The Company uses its RD&E
capabilities to (i) promote development of value-added packaging systems, (ii)
design cost-efficient manufacturing systems and materials that also provide
continuous quality improvement, (iii) support technical needs in customer and
vendor relationships, and (iv) provide engineering services for the Company's
worldwide packaging activities. These capabilities allow the Company to identify
market opportunities by working directly with customers to develop new products,
such as the conversion to plastic from other materials and new packaging shapes.
The Company expended $51.5 million, $22.3 million and $21.1 million in 1996,
1995 and 1994, respectively, on RD&E activities. These activities are expected
to improve and expand the Company's product lines in the future. Expenditures
were also made to improve manufacturing efficiencies and reduce unit costs,
principally raw material costs, by reducing the material content of containers
while improving or maintaining other physical properties such as material
strength.
MATERIALS
The Company continues to pursue strategies which enable it to source its raw
materials with increasing effectiveness, and may consider vertical integration
into the production of certain raw materials. The acquisition of CMB should
allow the Company to realize increased efficiencies in materials sourcing and
related pricing. The Company purchased Golden Aluminum Company from ACX
Technologies in March 1997. Golden Aluminum is a pioneer and innovator in the
use of continuous block casting (mini-mill) technology to produce aluminum for
use in can making, among other capabilities.
The raw materials used in the manufacture of the Company's products are
primarily aluminum and tinplate for the Metal Packaging segment, and various
types of resins, which are petrochemical derivatives, for the Plastic Packaging
segment. These materials are generally available from several sources. The
Company has secured what it considers adequate supplies of raw materials but
there can be no assurances that sufficient quantities will be available in the
future. The Company may be subject to adverse price fluctuations on the purchase
of such raw materials. See "Metal Packaging" below.
SEASONALITY
The 1996 acquisition of CMB has increased the potential for seasonal effects on
the Company's results of operations. Food packaging products accounted for $2.8
billion or approximately 34% of 1996 consolidated net sales as compared to $1.0
billion or approximately 19% in 1995. Sales and earnings for food cans have
historically been higher in the third quarter of the year due to the
agricultural harvest.
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<PAGE>
Crown Cork & Seal Company, Inc.
The Company's metal and plastic beverage container businesses are predominantly
located in the Northern Hemisphere. Generally, beverage products are consumed in
greater amounts during warmer months of the year. Consequently, sales and
earnings have generally been higher in the second and third quarters of the
calendar year.
The Company's other businesses include aerosol, specialty, health and beauty,
machinery and various other products which tend not to be affected by
significant seasonal variations.
ENVIRONMENTAL MATTERS
The Company's operations are subject to numerous laws and regulations governing
the protection of the environment, disposal of waste, discharges into water,
emissions into the atmosphere and the protection of employee health and safety.
Future regulations may impose stricter environmental requirements on the
packaging industry. Anticipated future restrictions in some jurisdictions on the
use of certain paint and lacquering ingredients may require the Company to
employ additional control equipment or alternative coating technologies. The
Company has a Corporate Environmental Protection Policy, and environmental
considerations are among the criteria by which the Company evaluates projects,
products, processes and purchases. While the Company does not believe that any
of the foregoing matters are likely to have a material effect there can be no
assurance that current or future environmental laws or remediation liabilities
will not have a material effect on the financial condition or results of
operations. Further discussion of the Company's environmental matters is
contained in Part II, Item 7, "Management's Discussion and Analysis of Financial
Condition and Results of Operations" of this Report on pages 19 and 20 under the
caption "Environmental Matters."
WORKING CAPITAL
Information relating to the Company's liquidity and capital resources is set
forth in Part II, Item 7, "Management's Discussion and Analysis of Financial
Condition and Results of Operations," of this Report on pages 15 and 16 under
the caption "Liquidity and Capital Resources."
EMPLOYEES
At December 31, 1996, the Company employed 44,611 people throughout the world. A
significant number of the Company's employees are covered by collective
bargaining agreements with varying terms and expiration dates.
APPOINTMENT OF CORPORATE OFFICERS
The Company, through its Board of Directors, appointed Mr. B. Nigel Gilson as
Executive Vice President with responsibility for developing and coordinating
business with the Company's global customers. Mr. Gilson joined Metal Box in
South Africa in 1965 and recently was responsible for CMB operations in Asia,
Africa, the Middle East and the Caribbean. He has held several management
positions in CMB's metal and plastic packaging operations in Europe, Africa and
Asia.
METAL PACKAGING
The Metal Packaging segment, which accounted for approximately 80% of
consolidated net sales and approximately 68% of consolidated operating income
(before net interest costs, foreign exchange adjustments and other non-operating
expenses) in 1996, manufactures and markets steel and aluminum cans as well as
composite cans, crowns (also known as bottle caps) and metal closures. The
segment also includes the Machinery Division which manufactures filling and
material handling equipment, primarily for the beverage and brewing industries,
as well as machinery used in the can-making process. All products are sold
through the Company's sales organization to the soft drink, food, citrus,
brewing, household
-3-
<PAGE>
Crown Cork & Seal Company, Inc.
products, personal care and various other industries. The segment employed
approximately 33,000 persons at December 31, 1996.
Global beverage and food marketers continue to increase the consolidation of
their supplier base under long-term arrangements and to qualify suppliers on the
basis of their ability to provide service globally and to create innovative
designs and technologies in a cost-effective manner. The acquisition of CMB in
February 1996 has created a geographically diversified and innovative packaging
company with significant operations in Europe, the Middle East, Africa, Asia and
an RD&E center in England. In connection with the acquisition of CMB, the
European Commission required the Company to divest certain aerosol operations
located in five European countries. This requirement was satisfied in September
1996.
The Company believes that price, quality and customer service are the principal
competitive factors affecting its business. Based upon sales, the Company
believes that it is a leader in the markets for metal packaging in which it
competes; however, the Company encounters competition from a number of companies
offering similar products.
The Company's basic raw materials for its Metal Packaging segment's products are
tinplate and aluminum. These metals are supplied by the major mills in the
countries within which the Company operates plants. Some plants in
less-developed countries, which do not have local mills, obtain their metal from
nearby more-developed countries. In 1996, approximately 85% of metal consumption
in Europe was for tinplate. In the United States, approximately 63% of metal
consumption was for aluminum. Although sufficient quantities of raw materials
have been available in the past, there can be no assurances that sufficient
quantities will be available in the future.
Prior to 1996, the Company entered into annual agreements with its tinplate and
aluminum suppliers, pursuant to which the Company obtained price commitments for
its tinplate and aluminum requirements for the next calendar year. The Company
continues to contract for its tinplate requirements on this basis. The Company's
suppliers of aluminum can and end sheet implemented a pricing structure in 1995
which, by formula, is directly tied to the price of ingot on the London Metal
Exchange (LME).The formula took the LME spot price of aluminum ingot and added
other costs to convert and transport aluminum, thereby effectively transferring
the volatility in the commodity markets to the Company. This pricing formula
remained in effect during 1996. During 1996, the Company entered into contracts
with its suppliers of aluminum can and end sheet which, by formula, guarantees
prices for a period of six months. This pricing structure is directly tied to a
rolling average of the prior six months' market price of aluminum on the LME.
Further, "ceiling" prices have been established under these contracts which set
maximum prices that the Company would pay for aluminum.
Historically, the Company has adjusted the selling prices for its products in
response to changes in the cost of tinplate and aluminum. During 1995 when
aluminum costs increased, the Company announced price increases to its customers
but due to overcapacity within the aluminum beverage can market and the
customers' willingness to shift a portion of their packaging requirements away
from aluminum, the Company was unable to fully recover the increases in the cost
of aluminum from its customers. During 1996, as aluminum prices declined,
selling prices to customers for aluminum beverage cans and ends were also
reduced. In the future, there can be no assurance that the Company will be able
to recover fully any increases or fluctuations in metal prices from its
customers.
The Company, based on sales, is one of two leading producers of aluminum
beverage cans and ends within the United States. Sales dollars for aluminum
beverage cans and ends in 1996 decreased from 1995 due to the pass-through of
lower aluminum costs to customers. The Company continues to reduce can and end
diameter, lightweight its cans, reduce non-metal costs and restructure
production processes. Excess beverage can capacity in North America has been
redeployed to emerging markets, and to a lesser extent, retrofitted to produce
two-piece food cans.
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<PAGE>
Crown Cork & Seal Company, Inc.
As the Company has continued to integrate the operations of CMB, it has made an
assessment of the restructuring and exit costs to be incurred from the
acquisition. The plan of restructuring which commenced at the end of the first
quarter of 1996 is expected to be substantially completed during 1997. Since
commencement of the plan of restructuring, the Company has determined
alternative sites for manufacture and qualified the new manufacturing sites with
customers. Further discussion of the Company's restructuring activities is
contained in Part II hereof on pages 32 and 33 under Note I to the Consolidated
Financial Statements and within Item 7, "Management's Discussion and Analysis of
Financial Condition and Results of Operations" on page 18 under "Provision for
Restructuring."
The CMB acquisition, when combined with the 1994 acquisition of the container
division of Tri-Valley Growers, significantly enhances the Company's position
with global food marketers and also reduces the percentage of aluminum beverage
can sales to overall consolidated net sales. The food can market is highly
competitive based on price and innovation. New technologies and products
continue to be developed to add value to customer products and to offer more
efficient packaging, such as easy-open ends, stackable cans and ferrolite cans
and ends. Food closure operations in Europe produce vacuum metal closures as
well as sealing systems for integration into customers' production lines.
Outside North America, the Company's Metal Packaging products consist of metal
cans for food, beverage, aerosol and specialty packaging as well as metal crowns
and closures. Europe is the most significant beverage crown and closure market
for the Company with returnable bottles continuing to be a significant form of
packaging for the beverage and brewing industries in the region.
Machinery Division 1996 net sales represented approximately two percent of
consolidated net sales and include sales from the Simplimatic Engineering
operations acquired in the CMB transaction. The Machinery Division is included
in the Metal Packaging segment.
PLASTIC PACKAGING
The Plastic Packaging segment, which in 1996 accounted for approximately 20% of
consolidated net sales and approximately 32% of consolidated operating income
(before net interest costs, foreign exchange adjustments and other non-operating
expenses), manufactures plastic containers and plastic closures for the
beverage, food, health and beauty, household products, personal care, chemical
and other industries. Within the U.S. the Company manufactures and sells plastic
bottles through its CONSTAR subsidiary and plastic closures through its plant in
Virginia and plants acquired in the CMB acquisition. Plastic closures are also
manufactured in various metal packaging operations within Europe, Asia and the
Middle East and South America. CONSTAR, based on net sales, is one of the two
leading producers of plastic containers produced from PET and HDPE (high-density
polyethylene) within the United States.
The combination of CMB's Plastics division with CONSTAR International's
operations in Europe has resulted, the Company believes, in the leading European
producer of plastic packaging. This combination further strengthens the
Company's plastics marketing base in Europe and has added product and geographic
diversity to this segment. The combination of CMB European plastic operations
with existing Company operations has led to certain redundant operations being
consolidated. The ultimate result of these actions represents the Company's best
efforts to react to industry performance and general business and economic
conditions. Further discussion of the Company's restructuring activities is
contained in Part II hereof on pages 32 and 33 under Note I to the Consolidated
Financial Statements and within Item 7, "Management's Discussion and Analysis of
Financial Condition and Results of Operations" on page 18 under "Provision for
Restructuring".
The Company believes that price, quality and customer service are the principal
competitive factors affecting this segment. Based upon sales, the Company
believes that it is a leader in the markets for plastic packaging in which it
competes; however, the Company encounters competition from a number of companies
offering similar products.
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<PAGE>
Crown Cork & Seal Company, Inc.
The principal raw materials used in the manufacture of plastic containers and
closures are various types of resins which are purchased from several commercial
sources. Resins are presently available in quantities adequate for the Company's
needs. The Company has experienced fluctuations in the cost of resins in the
past and has periodically adjusted its selling prices for plastic containers and
closures to reflect these movements in resin costs. There can be no assurances,
however, that the Company will be able to recover fully any increases in resin
prices from its customers in the future.
Typically, the Company identifies market opportunities by working cooperatively
with customers and implementing commercially successful programs. The Company
believes that it will capitalize on conversions to plastic from other forms of
packaging and new markets through its technical expertise, quality reputation
and customer service. The Company also believes that its plastic container plant
sites are strategically located and sized to meet market requirements.
Capital expenditures for the Plastic Packaging segment were approximately 15
percent of total capital spending for the Company in 1996 as compared to 34
percent in 1995. The decrease, in percentage terms, is reflective of the
capacity expansion program which the Company's Plastic segment entered into
during the three year period ended December 31, 1995. The Company remains
committed to servicing its global customers with plastic containers. Information
relating to the Company's capital expenditures is set forth in Part II, Item 7,
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," of this Report on pages 18 and 19 under the caption "Capital
Expenditures."
ITEM 2. PROPERTIES
Crown Cork & Seal Company, Inc., and its worldwide subsidiaries operate 282
manufacturing facilities. Within the United States there are 58 Metal Packaging
manufacturing facilities and 29 Plastic Packaging manufacturing facilities.
Outside the United States there are 148 Metal Packaging manufacturing facilities
and 41 Plastic Packaging manufacturing facilities. There are six manufacturing
facilities outside the United States that manufacture both metal and plastic
products.
The geographic distribution of the manufacturing facilities is as follows:
<TABLE>
<CAPTION>
Metal Plastic Both No. of No.
Geographic Area* Packaging Packaging Segments Plants Leased
<S> <C> <C> <C> <C> <C>
United States 58 29 - 87 34
Canada 11 1 - 12 -
Central America 8 1 - 9 1
South America 16 1 1 18 2
Europe 72 31 3 106 23
Africa 14 1 - 15 3
Middle East 5 - 1 6 1
Asia 22 6 1 29 15
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Worldwide Total 206 70 6 282 79
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</TABLE>
* Excluded are productive facilities in announced restructurings as well as
service or support facilities.
The Company's manufacturing and support facilities are designed according to the
requirements of the products to be manufactured, therefore, the type of
construction varies from plant to plant. Warehouse and delivery facilities are
generally provided at each of the manufacturing locations, although the Company
does
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<PAGE>
Crown Cork & Seal Company, Inc.
lease some outside warehouses. Management believes that its manufacturing
facilities, taken as a whole, are well maintained and generally adequate for
current operations.
Utilization of any particular facility varies based upon demand for the product.
While it is not possible to measure with any degree of certainty or uniformity
the productive capacity of these facilities, management believes that, if
necessary, production can be increased at existing facilities through the
addition of personnel, capital equipment and, in some facilities, square footage
available for production. In addition, the Company may from time to time acquire
additional facilities and / or dispose of existing facilities.
In the design of each new facility, the Company's engineers are instructed to
pay particular attention to the safety of operations, abatement of pollution,
incorporation of the Company's research activities and the quality of the
product to be manufactured at such facility.
In addition to the manufacturing facilities for the Metal Packaging and Plastic
Packaging segments, the Company has various support facilities. Such facilities
include machine shop locations, printing for cans and crowns, coil shearing,
coil coating and RD&E.
The Company generally owns its manufacturing and other facilities, although
office facilities are often leased. The Company maintains research facilities in
Alsip, Illinois within the United States and in Wantage within the United
Kingdom.
The Company is directly involved in post-consumer plastic container recycling
and aluminum and steel can recycling at two locations in the United States.
ITEM 3. LEGAL PROCEEDINGS
In management's opinion, there are no pending claims or litigations, the adverse
determination of which would have a material adverse effect on the consolidated
financial position or results of operations of the Company. The Company has been
identified by the Environmental Protection Agency as a potentially responsible
party (along with others, in most cases) at a number of sites. Information on
this is presented in Part I, Item 1, entitled "Business" appearing on page 3 of
this Report and in Part II Item 7, entitled "Management's Discussion and
Analysis of Financial Condition and Results of Operations" under "Environmental
Matters" appearing on pages 19 and 20 of this Report.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
The Registrant's Common Stock and Preferred Stock are listed on the New York
Stock Exchange and the Paris Bourse. On March 14, 1997, there were 5,680
registered shareholders of the Registrant's Common Stock and 9 registered
shareholders of the Registrant's Preferred Stock. The market price at December
31, 1996, with respect to the Registrant's Common Stock is set forth on page 46
in Note T of the Notes to the Consolidated Financial Statements entitled
"Quarterly Data (unaudited)". The foregoing information regarding the number of
registered shareholders of Common Stock and Preferred Stock does not include
persons holding stock through clearinghouse systems in the United States and
France. It is the present intention of the Company to continue paying dividends
on its common stock on a quarterly basis. Further details regarding the
Company's policy as to payment of cash dividends are set forth in Part II, Item
7, "Management's Discussion and Analysis of Financial Condition and Results of
Operations" under "Dividends/Issuance of Stock in Connection with CMB
Acquisition" appearing on pages 20 and 21 of this Report.
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<PAGE>
Crown Cork & Seal Company, Inc.
ITEM 6. SELECTED FINANCIAL DATA
FIVE YEAR SUMMARY OF SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
(in millions, except per share, ratios and
other statistics) 1996 1995 1994 1993 1992
Summary of Operations
<S> <C> <C> <C> <C> <C> <C>
Net sales.....................................(3) $8,331.9 $5,053.8 $4,452.2 $4,162.6 $3,780.7
-------- -------- -------- -------- --------
Cost of products sold............................ 6,732.5 4,319.4 3,706.2 3,474.7 3,203.0
Depreciation and amortization.................... 495.9 256.3 218.3 191.7 142.4
Selling and administrative expense............... 387.2 139.3 135.4 126.6 112.1
% to net sales................................. 4.6% 2.8% 3.0% 3.0% 3.0%
Provision for restructuring...................... 39.8 102.7 114.6
Gain on sale of assets .......................... (23.8) (8.4) (6.7) (.7) (5.6)
Interest expense, net of interest income......... 305.8 136.1 91.6 79.7 63.9
Translation and exchange adjustments ............ (36.5) (1.1) 10.1 10.8 10.2
-------- -------- -------- -------- --------
Income before income taxes
and cumulative effect of accounting changes 431.0 109.5 182.7 279.8 254.7
% to net sales............................... 5.2% 2.2% 4.1% 6.7% 6.7%
Provision for income taxes....................... 134.4 24.9 55.6 97.4 101.0
Minority interests, net of equity earnings ...... (12.6) (9.7) 3.9 (1.5) 1.7
-------- -------- -------- -------- --------
Net income before cumulative effect of
accounting changes............................. 284.0 74.9 131.0 180.9 155.4
% to net sales .............................. 3.4% 1.5% 2.9% 4.3% 4.1%
Cumulative effect of accounting changes.......(1) (81.8)
-------- -------- -------- -------- --------
Net income....................................(2) 284.0 74.9 131.0 99.1 155.4
======== ======== ======== ======== ========
Preferred stock dividends ....................... 19.8
-------- -------- -------- -------- --------
Net income available to common
shareholders................................... $264.2 $74.9 $131.0 $99.1 $155.4
Return on average shareholders' equity........... 10.5% 5.3% 10.0% 8.3% 13.9%
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Financial Position at December 31
Working capital ................................. ($370.6) $429.9 $122.6 $43.8 $174.5
Total assets..................................... 12,590.2 5,051.7 4,781.3 4,236.3 3,825.1
Short-term debt plus current long-term debt
maturities..................................... 1,154.3 608.1 735.8 474.8 379.4
Long-term debt................................... 3,923.5 1,490.1 1,089.5 891.5 939.9
Total debt to total capitalization............. 56.4% 56.2% 55.3% 50.1% 52.1%
Minority interests............................... 243.8 118.6 75.4 53.7 45.6
Shareholders' equity............................. 3,563.3 1,461.2 1,365.2 1,251.8 1,143.6
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<PAGE>
Crown Cork & Seal Company, Inc.
FIVE YEAR SUMMARY OF SELECTED FINANCIAL DATA (Continued)
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(in millions, except per share, ratios and
other statistics) 1996 1995 1994 1993 1992
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Common Share Data (dollars per share)
Earnings per average common share before
cumulative effect of accounting changes........ $2.16 $.83 $1.47 $2.08 $1.79
Earnings per average common share................ 2.16 .83 1.47 1.14 1.79
Cash dividends................................... 1.00
Market price on December 31...................... 54.38 41.75 37.75 41.88 39.88
Book value (based on year-end
outstanding shares)............................ 23.69 16.12 15.28 14.09 13.24
Number of shares outstanding at year-end......... 128,410,797 90,650,814 89,360,040 88,814,533 86,348,180
Average shares outstanding....................... 122,468,206 90,233,518 89,086,999 87,086,553 86,895,574
Shareholders (on record)......................... 5,736 5,976 6,011 6,168 4,193
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Other Statistics
Capital expenditures............................. $631.2 $433.5 $439.8 $271.3 $150.6
Number of Employees.............................. 44,611 20,409 22,373 21,254 20,378
Actual preferred shares outstanding.............. 12,432,622
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Notes:
Total capitalization includes total debt (net of cash and cash equivalents),
minority interests and shareholders' equity.
Certain reclassifications of prior years' data have been made to improve
comparability. The Company has completed a number of acquisitions during the
periods presented. Such acquisitions were accounted for using the purchase
method and may affect the comparability of data on a year-to-year basis.
(1) In 1993, the Company adopted SFAS No's 106, 109 and 112 which resulted in
an after-tax charge from the cumulative effect of adopting these
pronouncements.
(2) Figures for 1996, 1995 and 1994 include after-tax adjustments for
restructuring, $31.7 or $.26 per share, $67.0 or $.74 per share and $73.2
or $.82 per share, respectively, and for 1993 the cumulative effect of
accounting changes of $81.8 or $.94 per share. Without these adjustments,
the return on average shareholders' equity in 1996, 1995, 1994 and 1993
would have been 11.7%, 9.6%, 14.7% and 14.6%, respectively.
(3) The significant sales growth since 1992 is attributed primarily to the
acquisitions of CMB (2/96), Van Dorn Company (4/93) and CONSTAR
International (10/92).
-9-
<PAGE>
Crown Cork & Seal Company, Inc.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
(in millions, except per share, employee, shareholder and statistical data)
INTRODUCTION
This discussion summarizes the significant factors affecting the results of
operations and financial position of Crown Cork & Seal Company, Inc. (the
"Company") during the three-year period ended December 31, 1996. This discussion
should be read in conjunction with the Letter to Shareholders and the
Consolidated Financial Statements included in this annual report.
Effective February 22, 1996, the Company completed its acquisition of
CarnaudMetalbox (CMB). The consolidated financial statements include the results
of CMB operations from this date.
The financial results for 1996 were impacted by restructuring charges totaling
pre-tax $39.8 ($31.7 after taxes or $.26 per share).
The financial results for 1995 and 1994 were impacted by a two-phase
restructuring plan outlined by the Company in March 1994. Pre-tax income was
charged for $102.7 ($67.0 after taxes or $.74 per share) and $114.6 ($73.2 after
taxes or $.82 per share), in 1995 and 1994, respectively.
Further information concerning the details of the restructuring plan, including
a reconciliation of the restructuring accrual, is included in Note I of the
Consolidated Financial Statements and under Restructuring as provided later in
this discussion.
RESULTS OF OPERATIONS
NET SALES
Net sales during 1996 were $8,331.9, an increase of $3,278.1 or 64.9% versus
1995 net sales of $5,053.8. Net sales during 1994 were $4,452.2. Sales from
domestic operations decreased 1.5% in 1996 compared with a 13.7% increase in
1995. Foreign sales increased 198.3%, in 1996 following a 13.2% increase in
1995. Domestic sales accounted for 39.9% of consolidated sales in 1996, 66.8% in
1995 and 66.7% in 1994.
<TABLE>
<CAPTION>
% Increase/
Net Sales (Decrease)
DIVISION 1996 1995 1994 1996/1995 1995/1994
<S> <C> <C> <C> <C> <C>
Americas.................................... $3,625.9 $3,903.8 $3,479.7 (7.1) 12.2
Europe...................................... 4,165.9 914.3 758.1 355.6 20.6
Asia-Pacific................................ 376.2 151.9 126.5 147.7 20.1
Other....................................... 163.9 83.8 87.9 95.6 (4.7)
-------- -------- --------
$8,331.9 $5,053.8 $4,452.2 64.9 13.5
======== ======== ========
</TABLE>
The decrease in 1996 Americas Division net sales is a result of (i) decreased
raw material prices which forced decreases in selling prices, primarily in PET
bottles and aluminum beverage cans and ends, (ii) a seven week work stoppage at
eight plants and (iii) weaker economic conditions in Argentina and Brazil;
partially offset by (i) the inclusion of Anchor Hocking Packaging acquired as
part of the CMB transaction and (ii) sales unit volume increases in aluminum
beverage ends, food cans, aerosol cans and plastic closures. The increase in
1995 Americas Division net sales is a result of (i) increased raw material
prices which forced increases in selling prices, primarily in PET bottles and
aluminum cans and ends (ii) sales unit volume increases in PET bottles and food
cans and (iii) a full year's sales from the Company's food can plants acquired
from Tri-Valley Growers in June 1994; partially offset by (i) sales unit volume
decreases in aerosol cans and aluminum beverage cans and ends and (ii) the
weakening of the Mexican peso against
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<PAGE>
Crown Cork & Seal Company, Inc.
the U.S. dollar during 1995. U.S. sales accounted for approximately 84.2% of
division net sales in 1996, 85.4% in 1995 and 83.9% 1994.
Net sales in the European Division, which includes Europe, Africa and the Middle
East, increased in 1996 over 1995 due to the acquisition of CMB. Net sales for
the Company's existing European Division operations were down 18.4% in 1996
compared to 1995 due primarily to: (i) decreased PET resin prices which were
passed on to customers in the form of lower selling prices, (ii) lower sales
unit volumes of PET bottles, (iii) aggressive pricing from competition for
beverage closures, (iv) the closure of an aluminum beverage end plant and (v)
the divestiture of aerosol operations in Italy and the United Kingdom as
required by the European Commission in connection with the CMB acquisition.
Comparable sales from CMB's historical operations were marginally lower than
1995 due to: (i) lower volumes and selling prices for plastic packaging, (ii)
soft market conditions for specialty packaging led by the shift from metal to
plastic in the industrial specialty sector, and (iii) the required divestiture
of CMB aerosol operations in France, Germany and Spain. The appreciation of the
U.S. dollar against most European and African currencies decreased division
sales by $121 compared to 1995. Excluding the translation effect on sales and
the impact of the aerosol divestiture, sales in aerosol and beverage cans
increased while plastic and specialty packaging sales were down compared to
1995. Food can sales in 1996 were up marginally as growth in Eastern Europe, the
United Kingdom and Belgium offset declines in Germany and Italy. Pricing
remained very competitive across all product lines. The increase in 1995
European Division net sales is primarily a result of (i) increased aluminum and
PET resin costs passed on to customers in the form of increased selling prices,
(ii) continued expansion of operations at the Company's beverage can and plastic
cap operations in the United Arab Emirates, (iii) increased sales volumes at the
Company's dedicated aerosol plant in Mijdrecht, The Netherlands, (iv) plastic
closure expansion in Italy, and (iv) the strengthening of many European
currencies against the U.S. dollar which increased division sales by $47.
Net sales in the Asia-Pacific Division have increased due to the addition of CMB
operations. On a comparative basis to 1995, net sales in the division were
adversely impacted by the Company's decision to close four three-piece plants in
China acquired as part of the CMB acquisition. Additionally, excess beverage can
capacity and aggressive competitive pricing depressed volumes and eroded selling
prices in China. These factors were partially offset by increased sales at new
Company beverage plants in Beijing and Shanghai. Net sales outside of China were
in line with 1995 as sales unit volumes of beverage cans and food cans were
strong in Thailand and increased sales contributions from new operations in
Vietnam offset lower sales in Malaysia and Singapore. The increase in 1995
Asia-Pacific Division net sales was primarily a result of the start-up of
beverage can operations in Shanghai, China, the acquisition of a beverage can
and end plant in Huizhou, China, plastic closure expansion in Thailand and the
increase in aluminum can and end sheet prices which forced increases in selling
prices.
COST OF PRODUCTS SOLD
Cost of products sold, excluding depreciation and amortization for 1996 was
$6,732.5, a 55.9% increase from the $4,319.4 in 1995, following increases of
16.5% and 6.5% in 1995 and 1994, respectively. The increase in 1996 cost of
products sold is directly attributable to the increased net sales level in 1996
partially offset by decreased raw material prices, particularly aluminum and PET
resin. The increase in 1995 cost of products sold primarily reflects (i)
increased raw material prices, particularly aluminum and PET resin, (ii)
increased unit sales in PET bottles in the U.S. and Europe and (iii) increased
unit sales in aluminum beverage cans and ends in South America, the Middle East
and China. The increase in 1994 cost of products sold was primarily a result of
increased sales levels offset by lower raw material costs and company-wide cost
containment programs.
As a percentage of net sales, cost of products sold was 80.8% in 1996 as
compared to 85.5% in 1995 and 83.2% in 1994.
-11-
<PAGE>
Crown Cork & Seal Company, Inc.
SELLING AND ADMINISTRATIVE
Selling and administrative expenses for 1996 were $387.2, an increase of 178.0%
over 1995 compared to increases of 2.9% for 1995 and 7.0% for 1994. The large
increase in 1996 is directly attributable to the acquisition of CMB whose
general and administrative activities are highly decentralized and which
operates many business units in countries in which social costs are very high.
As a percentage of net sales, selling and administrative expenses were 4.6% in
1996, 2.8% in 1995 and 3.0% in 1994.
OPERATING INCOME
The Company views operating income as the principal measure of performance
before interest costs and other non-operating expenses. Operating income, after
restructuring charges, was $676.5, $236.1 and $277.7 in 1996, 1995 and 1994,
respectively. Operating income of $716.3 in 1996, before the restructuring
charge of $39.8, was $377.5 or 111.4% greater than in 1995. Operating income of
$338.8 in 1995, before the restructuring charge of $102.7, was $53.5 or 13.6%
less than in 1994. Operating income, before restructuring, as a percentage of
net sales was 8.6% in 1996 as compared to 6.7% in 1995 and 8.8% in 1994.
An analysis of operating income, before restructuring, by operating division
follows:
<TABLE>
<CAPTION>
% Increase/
Operating Income (Decrease)
DIVISION 1996 1995 1994 1996/1995 1996/1995
<S> <C> <C> <C> <C> <C>
Americas.................................... $200.3 $227.1 $295.6 (11.8) (23.2)
Europe...................................... 490.0 70.7 64.2 593.1 10.1
Asia-Pacific................................ 10.7 31.0 25.8 (65.5) 20.2
Other....................................... 15.3 10.0 6.7 53.0 49.3
------ ------ ------
$716.3 $338.8 $392.3 111.4 (13.6)
====== ====== ======
</TABLE>
Operating income in the Americas Division was 5.5% of net sales in 1996 versus
5.8% in 1995 and 8.5% in 1994. The decrease in 1996 operating margins was due
to: (i) continued pricing pressures in both metal and plastic beverage
containers, (ii) a seven week work stoppage at eight plants; (iii) lower sales
unit volumes of PET bottles and (iv) weaker economic conditions in Argentina and
Brazil, partially offset by; (i) the benefits accruing from the restructuring
programs initiated in the U.S. in 1995 and 1994, (ii) sales unit volume
increases in aluminum beverage ends, food cans, aerosol cans and plastic
closures, (iii) increased sales volumes and improved productivity in Canada and
Mexico and (iv) the inclusion of Anchor Hocking Packaging, acquired as part of
the CMB transaction. Operating income in 1995 decreased compared to 1994 due to
increases in raw material costs, principally steel and aluminum, which were not
fully passed through to customers, and sales unit volume declines in aerosol
cans and aluminum beverage cans and ends; partially offset by sales unit volume
increases in food cans, as the division benefited from a full year of operations
of the Tri-Valley container plants acquired in June 1994 and the benefits
associated with the Company's three-piece steel food and aerosol plant
restructuring program initiated in 1994. The Company's suppliers of aluminum can
and end sheet implemented a new pricing structure for 1995 which, by formula, is
directly tied to the price of ingot on the London Metal Exchange (LME). The
formula takes the LME spot price of aluminum ingot and adds other costs to
convert and transport aluminum, thereby effectively transferring the volatility
in the commodity markets to the Company. This pricing formula remained in effect
during 1996. During 1996, the Company entered into contracts with its suppliers
of aluminum can and end sheet which, by formula, guarantees prices for a period
of six months. This pricing structure is directly tied to a rolling average of
the prior six months' market price of aluminum on the LME. Further, "ceiling"
prices have been established under these contracts which set maximum prices that
the Company would pay for aluminum.
European Division operating income was 11.8% as a percentage of net sales in
1996 compared to 7.7% in 1995 and 8.5% in 1994. The increase in operating income
in 1996 is directly attributable to the addition of CMB operations, primarily
its food, beverage and aerosol can businesses. Operating margins for the
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<PAGE>
Crown Cork & Seal Company, Inc.
Company's existing facilities in Europe were lower than 1995 levels due
primarily to competitive pressures resulting in reduced volumes and prices for
metal and plastic packaging. Comparable operating margins for acquired CMB
operations were ahead of 1995 levels due to (i) sales unit volume gains in food,
beverage and aerosol cans and (ii) cost reduction programs in which the Company
began streamlining (a) inefficient plants, (b) excess administrative overheads
and (c) negative contribution products. Partially offsetting these gains were
(i) increased prices for tinplate and (ii) volume erosion and pricing pressure
from soft markets in specialty packaging and plastics. Operating income in 1995
increased over 1994 as a result of (i) increased sales unit volumes in beverage
cans, aerosol cans, plastic closures and plastic bottles and (ii) the
strengthening of many European currencies against the U.S. dollar. As a
percentage of net sales, operating income in 1995 decreased compared to 1994 due
primarily to product mix and increased raw material costs.
Operating income in the Asia-Pacific Division was 2.8% of net sales in 1996
versus 20.4% in 1995 and 20.4% in 1994. The decrease in 1996 operating margins
was due primarily to the addition of CMB operations as excess beverage can
capacity and competitive pricing has significantly eroded profits in China.
Other factors affecting operating margins were (i) lower sales volumes and
competitive pricing in Malaysia (ii) competitive beverage can pricing in
Singapore, (iii) sales unit volume declines in three-piece cans in Singapore and
(iv) new plant start-ups in China, Singapore and Vietnam; partially offset by
(i) strong beverage and food can volumes in Thailand and (ii) increased
efficiencies in Shanghai. Operating income in 1995 increased over 1994 due to
plastic closure expansion in Thailand and increased efficiencies at beverage
plants in China.
FOREIGN EXCHANGE
During 1996 the Company recorded a foreign exchange gain of $42.1 due to the
impact of a stronger U.S. dollar on the Company's CMB acquisition financing,
denominated in French Francs. This French Franc acquisition debt was
subsequently refinanced into several functional currencies during 1996.
Unfavorable adjustments of $5.6 resulted primarily from the remeasurement of the
Company's operations in highly inflationary economies.
NET INTEREST EXPENSE/INCOME
Net interest expense was $305.8 in 1996, an increase of $169.7 when compared to
1995 net interest expense of $136.1. Net interest expense was $91.6 in 1994. The
increase in 1996 net interest expense is directly attributable to borrowings
which funded the acquisition of CMB. The increase in 1995 net interest expense
was due primarily to (i) higher interest rates, (ii) acquisition financing for
recent companies acquired and (iii) the substantial capital investment program
that the Company had entered into during 1993 through 1995. Specific information
regarding acquisitions is found in Note H to the Consolidated Financial
Statements, while information specific to Company financing is presented in the
Liquidity and Capital Resources section of this discussion and Notes J and K to
the Consolidated Financial Statements.
TAXES ON INCOME
The effective tax rates on income were 31.2%, 22.7% and 30.4% in 1996, 1995, and
1994, respectively. The effective rate is lower than the U.S. statutory rate of
35% as a result of lower effective rates in non-U.S. operations, higher non-U.S.
income as a percentage of consolidated income and the continuing re-evaluation
of reserve and valuation allowance requirements; partially offset by
non-deductible amortization of goodwill and other intangibles. A reconciliation
of the Company's effective tax rate from the U.S. statutory rate is presented in
Note O to the Consolidated Financial Statements.
MINORITY INTERESTS, NET OF EQUITY IN EARNINGS OF AFFILIATES
Minority interests in net income of affiliates were $5.4, $13.6, and $12.4 in
1996, 1995, and 1994, respectively. The decrease in minority interests primarily
relates to restructuring losses in South Africa and start-up losses in Brazil,
Vietnam and Beijing partially offset by increased sales volumes and earnings in
-13-
<PAGE>
Crown Cork & Seal Company, Inc.
the United Arab Emirates, Hong Kong, Turkey and from CMB operations in Greece,
Thailand and Singapore.
Equity in (losses)/earnings of affiliates was a loss of $7.2, and earnings of
$3.9 and $16.3 for 1996, 1995, and 1994, respectively. The decrease in equity
earnings in 1996 is due primarily to decreased sales volumes in the Company's
non-consolidated affiliates in Korea and Brazil. Additionally, start-up losses
in Jordan and the devaluation of the bolivar which resulted in losses in the
Company's Venezuelan joint venture were partially offset by increased sales
volume and earnings in Saudi Arabia and CMB operations in Morocco. The decrease
in equity earnings in 1995 was due to both rising aluminum costs and decreased
volumes in Saudi Arabia and Korea. The late 1995 devaluation of the bolivar,
which eliminated profits in the Company's Venezuelan joint-venture, and slow
start-ups in the Company's new ventures in Jordan and Brazil also contributed to
the decrease in equity earnings.
The Company continues to invest in emerging market projects which offer
substantial rewards as well as exposure to sometimes volatile economies. These
markets provide excellent future growth potential for the Company's products and
services. The Company believes that the use of business partners in many
overseas locations presents another means of entering new markets.
The Company has presented minority interests, net of equity in earnings of
affiliates (the components of which can be found in Notes D and P to the
Consolidated Financial Statements), as a separate component of net income.
Management believes that presenting such earnings as a component of pre-tax
income would distort the Company's effective tax rate, and as such, has
presented minority interests after the provision for income taxes.
NET INCOME AND EARNINGS PER SHARE
Net income for 1996 was $264.2 compared with $74.9 for 1995 and $131.0 in 1994.
Earnings per share for 1996 were $2.16 compared with $.83 and $1.47 in 1995 and
1994, respectively. Excluding the provision for restructuring, 1996 net income
increased 108.5% to $295.9 and 1996 earnings per share increased 54.1% to $2.42
compared to 1995. Excluding the provision for restructuring, 1995 net income and
earnings per share decreased 30.5% and 31.4%, respectively compared to 1994
while 1994 increased 12.9% and 10.1%, respectively over 1993. The sum of per
share earnings by quarter does not equal earnings per share for the years ended
December 31, 1996, 1995 and 1994 due to the effect of shares issued during 1996,
1995, and 1994.
INDUSTRY SEGMENT PERFORMANCE
This section presents individual segment results for the last three years. The
after-tax charge of $31.7 or $.26 per share related to 1996 restructuring is
included in the Metal Packaging segment (Metals) and is excluded in making
comparisons to 1996 results. The after-tax charge of $67.0 or $.74 per share
related to the 1995 restructuring charge is included as an after-tax charge in
Metals of $60.1 or $.67 per share and an after-tax charge of $6.9 or $.07 per
share in the Plastics Packaging segment (Plastics) and is excluded in making
comparisons to 1995 results. The after-tax charge of $73.2 or $.82 per share
related to the 1994 restructuring charge is included as an after-tax charge in
Metals and is excluded in making comparisons to 1994 results.
Net sales for Metals in 1996 were $6,619.7, an increase of 73.7% compared to
1995 net sales of $3,811.1. Net sales in 1994 were $3,494.3. Metals sales in
1996 increased over 1995 due to the CMB acquisition, partially offset by
decreased aluminum prices which were passed on to customers in the form of lower
selling prices. Metals sales in 1995 increased over 1994 as a result of (i)
increased raw material prices, particularly aluminum, which were partially
passed on to customers in the form of higher selling prices, (ii) increased
sales unit volumes in food cans in the U.S. and (iii) increased sales unit
volumes in Argentina, China, The Netherlands and the United Arab Emirates.
-14-
<PAGE>
Crown Cork & Seal Company, Inc.
Metals operating income in 1996 was $497.6, before restructuring charges of
$39.8 or 7.5% of net sales compared to 1995 operating income of $253.6 or 6.7%
of net sales, before restructuring charges of $94.4. Operating income in 1994
was $315.9 or 9.0% of net sales, before restructuring charges of $114.6. The
increase in Metals operating income in 1996 is directly attributable to the
European food, beverage and aerosol businesses acquired with CMB and increased
margins in the North American food and beverage businesses due to improved
manufacturing efficiencies, a result of prior restructuring and capital
expenditure programs.
Net sales for Plastics increased $469.5 or 37.8% in 1996 from $1,242.7 in 1995.
The increase in 1996 Plastics net sales is due entirely to Plastic businesses
acquired with the CMB transaction offset by decreased PET prices which were
passed on to customers in the form of lower selling prices. Net sales for 1995
increased $284.8 or 29.7% against 1994 net sales of $957.9. The increase in 1995
was primarily a result of the increased unit capacity in the Company's CONSTAR
plants. The increased capacity had been generated through significant capital
investments during the three years ending December 31, 1995.
Plastics operating income in 1996 was $218.7 or 12.8% of net sales as compared
to 1995 operating income of $85.2 or 6.9% of net sales, before restructuring
charges of $8.3. Operating income in 1994 was $76.4 or 8.0% of net sales. The
increase in Plastics operating income in 1996 is due to the CMB acquisition as
profits in all sectors of Plastics but PET beverage bottles offset increasing
price competition in PET beverage bottles. Additionally, as a percentage to net
sales, Plastics operating income increased in 1996 due to the effect of PET
resin price decreases. The decrease in Plastics operating income in 1995 was a
result of increased PET resin costs not fully recovered due to competitive
pressures in the PET beverage bottle market.
FINANCIAL POSITION
LIQUIDITY AND CAPITAL RESOURCES
The Company's financial position remains strong. Cash and cash equivalents
totaled $160.4 at December 31, 1996 compared to $68.1 and $43.5 at December 31,
1995 and 1994, respectively. The Company's primary sources of cash in 1996
consisted of (i) funds provided from operations $911.2; (ii) the sale of
businesses $107.9; and, (iii) proceeds from long-term borrowings $2,075.1. The
Company's primary uses of cash in 1996 consisted of (i) the acquisition of CMB
$1,537.5; (ii) capital expenditures of $631.2; (iii) net change in short-term
debt $423.3; and, (iv) dividends paid $145.4. Improved cash from operations has
resulted from (i) growth in net income before non-cash charges for depreciation
and amortization, (ii) the portion of the seasonal buildup of CMB's inventories
occurring before the acquisition date and (iii) reduced working capital
requirements due to lower raw material costs.
The Company funds its working capital requirements on a short-term basis
primarily through issuances of commercial paper. At December 31, 1996 the
commercial paper program was supported by a $1,000 multi-currency credit
facility which was formalized in February 1995, maturing in February 2000 with
interest at market rates. The Company's use of the facility was not restricted.
At December 31, 1996 and December 31, 1995, there were no funds drawn against
this facility. Based on the Company's intention and ability to maintain its
credit facility beyond 1997 and 1996, respectively, $700 and $300 of commercial
paper borrowings were classified as long-term at December 31, 1996 and 1995,
respectively. There was $932.1 and $761.2 in commercial paper outstanding at
December 31, 1996 and 1995, respectively.
On February 4,1997, the Company's $1,000 multicurrency credit facility and FRF
13,700 credit agreement were replaced with a new multicurrency revolving credit
agreement with a group of domestic and foreign banks. The new agreement makes
available $2,500 through 2002. Borrowings under the new agreement are unsecured
and bear interest at variable market rates. Borrowings outstanding under the
prior FRF 13,700 credit agreement, amounting to $493.1 at December 31,1996, were
refinanced under this new agreement.
-15-
<PAGE>
Crown Cork & Seal Company, Inc.
On December 1, 1995, the Company entered into a Revolving Credit and Term Loan
Agreement (Credit Agreement) with a syndicate of financial institutions.
Pursuant to the Credit Agreement, the lenders made available to the Company
French Francs (FRF) 13,700 in a multi-currency revolving credit facility to fund
the cash portion of the consideration to be paid in connection with the
Company's proposed Offer (see Acquisition of CarnaudMetalbox below for
description of the Offer) to purchase all of the outstanding shares of CMB, to
fund the costs and expenses of the Offer, to repurchase shares of capital stock
of the Company, or, following the Offer, to be used for general corporate
purposes. Borrowings under the facility were permitted in FRF, U.S. Dollars and
British Pound Sterling and bear interest at variable market rates. There were no
borrowings under this facility at December 31, 1995. A total of FRF 9,100
(approximately $1,800) was drawn on February 22, 1996 to fund the purchase of
shares from those CMB shareholders electing cash (approximately 40.1 million CMB
shares at FRF 225 per share).
On November 26,1996, the Company filed with the Securities and Exchange
Commission a shelf registration statement for the offer and sale of up to $1,300
aggregate principal amount of debt securities of the Company. This amount was
combined with the remaining $200 from the December 1994 shelf registration,
providing an aggregate $1,500 funding availability. On December 12,1996, the
Company sold $1,200 of these public debt securities in five separate tranches,
with maturities ranging from seven to 100 years. The issuers were the Company
and two wholly-owned finance subsidiaries located in the United Kingdom and
France, whose borrowings are fully guaranteed by the Company. The face value of
the notes bear interest rates ranging from 6.75% to 7.38%.The offerings by the
subsidiaries were simultaneously converted into fixed rate, 8.28% Sterling and
5.75% French Franc obligations through interest rate and currency swaps with
various counterparties. Proceeds from the offering were used to repay
acquisition indebtedness arising from the CMB acquisition.
On December 20, 1994, the Company filed with the Securities and Exchange
Commission a shelf registration statement for the possible offering and sale of
up to $500 aggregate principal amount of debt securities of the Company. On
January 15, 1995, the Company sold $300 of public debt securities. This first
tranche of the shelf registration includes $300 of 8.38% notes due 2005, priced
at 99.79% to yield 8.4%. Net proceeds from the issue were used to reduce
short-term indebtedness. The Company's long-term debt securities are rated Baa1
by Moody's Investors Service and BBB+ by Standard & Poor's Corporation.
The Company has, when considered appropriate, hedged its currency exposures on
its foreign denominated debt through various agreements with lending
institutions. The Company also utilizes a corporate "netting" system which
enables resources and liabilities to be pooled and then netted. The Company also
enters into interest rate and currency swaps and forward exchange contracts in
its management of interest rate and foreign currency exposure. These financial
instruments are more fully described in Notes J and K to the Consolidated
Financial Statements.
The Company's ratio of total debt (net of cash and cash equivalents) to total
capitalization was 56.4%, 56.2% and 55.3% at December 31, 1996, 1995 and 1994,
respectively. Total capitalization is defined by the Company as total debt,
minority interests and shareholders' equity. The increase in the Company's total
debt in recent years is due to acquisition activity, particularly the 1996
acquisition of CMB and the significant capital expenditure program which the
Company has committed to in the last three years. As of December 31, 1996, $48.5
of long-term debt matures within one year.
Management believes that, in addition to current financial resources (cash and
cash equivalents and the Company's commercial paper program), adequate capital
resources are available to satisfy the Company's ongoing investment programs.
Such sources of capital would include, but not be limited to, bank borrowings.
Management believes that the Company's cash flow is sufficient to maintain its
current operations.
-16-
<PAGE>
Crown Cork & Seal Company, Inc.
ACQUISITION OF CARNAUDMETALBOX
On February 26, 1996, the Company completed settlement of its previously
announced Exchange Offer (the "Offer") to acquire all of the outstanding shares
of common stock, par value FRF 10 per share, of CMB, a French societe anonyme.
Under the terms of the Offer, the Company offered to exchange or purchase each
CMB share validly tendered in the Offer for, at the election of the holder,
either (1) 1.086 Units, each Unit consisting of .75 shares of Crown common
stock, par value $5.00 per share and .25 shares of Crown 4.5% Convertible
Preferred Stock, par value $41.8875 per share (acquisition preferred) or (2) FRF
225 in cash. The Offer was made pursuant to the terms of the Exchange Offer
Agreement dated May 22, 1995, as amended, between the Company and Compagnie
Generale d'Industrie et de Participations (CGIP), a French societe anonyme and
the principal shareholder of CMB. A description of the Exchange Offer Agreement
was previously reported in the Company's Current Report on Form 8-K dated May
22, 1995 and the Company's Proxy Statement/Prospectus, dated November 14, 1995
forming a part of the Company's Amendment No. 1 to its Registration Statement on
Form S-4 filed with the Securities and Exchange Commission on November 14, 1995.
85,932,200 CMB shares, representing approximately 98.7% of the outstanding CMB
shares, were validly tendered into the Offer. Of the CMB shares tendered,
40,125,325 were tendered for cash (aggregating approximately FRF 9,000 or
approximately $1,800) and 45,797,825 were exchanged for Units (resulting in the
Company issuing 37,300,818 shares of common stock and 12,432,622 shares of
acquisition preferred). Pursuant to the terms of the Exchange Offer Agreement,
CGIP exchanged its CMB shares for Units and received 21,330,903 shares of common
stock and 7,110,300 shares of acquisition preferred. The Company acquired the
remaining outstanding shares of CMB during the second quarter of 1996. On
October 24, 1996, the Company announced that CGIP had sold a portion of its
investment in the Company to a group of underwriters. CGIP sold 10,637,500
shares of the Company's common stock and 3,450,000 shares of the Company's 4.5%
convertible preferred stock, resulting in total gross proceeds to CGIP of $644.6
million, before underwriting discounts, commissions and expenses. Upon
completion of the offering, CGIP owned common and convertible preferred stock
representing approximately 10.1% of the Company's voting power versus 19.9%
previously. The Company did not receive any of the proceeds from these secondary
offerings. CGIP's shares of common stock and acquisition preferred are held
pursuant to the Shareholders Agreement more fully described below.
The financing for the cash portion of the consideration paid in the Offer was
obtained pursuant to the Credit Agreement as more fully described earlier in
this discussion.
In accordance with the terms of the Exchange Offer Agreement, the Company has
adopted Amended and Restated Articles of Incorporation and the terms of
preferred stock and has amended and restated its Bylaws.
Pursuant to the Exchange Offer Agreement, the Company and CGIP entered into a
Shareholders Agreement dated as of February 22, 1996. Subject to the terms of
the Shareholders Agreement, CGIP has agreed to certain standstill provisions
which prohibit CGIP from acquiring beneficial ownership of voting securities
representing more than 19.95% of the outstanding total voting power of the
Company, making a takeover proposal of the Company or its subsidiaries and
taking certain other actions.
The Shareholders Agreement provides that CGIP is entitled to designate up to
three persons to be nominated for election as directors of the Company at each
annual meeting of Company shareholders, depending on the amount of Company
voting securities beneficially owned by CGIP. On February 22, 1996, the
Company's Board of Directors elected Ernest-Antoine Seilliere, Guy de Wouters
and Felix G. Rohatyn, who is not standing for reelection in 1997, to the
Company's Board in accordance with this provision.
CGIP has also agreed to vote any Company voting securities beneficially owned by
CGIP during the standstill period (as defined in the Shareholders Agreement), in
the manner recommended by the Company's Board of Directors in connection with
the election of directors of the Company and any question relating to a takeover
proposal. The standstill period began on February 22, 1996 and terminates under
-17-
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Crown Cork & Seal Company, Inc.
certain circumstances upon the earliest to occur of (i) the later of February
22, 1999 and the date on which CGIP beneficially owns voting securities of the
Company representing less than 3.5% of the outstanding total voting power of the
Company, (ii) the date the Company breaches certain provisions relating to
CGIP's board representation or the Company's dividend policy or debt rating,
(iii) the date the Company agrees to recommend (or ceases to oppose) the
consummation of a specified event (as defined in the Shareholders Agreement) or
enters into, or takes material steps to solicit, an agreement with respect to
certain fundamental corporate transactions involving the Company or its
subsidiaries, (iv) the date a person other than CGIP acquires 25% of the total
voting power of the Company, or (v) the date any CGIP Designee fails to be
elected to the Company's Board of Directors.
The Shareholders Agreement also contains provisions relating to the Company's
dividend policy and debt rating, certain restrictions on CGIP's sale or transfer
of Company stock and CGIP's registration rights with respect to its shares of
Company stock.
PROVISION FOR RESTRUCTURING
During 1996, the Company provided $39.8 ($31.7 after taxes or $.26 per share)
for the costs associated with exiting certain lines of business in its South
African operations, the closure of a South American operation and costs
associated with restructuring existing businesses in Europe. The Company
anticipates that the restructuring actions referred to above, when complete,
will generate approximately $10.7 in after-tax cost savings on an annualized
basis.
The Company has made an assessment of the restructuring and exit costs to be
incurred relative to the acquisition of CMB. Affected by the plan of
restructuring are thirty-four regional administrative offices and plants to be
closed and approximately thirty-eight plants to be reorganized. The cost of
providing severance pay and benefits for the reduction of approximately 6,800
employees (approximately 3,100 positions eliminated by the end of 1996) is
approximately $269 and is primarily a cash expense. Actual expenditures for
severance pay and benefits through December 31, 1996 amounted to approximately
$70. Employees to be terminated include most, if not all, employees at each
plant to be closed or reorganized including salaried employees and employees of
the respective unions represented at each plant site. The cost associated with
the writedown of assets (principally property, plant and equipment) is
approximately $185 and has been reflected as a reduction in the carrying value
of the Company's assets at December 31, 1996. Lease termination and other exit
costs, primarily repayments of government grants and subsidies approximates $49
of the provision and is primarily a cash expense of which $25 had been expended
as of December 31, 1996. Details of the restructuring are also presented in Note
I to the Consolidated Financial Statements.
The Company estimates that the plan of restructuring CMB operations when
complete, will generate annual costs savings of approximately $160 ($105
after-tax) on a full year basis. It is also estimated that capital expenditures
of approximately $125 will be made to expand and upgrade other facilities to
minimize the adverse effects of the restructuring on existing business and
customer relationships.
During 1995 and 1994, the Company recorded pre-tax restructuring charges of
$102.7 ($67.0 after taxes or $.74 per share) and $114.6 ($73.2 after taxes or
$.82 per share), respectively, as part of a two-phase restructuring plan
outlined in March 1994. The combined plan was implemented to streamline the
Company's North American operations to improve productivity and to enhance
competitiveness. The 1995 and 1994 restructuring plans have been completed as of
December 31, 1996.
CAPITAL EXPENDITURES
Consolidated capital expenditures totaled $631.2 in 1996 as compared with $433.5
in 1995. Minority partner contributions to consolidated capital expenditures
were approximately $88 and $51 in 1996 and 1995, respectively. During the past
five years, capital expenditures totaled $1,926.4.
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Crown Cork & Seal Company, Inc.
Expenditures in the Americas Division totaled $201 including ongoing projects to
convert beverage can and end lines in the U.S. to the 202 diameter from the 206
diameter, the construction of a beverage can and end plant in Brazil and several
single-serve PET preform and bottle lines in the U.S.
Investments of $296 were made in the European Division. The Company began
construction of a new beverage can and end plant in South Africa as well as
installation of additional beverage can lines in existing facilities in Spain
and Turkey. The Company also began conversion of 206 diameter lines to the 202
diameter in France, Greece and the UK. The Company also began the first phase of
a PET preform center in Italy as well as investing in several easy open food can
end lines.
Spending in the Asia-Pacific Division for 1996 totaled $90 as the Company
completed the construction of beverage can plants in Hanoi, Vietnam; Beijing,
China and Tuas, Singapore. The Company also began the expansion of its beverage
can and end plant in Huizhou, China as well as construction of a PET plant in
Beijing, China.
The Company expects its capital expenditures in 1997 to approximate $520
including joint-venture partner contributions estimated at approximately $20.
The Company plans to continue capital expenditure programs designed to take
advantage of technological developments which enhance productivity and contain
costs, as well as those that provide growth opportunities. Capital expenditures,
exclusive of potential acquisitions, during the five-year period 1997 through
2001 are expected to approximate $2,500, including $300 being contributed from
joint-venture partners. Cash flow from operating activities will provide support
for these expenditures; however, depending upon the Company's evaluation of
growth opportunities and other existing market conditions, external financing
may be required from time to time.
ENVIRONMENTAL MATTERS
The Company has adopted a Corporate Environmental Protection Policy. The
implementation of this Policy is a primary management objective and the
responsibility of each employee of the Company. The Company is committed to the
protection of human health and the environment, and is operating within the
increasingly complex laws and regulations of national, state, and local
environmental agencies or is taking action aimed at assuring compliance with
such laws and regulations. Environmental considerations are among the criteria
by which the Company evaluates projects, products, processes and purchases, and,
accordingly, does not expect compliance with these laws and regulations to have
a material effect on the Company's competitive position, financial condition,
results of operations or capital expenditures.
The Company is dedicated to a long-term environmental protection program and has
initiated and implemented many pollution preventing programs with the emphasis
on source reduction. The Company continues to reduce the amount of metal and
plastic used in the manufacture of steel, aluminum and plastic containers
through "lightweighting" programs. The Company not only recycles nearly 100
percent of scrap aluminum, steel, plastic and copper used in its manufacturing
processes, but through its Nationwide Recyclers subsidiary, is directly involved
in post-consumer aluminum, steel and plastics recycling. Additionally, the
Company has exceeded the United States Environmental Protection Agency's (EPA)
1995 goals for its 33/50 program which called for companies, voluntarily, to
reduce toxic air emissions by 33% by the end of 1992 and by 50% by the end of
1995, compared to the base year of 1988. The cost to accomplish this reduction
did not materially affect operating results. Many of the Company's programs for
pollution prevention lower operating costs and improve operating efficiencies.
The Company has been identified by the EPA as a potentially responsible party
(along with others, in most cases) at a number of sites. Estimated remedial
expenses for active projects are recognized in accordance with generally
accepted accounting principles governing probability and the ability to
reasonably estimate future costs. Actual expenditures for remediation were $6.0
during 1996 and $3.3 in 1995. The Company's balance sheet reflects estimated
gross remediation liabilities of $53.6 and $20.7 at December 31, 1996 and 1995,
respectively, and estimated recoveries related to indemnification from the
sellers of acquired companies and the Company's insurance carriers of $16.6 and
$15.5 at December 31, 1996 and 1995, respectively.
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Crown Cork & Seal Company, Inc.
Environmental exposures are difficult to assess for numerous reasons, including
the identification of new sites, advances in technology, changes in
environmental laws and regulations and their application, the scarcity of
reliable data pertaining to identified sites, the difficulty in assessing the
involvement of and the financial capability of other potentially responsible
parties and the time periods (sometimes lengthy) over which site remediation
occurs. It is possible that some of these matters (the outcome of which are
subject to various uncertainties) may be decided unfavorably against the
Company. It is however, the opinion of Company management, after consulting with
counsel, that any unfavorable decision will not have a material adverse effect
on the Company's financial position, cash flows or results of operations.
COMMON STOCK AND OTHER SHAREHOLDERS' EQUITY
Shareholders' equity was $3,563.3 at December 31, 1996, as compared with
$1,461.2 at December 31, 1995. The increase in 1996 equity represents the
retention of $264.2 of earnings in the business, a $17.3 minimum pension
liability adjustment as more fully described in Note N to the Consolidated
Financial Statements, the issuance of 37,300,818 common shares (common) and
12,432,622 shares of 4.5% cumulative convertible preferred stock (acquisition
preferred) in connection with the acquisition of CMB and the issuance of 459,165
common shares for various stock purchase and savings plans offset by dividends
declared on common of $128.2 and equity adjustments for currency translation in
non-U.S. subsidiaries of $145.4. The book value of each share of common stock at
December 31, 1996 was $23.69 as compared to $ 16.12 at December 31, 1995.
In 1996, the return on average shareholders' equity before restructuring was
11.7% as compared to 9.6% in 1995. Including the restructuring charges, the
return on average shareholders' equity was 10.5% in 1996 compared to 5.3% in
1995.
The Board of Directors has approved resolutions authorizing the Company to
repurchase shares of its common stock to meet the requirements for the Company's
various stock purchase and savings plans. The Company acquired 7,401 shares and
347,360 shares of common stock in 1995 and 1994 for $.3 and $12.7, respectively.
There were no stock repurchases during 1996.
DIVIDENDS/ISSUANCE OF STOCK IN CONNECTION WITH CMB ACQUISITION
During 1996, the Company declared cash dividends totaling $128.2 representing a
quarterly dividend of $.25 per common share.
During 1995, the Company, pursuant to a shareholder rights plan, authorized the
distribution of one right per common share held, to be exercisable in certain
events involving the acquisition of 15 per cent or more of the Company's
outstanding common stock. Upon the completion of the CMB acquisition, the
Company's shareholders also authorized the Company to issue up to an additional
380 million shares of its common stock, up to 30 million shares of additional
preferred stock (additional preferred) and up to 50 million shares of
acquisition preferred. In connection with the completion of the CMB acquisition,
the Company, on February 26, 1996, issued approximately 37.3 million shares of
its common stock and 12.4 million shares of its acquisition preferred.
Subsequent to the issuance of the acquisition preferred, the number of
authorized shares of acquisition preferred was reduced and no further shares of
acquisition preferred shall be issued. The acquisition preferred, additional
preferred, and shareholder rights plan are more fully described in Note M to the
Consolidated Financial Statements.
During 1996 the Company filed a Registration Statement to register 10 million
shares of its common stock for implementation of a Dividend Reinvestment and
Stock Purchase Plan ("Plan"). The Plan covers all registered shareholders of the
Company's common stock as well as those beneficial owners who have either become
shareholders of record by having shares transferred into their name or by making
arrangements with their broker or other nominees to participate on their behalf.
During 1996, 3,527 shares of common stock were issued under the Plan.
-20-
<PAGE>
Crown Cork & Seal Company, Inc.
At December 31, 1996, common shareholders of record numbered 5,736 compared with
5,976 at the end of 1995. Total common shares outstanding were 128,410,797 at
December 31, 1996 compared to 90,650,814 at December 31, 1995. Total acquisition
preferred shares outstanding were 12,432,622 at December 31, 1996.
INFLATION
General inflation has not had a significant impact on the Company over the past
three years due to strong cash flow from operations. The Company continues to
maximize cash flow through programs designed for cost containment, productivity
improvements, and capital spending. Management does not expect inflation to have
a significant impact on the results of operations or financial condition in the
foreseeable future.
FORWARD LOOKING STATEMENTS
Statements included in Management's Discussion and Analysis of Results of
Operations and Financial Condition and the discussion of the restructuring plan
in Note I to the Consolidated Financial Statements included in this Annual
Report, which are not historical facts (including any statements concerning
plans and objectives of management for future operations or economic
performance, or assumptions related thereto), are "forward-looking statements",
within the meaning of the federal securities laws. In addition, The Company and
its representatives may from time to time make other oral or written statements
which are also "forward-looking statements".
These forward-looking statements are made based upon management's expectations
and beliefs concerning future events impacting the Company and therefore involve
a number of risks and uncertainties. Management cautions that forward-looking
statements are not guarantees and that actual results could differ materially
from those expressed or implied in the forward-looking statements.
Important factors that could cause the actual results of operations or financial
condition of the Company to differ include, but are not necessarily limited to,
the Company's ability to integrate CMB's operations into its existing operations
and to realize synergistic benefits from the CMB acquisition (including
effective raw material procurement, elimination of redundant selling, general
and administrative functions, and global product offerings) and the
consolidation and restructuring of the combined operations; ability to realize
cost savings from its restructuring programs; changes in raw material pricing
(including aluminum can sheet, steel tinplate, plastic resin, inks and coatings)
and the Company's ability to pass raw material price increases through to its
customers or to otherwise manage these commodity pricing risks; the Company's
ability to generate significant free cash flow to invest in its business and to
maintain appropriate debt levels; the Company's ability to realize efficient
capacity utilization and inventory levels and to innovate new designs and
technologies for its products in a cost-effective manner; changes in consumer
preferences for different packaging products; competitive pressures, including
new product developments or changes in competitors' pricing for products;
changes in governmental regulations or enforcement practices, especially with
respect to environmental, health and safety matters and restrictions as to
foreign investment or operation; changes in U.S. or international economic or
political conditions, such as, inflation or fluctuations in interest or foreign
exchange rates; the costs and other effects of legal and administrative cases
and proceedings, settlements and investigations; and changes in labor relations
and costs. Some of the factors noted above are discussed elsewhere in this
Annual Report and prior Company filings with the Securities and Exchange
Commission (the "SEC'). In addition, other factors have been or may be discussed
from time to time in the Company's SEC filings.
While Crown periodically reassesses material trends and uncertainties affecting
the Company's results of operations and financial condition in connection with
the preparation of Management's Discussion and Analysis of Results of Operations
and Financial Condition and certain other sections contained in the Company's
quarterly, annual or other reports filed with the SEC, the Company does not
intend to review or revise any particular forward-looking statement in light of
future events.
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<PAGE>
Crown Cork & Seal Company, Inc.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEX TO FINANCIAL STATEMENTS
Financial Statements
Report of Independent Accountants..................................23
Consolidated Statements of Income..................................24
Consolidated Balance Sheets........................................25
Consolidated Statements of Cash Flows..............................26
Consolidated Statements of Shareholders' Equity....................27
Notes to Consolidated Financial Statements.........................28
Financial Statement Schedule
Schedule II - Valuation and Qualifying Accounts
and Reserves......................................................47
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<PAGE>
Crown Cork & Seal Company, Inc.
REPORT OF INDEPENDENT ACCOUNTANTS
To the Shareholders and Board of Directors of Crown Cork & Seal Company, Inc.
In our opinion, the consolidated financial statements listed in the accompanying
index present fairly, in all material respects, the financial position of Crown
Cork & Seal Company, Inc. and its subsidiaries at December 31, 1996 and 1995,
and the results of their operations and their cash flows for each of the three
years in the period ended December 31, 1996, in conformity with generally
accepted accounting principles. These financial statements are the
responsibility of the Company's management; our responsibility is to express an
opinion on these financial statements based on our audits. We conducted our
audits of these statements in accordance with generally accepted auditing
standards which require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe our audits
provide a reasonable basis for the opinion expressed above.
PRICE WATERHOUSE LLP
Thirty South Seventeenth Street
Philadelphia, PA 19103
March 17, 1997
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<PAGE>
Crown Cork & Seal Company, Inc.
CONSOLIDATED STATEMENTS OF INCOME
(in millions, except per share amounts)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
1996 1995 1994
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net sales................................................. $8,331.9 $5,053.8 $4,452.2
-------- -------- --------
Costs, expenses and other income
Cost of products sold (excluding
depreciation and amortization)....................... 6,732.5 4,319.4 3,706.2
Depreciation and amortization.......................... 495.9 256.3 218.3
Selling and administrative expense..................... 387.2 139.3 135.4
Provision for restructuring . . Note I................. 39.8 102.7 114.6
Gain on sale of assets................................. (23.8) (8.4) (6.7)
Interest expense, net of interest income............... 305.8 136.1 91.6
Translation and exchange adjustments................... (36.5) (1.1) 10.1
-------- -------- --------
7,900.9 4,944.3 4,269.5
-------- -------- --------
Income before income taxes................................ 431.0 109.5 182.7
Provision for income taxes . . Note O.................. 134.4 24.9 55.6
-------- -------- --------
Income from operations.................................... 296.6 84.6 127.1
-------- -------- --------
Minority interests, net of
equity earnings . . Notes P and D.................... (12.6) (9.7) 3.9
-------- -------- --------
Net income................................................ 284.0 74.9 131.0
Preferred stock dividends . . Note M...................... 19.8
-------- -------- --------
Net income available to common
shareholders........................................... $264.2 $74.9 $131.0
======== ======== ========
- -----------------------------------------------------------------------------------------------------------------------------------
Average common share data:
Earnings.................................................. $2.16 $.83 $1.47
======== ======== ========
Dividends................................................. $1.00
======== ======== ========
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these financial statements.
Certain reclassifications of prior years' data have been made to improve
comparability.
-24-
<PAGE>
Crown Cork & Seal Company, Inc.
CONSOLIDATED BALANCE SHEETS
(in millions, except share data)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
December 31 1996 1995
- -----------------------------------------------------------------------------------------------------------------------------------
Assets
Current assets
<S> <C> <C>
Cash and cash equivalents........................................... $160.4 $68.1
Receivables . . Note B.............................................. 1,349.3 744.3
Inventories . . Note C.............................................. 1,423.8 811.9
Prepaid expenses and other current assets........................... 358.4 84.6
--------- --------
Total current assets......................................... 3,291.9 1,708.9
--------- --------
Long-term notes and receivables........................................ 82.2 63.5
Investments . . Note D................................................. 90.3 57.5
Goodwill, net of amortization.......................................... 4,809.9 1,095.7
Property, plant and equipment . . Note E............................... 3,717.3 2,005.9
Other non-current assets............................................... 598.6 120.2
--------- --------
Total....................................................... $12,590.2 $5,051.7
========= ========
Liabilities & Shareholders' Equity
Current liabilities
Short-term debt . . Note J.......................................... $1,105.8 $537.9
Current portion of long-term debt . . Note J........................ 48.5 70.2
Accounts payable and accrued liabilities . . Note F................. 2,460.9 668.2
United States and foreign income taxes.............................. 47.3 2.7
--------- --------
Total current liabilities.................................... 3,662.5 1,279.0
--------- --------
Long-term debt, excluding current maturities . . Note J................ 3,923.5 1,490.1
Other non-current liabilities . . Note G............................... 458.2 112.2
Postretirement and pension liabilities . . Note N...................... 738.9 590.6
Minority interests . . Note P.......................................... 243.8 118.6
Shareholders' equity
Preferred stock, 4.5% cumulative convertible, par value:
$41.8875 per share; authorized: 12,432,622; issued and
outstanding: 1996 - 12,432,622; 1995 - None . . Note M........... 520.8
Additional preferred stock, authorized: 30,000,000; none
issued. . Note M.................................................
Common stock with $5.00 par value per share;
1996 - Authorized 500,000,000; issued 155,791,632
1995 - Authorized 120,000,000; issued 118,490,814 . . Note M..... 779.0 592.5
Additional paid-in capital.......................................... 1,567.3 182.7
Retained earnings................................................... 1,185.0 1,049.0
Minimum pension liability . . Note N................................ (14.8) (32.1)
Cumulative translation adjustment................................... (337.1) (191.7)
Treasury stock (1996 - 27,380,835 shares;
1995 - 27,840,000 shares)........................................ (136.9) (139.2)
--------- --------
Total shareholders' equity .................................. 3,563.3 1,461.2
--------- --------
Total........................................................ $12,590.2 $5,051.7
========= ========
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these financial statements.
Certain reclassifications of prior years' data have been made to improve
comparability.
-25-
<PAGE>
Crown Cork & Seal Company, Inc.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in millions)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
1996 1995 1994
- -----------------------------------------------------------------------------------------------------------------------------------
Cash flows from operating activities
<S> <C> <C> <C>
Net income................................................... $ 284.0 $ 74.9 $ 131.0
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation and amortization.............................. 495.9 256.3 218.3
Provision for restructuring................................ 31.7 67.0 73.2
Foreign currency gain...................................... (42.1)
Gain on sale of assets..................................... (15.5) (5.5) (4.4)
Deferred income taxes...................................... 91.7 (3.2) (14.0)
Minority interests in earnings of subsidiaries............. 5.4 13.6 12.4
Equity in earnings of joint ventures, net of
dividends................................................ 14.5 1.5 (9.0)
Other, net................................................. (6.9) (4.2) 4.1
Changes in assets and liabilities, net of businesses acquired:
Receivables................................................ 247.2 (24.7) (185.5)
Inventories................................................ 20.3 (55.1) (37.8)
Accounts payable, accrued and other liabilities............ (193.8) (172.5) (162.8)
Other, net................................................. (21.2) 16.5 (18.7)
--------- --------- ---------
Net cash provided by operating activities.............. 911.2 164.6 6.8
--------- --------- ---------
Cash flows from investing activities
Capital expenditures......................................... (631.2) (433.5) (439.8)
Acquisition of businesses, net of cash acquired.............. (1,537.5) (14.2) (65.7)
Proceeds from sale of property, plant and
equipment.................................................. 32.6 26.8 7.7
Proceeds from sale of businesses............................. 107.9
Other, net................................................... (6.5) (17.1) (1.5)
--------- --------- ---------
Net cash used for investing activities................. (2,034.7) (438.0) (499.3)
--------- --------- ---------
Cash flows from financing activities
Proceeds from long-term debt................................. 2,075.1 365.4 154.8
Payments of long-term debt................................... (303.3) (209.0) (186.5)
Net change in short-term debt................................ (423.3) 99.8 495.6
Dividends paid............................................... (145.4)
Common stock:
Repurchase for treasury.................................... (.3) (12.7)
Issued under various employee benefit plans................ 11.0 21.2 16.3
Minority contributions, net of dividends paid................ 3.7 21.5 9.0
--------- --------- ---------
Net cash provided by financing activities.............. 1,217.8 298.6 476.5
--------- --------- ---------
Effect of exchange rate changes on cash and
cash equivalents............................................. (2.0) (.6) 5.3
--------- --------- ---------
Net change in cash and cash equivalents......................... 92.3 24.6 (10.7)
Cash and cash equivalents at January 1.......................... 68.1 43.5 54.2
--------- --------- ---------
Cash and cash equivalents at December 31........................ $ 160.4 $ 68.1 $ 43.5
========= ========= =========
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these financial statements.
Certain reclassifications of prior years' data have been made to improve
comparability.
-26-
<PAGE>
Crown Cork & Seal Company, Inc.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(in millions, except share data)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Minimum Cumulative
Preferred Common Paid-In Retained Pension Translation Treasury
Stock Stock Capital Earnings Liability Adjustment Stock Total
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance December 31, 1993................... $592.5 $167.4 $843.1 ($46.3) ($156.5) ($148.4) $1,251.8
Net income - 1994........................... 131.0 131.0
Stock repurchased:
347,360 shares.......................... (10.9) (1.8) (12.7)
Stock issued under stock option
and employee savings plans:
892,867 shares............................ 11.9 4.4 16.3
Minimum pension liability
adjustment................................ (1.8) (1.8)
Translation adjustments..................... (19.4) (19.4)
------ ------ -------- -------- ------ ------- ------- --------
Balance December 31, 1994................... 592.5 168.4 974.1 (48.1) (175.9) (145.8) 1,365.2
Net income - 1995........................... 74.9 74.9
Stock repurchased:
7,401 shares.............................. (.3) (.3)
Stock issued under stock option
and employee savings plans:
1,298,175 shares.......................... 14.6 6.6 21.2
Minimum pension liability
adjustment................................ 16.0 16.0
Translation adjustments..................... (15.8) (15.8)
------ ------ -------- -------- ------ ------- ------- --------
Balance December 31, 1995................... 592.5 182.7 1,049.0 (32.1) (191.7) (139.2) 1,461.2
Net income - 1996........................... 284.0 284.0
Stock issued in business
combination:
Common: 37,300,818 shares................. 186.5 1,375.9 1,562.4
Preferred: 12,432,622 shares.............. $520.8 520.8
Dividends declared:
Common: .................................. (128.2) (128.2)
Preferred:................................ (19.8) (19.8)
Stock issued under stock option
and employee savings plans:
459,165 shares............................ 8.7 2.3 11.0
Minimum pension liability
adjustment................................ 17.3 17.3
Translation adjustments..................... (145.4) (145.4)
------ ------ -------- -------- ------ ------- ------- --------
Balance December 31, 1996................... $520.8 $779.0 $1,567.3 $1,185.0 ($14.8) ($337.1) ($136.9) $3,563.3
====== ====== ======== ======== ====== ======= ======= ========
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
The accompanying notes are an integral part of these financial statements.
-27-
<PAGE>
Crown Cork & Seal Company, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(in millions, except per share, employee, shareholder and statistical data)
A. Summary of Significant Accounting Policies
Business and Principles of Consolidation
The consolidated financial statements include the accounts of Crown Cork & Seal
Company, Inc. (the "Company") and its wholly-owned and majority-owned subsidiary
companies. The Company manufactures and sells metal and plastic containers,
aluminum and plastic closures and crowns as well as manufactures filling,
packaging and handling machinery. These products are manufactured in the
Company's plants both within and outside the United States and are sold through
the Company's sales organization to the soft drink, food, citrus, brewing,
household products, personal care and various other industries. The financial
statements have been prepared in conformity with generally accepted accounting
principles and reflect management estimates and assumptions. Actual results
could differ from those estimates, impacting reported results of operations and
financial position. All significant intercompany accounts and transactions are
eliminated in consolidation. Investments in joint ventures and other companies
in which the Company does not have control, but has the ability to exercise
significant influence over operating and financial policies (generally greater
than 20% ownership), are accounted for by the equity method. Other investments
are carried at cost.
Foreign Currency Translation
For non-U.S. subsidiaries which operate in a local currency environment, assets
and liabilities are translated into U.S. dollars at year-end exchange rates.
Income and expense items are translated at average rates prevailing during the
year. Translation adjustments for these subsidiaries are accumulated in a
separate component of Shareholders' Equity. For non-U.S. subsidiaries which
operate in U.S. dollars (functional currency) or whose economic environment is
highly inflationary, local currency inventories and plant and other property are
translated into U.S. dollars at approximate rates prevailing when acquired; all
other assets and liabilities are translated at year-end exchange rates.
Inventories charged to cost of sales and depreciation are remeasured at
historical rates; all other income and expense items are translated at average
exchange rates prevailing during the year. Gains and losses which result from
remeasurement are included in earnings.
Cash and Cash Equivalents
Cash equivalents represent investments with maturities of three months or less
from the time of purchase, and are carried at cost which approximates fair value
because of the short maturity of those instruments.
Inventory Valuation
Inventories are carried at the lower of cost or market, with cost for domestic
metal, plastic container, crown and closure inventories principally determined
under the last-in, first-out (LIFO) method. Machinery Division and non-U.S.
inventories are principally determined under the average cost method.
Goodwill
Goodwill, representing the excess of the cost over the net tangible and
identifiable intangible assets of acquired businesses, is stated at cost and is
amortized, principally on a straight-line basis, over the estimated future
periods to be benefited (primarily 40 years). On an annual basis the Company
reviews the recoverability of goodwill based primarily upon an analysis of
undiscounted cash flows from the acquired businesses. Accumulated amortization
amounted to $221.6 and $117.8 at December 31, 1996 and 1995, respectively.
Property, Plant and Equipment
Property, plant and equipment (PP&E) is carried at cost and includes
expenditures for new facilities and those costs which substantially increase the
useful lives of existing PP&E. Cost of significant assets
-28-
<PAGE>
Crown Cork & Seal Company, Inc.
includes capitalized interest incurred during the construction and development
period. Maintenance, repairs and minor renewals are expensed as incurred. When
properties are retired or otherwise disposed, the related costs and accumulated
depreciation are eliminated from the respective accounts and any profit or loss
on disposition is reflected in income. Costs assigned to PP&E of acquired
businesses are based on estimated fair value at the date of acquisition.
Depreciation and amortization are provided on a straight-line basis for
financial reporting purposes and an accelerated basis for tax purposes over the
estimated useful lives of the assets. The range of estimated economic lives
assigned to each significant fixed asset category are as follows: Land
Improvements-25; Buildings and Building Improvements-25 to 40; Other Depreciable
Assets-3 to 14.
Impairment of Long-Lived Assets
In the event that facts and circumstances indicate that the cost of long-lived
assets may be impaired, an evaluation of recoverability would be performed. If
an evaluation is required, the estimated future undiscounted cash flows
associated with the asset would be compared to the asset's carrying amount to
determine whether a write-down to market value is required.
Treasury Stock
Treasury stock is reported at par value and constructively retired. The excess
of fair value over par value is first charged to paid-in capital, if any, and
then to retained earnings.
Research and Development
Research, development and engineering expenditures which amounted to $51.5,
$22.3 and $21.1 in 1996, 1995 and 1994, respectively, are expensed as incurred.
Substantially all engineering and development costs are related to developing
new products or designing significant improvements to existing products.
Earnings Per Share
Primary earnings per average common share is computed by dividing net income
available to common shareholders by primary weighted average common shares.
Primary weighted average common shares equal weighted average common shares plus
dilutive common share equivalents. Fully diluted earnings per share is computed
assuming the conversion of the Company's 4.5% cumulative convertible preferred
stock.
Reclassifications
Certain reclassifications of prior years' data have been made to improve
comparability.
- -------------------------------------------------------------------------------
B. Receivables
1996 1995
Accounts and notes receivable ........ $1,266.2 $660.9
Less: allowance for possible losses... (92.0) (10.0)
-------- ------
Net trade receivables .............. 1,174.2 650.9
Miscellaneous receivables ............ 175.1 93.4
-------- ------
$1,349.3 $744.3
======== ======
The Company has agreements to sell certain of its non-U.S. trade accounts
receivable. At December 31, 1996 approximately $134 (none in 1995) of
receivables had been sold with limited recourse under these arrangements and are
reflected as a reduction of trade accounts receivable. Fees and discounting
expense related to these arrangements amounted to $5 in 1996 and are included in
interest expense.
- -------------------------------------------------------------------------------
-29-
<PAGE>
Crown Cork & Seal Company, Inc.
C. Inventories
1996 1995
Finished goods .............. $529.8 $305.3
Work in process ............. 210.7 94.3
Raw materials ............... 550.1 331.3
Supplies and repair parts.... 133.2 81.0
-------- ------
$1,423.8 $811.9
======== ======
Approximately 34% and 45% of worldwide inventories at December 31, 1996 and
1995, respectively, were stated on the last-in, first-out (LIFO) method of
inventory valuation. Had average cost (which approximates replacement cost) been
applied to such inventories at December 31, 1996 and 1995, total inventories
would have been $18.5 and $45.4 higher, respectively.
- -------------------------------------------------------------------------------
D. Investments
1996 1995
January 1 ................................................. $57.5 $47.7
Acquisition of CMB ........................................ 35.6
Acquisition of equity and investments in joint ventures.... 12.6 13.3
Equity in earnings of joint ventures ...................... (7.2) 3.9
Dividends received from equity affiliates ................. (7.3) (5.4)
Change in cumulative translation on net assets of
equity affiliates ..................................... (.9) (1.0)
Change in reporting entity ................................ (1.0)
----- -----
December 31 ............................................... $90.3 $57.5
===== =====
- -------------------------------------------------------------------------------
E. Property, Plant and Equipment
1996 1995
Buildings and improvements ......................... $886.4 $511.6
Machinery and equipment ............................ 3,744.0 2,434.8
-------- --------
4,630.4 2,946.4
Less: accumulated depreciation and amortization.... (1,537.9) (1,239.8)
-------- --------
3,092.5 1,706.6
Land and improvements .............................. 258.2 84.2
Construction in progress ........................... 366.6 215.1
-------- --------
$3,717.3 $2,005.9
======== ========
- -------------------------------------------------------------------------------
-30-
<PAGE>
Crown Cork & Seal Company, Inc.
F. Accounts Payable and Accrued Liabilities
1996 1995
Trade accounts payable ........................ $1,377.0 $387.5
Interest ...................................... 78.2 21.3
Salaries, wages and other employee benefits.... 214.5 154.6
Environmental ................................. 6.7 4.2
Restructuring ................................. 243.3 14.9
Deferred taxes ................................ 101.5 9.1
Other ......................................... 439.7 76.6
-------- ------
$2,460.9 $668.2
======== ======
- -------------------------------------------------------------------------------
G. Other Non-Current Liabilities
1996 1995
Postemployment benefits........................ $36.3 $14.8
Restructuring ................................. 16.4 10.3
Deferred taxes ................................ 304.0 40.4
Environmental ................................. 46.9 16.5
Other ......................................... 54.6 30.2
------ ------
$458.2 $112.2
====== ======
Other non-current assets includes $16.6 and $15.5 at December 31, 1996 and 1995,
respectively, for estimated recoveries related to environmental liabilities.
- -------------------------------------------------------------------------------
H. Acquisitions
Effective February 22,1996 the Company acquired CarnaudMetalbox (CMB) for
approximately $3,986; including $1,903 in cash, $1,562 in Crown common stock and
$521 in Crown 4.5% cumulative convertible preferred stock. The cash portion of
the consideration was financed through a Revolving Credit and Term Loan
facility. This facility was subsequently refinanced. See Note J and Management's
Discussion and Analysis for further details on the refinancing. The Company also
acquired, in separate transactions, the assets of a tooling company in
Pennsylvania for approximately $1 in cash and the assets of a coil cutting and
coating facility in California for approximately $5 in cash. Both transactions
were financed through cash from operations.
During 1995, the Company acquired, in separate transactions, the assets of a
plastics recycling company in Florida for approximately $3 in cash and the
assets of a beverage can manufacturer in Huizhou, China for approximately $11 in
cash. Both transactions were financed through cash from operations.
On June 27, 1994, the Company acquired the can manufacturing facilities of
Tri-Valley Growers for approximately $61 in cash, which was financed principally
through cash from operations. The Company also acquired the stock of a tooling
company in Pennsylvania for approximately $3 in cash.
For financial reporting purposes, all of the acquisitions above were treated as
purchases. An excess purchase price of approximately $3,800 has been determined,
based upon the fair values of assets acquired and liabilities assumed in
connection with the above acquisitions. The operating results of each
acquisition are included in consolidated net income from the date of
acquisition.
-31-
<PAGE>
Crown Cork & Seal Company, Inc.
The following represents the non-cash impact of the acquisitions noted above:
<TABLE>
<CAPTION>
1996 1995 1994
<S> <C> <C> <C>
Fair value of assets acquired, including goodwill $7,995.2 $14.2 $89.1
Liabilities assumed ............................. (4,003.5) (25.1)
Issuance of common stock ........................ (1,562.4)
Issuance of 4.5% cumulative convertible
preferred stock ............................. (520.8)
-------- ----- -----
Cash paid ....................................... $1,908.5 $14.2 $64.0
======== ===== =====
</TABLE>
The following represents the unaudited pro forma results of operations as if the
above noted business combinations had occurred at the beginning of the
respective year in which the companies were acquired as well as at the beginning
of the immediately preceding year:
<TABLE>
<CAPTION>
(unaudited) 1996 1995
<S> <C> <C>
Net sales ............................................................... $8,939.8 $10,013.7
Income before income taxes (1) .......................................... 401.1 134.6
Net income .............................................................. 267.3 124.4
Net income available to common shareholders ............................. 243.9 101.0
Earnings per average common share ....................................... $1.90 $.79
</TABLE>
(1) Includes minority interests, net of equity in earnings of affiliates.
Adjustments made in arriving at the pro forma unaudited results of operations
include increased interest expense on acquisition debt, amortization of
goodwill, adjustments to the fair value of assets acquired and depreciable
lives, preferred stock dividends and related tax adjustments.
The pro forma information given above does not purport to be indicative of the
results that actually would have been obtained if the operations were combined
during the periods presented, and is not intended to be a projection of future
results or trends.
- -------------------------------------------------------------------------------
I. Restructuring
During 1996, the Company provided $39.8 ($31.7 after taxes or $.26 per share)
for the costs associated with exiting certain lines of business in its South
African operations, the closure of a South American operation and costs
associated with restructuring existing businesses in Europe. The Company
anticipates that the restructuring actions referred to above, when complete,
will generate approximately $10.7 in after-tax cost savings on an annualized
basis. Except for the restructuring costs associated with the acquisition of CMB
discussed below, the Company records restructuring charges against operations
and provides a reserve or writes down assets, as appropriate, based on the best
information available at the time that the decision is made to restructure. The
balance of these reserves (excluding the write-down of assets which are
reflected as a reduction of the related asset account) is included within
accounts payable and accrued liabilities and other non-current liabilities.
The Company has made an assessment of the restructuring and exit costs to be
incurred relative to the acquisition of CMB. Affected by the plan of
restructuring are thirty-four regional administrative offices and plants to be
closed and approximately thirty-eight plants to be reorganized. The plan of
restructuring which commenced at the end of the first quarter of 1996 is
expected to be substantially completed during 1997. Since commencement of the
plan of restructuring, the Company has determined alternative sites for
manufacture and qualified the new manufacturing sites with customers. As of
December 31, 1996, the Company had accrued approximately $503 for the costs
associated with restructuring CMB operations and allocated such costs to the
purchase price of CMB in accordance with purchase accounting requirements.
-32-
<PAGE>
Crown Cork & Seal Company, Inc.
These costs comprise severance pay and benefits, write-down of assets, lease
termination and other exit costs. The cost of providing severance pay and
benefits for the reduction of approximately 6,800 employees is estimated at
approximately $269 and is primarily a cash expense. Employees to be terminated
include most, if not all, employees at each office or plant to be closed and
selected employees at those plants to be reorganized including salaried
employees and employees of the respective unions represented at each plant site.
The write-down of assets (principally property, plant and equipment) is
estimated at approximately $185 and has been reflected as a reduction in the
carrying value of the Company's assets. Lease termination and other exit costs,
primarily repayments of government grants and subsidies, are estimated at
approximately $49 and are primarily cash expenses. The $503 million in
restructuring costs recorded in connection with the CMB acquisition includes the
$95 million restructuring charge previously announced by CarnaudMetalbox Asia
Ltd., a subsidiary of the Company.
The Company estimates that the plan of restructuring CMB operations, when
complete, will generate annual cost savings of approximately $160 ($105
after-tax)on a full year basis. It is also estimated that capital expenditures
of approximately $125 will be made to expand and upgrade other facilities to
minimize the adverse effects of the restructuring on existing business and
customer relationships.
During 1995 and 1994, the Company recorded pre-tax restructuring charges of
$102.7($67.0 after taxes or $.74 per share)and $114.6 ($73.2 after taxes or $.82
per share), respectively, as part of a two-phase restructuring plan outlined in
March 1994. The combined plan was implemented to streamline the Company's North
American operations, to improve productivity and to enhance competitiveness.
The components of restructuring are as follows:
<TABLE>
<CAPTION>
Balance at Provisions Provisions Transfer Balance at
December 31, for existing for CMB 1996 against December 31,
1995 businesses businesses activity assets 1996
<S> <C> <C> <C> <C> <C> <C>
Employee costs .................. $11.5 $18.6 $268.9 ($76.9) $222.1
Writedown of assets ............. 15.3 185.2 ($200.5)
Lease termination and
other exit costs .............. 13.7 5.9 48.6 (30.6) 37.6
----- ----- ------ ------- ------- ------
$25.2 $39.8 $502.7 ($107.5) ($200.5) $259.7
===== ===== ====== ======= ======= ======
</TABLE>
The foregoing restructuring charges and related cost savings represent the
Company's best estimates, but necessarily make numerous assumptions with respect
to industry performance, general business and economic conditions, raw materials
and product pricing levels, the timing of implementation of the restructuring
and related employee reductions and facility closings and other matters many of
which are outside the Company's control. The Company's estimate of cost savings
is not necessarily indicative of future performance, which may be significantly
more or less favorable than as set forth above and is subject to the
considerations described in Management's Discussion and Analysis under
"Forward-Looking Statements". Shareholders are cautioned not to place undue
reliance on the estimate and the assumptions and should appreciate that such
information may not necessarily be updated to reflect circumstances existing
after the date hereof or to reflect the occurrence of unanticipated events.
- -------------------------------------------------------------------------------
-33-
<PAGE>
Crown Cork & Seal Company, Inc.
J. Short-Term Borrowings and Long-Term Debt
<TABLE>
<CAPTION>
1996 1995
<S> <C> <C>
Short-term borrowings (1)
Commercial paper (2)(6)............................................. $232.1 $461.2
U.S. dollar bank loans/overdrafts (6)............................... 164.9 17.9
Other currency bank loans/overdrafts (6)............................ 708.8 58.8
-------- --------
Total short-term borrowings....................................... $1,105.8 $537.9
======== ========
Long-term debt (7)
U.S. Dollars:
Commercial Paper (2) (6).......................................... $700.0 $300.0
Private placements: average 1996 rate 7.3% due
2000 through 2005............................................... 205.0 50.0
Senior notes and debentures:
5.88% due 1998.................................................. 100.0 100.0
7.00% due 1999.................................................. 100.0 100.0
6.75% due 2003 (3).............................................. 400.0
6.75% due 2003.................................................. 200.0 200.0
8.38% due 2005.................................................. 300.0 300.0
7.00% due 2006 (3).............................................. 300.0
8.00% due 2023.................................................. 200.0 200.0
7.38% due 2026 (3).............................................. 350.0
7.50% due 2096 (3).............................................. 150.0
Other indebtedness: rates in 1996 ranging from
6.1% to 10.1%, due 1996 through 2015............................ 188.0 106.8
-------- --------
3,193.0 1,356.8
-------- --------
Other currencies (average interest rate at December 31, 1996 in parentheses):
German Mark borrowings (5)........................................ 104.0
Perpetual notes in French Francs (8.0%) (4)....................... 232.5
Preference shares in French Francs (8.5%), due 1998............... 283.9
Other French Franc indebtedness (4.5% to 12.4%),
due 1997 through 2001........................................... 147.9
Capital lease obligations in various currencies .................. 40.0
Other indebtedness in various currencies,rates in
1996 ranging from 6.5% to 15.1%, due 1997
through 2003.................................................... 74.7 99.5
-------- --------
Total long-term debt........................................ 3,972.0 1,560.3
Less: current maturities .............................................. (48.5) (70.2)
-------- --------
Total long-term debt........................................ $3,923.5 $1,490.1
======== ========
<FN>
(1) The weighted average interest rates for commercial paper outstanding during
1996, 1995 and 1994, were 5.5%, 6.1% and 4.8%, respectively. The weighted
average interest rates for notes and overdrafts outstanding during 1996,
1995 and 1994, were 6.3%, 8.6% and 6.9%, respectively.
(2) At December 31, 1996 and December 31, 1995, $700 and $300, respectively, of
commercial paper was reclassified as long term, reflecting the Company's
intent and ability to refinance these borrowings on a long-term basis
through committed credit facilities.
(3) On November 26, 1996, the Company filed with the Securities and Exchange
Commission a shelf registration statement for the possible offering and
sale of up to $1,300 aggregate principal amount of
-34-
<PAGE>
Crown Cork & Seal Company, Inc.
debt securities of the Company. This amount was combined with the remaining
$200 from a December 1994 Registration Statement, providing an aggregate
$1,500 funding availability. On December 12,1996, the Company sold $1,200
of these public debt securities in five separate tranches, with maturities
ranging from seven to 100 years. The issuers included the Company and two
wholly-owned finance subsidiaries located in the United Kingdom and France,
whose borrowings are fully guaranteed by the Company. The face value of the
notes bear interest rates ranging from 6.75% to 7.38%. The offerings by the
subsidiaries, amounting to $700, were simultaneously converted into fixed
rate, 8.28% Sterling and 5.75% French Franc obligations through interest
rate and currency swaps with various counterparties. Proceeds from the
offering were used to repay acquisition indebtedness arising from the CMB
acquisition.
(4) On January 31, 1997, the perpetual notes were terminated and refinanced by
the Company's committed long-term credit facilities.
(5) At December 31, 1995, the German Mark borrowing, a LIBOR-based facility,
was classified as long-term, reflecting the Company's intent and ability to
refinance this borrowing on a long-term basis through committed credit
facilities.
(6) On February 4, 1997, the Company's $1,000 multicurrency credit facility and
FRF 13,700 credit agreement were replaced with a new multicurrency
revolving credit agreement with a group of domestic and foreign banks. The
new agreement makes available $2,500 through 2002. Borrowings under the new
agreement are unsecured and bear interest at variable market rates. The
agreement contains certain financial covenants related to leverage and
interest coverage. Borrowings outstanding under the prior FRF 13,700 credit
agreement, amounting to $493.1 at December 31, 1996, were refinanced under
this new agreement.
(7) The Company is also party to other interest rate swap agreements, with
remaining terms of between one to five years. The notional amounts of these
agreements do not represent amounts exchanged by the parties and are not a
measure of the Company's exposure to credit or market risks. At December
31, 1996 and December 31, 1995 the notional amounts of these swaps were
$1,219 and $34, respectively.
</FN>
</TABLE>
Aggregate maturities of total long-term debt for the five years subsequent to
December 31, 1996 are $48.5, $441.1, $152.8, $140.8 and $229.9, respectively.
Cash payments for interest were $ 290.5 in 1996, $113.4 in 1995 and $107.1 in
1994 (including amounts capitalized of $7.7 in 1996, $5.8 in 1995 and $5.5 in
1994, respectively.)
The estimated fair value of the Company's long-term borrowings, including
interest rate financial instruments, based on quoted market prices for the same
or similar issues or on current rates offered to the Company for debt of the
same remaining maturities, did not differ materially from carrying values at
December 31, 1996 and 1995, respectively.
- -------------------------------------------------------------------------------
K. Financial Instruments
In the normal course of business, operations of the Company are exposed to
fluctuations in currency values, interest rates, commodity prices and other
market risks. The Company addresses these risks through a program that includes
the use of financial instruments. The Company controls the credit risks
associated with these financial instruments through credit approval, investment
limits and centralized monitoring procedures and systems. The Company uses only
liquid investments from creditworthy institutions and does not enter into
leveraged, tiered or illiquid contracts. Further, the Company does not enter
into financial instruments for trading purposes.
Foreign Currency Management
With respect to balance sheet exposures, the Company has an internal netting
strategy to match foreign currency assets and liabilities wherever possible.
This is achieved through the individual capital structure of overseas
subsidiaries complemented by the use of financial instruments. The Company also
enters into various types of foreign exchange contracts, principally forward
exchange contracts and swaps, in
-35-
<PAGE>
Crown Cork & Seal Company, Inc.
managing the foreign exchange risk arising from certain foreign currency
transactions. At December 31, 1996 the Company had outstanding forward exchange
contracts, principally in European currencies, Singapore dollars, and US
dollars, both buy and sell, for an aggregate notional amount of $2,311 (1995
$237). Based on year-end exchange rates and the maturity dates of the various
contracts, the aggregate contract value of these items approximated fair value
at December 31, 1996 and December 31, 1995. Gains and losses resulting from
contracts that are designated and effective as hedges are recognized in the same
period as the underlying hedged transaction.
Interest Rate Risk Management
The Company uses interest rate swaps, interest rate caps, and currency swaps to
manage interest rate risk related to borrowings. Interest rate and currency swap
agreements which hedge third party debt issues are described in Note J. Costs
associated with these financial instruments are generally amortized over the
lives of the instruments and are not material to the Company's financial
results. Differences in interest, which are paid or received, are recognized as
adjustments to interest expense from the debt obligations.
Commodities
The Company's basic raw materials for products in its metal and plastic
packaging segments are subject to significant price fluctuations. In terms of
commodity risks, the Company uses a combination of commercial supply contracts
and financial instruments, including forwards and options, to minimize these
exposures. The maturity of the commodity instruments correlates to the actual
purchases of the commodities. Commodity instruments are accounted for as hedges,
with any gains or losses included in inventory, to the extent that they are
designated and are effective as hedges of anticipated commodity purchases. At
December 31, 1996 and December 31,1995 the fair value of the outstanding
commodity contracts was not material to the Company's earnings, cash flows or
financial position.
- -------------------------------------------------------------------------------
L. Stock Options
At December 31, 1996, the Company has four stock-based compensation plans under
which the Company has granted outstanding options to executives and key
employees to purchase common stock: the 1983 and 1984 Stock Option Plans, the
1990 Stock-Based Incentive Compensation Plan and the 1994 Stock-Based Incentive
Compensation Plan. The number of shares authorized for issuance were 9,180,000
under the 1983 and 1984 plans, 6,000,000 under the 1990 plan and 4,000,000 under
the 1994 plan. Awards can be made in the form of stock options, deferred stock,
restricted stock or stock appreciation rights ("SARs") and may be subject to the
achievement of certain performance goals as determined by the Plan Committee as
designated by the Board of Directors. There have been no issuances of deferred
stock, restricted stock or SARs under any of the plans. Under all plans, the
option exercise price equals the fair market value of the common shares on the
date of the grant. Under the 1983, 1984 and 1990 plans, options generally become
exercisable in installments of 25% per year on each of the first through the
fourth anniversaries of the grant date and have a maximum term of five to ten
years. Options under the 1994 plan are exercisable in accordance with the terms
of each grant but in no event may the term be less than six months or greater
than ten years.
In 1995, the Financial Accounting Standards Board issued SFAS No. 123,
"Accounting for Stock-Based Compensation". Under the provisions of SFAS No. 123,
companies can elect to account for stock-based compensation plans using a
fair-value-based method or continue measuring compensation expense for those
plans using the intrinsic value method prescribed in APB No. 25, "Accounting for
Stock Issued to Employees". The Company applies APB No. 25 and related
interpretations in accounting for its plans. Accordingly, no compensation cost
has been recognized for those plans. Had compensation cost for the Company's
stock-based compensation plans been determined based upon the fair value of the
awards at the grant dates, pro forma net income and earnings per share would
have been $260.5 or $2.13 per share in 1996 and $74.7 or $.83 per share in 1995.
These results include the effects of options granted after January 1, 1995, as
required in SFAS No. 123. The pro forma results may not be representative of the
effects on reported income for future years (once the impact of SFAS No. 123 has
been fully implemented).
-36-
<PAGE>
Crown Cork & Seal Company, Inc.
The fair values of options granted during 1996 and 1995 were $11.01 and $13.01,
respectively. The fair value of each option grant was estimated on the date of
grant using the Black-Scholes option-pricing model with the following
assumptions: (i) expected dividend yield of 2.2% in 1996 and none in 1995; (ii)
expected stock price volatility of 20.7% in 1996 and 1995; (iii) risk-free
interest rate of 6.2% in 1996 and 5.4% in 1995 and (iv) expected life of options
of 4.9 years in 1996 and 1995.
Stock option transactions were:
<TABLE>
<CAPTION>
1996 1995 1994
Weighted Weighted Weighted
Average Average Average
Exercise Exercise Exercise
Shares Price Shares Price Shares Price
<S> <C> <C> <C> <C> <C> <C>
Options outstanding
at January 1.......................... 1,836,452 $33.30 2,970,225 $25.67 3,622,315 $22.33
Granted................................. 3,544,750 44.35 326,600 40.32 357,196 37.57
Exercised............................... (516,100) 25.58 (1,385,309) 17.56 (836,286) 17.29
Canceled................................ (239,394) 39.94 (75,064) 36.87 (173,000) 31.52
--------- --------- ---------
Options outstanding
at December 31........................ 4,625,708 $42.28 1,836,452 $33.30 2,970,225 $25.67
========= ========= =========
Options exercisable
at December 31........................ 709,115 591,351 819,790
Options available for
grant at December 31.................. 1,303,833 4,609,189 860,725
</TABLE>
The following table summarizes information concerning currently outstanding and
exercisable options:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
Weighted
Average Weighted Weighted
Range of Remaining Average Average
Exercise Number Contractual Exercise Number Exercise
Prices Outstanding Life Price Exercisable Price
<S> <C> <C> <C> <C> <C>
$10.44 to $37.50 550,072 4.4 $32.11 250,503 $30.85
37.63 to 43.13 624,636 4.5 39.69 316,612 39.28
44.13 to 47.50 3,329,750 5.4 44.14 142,000 44.13
47.63 to 51.50 121,250 9.0 50.99
--------- -------
4,625,708 5.3 $42.28 709,115 $37.27
========= =======
</TABLE>
- -------------------------------------------------------------------------------
M. Capital Stock
The purchase of CMB resulted in the issuance of approximately 37.3 million
shares of the Company's common stock and 12.4 million shares of Crown 4.5%
cumulative convertible preferred stock (acquisition preferred) to tendering CMB
shareholders. Generally, each share of acquisition preferred stock is entitled
to the number of votes equal to the number of shares of common stock into which
such share of acquisition preferred is convertible as of the applicable record
date. Dividends on shares issued accrue and are paid quarterly in arrears on
February 20, May 20, August 20 and November 20 each year. The acquisition
preferred ranks senior to the Company's common stock as to dividends and
liquidation rights. Each share of acquisition preferred is convertible into
common stock at a rate equal to the $41.8875 par value of such acquisition
preferred divided by the applicable conversion price of $45.9715, subject to
adjustment in
-37-
<PAGE>
Crown Cork & Seal Company, Inc.
certain events. The Company will at all times reserve and keep available, out of
its authorized and unissued common stock, sufficient amounts of its common stock
to effect any future conversions. The acquisition preferred is mandatorily
convertible February 26, 2000. The acquisition preferred has a liquidation value
equivalent to its par value plus accrued and unpaid dividends.
The Board of Directors have the authority to issue, at any time or from time to
time, up to a maximum of 30 million shares of additional preferred stock in one
or more classes or series of a class. The additional preferred stock would rank
on a parity with or junior to the acquisition preferred in respect of dividend
and liquidation rights and such shares would not be entitled to more than one
vote per share when voting as a class with holders of the Company's common
stock. The voting rights and such designations, preferences, limitation and
special rights are, subject to the terms of the Company's Articles of
Incorporation, determined by the Board of Directors.
In 1996, the Company for the first time since 1956 paid dividends on its common
stock. Dividends paid on the outstanding common stock, amounting to $1 per
share, and on the outstanding acquisition preferred were $145.4. In conjunction
with the new dividend policy on common stock, the Company registered 10 million
shares of common stock with the Securities and Exchange Commission in May 1996
for the implementation of a Dividend Reinvestment and Stock Purchase Plan
("Plan"). The Plan covers all registered shareholders of the Company's common
stock as well as those beneficial owners who have either become shareholders of
record by having shares transferred into their name or by making arrangements
with their broker or other nominees to participate on their behalf. The Plan
allows for full or partial dividend reinvestment in the Company's common stock.
The Board of Directors adopted a Shareholder Rights Plan in 1995 and declared a
dividend of one right for each outstanding share of common stock. Such rights
only become exercisable, or transferable apart from the common stock, after a
person or group acquires beneficial ownership of, or commences a tender or
exchange offer for, 15% or more of the Company's common stock; except that the
Rights Plan provides that CGIP's acquisition of shares of the Company pursuant
to the Company's acquisition of CMB does not cause the rights to become
exercisable. Each right then may be exercised to acquire one share of common
stock at an exercise price of $200, subject to adjustment. Alternatively, under
certain circumstances involving the acquisition by a person or group of 15% or
more of the Company's common stock, each right will entitle its holder to
purchase a number of shares of the Company's common stock having a market value
of two times the exercise price of the right. In the event the Company is
acquired in a merger or other business combination transaction after a person or
group has acquired 15% or more of the Company's common stock, each right will
entitle its holder to purchase a number of the acquiring company's common shares
having a market value of two times the exercise price of the right. The rights
may be redeemed by the Company at $.01 per right at any time until the tenth day
following public announcement that a 15% position has been acquired. The rights
will expire on August 10, 2005.
- -------------------------------------------------------------------------------
N. Pensions and Other Retirement Benefits
Pensions
The Company sponsors various pension plans, covering substantially all U.S.,
Canadian and some non-U.S. and non-Canadian employees and participates in
certain multi-employer pension plans. The benefits for these plans are based
primarily on years of service and the employees' remuneration near retirement.
Contributions to multi-employer plans in which the Company and its subsidiaries
participate are determined in accordance with the provisions of negotiated labor
contracts or applicable local regulations. The Company's objective in funding
its pension plans is to accumulate funds sufficient to provide for all accrued
benefits. In certain countries the funding of pension plans is not a common
practice as funding provides no economic benefit. Consequently, the Company has
several pension plans which are not funded.
-38-
<PAGE>
Crown Cork & Seal Company, Inc.
Plan assets of company-sponsored plans of $3,294.5 consist principally of common
stocks, fixed income securities and other investments, including $312.0 of the
Company's common stock.
The 1996, 1995 and 1994 components of pension cost for company-sponsored plans
were as follows:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
1996 1995 1994
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Service cost-benefits earned during the year.................. $42.0 $11.3 $14.1
Interest cost on projected benefit obligations................ 200.3 96.9 94.6
Return on assets:
-actual.................................................. (353.9) (200.7) 31.0
-deferred gain/(loss).................................... 66.4 79.3 (163.5)
Amortization of net unrecognized loss
at January 1, 1986....................................... .1 .1 .1
Amortization of net unrecognized loss......................... 2.8 2.2 .7
(Income)/cost attributable to plant closings.................. (.8) 8.3 17.1
------ ------ -----
Total pension (income)........................................ ($43.1) ($2.6) ($5.9)
====== ====== =====
</TABLE>
The funded status of company-sponsored plans, including the assets and
liabilities assumed in connection with acquisitions, at December 31, 1996 and
1995 was as follows:
<TABLE>
<CAPTION>
1996 1995
U.S. Plans Non-U.S. Plans U.S. Plans Non-U.S. Plans
Over- Under- Over- Under- Over- Under- Over- Under-
funded funded funded funded funded funded funded funded
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Actuarial present value of:
Vested benefit obligation............ ($1,138.1) ($17.7)($1,476.1)($155.6) ($370.2) ($781.7) ($16.4) ($88.9)
Non-vested benefits.................. (8.2) (1.5) (4.0) (15.2) (3.8) (21.3) (1.9) (4.8)
--------- ------ --------- ------- ------- ------- ------ ------
Accumulated benefit obligation....... ($1,146.3) ($19.2)($1,480.1)($170.8) ($374.0) ($803.0) ($18.3) ($93.7)
========= ====== ========= ======= ======= ======= ====== ======
Actuarial present value of projected
benefit obligation................... ($1,170.7) ($20.5)($1,484.9)($200.5) ($398.8) ($811.9) ($21.7) ($93.7)
Plan assets at fair value............... 1,331.0 5.8 1,907.2 50.5 404.7 716.1 25.4 67.4
--------- ------ --------- ------- ------- ------- ------ ------
Plan assets in excess of (less than)
projected benefit obligation......... 160.3 (14.7) 422.3 (150.0) 5.9 (95.8) 3.7 (26.3)
Unrecognized net (gain)/loss
since 1986........................... (99.5) (1.8) (131.2) (.6) 34.2 41.1 (3.2) 29.5
Unrecognized (gain)/loss at
January 1, 1986...................... (3.2) 11.0 (.4) (4.3) 12.5 (.7)
Unrecognized prior service cost......... 5.4 (1.5) 3.1 2.6 4.3 4.7 .9
Minimum liability....................... (10.8) (25.8) (48.9) (30.5)
--------- ------ --------- ------- ------- ------- ------ ------
Prepaid (Accrued) pension cost
at December 31....................... $63.0 ($16.3) $289.2 ($173.3) $38.4 ($86.8) $4.5 ($26.4)
========= ====== ========= ======= ======= ======= ====== ======
</TABLE>
Other non-current assets include $340.3 of prepaid pension cost at December 31,
1996.
The Company recognizes a minimum pension liability for underfunded plans. The
minimum liability is equal to the excess of the accumulated benefit obligation
over plan assets. A corresponding amount is recognized as either an intangible
asset, to the extent of previously unrecognized prior service cost and
previously unrecognized transition obligation, or a reduction of shareholders'
equity. The Company had recorded additional liabilities of $36.6 and $79.4 as of
December 31, 1996 and 1995, respectively. An intangible asset of $13.7 and $17.7
and a shareholders' equity reduction, net of income taxes, of $14.8 and $32.1
was recorded as of December 31, 1996 and 1995, respectively.
-39-
<PAGE>
Crown Cork & Seal Company, Inc.
The weighted average actuarial assumptions for the Company's pension plans are
as follows:
<TABLE>
<CAPTION>
U.S. Plans Non-U.S. Plans
1996 1995 1994 1996 1995 1994
<S> <C> <C> <C> <C> <C> <C>
Discount rate.................. 8.0% 7.4% 8.5% 8.8% 8.5% 9.8%
Compensation increase.......... 3.5% 5.0% 5.0% 6.5% 5.5% 7.0%
Long-term rate of return....... 11.0% 11.0% 11.0% 11.0% 11.0% 11.0%
</TABLE>
Other Postretirement Benefit Plans
The Company and certain subsidiaries sponsor unfunded plans to provide health
care and life insurance benefits to pensioners and survivors. Generally, the
medical plans pay a stated percentage of medical expenses reduced by deductibles
and other coverages. Life insurance benefits are generally provided by insurance
contracts. The Company reserves the right, subject to existing agreements, to
change, modify or discontinue the plans.
<TABLE>
<CAPTION>
The net postretirement benefit cost was comprised of the following: 1996 1995 1994
<S> <C> <C> <C>
Service cost-benefits earned during the year............................... $4.2 $4.0 $5.5
Interest cost on accumulated postretirement benefit obligation............. 38.8 36.5 39.1
Amortization of net unrecognized (gain).................................... (1.4) (5.0)
Cost attributable to plant closings........................................ 4.2 10.8
----- ----- -----
Net postretirement benefit cost................................... $41.6 $39.7 $55.4
===== ===== =====
</TABLE>
Health care claims and life insurance benefits paid totaled $40.9 in 1996, $42.5
in 1995 and $36.3 in 1994.
The following provides a reconciliation of the accumulated postretirement
benefit obligation to the liabilities recognized in the Company's balance sheet
as of December 31:
<TABLE>
<CAPTION>
1996 1995
<S> <C> <C>
Retirees ......................................................... ($406.2) ($418.2)
Fully eligible active plan participants........................... (50.3) (41.7)
Other active plan participants.................................... (47.8) (47.0)
------- -------
Total accumulated obligation...................................... (504.3) (506.9)
Unrecognized net (gain)........................................... (103.6) (56.1)
------- -------
Accrued postretirement benefit obligation......................... ($607.9) ($563.0)
======= =======
</TABLE>
The health care accumulated postretirement benefit obligation was determined at
December 31, 1996 and 1995 using health care trend rates of 9.2% and 9.9%,
respectively, decreasing to 4.9% over nine years. The assumed long-term rate of
compensation increase used for life insurance was 3.5% and 5.0% at December 31,
1996 and 1995, respectively. The discount rate was 8.0% and 7.4% at December 31,
1996 and 1995, respectively. Changing the assumed health care cost trend rate by
one percentage point in each year would change the accumulated postretirement
benefit obligation by $40.8 and the net postretirement benefit cost by $3.3.
Employee Savings Plan
The Company sponsors a Savings Investment Plan which covers substantially all
domestic salaried employees who are 21 years of age with one or more years of
service. The Company matches with equivalent value of Company stock, up to 1.5%
of a participant's compensation.
-40-
<PAGE>
Crown Cork & Seal Company, Inc.
Employee Stock Purchase Plan
The Company also sponsors an Employee Stock Purchase Plan which covers all
domestic employees with one or more years of service who are non-officers and
non-highly compensated as defined by the Internal Revenue Code. Eligible
participants contribute 85% of the quarter ending market price towards the
purchase of each common share. The Company's contribution is equivalent to 15%
of the quarter-ending market price. Total shares purchased under the plan in
1996 and 1995 were 78,051 and 84,309, respectively, and the Company's
contributions were approximately $.6 and $.5 respectively.
- -------------------------------------------------------------------------------
O. Income Taxes
Pretax income for the years ended December 31 was taxed under the following
jurisdictions:
<TABLE>
<CAPTION>
1996 1995 1994
<S> <C> <C> <C>
Domestic ....................................................................... $66.8 $30.8 $88.5
Foreign ........................................................................ 364.2 78.7 94.2
------ ------ ------
$431.0 $109.5 $182.7
====== ====== ======
The provision for income taxes consists of the following:
Current tax provision:
U.S. Federal .............................................................. $15.0 $16.2 $50.9
State and foreign ......................................................... 27.7 11.9 18.7
------ ------ ------
42.7 28.1 69.6
------ ------ ------
Deferred tax provision:
U.S. Federal .............................................................. 17.5 (3.1) (17.7)
State and foreign ......................................................... 74.2 (.1) 3.7
------ ------ ------
91.7 (3.2) (14.0)
------ ------ ------
$134.4 $24.9 $55.6
====== ====== ======
The provision for income taxes differs from the amount of income tax determined
by applying the applicable U.S. statutory federal income tax rate to pretax
income as a result of the following differences:
1996 1995 1994
U.S. Statutory rate ............................................................ 35.0% 35.0% 35.0%
Non-U.S. operations at different rates ......................................... (7.7) (14.5) (8.4)
Amortization of acquisition adjustments ........................................ 8.5 8.0 4.7
Valuation allowance ............................................................ (4.0) (1.8) (2.6)
Other items, net ............................................................... (.6) (4.0) 1.7
------ ------ ------
Effective income tax rate ................................................. 31.2% 22.7% 30.4%
====== ====== ======
</TABLE>
-41-
<PAGE>
Crown Cork & Seal Company, Inc.
The Company paid federal, state, local and foreign (net) income taxes of $41.4
for 1996, $28.0 for 1995 and $88.9 for 1994. The components of deferred tax
assets and liabilities at December 31, follow:
<TABLE>
<CAPTION>
1996 1995
Asset Liability Asset Liability
<S> <C> <C> <C> <C>
Depreciation.............................................. $421.5 $227.1
Postretirement and postemployment benefits................ $208.3 $206.5
Pensions ................................................. 46.9 19.7
Inventories .............................................. 32.6 34.2
Tax loss and credit carryforwards ........................ 275.0 31.1
Restructuring............................................. 90.0 16.6
Accruals and other ....................................... 85.6 16.8 46.6 10.8
------ ------ ------ ------
658.9 517.8 320.5 272.1
Valuation allowance....................................... (139.0) (22.8)
------ ------ ------ ------
$519.9 $517.8 $297.7 $272.1
====== ====== ====== ======
</TABLE>
Prepaid expenses and other current assets includes $237.1 and $47.2 of deferred
tax assets at December 31, 1996 and 1995, respectively. Other non-current assets
includes $170.5 and $27.9 of deferred tax assets at December 31, 1996 and 1995,
respectively.
The Company has recorded $34.3 of deferred tax assets arising from tax loss and
credit carryforwards, which will be realized through future operations and an
additional $127.0 which will be realized through the reversal of existing
temporary differences. Future recognition of the remaining $113.7 will be made
either when the benefit is realized or when it has been determined that it is
more likely than not that the benefit will be realized through future earnings.
Carryforwards of $34.4 expire over the next five years, $79.9 in years six
through fifteen and $160.7 can be utilized over an indefinite period.
The valuation allowance of $139.0 includes $121.6 which, if reversed in future
periods, will reduce goodwill.
The cumulative amount of the Company's share of undistributed earnings of
non-U.S. subsidiaries for which no deferred taxes have been provided was $607.2,
$467.3 and $432.2 as of December 31, 1996, 1995 and 1994, respectively.
Management has no plans to distribute such earnings in the foreseeable future.
- -------------------------------------------------------------------------------
P. Minority Interests
<TABLE>
<CAPTION>
1996 1995
<S> <C> <C> <C>
January 1.................................................................. $118.6 $75.4
Acquisition of CMB......................................................... 125.1
Investment by minority shareholders........................................ 22.6 23.5
Formation of new jointly-owned subsidiaries................................ 8.3
Minority interest in net income of consolidated subsidiaries............... 5.4 13.6
Dividends paid to minority shareholders.................................... (18.9) (2.0)
Change in cumulative translation adjustment................................ (2.5) (.2)
Purchase of minority interests............................................. (6.5)
------ ------
December 31................................................................ $243.8 $118.6
====== ======
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
Q. Commitments and Contingent Liabilities
The Company has various commitments to purchase materials and supplies as part
of the ordinary conduct of business. In the aggregate, such commitments are not
at prices in excess of current market.
-42-
<PAGE>
Crown Cork & Seal Company, Inc.
The Company is subject to various lawsuits and claims with respect to matters
such as governmental regulations and other actions arising out of the normal
course of business. While the impact on future financial results is not subject
to reasonable estimation because considerable uncertainty exists, management
believes, after consulting with counsel, that the ultimate liabilities resulting
from such lawsuits and claims will not materially affect the consolidated
results or financial position of the Company.
The Company's basic raw materials for the products in its Metals and Plastics
packaging segments are tinplate, aluminum and resins, all of which are purchased
from multiple sources. The Company is subject to material fluctuations in the
cost of these raw materials and has previously adjusted its selling prices to
reflect these movements. There can be no assurance, however, that the Company
will be able to recover fully any increases or fluctuations in raw material
costs from its customers.
- -------------------------------------------------------------------------------
R. Lease Commitments
The Company and its subsidiaries lease manufacturing, warehouse and office
facilities and certain equipment, a significant portion of these obligations
having been assumed with the acquisition of CMB. Certain non-cancelable leases
are classified as capital leases, and the leased assets are included in
"Property, plant and equipment." Other long-term non-cancelable leases are
classified as operating leases and are not capitalized. The amount of capital
leases reported as capital assets, net of accumulated amortization, at December
31, 1996 was $50.3.
Under long-term operating leases, minimum annual rentals are $37.1 in 1997,
$29.9 in 1998, $21.4 in 1999, $14.2 in 2000, $10.4 in 2001, and a total of $48.1
for 2002 and thereafter. Under long-term capital leases, minimum annual rentals
are $13.5 in 1997, $13.2 in 1998, $11.7 in 1999, $5.9 in 2000, $4.7 in 2001, and
a total of $11.7 for 2002 and thereafter. The present value of future minimum
payments on capital leases is $40.0 with the current portion of the obligation
being $8.8. Rental expense (net of sublease rental income of $5.5 in 1996, $.8
in 1995 and $1.1 in 1994) amounted to $35.1 in 1996, $22.7 in 1995 and $19.6 in
1994.
- -------------------------------------------------------------------------------
-43-
<PAGE>
Crown Cork & Seal Company, Inc.
S. Segment Information by Industry Segment and Geographic Area
<TABLE>
<CAPTION>
A. Industry Segment
Net Operating % To Identifiable Depreciation Capital
1996 Sales Income Net Sales Assets & Amortization Expenditures
<S> <C> <C> <C> <C> <C> <C> <C>
Metal Packaging & Other (1)............. $6,619.7 $457.8(2) 6.9 $9,877.1 $367.0 $534.1
Plastic Packaging....................... 1,712.2 218.7 12.8 2,552.7 128.9 97.1
-------- ------ -------- ------ ------
Consolidated............................ $8,331.9 $676.5(5) 8.1 $12,429.8(6) $495.9 $631.2
======== ====== ======== ====== ======
1995
Metal Packaging & Other (1)............. $3,811.1 $159.2(3) 4.2 $3,688.9 $177.9 $287.7
Plastic Packaging....................... 1,242.7 76.9(3) 6.2 1,294.7 78.4 145.8
-------- ------ -------- ------ ------
Consolidated............................ $5,053.8 $236.1(5) 4.7 $4,983.6(6) $256.3 $433.5
======== ====== ======== ====== ======
1994
Metal Packaging & Other (1)............. $3,494.3 $201.3(4) 5.8 $3,453.3 $157.0 $232.7
Plastic Packaging....................... 957.9 76.4 8.0 1,284.5 61.3 207.1
-------- ------ -------- ------ ------
Consolidated............................ $4,452.2 $277.7(5) 6.2 $4,737.8(6) $218.3 $439.8
======== ====== ======== ====== ======
B. Geographic Area
1996
United States........................... $3,327.1 $205.1 6.2 $3,843.8 $204.0 $199.2
Europe.................................. 3,745.2 427.8(2) 11.4 6,884.9 219.0 232.3
Asia-Pacific............................ 383.9 5.9 1.5 619.8 34.6 90.9
Other................................... 875.7 37.7(2) 4.3 1,081.3 38.3 108.8
-------- ------ -------- ------ ------
Consolidated............................ $8,331.9 $676.5(5) 8.1 $12,429.8(6) $495.9 $631.2
======== ====== ======== ====== ======
1995
United States........................... $3,376.2 $140.6(3) 4.2 $3,372.6 $175.4 $260.5
Europe.................................. 785.2 58.3 7.4 606.1 38.6 50.9
Asia-Pacific............................ 151.9 22.5 14.8 222.7 7.4 61.9
Other................................... 740.5 14.7(3) 2.0 782.2 34.9 60.2
-------- ------ -------- ------ ------
Consolidated............................ $5,053.8 $236.1(5) 4.7 $4,983.6(6) $256.3 $433.5
======== ====== ======== ====== ======
1994
United States........................... $2,969.6 $168.7(4) 5.7 $3,291.1 $150.1 $335.1
Europe.................................. 640.0 45.0 7.0 571.8 31.4 54.8
Asia-Pacific............................ 110.3 24.7 22.4 109.0 3.9 22.3
Other................................... 732.3 39.3(4) 5.4 765.9 32.9 27.6
-------- ------ -------- ------ ------
Consolidated............................ $4,452.2 $277.7(5) 6.2 $4,737.8(6) $218.3 $439.8
======== ====== ======== ====== ======
<FN>
(1) Within "Metal Packaging & Other" is the Company's machinery operation
which, along with other non-metal packaging domestic affiliates, is not
significant.
(2) Operating income for 1996 includes restructuring charges of $30.1 for Europe Metal Packaging and
$9.7 for Other Metal Packaging.
(3) Operating income for 1995 includes restructuring charges of $81.4 for U.S. Metal Packaging, $3.9 for
U.S. Plastic Packaging, $4.4 for Other Plastic Packaging and $13.0 for Other Metal Packaging.
</FN>
</TABLE>
-44-
<PAGE>
Crown Cork & Seal Company, Inc.
(4) Operating income for 1994 included restructuring charges of $102.3 for U.S.
Metal Packaging and $12.3 for Other Metal Packaging.
(5) The following reconciles operating income to pre-tax income:
<TABLE>
<CAPTION>
1996 1995 1994
<S> <C> <C> <C>
Operating income*......................................... $676.5 $236.1 $277.7
Interest and other corporate
expense**.............................................. (245.5) (126.6) (95.0)
------ ------ ------
Pre-tax income............................................ $431.0 $109.5 $182.7
====== ====== ======
</TABLE>
* Has been restated for prior years to conform with the 1996 presentation of
operating income.
** Includes interest expense net of interest income, gain on sale of assets
and translation and exchange adjustments.
(6) The following reconciles identifiable assets to total assets:
<TABLE>
<CAPTION>
1996 1995 1994
<S> <C> <C> <C>
Identifiable assets....................................... $12,429.8 $4,983.6 $4,737.8
Corporate assets.......................................... 160.4 68.1 43.5
--------- -------- --------
Total assets.............................................. $12,590.2 $5,051.7 $4,781.3
========= ======== ========
</TABLE>
Figures for 1996 are generally not comparable to earlier years due to the
February 1996 acquisition of CarnaudMetalbox.
Included in "Other" are affiliates in Canada, Central and South America, Africa
and the Middle East.
For the years ended December 31, 1996, 1995 and 1994, respectively, no one
customer accounted for more than 10% of the Company's net sales.
Total non-U.S. liabilities were $4,772.0, $822.4 and $777.7 at December 31,
1996, 1995 and 1994, respectively.
Certain reclassifications of prior years' data have been made to improve
comparability.
- -------------------------------------------------------------------------------
-45-
<PAGE>
Crown Cork & Seal Company, Inc.
T. Quarterly Data (unaudited)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
1996 1995
- ------------------------------------------------------------------------------------------------------------------------------
First Second Third Fourth First Second Third Fourth
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net sales.................. $1,551.2 $2,353.7 $2,462.1 $1,964.9 $1,126.7 $1,385.8 $1,427.1 $1,114.2
Gross profit*.............. 170.8 294.2(1) 343.5 255.2(2) 129.9 142.4(3) 24.5(4) 78.6
Net income available to
common shareholders....... 29.1 98.3(1) 103.5 33.3(2) 36.5 52.2(3) (19.9)(4) 6.1
- ------------------------------------------------------------------------------------------------------------------------------
Average common shares
outstanding
(in millions):............ 105.1 128.1 128.5 128.3 89.6 90.2 90.5 90.6
Earnings(loss)per
average common
share**:
Primary.................... .28 .77(1) .81 .26(2) .41 .58(3) (.22)(4) .07
Fully diluted.............. + .75(1) .78 + .41 .58(3) (.22)(4) .07
Dividends per
common share.............. .25 .25 .25 .25
- ------------------------------------------------------------------------------------------------------------------------------
Common stock
price range***
High..................... 51 49 1/8 49 1/2 55 1/2 45 50 1/4 50 5/8 44 5/8
Low...................... 40 5/8 43 5/8 41 45 1/2 37 3/4 41 3/8 36 7/8 34 1/2
Close.................... 48 3/4 45 46 1/8 54 3/8 43 7/8 50 1/8 38 3/4 41 3/4
</TABLE>
The results in 1996 include the operations of CarnaudMetalbox from the
acquisition date of February 22,1996.
+ Fully diluted earnings per share are not presented for the first and fourth
quarters because the effects would have been anti-dilutive.
* Net sales less cost of products sold, depreciation and amortization and the
provision for restructuring.
** The sum of the quarters' earnings per share does not equal the year-to-date
earnings per share due to the effect of shares issued during the year.
*** Source: New York Stock Exchange - Composite Transactions.
(1) Includes pre-tax restructuring charges of $29.6, $21.9 after taxes or $.17
per share. Excluding the effects of the restructuring charges, net income
was $120.2 or $.94 per primary share and $.90 per fully diluted share.
See Note I for additional details.
(2) Includes pre-tax restructuring charges of $10.2, $9.8 after taxes or $.08
per share. Excluding the effects of the restructuring charges, net income
was $43.1 or $.34 per share. See Note I for additional details.
(3) Includes net pre-tax restructuring charges of $20.2, $12.8 after taxes or
$.14 per share. Excluding the effects of the restructuring charges, net
income was $65.0 or $.72 per share. See Note I for additional details.
(4) Includes pre-tax restructuring charges of $82.5, $54.2 after taxes or $.60
per share. Excluding the effects of the restructuring charges, net income
was $34.3 or $.38 per share. See Note I for additional details.
- -------------------------------------------------------------------------------
-46-
<PAGE>
Crown Cork & Seal Company, Inc.
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
(In millions)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
- -------- -------- -------- -------- --------
Additions
------------------------------------------------
Balance at Charged to costs Charged to other
beginning of and expenses accounts Deductions- Balance at
Description period Write-Offs end of period
- -----------------------------------------------------------------------------------------------------------------------------------
For the Year Ended December 31, 1996
Allowances deducted from
assets to which they apply:
<S> <C> <C> <C> <C> <C>
Trade accounts receivable $10.0 $9.5 $90.5* $18.0 $92.0
Deferred tax assets 22.8 (8.0) 124.2* 139.0
For the Year Ended December 31, 1995
Allowances deducted from
assets to which they apply:
Trade accounts receivable 10.6 4.9 5.5 10.0
Deferred tax assets 29.2 (2.2) 4.2 22.8
For the Year Ended December 31, 1994
Allowances deducted from
assets to which they apply:
Trade accounts receivable 6.2 4.6 .2 10.6
Deferred tax assets 31.3 (2.1) 29.2
* Acquisition of CarnaudMetalbox
</TABLE>
-47-
<PAGE>
Crown Cork & Seal Company, Inc.
ITEM 9. DISAGREEMENTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information called for by this Item, is set forth on pages 4, 5 and 6 of the
Company's Proxy Statement dated March 24, 1997, in the section entitled
"Election of Directors" and on page 15 in the section entitled "Section 16(a)
Beneficial Ownership Reporting Compliance" and is incorporated herein by
reference.
The following table sets forth certain information concerning the principal
executive officers of the Company, including their ages and positions.
<TABLE>
<CAPTION>
Name Age Present Title
<S> <C> <C>
William J. Avery 56 Chairman of the Board of Directors
and Chief Executive Officer
Michael J. McKenna 62 President and
Chief Operating Officer
Ian B. Carmichael 60 Executive Vice President -
Corporate Technologies
John W. Conway 51 Executive Vice President -
President-Americas Division
B. Nigel Gilson 56 Executive Vice President -
Global Customer Business
Mark W. Hartman 59 Executive Vice President -
Office of the Chairman
Tommy H. Karlsson 50 Executive Vice President -
President-European Division
Richard L. Krzyzanowski 64 Executive Vice President,
Secretary and General Counsel
Alan W. Rutherford 53 Executive Vice President
and Chief Financial Officer
Ronald R. Thoma 62 Executive Vice President -
Procurement and Traffic
William H. Voss 51 Executive Vice President -
President-Asia-Pacific Division
Craig R. L. Calle 37 Senior Vice President-
Finance and Treasurer
Timothy J. Donahue 34 Vice President and Controller
</TABLE>
-48-
<PAGE>
Crown Cork & Seal Company, Inc.
ITEM 11. EXECUTIVE COMPENSATION
The information set forth on pages 8 through 11 of the Company's Proxy Statement
dated March 24, 1997, in the section entitled "Executive Compensation" is
incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this Item is set forth on pages 2 through 6 of the
Company's Proxy Statement dated March 24, 1997, in the sections entitled "Proxy
Statement-Meeting, April 24, 1997" and "Election of Directors" and is
incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this Item is set forth on pages 4, 5 and 6 of the
Company's Proxy Statement dated March 24, 1997, in the section entitled
"Election of Directors" and is incorporated herein by reference
-49-
<PAGE>
Crown Cork & Seal Company, Inc.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
a) The following documents are filed as part of this report:
(1) All Financial Statements:
Crown Cork & Seal Company, Inc. and Subsidiaries (see Part II pages 24
through 46 of this Report).
(2) Financial Statement Schedules:
Schedule Number
II.- Valuation and Qualifying Accounts and Reserves (see page 47 of
this Report).
All other schedules have been omitted because they are not applicable
or the required information is included in the Consolidated Financial
Statements.
(3) Exhibits
1.a Form of U.S. Underwriting Agreement (Common Stock) (incorporated
by reference to Exhibit 1.1 of the Company's Registration
Statement on Form S-3 filed with the Securities and Exchange
Commission on November 26, 1996, amended December 5 and 10, 1996,
(File No. 333-16869)).
1.b Form of International Underwriting Agreement (Common Stock)
(incorporated by reference to Exhibit 1.2 of the Company's
Registration Statement on Form S-3 filed with the Securities and
Exchange Commission September 26, 1996, amended October 4 and 24,
1996, (File No. 333-12787)).
1.c Form of Underwriting Agreement (Preferred Stock) (incorporated by
reference to Exhibit 1.3 of Registrant's Registration Statement on
Form S-3 dated September 26, 1996, amended October 4 and 24, 1996,
(File No. 333-12787)).
1.d Form of Agreement between Selling Shareholders and Underwriters
(incorporated by reference to Exhibit 1.4 of Registrant's
Registration Statement on Form S-3 dated September 26, 1996,
amended October 4 and 24, 1996, (File No. 333-12787)).
1.e Form of Underwriting Agreement (incorporated by reference to
Exhibit 1.1 of the Registrant's Registration Statement on form S-3
dated November 26, 1996, amended December 5 and 10, 1996 (File No.
333-16869)).
2.a Exchange Offer Agreement, dated as of May 22, 1995, as amended,
between Crown Cork & Seal Company, Inc. (the "Company") and
Compagnie Generale d'Industrie et de Participations (CGIP)
(incorporated by reference to Annex A of the Company's Proxy
Statement/Prospectus dated November 14, 1995 forming a part of the
Company's Amendment No.1 to its Registration Statement on Form S-4
(No. 33-64167) filed with the Securities and Exchange Commission
on November 14, 1995 and to Exhibit 2.1 of the Company's Current
Report on Form 8-K dated December 28, 1995 (File No. 1-2227)).
2.b Shareholders Agreement dated February 22, 1996, between Crown Cork
& Seal Company, Inc. and Compagnie Generale d'Industrie et de
Participation (CGIP) (incorporated by reference to Exhibit 2.2 of
the Company's Current Report on Form 8-K dated February 22, 1996
(File No. 1-2227)).
-50-
<PAGE>
Crown Cork & Seal Company, Inc.
3.a Amended and Restated Articles of Incorporation of Crown Cork &
Seal Company, Inc. (incorporated by reference to Exhibit 3.1 of
the Company's Registration Statement on Form 8-A dated February
20, 1996 (File No. 1-2227)).
3.b By-laws of Crown Cork & Seal Company, Inc., as amended,
(incorporated by reference to Exhibit 3.3 of the Company's
Registration Statement on Form 8-A dated February 20, 1996 (File
No. 1-2227)).
3.c Resolution fixing the terms of the Registrant's 4.5% Convertible
Preferred Stock (incorporated by reference to Exhibit 3.2 of the
Company's Registration Statement on Form 8-A, dated February 20,
1996 (File No. 1-2227)).
4.a Specimen certificate of Registrant's Common Stock (incorporated by
reference to Exhibit 4.a of the Company's Annual Report on Form
10-K for the year ended December 31, 1995 (File No. 1-2227)).
4.b Specimen certificate of Registrant's 4.5% Convertible Preferred
Stock (incorporated by reference to Exhibit 4 of the Company's
Registration Statement on Form 8-A dated February 20, 1996 (File
No. 1- 2227)).
4.c Form of the Company's 6-3/4% Notes Due 2003 (incorporated by
reference to Exhibit 23 of Registrant's Current Report on Form 8-K
dated April 12, 1993 (File No. 1-2227)).
4.d Form of the Company's 8% Debentures Due 2023 (incorporated by
reference to Exhibit 24 of Registrant's Current Report on Form 8-K
dated April 12, 1993 (File No. 1-2227)).
4.e Officers' Certificate of the Company (incorporated by reference to
Exhibit 4.3 of the Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1993 (File No. 1-2227)).
4.f Indenture dated as of April 1, 1993 between the Company and
Chemical Bank, as Trustee (incorporated by reference to Exhibit 26
of the Registrant's Current Report on Form 8-K dated April 12,
1993 (File No 1-2227)).
4.g Terms Agreement dated March 31, 1993 (incorporated by reference to
Exhibit 27 of the Registrant's Current Report on Form 8-K dated
April 12, 1993 (File No. 1-2227)).
4.h Form of the Company's 7% Notes Due 1999 (incorporated by reference
to Exhibit 99.1 of the Registrant's Current Report on Form 8-K
dated June 16, 1994 (File No. 1-2227)).
4.i Officers' Certificate of the Company dated June 16, 1994
(incorporated by reference to Exhibit 99.2 of the Registrant's
Current Report on Form 8-K dated June 16, 1994 (File No. 1-2227)).
4.j Terms Agreement dated June 9, 1994 (incorporated by reference to
Exhibit 99.3 of Registrant's Current Report on Form 8-K dated June
16, 1994 (File No. 1-2227)).
4.k Indenture dated as of January 15, 1995 between the Company and
Chemical Bank, as Trustee (incorporated by reference to Exhibit 4
of the Registrant's Current Report on Form 8-K dated January 25,
1995 (File No. 1-2227)).
4.l Form of the Company's 8-3/8% Notes Due 2005 (incorporated by
reference to Exhibit 99a of the Registrant's Current Report on
Form 8-K dated January 25, 1995 (File No. 1-2227)).
4.m Officers' Certificate of the Company dated January 25, 1995
(incorporated by reference to Exhibit 99b of the Registrant's
Current Report on Form 8-K dated January 25, 1995 (File No.
1-2227)).
-51-
<PAGE>
Crown Cork & Seal Company, Inc.
4.n Terms Agreement dated January 18, 1995 (incorporated by reference
to Exhibit 99c of the Registrant's Current Report on Form 8-K
dated January 25, 1995 (File No. 1-2227)).
4.o Revolving Credit and Competitive Advance Facility Agreement, dated
as of February 4, 1997, among the Registrant, the Subsidiary
Borrowers referred to therein, the Lenders referred to therein,
the Chase Manhattan Bank, as Administrative Agent, Societe
Generale, as Documentation Agent, and Bank of America Illinois, as
Syndication Agent.
4.p Rights Agreement, dated August 7, 1995, between Crown Cork & Seal
Company, Inc. and First Chicago Trust of New York (incorporated by
reference to Exhibits 1 and 2 to the Company's Registration
Statement on Form 8-A, dated August 10, 1995 (File No. 1-2227)).
4.q Indenture, dated December 17, 1996, among the Company, Crown Cork
& Seal Finance PLC, Crown Cork & Deal Finance S.A. and The Bank of
New York, as trustee (incorporated by reference to Exhibit 4.1 of
the Registrant's Current Report on Form 8-K dated December 17,
1996 (File No. 1-2227)).
4.r Form of the Company's 7-3/8% Debentures Due 2026 (incorporated by
reference to Exhibit 99.1 of the Registrant's Current Report on
Form 8-K dated December 17, 1996 (File No. 1-2227)).
4.s Form of the Company's 7-1/2% Debentures Due 2026 (incorporated by
reference to Exhibit 99.2 of the Registrant's Current Report on
Form 8-K dated December 17, 1996 (File No. 1-2227)).
4.t Form of UK 6-3/4% Notes Due 2003 (incorporated by reference to
Exhibit 99.3 of the Registrant's Current Report on Form 8-K dated
December 17, 1996 (File No. 1-2227)).
4.u Form of UK 7% Notes Due 2006 (incorporated by reference to Exhibit
99.4 of the Registrant's Current Report on Form 8-K dated December
17, 1996 (File No. 1-2227)).
4.v Form of French 6-3/4% Notes Due 2003 (incorporated by reference to
Exhibit 99.5 of the Registrant's Current Report on Form 8-K dated
December 17, 1996 (File No. 1-2227)).
4.w Officers' Certificate for 7-3/4% Debentures Due 2026 (incorporated
by reference to Exhibit 99.6 of the Registrant's Current Report on
Form 8-K dated December 17, 1996 (File No. 1-2227)).
4.x Officers' Certificate for 7-1/2% Debentures Due 2096 (incorporated
by reference to Exhibit 99.7 of Registrant's Current Report on
Form 8-K dated December 17, 1996 (file No. 1-2227)).
4.y Officers' Certificate for 6-3/4% Notes Due 2003 (incorporated by
reference to Exhibit 99.8 of the Registrant's Current Report on
Form 8-K dated December 17, 1996 (File No. 1-2227)).
4.z Officers' Certificate for 7% Notes Due 2006 (incorporated by
reference to Exhibit 99.9 of the Registrant's Current Report on
Form 8-K dated December 17, 1996 (File No. 1-2227)).
4.aa Officers' Certificate 6-3/4% Notes Due 2003 (incorporated by
reference to Exhibit 99.10 of the Registrant's Current Report on
Form 8-K dated December 17, 1996 (File No. 1-2227)).
4.bb Terms Agreement dated December 12, 1996 (incorporated by reference
to Exhibit 1.1 of the Registrant's Current Report on Form 8-K
dated December 12, 1996 (File No. 1-2227)).
4.cc Form of Bearer Security Depositary Agreement (incorporated by
reference to Exhibit 4.2 of the Registrant's Registration
Statement on Form S-3 dated November 26, 1996 amended December 5
and 10, 1996, (File No. 333-16869)).
-52-
<PAGE>
Crown Cork & Seal Company, Inc.
Other long-term agreements of the Registrant are not filed
pursuant to Item 601(b)(4)(iii)(A) of regulation S-K, and the
Registrant agrees to furnish copies of such agreements to the
Securities and Exchange Commission upon its request.
10.a Crown Cork & Seal Company, Inc. Executive Deferred Compensation
Plan (incorporated by reference to Exhibit 10 of the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1991
(No. 1-2227)).
10.b 1990 Stock-Based Incentive Compensation Plan (incorporated by
reference to Exhibit 10.2 of the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1992 (File No. 1-2227)).
10.c Crown Cork & Seal Company, Inc. Restricted Stock Plan for
Non-Employee Directors. (incorporated by the reference to Exhibit
10.3 of the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1992 (File No. 1-2227)).
10.d Crown Cork & Seal Company, Inc. 1984 Non-Qualified Stock Option
Plan (incorporated by reference to Exhibit 28 of the Company's
Registration Statement on Form S-8 filed with the Securities and
Exchange on June 6, 1986 (Registration No. 33-06261)).
10.e Crown Cork & Seal Company, Inc. Retirement Thrift Plan
(incorporated by reference to Exhibit 4.3 of the Company's
Registration Statement on Form S-8 filed with the Securities and
Exchange on September 22, 1993 (File No. 33-50369)).
10.f Crown Cork & Seal Company, Inc. Stock Purchase Plan (incorporated
by reference to Exhibit 4.3 of the Company's Registration
Statement on Form S-8, filed with the Securities and Exchange
Commission on March 16, 1994 (Registration No. 33-52699)).
10.g Crown Cork & Seal Company, Inc. 1994 Stock-Based Incentive
Compensation Plan (incorporated by reference to Exhibit 10.g of
the Company's Annual Report on Form 10-K for the year ended
December 31, 1994 (File No. 1-2227)).
10.h Crown Cork & Seal Company, Inc. Deferred Compensation Plan for
Directors, dated as of October 27, 1994 (incorporated by reference
to Exhibit 10.b of Registrant's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1995 (File No. 1-2227)).
10.i Crown Cork & Seal Company, Inc. Pension Plan for outside
Directors, dated as of October 27, 1994 (incorporated by reference
to Exhibit 10.c of the Registrant's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1995 (File No. 1-2227)).
Exhibits 10.a through 10.i, inclusive, are management contracts or
compensatory plans or arrangements required to be filed as
exhibits pursuant to Item 14(c) of this Report.
11. Statement re Computation of Per Share Earnings
12. Computation of ratio of earnings to fixed charges
19. Crown Cork & Seal Company, Inc. Dividend Reinvestment and Stock
Purchase Plan (incorporated by reference to the Company's
Prospectus dated May 31, 1996 forming a part of the Company's
Registration Statement on Form S-3 (No. 333-04971) filed with the
Securities and Exchange Commission on May 31, 1996).
21. Subsidiaries of Registrant.
23. Consent of Independent Accountants.
-53-
<PAGE>
Crown Cork & Seal Company, Inc.
27. Financial Data Schedule
99. Letter of agreement between the Company and Compagnie Generale d'
Industrie et de Participations ("CGIP") (incorporated by reference
to Exhibit 99.2 of the Company's Current Report on Form 8-K dated
September 26, 1996 (File No. 1-2227)).
b) Reports on Form 8-K
(1) On December 20, 1996, the Registrant filed a Current Report Form 8-K
for the following event:
The Company reported under:
Item 5. Other Events
That on December 17, 1996, the Company and two of the Company's
wholly-owned subsidiaries, Crown Cork & Seal Finance PLC ("Crown
UK") and Crown Cork & Seal Finance S.A. ("Crown France"), issued
$1.2 billion in public debt securities (the Debt Securities). The
Debt Securities consist of: (i) $350 million aggregate principal
amount of 7-3/8% Debentures due 2026 issued by the Company (ii)
$150 million aggregate principal amount of 7-1/2% Debentures Due
2096 issued by the Company, (iii) $200 million aggregate
principal amount of 6-3/4% Notes Due 2003 issued by the Crown UK,
(iv) $300 million aggregate principal amount of 7% Notes Due 2006
issued by the Crown UK and (v) $200 million aggregate principal
amount of Notes Due 2003 issued by Crown France.
(2) On December 17, 1996, the Registrant filed a current Report on Form 8-K
for the following event:
The Company reported under:
Item 5. Other Events
That on December 12, 1996, the Company, Crown Cork & Seal Finance
PLC, a public limited company organized under the laws of England
and Wales and Crown cork & Seal Finance S.A., a societe anonyme
organized under the laws of the Republic of France ("Crown
France"), entered into a Terms Agreement with Salmon Brothers
Inc., CS First Boston Corporation, Chase Securities Inc. and JP
Morgan Securities Inc. (collectively, the "Underwriters") for the
issuance of debentures and notes referred to in (b) (1) above.
(3) On October 15, 1996, the Registrant filed a Current Report on Form 8-K
for the following event:
The Company reported under:
Item 5. Other Events
On October 14, 1996, the Company issued a News Release announcing
summary results of operations for the quarter and nine months
ended September 30, 1996.
-54-
<PAGE>
Crown Cork & Seal Company, Inc.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
Crown Cork & Seal Company, Inc.
--------------------------------
Registrant
Date March 31, 1997
-----------------
By: /s/ Timothy J. Donahue
------------------------
Timothy J. Donahue
Vice President and Controller
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated:
SIGNATURE TITLE
/s/ William J. Avery 3/31/97
- ------------------------------------
William J. Avery Chairman of the Board
and Chief Executive Officer
/s/ Alan W. Rutherford 3/31/97
- ------------------------------------
Alan W. Rutherford Director, Executive Vice President
and Chief Financial Officer
DIRECTORS
<TABLE>
<CAPTION>
<S> <C> <C> <C>
/s/ Henry E. Butwel 3/31/97
- ------------------------------------ -----------------------------------------
Henry E. Butwel Jean-Pierre Rosso
/s/ Charles F. Casey 3/31/97 /s/ Ernest-Antoine Seilliere 3/31/97
- ------------------------------------ -----------------------------------------
Charles F. Casey Ernest-Antoine Seilliere
/s/ Francis X. Dalton 3/31/97 /s/ J. Douglass Scott 3/31/97
- ------------------------------------ -----------------------------------------
Francis X. Dalton J. Douglass Scott
/s/ Richard L. Krzyzanowski 3/31/97 /s/ Robert J. Siebert 3/31/97
- ------------------------------------ -----------------------------------------
Richard L. Krzyzanowski Robert J. Siebert
/s/ Josephine C. Mandeville 3/31/97 /s/ Harold A. Sorgenti 3/31/97
- ------------------------------------ -----------------------------------------
Josephine C. Mandeville Harold A. Sorgenti
/s/ Michael J. McKenna 3/31/97 /s/ Guy de Wouters 3/31/97
- ------------------------------------ -----------------------------------------
Michael J. McKenna Guy de Wouters
- ------------------------------------
Felix G. Rohatyn
</TABLE>
-55-
REVOLVING CREDIT AND COMPETITIVE ADVANCE FACILITY AGREEMENT
Dated as of February 4, 1997
Among
CROWN CORK & SEAL COMPANY, INC.,
THE SUBSIDIARY BORROWERS REFERRED TO HEREIN,
THE LENDERS REFERRED TO HEREIN,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
SOCIETE GENERALE,
as Documentation Agent,
and
BANK OF AMERICA ILLINOIS,
as Syndication Agent
-------------------
CHASE SECURITIES INC.,
SOCIETE GENERALE and BANCAMERICA SECURITIES, INC.,
as Arrangers
[CSM Ref. 6700-492]
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS....................................................... 1
SECTION 1.01. Defined Terms............................................. 1
SECTION 1.02. Terms Generally.......................................... 28
ARTICLE II. THE CREDITS..................................................... 28
SECTION 2.01. Credit Commitments....................................... 28
SECTION 2.02. Procedure for Revolving Credit
Borrowing; Assigned Dollar Values....................... 30
SECTION 2.03. Conversion and Continuation Options
for Revolving Loans..................................... 32
SECTION 2.04. Swingline Loans.......................................... 33
SECTION 2.05. Prepayments of Loans..................................... 36
SECTION 2.06. The Competitive Loans.................................... 37
SECTION 2.07. Procedure for Competitive Loan
Borrowing............................................... 37
SECTION 2.08. Repayment of Loans; Evidence of
Debt.................................................... 42
SECTION 2.09. Interest Rates and Payment Dates......................... 44
SECTION 2.10. Computation of Interest.................................. 46
SECTION 2.11. Fees..................................................... 46
SECTION 2.12. Termination or Reduction of
Revolving Credit Commitments............................ 47
SECTION 2.13. Inability to Determine Interest
Rate; Unavailability of Deposits;
Inadequacy of Interest Rate............................. 47
SECTION 2.14. Pro Rata Treatment and Payments.......................... 51
SECTION 2.15. Illegality............................................... 53
SECTION 2.16. Requirements of Law...................................... 53
SECTION 2.17. Taxes.................................................... 55
SECTION 2.18. Indemnity................................................ 58
SECTION 2.19. Change of Lending Office................................. 59
SECTION 2.20. Sharing of Setoffs....................................... 59
SECTION 2.21. Assignment of Commitments Under
Certain Circumstances................................... 60
ARTICLE III. REPRESENTATIONS AND WARRANTIES................................. 61
SECTION 3.01. Organization, etc........................................ 61
SECTION 3.02. Due Authorization, Non-
Contravention, etc...................................... 61
SECTION 3.03. Government Approval, Regulation,
etc..................................................... 62
<PAGE>
ii
SECTION 3.04. Validity, etc............................................ 62
SECTION 3.05. Financial Information.................................... 62
SECTION 3.06. No Material Adverse Change............................... 62
SECTION 3.07. Litigation, Labor Controversies,
etc..................................................... 63
SECTION 3.08. Subsidiaries............................................. 63
SECTION 3.09. Ownership of Properties.................................. 63
SECTION 3.10. Taxes.................................................... 63
SECTION 3.11. Pension and Welfare Plans................................ 63
SECTION 3.12. Environmental Warranties................................. 64
SECTION 3.13. Regulations G, U and X................................... 65
SECTION 3.14. Accuracy of Information.................................. 65
ARTICLE IV. CONDITIONS OF LENDING........................................... 66
SECTION 4.01. Conditions to Effectiveness.............................. 66
SECTION 4.02. Conditions to Each Loan.................................. 67
ARTICLE V. AFFIRMATIVE COVENANTS............................................ 69
SECTION 5.01. Financial Information, Reports,
Notices, etc............................................ 69
SECTION 5.02. Compliance with Laws, etc................................ 71
SECTION 5.03. Maintenance of Properties................................ 72
SECTION 5.04. Insurance................................................ 72
SECTION 5.05. Books and Records........................................ 72
SECTION 5.06. Environmental Covenant................................... 72
SECTION 5.07. Significant Subsidiaries................................. 73
SECTION 5.08. Use of Proceeds.......................................... 74
ARTICLE VI. NEGATIVE COVENANTS.............................................. 74
SECTION 6.01. Transactions with Affiliates............................. 74
SECTION 6.02. Indebtedness............................................. 74
SECTION 6.03. Liens.................................................... 76
SECTION 6.04. Financial Condition...................................... 78
SECTION 6.05. Consolidation, Merger, etc............................... 78
SECTION 6.06. Restrictive Agreements................................... 78
ARTICLE VII. EVENTS OF DEFAULT.............................................. 79
SECTION 7.01. Listing of Events of Default............................. 79
SECTION 7.02. Action if Bankruptcy..................................... 82
SECTION 7.03. Action if Other Event of Default......................... 82
SECTION 7.04. Action if Event of Termination........................... 83
ARTICLE VIII. THE ADMINISTRATIVE AGENT...................................... 83
<PAGE>
iii
ARTICLE IX. GUARANTEE....................................................... 86
SECTION 9.01. Guarantee................................................ 86
SECTION 9.02. Amendments, etc., with respect to
the Subsidiary Borrower
Obligations............................................. 87
SECTION 9.03. Guarantee Absolute and
Unconditional........................................... 88
SECTION 9.04. Reinstatement............................................ 89
SECTION 9.05. Payments................................................. 90
SECTION 9.06. Independent Obligations.................................. 90
ARTICLE X. MISCELLANEOUS.................................................... 90
SECTION 10.01. Notices................................................. 90
SECTION 10.02. Survival of Agreement................................... 91
SECTION 10.03. Binding Effect.......................................... 92
SECTION 10.04. Successors and Assigns.................................. 92
SECTION 10.05. Expenses; Indemnity..................................... 97
SECTION 10.06. Right of Setoff......................................... 98
SECTION 10.07. Applicable Law.......................................... 99
SECTION 10.08. Waivers; Amendment...................................... 99
SECTION 10.09. Interest Rate Limitation................................100
SECTION 10.10. Entire Agreement........................................100
SECTION 10.11. Waiver of Jury Trial....................................101
SECTION 10.12. Severability............................................101
SECTION 10.13. Counterparts............................................101
SECTION 10.14. Headings................................................101
SECTION 10.15. Jurisdiction; Consent to Service
of Process..............................................102
SECTION 10.16. Judgments Relating to Subsidiary
Borrowers...............................................103
SECTION 10.17. Unification of Certain Currencies.......................104
SECTION 10.18. Waiver Under Existing Agreements........................105
EXHIBIT A Form of Administrative Questionnaire
EXHIBIT B Form of Assignment and Acceptance
EXHIBIT C Form of Competitive Bid Request
EXHIBIT D Form of Competitive Loan Confirmation
EXHIBIT E Form of Significant Subsidiary Election
Notice
EXHIBIT F Form of Subsidiary Borrower Notice and
Designation
EXHIBIT G Form of Subsidiary Borrower Closing
Certificate
EXHIBIT H Form of Opinion of Dechert, Price &
Rhoads
<PAGE>
iv
EXHIBIT I Form of Opinion of
Richard L. Krzyzanowski, Esq.
EXHIBIT J Form of Compliance Certificate
EXHIBIT K Calculation of MLA Costs
EXHIBIT L Form of Note
SCHEDULE 2.01 Lenders and Commitments
SCHEDULE 3.08 Subsidiaries
SCHEDULE 3.11 Post-Retirement Benefits
SCHEDULE 6.02 Indebtedness
<PAGE>
REVOLVING CREDIT AND COMPETITIVE ADVANCE
FACILITY AGREEMENT dated as of February 4, 1997,
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"); THE CHASE MANHATTAN
BANK, a New York banking corporation, as
administrative agent (in such capacity, the
"Administrative Agent") for the Lenders; SOCIETE
GENERALE, as Documentation Agent; and BANK OF AMERICA
ILLINOIS, as Syndication Agent.
The Borrowers have requested the Lenders to extend credit in
the form of Revolving Loans (such term and each other capitalized term used but
not defined herein having the meaning given to it in Article I) at any time and
from time to time prior to the Revolving Credit Maturity Date, in an aggregate
principal amount at any time outstanding not in excess of $2,500,000,000,
available in Dollars or, subject to certain limitations, Alternative Committed
Currencies. The Borrowers have also requested the Lenders to provide a procedure
pursuant to which the Borrowers may invite the Lenders to bid on an uncommitted
basis on short-term borrowings by the Borrowers in Dollars or any other
Alternative Currency. The Borrowers have also requested the Swingline Lenders to
extend credit in the form of Swingline Loans. The proceeds of the Loans are to
be used for general corporate purposes.
The Lenders are willing to extend such credit to the Borrowers
on the terms and subject to the conditions set forth herein. Accordingly, the
parties hereto agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this
Agreement, the following terms shall have the meanings
specified below:
"ABR Borrowing" shall mean a Borrowing comprised
of ABR Loans.
<PAGE>
2
"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.
"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 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(b).
"Aggregate Revolving Credit Exposure" shall mean
the aggregate amount of the Lenders' 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 1/16 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%. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) after using its good faith efforts that it is
unable to ascertain the Federal Funds Effective Rate for any reason,
<PAGE>
3
including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms hereof, the Alternate Base
Rate shall be determined without regard to clause (b) of the preceding sentence
until the circumstances giving rise to such inability or failure no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime Rate
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.
"Alternative Committed Currencies" shall mean
French Francs, Deutschemarks 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 Loan" shall mean
any Revolving Loan denominated in an Alternative Committed
Currency.
"Alternative Currency" shall mean any currency (including an
Alternative Committed Currency), other than Dollars, with respect to which a
spot exchange rate for Dollars appears on page FXFX of the Reuters Screen at the
time a Borrowing in such currency is requested, as determined by the
Administrative Agent.
"Alternative Currency Borrowing" shall mean a Borrowing
comprised in whole or in part of Alternative Currency Loans.
"Alternative Currency Equivalent" shall mean, with respect to
an amount in Dollars on any date in relation to a specified Alternative
Currency, the amount of such specified Alternative Currency that may be
purchased with such amount of Dollars at the Spot Exchange Rate with respect to
such Alternative Currency on such date.
"Alternative Currency Loan" shall mean any Loan (whether a
Revolving Loan or a Competitive Loan) denominated in an Alternative Currency.
"Alternative Dollar Loan" shall have the meaning assigned to
such term in Section 2.13(b).
<PAGE>
4
"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).
"Applicable Percentage" shall mean as of any date (i) with
respect to the Facility Fees, the applicable percentage set forth below under
the caption "Facility Fee Percentage" and (ii) with respect to any Eurocurrency
Loan (other than a Eurocurrency Competitive Loan), the applicable percentage set
forth below under the caption "Eurocurrency Spread", in each case based upon the
ratings by S&P and Moody's, respectively, applicable on such date to the Index
Debt:
Eurocurrency Facility Fee
Spread Percentage
Category 1
S&P: A or better .1350% .0650%
Moody's: A2 or better
Category 2
S&P: A- to BBB+ .1400% .0800%
Moody's: A3 to Baa1
Category 3
S&P: BBB or below .1500% .1000%
Moody's: Baa2 or below
For purposes of the foregoing, (i) if either Moody's or S&P
shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then
such rating agency shall be deemed to have established a rating in Category 3;
(ii) if the ratings established or deemed to have been established by Moody's
and S&P for the Index Debt shall fall within different Categories, the
Applicable Percentage shall be based on the higher of the
<PAGE>
5
two ratings; and (iii) if the ratings established or deemed to have been
established by Moody's and S&P for the Index Debt shall be changed (other than
as a result of a change in the rating system of Moody's or S&P), such change
shall be effective as of the date on which it is first announced by the
applicable rating agency. Each change in the Applicable Percentage shall apply
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If
the rating system of Moody's or S&P shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations,
or if the Index Debt shall be unrated by Moody's or S&P as a result of a
reasonable business decision of CCSC, CCSC and the Lenders shall negotiate in
good faith to amend this definition to reflect such changed rating system or the
non-availability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Percentage most recently in
effect shall continue in effect.
"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(c) or any
successor thereto.
"Available Revolving Credit Commitment" shall mean as to any
Lender, at any time of determination, an amount equal to such Lender's Revolving
Credit Commitment at such time minus such Lender's Revolving Credit Exposure at
such time.
"Available Swingline Commitment" shall mean, as to the
Swingline Lender, at any time of determination, an amount equal to the Swingline
Commitment at such time minus the aggregate principal amount of all Swingline
Loans then outstanding.
<PAGE>
6
"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 a single Type and denominated in a single currency (except as
provided in Section 2.13(b)) made (including through a conversion or
continuation) by the Lenders (or, in the case of a Competitive Borrowing, by the
Lender or Lenders whose Competitive Bids have been accepted pursuant to Section
2.07) 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, 2.04 or 2.07 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).
"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 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 and (ii)
when used in connection with the payment or purchase of any amount denominated
in an Alternative 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 the city that is the principal financial center of the country that
is the issuer of the currency in which such Loan is denominated, as determined
by the Administrative Agent.
"Capitalized Lease Liabilities" 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
<PAGE>
7
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 the acquisition by any Person,
or two or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended) of (i) more than 50% of the
outstanding shares of voting stock of CCSC or (ii) 30% or more of the total
voting power of CCSC (a "30% Stockholder") followed by any change in the
composition of the Board of Directors of CCSC, which shall include one or more
designees of such 30% Stockholder, unless any such change in the composition of
the Board of Directors does not result in a majority of the members of the Board
of Directors consisting of designees of such 30% Stockholder.
"Charges" shall have the meaning assigned to such term in
Section 10.09.
"Closing Date" shall mean the date hereof.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment Letter" shall mean the Commitment Letter dated
December 20, 1996, among CCSC, The Chase Manhattan Bank, Chase Securities Inc.,
Bank of America Illinois, BancAmerica Securities, Inc. and Societe Generale.
"Commitment Percentage" shall mean, with respect to any Lender
at any time, the percentage of the Total Revolving Credit Commitment represented
by such Lender's Revolving Credit Commitment.
"Competitive Bid" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.07.
<PAGE>
8
"Competitive Bid Request" shall mean a request made pursuant
to Section 2.07 in the form of Exhibit C.
"Competitive Borrowing" shall mean a Borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such Borrowing have been accepted by any Borrower
under the bidding procedure described in Section 2.07.
"Competitive Loan" shall mean a Loan from a Lender to any
Borrower pursuant to the bidding procedure described in Section 2.07.
"Competitive Loan Borrowing Period" shall mean the period from
and including the Closing Date until the last day of the Revolving Credit
Commitment Period.
"Competitive Loan Confirmation" shall mean each confirmation
by the relevant Borrower of its acceptance of Competitive Bids, which
Competitive Loan Confirmation shall be substantially in the form of Exhibit D
and shall be delivered to the Administrative Agent in writing or by
facsimile transmission.
"Competitive Loan Exposure" shall mean the sum of the
aggregate principal amount of all outstanding Competitive Loans denominated in
Dollars and the Assigned Dollar Value of all outstanding Competitive Loans
denominated in Alternative Currencies. The "Competitive Loan Exposure" of any
Lender at any time shall mean the portion of the aggregate Competitive Loan
Exposure attributable to Competitive Loans made by it.
"Competitive Loan Maturity Date" shall mean, as to any
Competitive Loan, the maturity date specified in the Competitive Bid with
respect to such Competitive Loan selected by the relevant Borrower pursuant to
Section 2.07(d)(ii).
"Compliance Certificate" shall mean a certificate of a
Financial Officer of CCSC substantially in the form of Exhibit J.
"Contingent Liability" shall mean any agreement, undertaking
or arrangement by which any Person guarantees, endorses or otherwise becomes or
is contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or other-
<PAGE>
9
wise to invest in, a debtor, or otherwise to assure a creditor against loss) the
Indebtedness, obligation or any other liability of any other Person (other than
by endorsements of instruments in the course of deposit or collection), or
guarantees the payment of dividends or other distributions upon the shares of
any other Person. The amount of any Person's obligation under any Contingent
Liability shall (subject to any limitation set forth therein) be deemed to be
the outstanding principal amount (or maximum principal amount, if larger) of the
debt, obligation or other liability guaranteed thereby. Notwithstanding the
foregoing, for purposes of this Agreement, "Contingent Liability" shall not
include any liability (i) for which CCSC or any of its Subsidiaries has received
a full and unconditional indemnity or "hold harmless" agreement from another
Person with respect to environmental liabilities associated with real property
purchased by CCSC or such Subsidiary from such Person and (ii) to the extent
supported by a "back-to-back" guaranty delivered in connection with the issuance
of industrial development bonds.
"Control" shall mean the possession, directly or indirectly,
of the 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 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.
<PAGE>
10
"Denomination Date" shall mean, in relation to any Alternative
Currency Borrowing, the date that is three Business Days (or, in the case of a
Fixed Rate Borrowing, two Business Days) before the date such Borrowing is made.
"Deutschemarks" shall mean the lawful money of Germany.
"Dollar Equivalent" shall mean, with respect to an amount of
any Alternative Currency on any date, the amount of Dollars that may be
purchased with such amount of the Alternative Currency at the Spot Exchange Rate
with respect to the Alternative Currency on such date.
"Dollars" or "$" shall mean lawful money of the
United States of America.
"EBIT" shall mean, for any period, the sum for such period of
all amounts which, in accordance with GAAP, would be included on the
consolidated financial statements of CCSC and its Subsidiaries as
(a) Net Income (excluding any extraordinary gains and losses,
and any net income (or net loss) attributable to the write-up (or
write-down, as the case may be) in value of any assets),
plus
(b) Net Interest Expense,
plus
(c) to the extent deducted in determining Net
Income, provisions for income taxes.
"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
<PAGE>
11
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, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
Environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters.
"Environmental Permit" means any permit, approval,
authorization, certificate, license, variance, filing or permission required by
or from any Governmental Authority pursuant to any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act
of 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 Competitive Borrowing" shall mean a
Borrowing comprised of Eurodollar Competitive Loans.
"Eurocurrency Competitive Loan" shall mean any Competitive
Loan bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Eurocurrency Loan" shall mean any Eurocurrency
Revolving Loan or Eurocurrency Competitive Loan.
<PAGE>
12
"Eurocurrency Revolving Credit Borrowing" shall
mean a Borrowing comprised of Eurocurrency Revolving Loans.
"Eurocurrency Revolving Loan" shall mean any Revolving Loan
bearing interest at a rate determined by reference to the LIBO Rate or, as the
case may be, the PIBO Rate in accordance with the provisions of Article II.
"Event of Default" shall have the meaning assigned
to such term in Section 7.01.
"Event of Termination" shall have the meaning assigned to such
term in Section 7.01.
"Excess Amount Interest" shall have the meaning assigned to
such term in Section 2.09(e).
"Existing Agreements" shall mean (i) the Revolving Credit and
Competitive Advance Facility Agreement, dated as of February 10, 1995, among
CCSC, the Subsidiary Borrowers named therein, the Lenders named therein and the
Administrative Agent, as administrative agent, and (ii) the Revolving Credit and
Term Loan Agreement, dated as of December 1, 1995, among CCSC, the Subsidiary
Borrowers named therein, the Lenders named therein and the Administrative Agent,
as administrative agent, in each case as in effect on the date hereof.
"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.
"Fees" shall mean the Facility Fees and the Agent Fees.
"Financial Officer" of any corporation,
partnership or other entity shall mean the chief financial
<PAGE>
13
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.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of
Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (expressed in the form of a
decimal to no more than four decimal places) specified by the Lender making such
Loan in its Competitive Bid.
"French Francs" shall mean the lawful money of France.
"Funded Debt" shall mean (a) all Loans and (b) all other
Indebtedness of CCSC and its Subsidiaries (including, without duplication,
Contingent Liabilities relating to such Indebtedness) on a consolidated basis,
which by its terms:
(i) matures or is payable more than one year
from the date on which it was created, or
(ii) matures within one year from the date on which it
was created, but is renewable or extendible under terms such
that under GAAP such Indebtedness would be treated as
long-term indebtedness.
"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.
<PAGE>
14
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes, hazardous or toxic substances or wastes, pollutants,
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, infectious or medical wastes and all
other substances or wastes of any nature regulated pursuant to any Environmental
Law.
"Impermissible Qualification" shall mean, relative to the
opinion or certification of any independent public accountant as to any
financial statement of CCSC, any qualification or exception to such opinion or
certification
(a) which is of a "going concern" or similar
nature;
(b) which relates to the limited scope of
examination of matters relevant to such financial
statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of which
would be to cause CCSC to be in default of any of its obligations under
Section 6.04.
"Indebtedness" of any Person shall mean, without
duplication:
(a) all obligations of such Person for borrowed money, all
obligations of such Person as account party under letters of credit in
respect of borrowed money and all obligations of such Person evidenced
by bonds, debentures, notes or other similar instruments;
(b) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded as
Capitalized Lease Liabilities;
(c) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services (provided, however, that Indebtedness
shall not include open accounts extended by suppliers on normal trade
terms in connection with purchases of goods and
<PAGE>
15
services or obligations relating to employee benefits (including
post-retirement medical benefits), pension, health and life insurance
(and other similar benefits) and provided, further, that for purposes
of calculating compliance with the provisions of Section 6.04(a),
Indebtedness shall include obligations to pay the deferred purchase
price of property or services only to the extent that such obligations
are reflected on the consolidated balance sheet of CCSC and its
consolidated Subsidiaries) and indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall
have been assumed by such Person or is limited in recourse; provided,
however, that the amount of such indebtedness which is limited in
recourse shall be included in an amount equal to the lesser of (i) the
amount of such Indebtedness or (ii) the amount of the Lien; and
(d) all Contingent Liabilities of such Person in
respect of any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership in which such Person is a general partner.
"Index Debt" shall mean the senior, unsecured, non-externally
credit enhanced, long-term indebtedness for borrowed money of CCSC.
"Interest Coverage Ratio" means, for any period of four
consecutive Fiscal Quarters (calculated on the basis of the most recent Fiscal
Quarter ended and the three immediately preceding Fiscal Quarters), the ratio of
(a) EBIT
to
(b) Net Interest Expense for such period.
"Interest Payment Date" shall mean, with respect to any Loan,
the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurocurrency Borrowing or Fixed Rate
Borrowing with an Interest Period of more than three months' duration,
<PAGE>
16
each day that would have been an Interest Payment Date had successive Interest
Periods of three months' duration been applicable to such Borrowing, and, in
addition, the date of any refinancing of such Borrowing with a Borrowing of a
different Type.
"Interest Period" shall mean (a) as to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing (including any
date on which such Borrowing shall have been converted from a Borrowing of a
different Type) or on the last day of the immediately preceding Interest Period
applicable to such Borrowing, as the case may be, and ending on (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 relevent 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 (A) in the case of a Eurocurrency Revolving Credit Borrowing that
is not a Weekly Eurocurrency Borrowing, 1, 2, 3, 6 or, if available from all
Lenders, 12 months thereafter, as the relevant Borrower may elect, or (B) in the
case of a Eurocurrency Competitive Borrowing, any whole number of months (but
not more than 12 months) thereafter, as shall be specified in the Competitive
Bids in which the offers to make the Eurocurrency Loans comprising such
Borrowing were extended, (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, (c)
as to any Fixed Rate Borrowing, the period commencing on the date of such
Borrowing and ending on the date specified in the Competitive Bids in which the
offers to make the Fixed Rate Loans comprising such Borrowing were extended,
which shall not be earlier than seven days after the date of such Borrowing or
later than 360 days after the date of such Borrowing and (d) 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,
<PAGE>
17
however, that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless, in the case of a Eurocurrency Borrowing only, such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day. Interest shall accrue from
and including the first day of an Interest Period to but excluding the last day
of such Interest Period.
"Judgment Currency" shall have the meaning
assigned to such term in Section 10.16(b).
"Leverage Ratio" means, as of the last day of any
Fiscal Quarter, the ratio of
(a) Funded Debt (other than Funded Debt which is nonrecourse
to CCSC and its Subsidiaries and giving effect only to CCSC's or its
Subsidiaries' pro-rata share of consolidated Indebtedness of joint
ventures)
to
(b) Long-Term Capitalization.
"LIBO Rate" shall mean with respect to any Eurocurrency
Borrowing, other than a Weekly Eurocurrency Borrowing, bearing interest at a
rate determined by reference to the LIBO Rate in accordance with the provisions
of Article II, for any Interest Period, (a) (i) the interest rate per annum for
deposits for a maturity most nearly comparable to such Interest Period in the
currency in which such Borrowing is denominated which appears on page 3740 or
3750, as applicable, of the Dow Jones Telerate Screen (x) in the case of a
Eurocurrency Borrowing by a U.K. Borrower denominated in British Pounds
Sterling, as of 11:00 a.m., London time, on the first day of such Interest
Period and (y) in the case of any other Eurocurrency Borrowing, as of 11:00
a.m., London time, on the day that is two Business Days prior to the first day
of such Interest Period or (ii), if such a rate does not appear on page 3740 or
3750, as applicable, of the Dow Jones Telerate Screen, an interest rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the rate
at which deposits in the currency in which such Borrowing is denominated
approximately equal in principal amount to the Loan of the Administrative Agent,
in its capacity as a Lender, included in such Eurocurrency Borrowing (or, in the
case of a
<PAGE>
18
Competitive Borrowing, a principal amount that would have been the
Administrative Agent's portion of such Borrowing if such Borrowing had been a
Revolving Credit Borrowing) and for a maturity comparable to such Interest
Period are offered to the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, (x) in the case of a Eurocurrency Borrowing by a U.K.
Borrower denominated in British Pounds Sterling, on the first day of such
Interest Period and (y) in the case of any other Eurocurrency Borrowing, on the
day that is two Business Days prior to the first day of such Interest Period,
multiplied by (b) a fraction, the numerator of which is one and the denominator
of which is one minus the Statutory Reserve Percentage. LIBO Rate shall mean
with respect to any Weekly Eurocurrency Borrowing bearing interest at a rate
determined by reference to the LIBO Rate in accordance with the provisions of
Article II, for any Interest Period applicable to a Weekly Eurocurrency
Borrowing, (a) the interest rate per annum determined by the Administrative
Agent to be the arithmetic mean (rounded upwards, if necessary, to the nearest
1/16 of 1%) of the rates at which deposits in the currency in which such
Borrowing is denominated approximately equal in principal amount to the 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 (x) in the case of a
Weekly Eurocurrency Borrowing by a U.K. Borrower denominated in British Pounds
Sterling, as of 11:00 a.m., London time, on the first day of such Interest
Period and (y) in the case of any other Weekly Eurocurrency Borrowing, as of
11:00 a.m., London time, on the day that is two Business Days prior to the first
day of such Interest Period, multiplied by (b) a fraction, the numerator of
which is one and the denominator of which is one minus the Statutory Reserve
Percentage.
"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.
<PAGE>
19
"Loan Documents" shall mean this Agreement, the Commitment
Letter, each Subsidiary Borrowing Notice and Designation and, if requested by a
Lender pursuant to Section 2.08(e), each Note.
"Loans" shall mean the Revolving Loans, the Swingline Loans
and the Competitive Loans.
"Long-Term Capitalization" shall mean, on any date of
determination, the sum of (i) Funded Debt of CCSC and its Subsidiaries on a
consolidated basis and (ii) the amount, determined on a consolidated basis, in
the capital stock account (including preferred stock when outstanding) plus (or
minus in the case of a deficit) the additional paid-in capital and retained
earnings of CCSC and its Subsidiaries, and in any event, net of the value of
treasury stock in such capital stock account, plus accounting liabilities for
post-retirement benefits (FAS 106) and post-employment benefits (FAS 112), net
of changes for income tax (FAS 109).
"Margin" shall mean, as to any Eurocurrency Competitive Loan,
the margin (expressed as a percentage rate per annum in the form of a decimal to
no more than four decimal places) to be added to or subtracted from the LIBO
Rate in order to determine the interest rate applicable to such Loan, as
specified in the Competitive Bid relating to such Loan.
"Material Adverse Effect" shall mean any event which will have
a materially adverse effect on the financial condition or results of operations
of CCSC and its Subsidiaries taken as a whole.
"Maximum Rate" shall have the meaning assigned to such term in
Section 10.09.
"MLA Cost" shall mean the cost imputed to the Lenders in
connection with a Borrowing denominated in British Pounds Sterling in compliance
with the Mandatory Liquid Asset requirements of the Bank of England during an
Interest Period (or part of an Interest Period), expressed as a rate per annum
and determined in accordance with Exhibit K.
"Moody's" shall mean Moody's Investors Service, Inc.
<PAGE>
20
"Multicurrency Borrowing" shall have the meaning assigned to
such term in Section 2.13(b).
"Net Income" means, for any period, the net income of CCSC and
its Subsidiaries for such period on a consolidated basis.
"Net Interest Expense" means, for any period, the aggregate
amount of interest expense of CCSC and its Subsidiaries for such period which,
in accordance with GAAP, would be included on the consolidated financial
statements of CCSC and its Subsidiaries, including without limitation the
portion of any rent paid on Capitalized Lease Liabilities which is allocable to
interest expense in accordance with GAAP, minus the amount of interest income
received by CCSC and its Subsidiaries for such period.
"Note" shall mean a note substantially in the form of
Exhibit L.
"Obligations" means all obligations (monetary or otherwise) of
the Borrowers arising under or in connection with this Agreement and each other
Loan Document.
"Organic Document" means, (i) relative to each Borrower that
is a corporation, its charter, its by-laws and all shareholder agreements,
voting trusts and similar arrangements applicable to any of its authorized
shares of capital stock, (ii) relative to each Borrower that is a partnership,
its partnership agreement and any other similar arrangements applicable to any
partnership or other equity interests in the Borrower and (iii) relative to any
Borrower that is any other type of legal entity, such documents as shall be
comparable to the foregoing.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"Pension Plan" shall mean a "pension plan", as such term is
defined in section 3(2) of ERISA, which is subject to Title IV of ERISA (other
than a multiemployer plan as defined in section 4001(a)(3) of ERISA) and to
which CCSC or any ERISA Affiliate may have liability, including any liability by
reason of having been a substantial employer within the meaning of section 4063
of ERISA at any time during the preceding five years, or by reason of being
deemed to be a contributing sponsor under section 4069 of ERISA.
<PAGE>
21
"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.
"PIBO Rate" shall mean with respect to any Eurocurrency
Borrowing bearing interest at a rate determined by reference to the PIBO Rate in
accordance with the provisions of Article II, for any Interest Period, (a) the
interest rate per annum determined by the Administrative Agent to be the
arithmetic mean (rounded upwards, if necessary, to the nearest 1/16 of 1%) of
the rates at which deposits in the currency in which such Borrowing is
denominated approximately equal in principal amount to the Loans of the PIBOR
Reference Banks, in their capacities as Lenders, included in such Borrowing and
for a maturity comparable to such Interest Period are offered to the principal
Paris offices of each of the PIBOR Reference Banks in immediately available
funds in the Paris interbank market at approximately 11:00 a.m., Paris time, on
the day that is two Business Days prior to the first day of such Interest Period
multiplied by (b) a fraction, the numerator of which is one and the denominator
of which is one minus the Statutory Reserve Percentage.
"PIBOR Reference Banks" means the principal Paris office of
each of the Administrative Agent and Societe Generale, or such other Lender or
Lenders as from time to time may be agreed upon between the Borrowers and the
Administrative Agent.
"Plan" shall mean any Pension Plan or Welfare Plan.
"Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective on the date such change is publicly announced as
being effective.
"Pro Rata Percentage" of any Lender at any time shall mean the
percentage of the aggregate Available Revolving Credit Commitments represented
by such Lender's Available Revolving Credit Commitment.
"Register" shall have the meaning given such term in Section
10.04(d).
<PAGE>
22
"Regulation G" shall mean Regulation G of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation U" shall mean Regulation U of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation X" shall mean Regulation X of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing, dispersing, emanating or migrating of any Hazardous
Material in, into, onto or through the Environment.
"Remedial Action" means (a) "remedial action" as such term is
defined in CERCLA, 42 USC. Section 9601(24), and (b) all other actions required
by any Governmental Authority or voluntarily undertaken to: (i) cleanup, remove,
treat, 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 Commitments representing more than 50% of the sum of all
Revolving Credit Commitments or, for purposes of acceleration pursuant to
Section 7.03, Lenders having Revolving Credit Exposures and Competitive Loan
Exposures representing more than 50% of the sum of the Aggregate Revolving
Credit Exposure and Competitive Loan Exposure.
"Requirement of Law" shall mean, as to any Person,
any law, treaty, rule or regulation or determination of an
<PAGE>
23
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.
"Revaluation Date" shall mean, with respect to an Alternative
Committed Currency Loan, the last day of each Interest Period with respect to
such Loan (and if such day is not a Business Day, then the day the applicable
interest payment would be due pursuant to the last two sentences of Section
2.14(a)).
"Revolving Credit Borrowing" shall mean a
Borrowing comprised of Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each
Lender, the commitment of such Lender to make Revolving Loans hereunder in an
aggregate principal amount (with respect to Alternative Committed Currency
Loans, as measured by the aggregate Assigned Dollar Value of such Loans) at any
time outstanding not to exceed the amount set forth opposite such Lender's name
on Schedule 2.01, as the same may be reduced from time to time pursuant to the
provisions of this Agreement.
"Revolving Credit Commitment Period" shall mean the period
from and including the date hereof 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, with respect to any
Lender at any time, the sum of (a) the aggregate principal amount at such time
of all outstanding Revolving Loans of such 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 Lender, plus (c)
such Lender's
<PAGE>
24
Commitment Percentage of the aggregate principal amount at such time of all
outstanding Swingline Loans.
"Revolving Credit Maturity Date" shall mean
February 4, 2002.
"Revolving Loans" shall mean the revolving loans
made by the Lenders to the Borrowers pursuant to
Section 2.01. Each Revolving Loan shall be a Eurocurrency
Revolving Loan or an ABR Loan.
"S&P" shall mean Standard & Poor's, a division of The
McGraw-Hill Companies, Inc.
"Significant Subsidiary" shall mean each Subsidiary of CCSC
that has assets which represent at least 2%, or, during the effectiveness of a
Significant Subsidiary Election Notice, 5% of the consolidated assets of CCSC
and its Subsidiaries as of the last day of the Fiscal Year of CCSC preceding the
date as of which any such determination is made, as reflected on the financial
statements of CCSC, and each Subsidiary of CCSC designated by CCSC as a
Significant Subsidiary pursuant to Section 5.07.
"Significant Subsidiary Election Notice" shall mean a notice
delivered by CCSC to the Administrative Agent substantially in the form of
Exhibit E.
"Spot Exchange Rate" shall mean, on any day, (a) with respect
to any Alternative Currency in relation to Dollars, the spot rate at which
Dollars are offered on such day for such Alternative Currency which appears on
page FXFX of the Reuters Screen at approximately 11:00 a.m., London time (and if
such spot rate is not available on the applicable page of the Reuters Screen,
such spot rate as quoted by Chase Manhattan International Limited at
approximately 11:00 a.m., London time), (b) with respect to Dollars in relation
to any specified Alternative Currency, the spot rate at which such specified
Alternative 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 Chase Manhattan International Limited at approximately
11:00 a.m., London time). For purposes of determining the Spot Exchange Rate in
connection with an Alternative Currency Borrowing, such Spot Exchange Rate shall
be determined as of the Denomination Date for such
<PAGE>
25
Borrowing with respect to transactions in the applicable Alternative Currency
that will settle on the date of such Borrowing.
"Statutory Reserve Percentage" shall mean, for any day, that
percentage (expressed as a decimal), established by the Board or any successor
Governmental Authority for determining the maximum reserve requirement
(including any marginal, special, emergency or supplemental reserves) for
Eurocurrency Liabilities (as defined in Regulation D) if applicable due to any
change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of the Board or any
successor Governmental Authority. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subsidiary" means, with respect to any Person, (i) any
corporation of which more than 50% of the outstanding capital stock having
ordinary voting power to elect a majority of the 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 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
<PAGE>
26
indicated, when used in this Agreement, the term "Subsidiary" shall refer to a
Subsidiary of CCSC.
"Subsidiary Borrower" shall mean each Subsidiary (i) which has
been designated as such by CCSC in a Subsidiary Borrower Notice and Designation
and (ii) whose designation as a Subsidiary Borrower has not been terminated
pursuant to Section 4.02(d).
"Subsidiary Borrower Closing Certificate" shall mean a
certificate substantially in the form of Exhibit G.
"Subsidiary Borrower Notice and Designation" shall mean a
notice and designation, substantially in the form of Exhibit F, delivered by
CCSC, and received and consented to by the Administrative Agent, and which shall
identify a Subsidiary Borrower.
"Subsidiary Borrower Obligations" shall mean, with respect to
each Subsidiary Borrower, the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans made to such Subsidiary
Borrower and interest accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like proceeding,
relating to such Subsidiary Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans made to such
Subsidiary Borrower and all other obligations and liabilities of such Subsidiary
Borrower to the Administrative Agent or to any Lender, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement or any other document made, delivered or given in connection herewith,
whether on account of principal, interest, fees, indemnities, costs or expenses
(including, without limitation, all fees, charges and disbursements of counsel
(including the allocated costs of internal counsel) that are required to be paid
by such Subsidiary Borrower to the Administrative Agent or to any Lender
pursuant to this Agreement) or otherwise.
"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.
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27
"Swingline Lender" shall mean The Chase Manhattan 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.
"Total Capitalization" shall mean, on any date of
determination, the sum of (i) all Indebtedness of CCSC and its Subsidiaries on a
consolidated basis and (ii) the amount, determined on a consolidated basis, in
the capital stock account (including preferred stock when outstanding) plus (or
minus in the case of a deficit) the additional paid-in capital and retained
earnings of CCSC and its Subsidiaries, and in any event, net of the value of
treasury stock in such capital stock account, plus accounting liabilities for
post-retirement benefits (FAS 106) and post- employment benefits (FAS 112) net
of changes for income tax (FAS 109).
"Total Revolving Credit Commitment" shall mean, at any time,
the aggregate amount of the Revolving Credit Commitments, as in effect at such
time.
"Transactions" shall mean the execution, delivery and
performance by each Borrower of each of the Loan Documents and the borrowings
hereunder.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall
include the LIBO Rate, the PIBO Rate, the Alternate Base Rate and the fixed
percentage rate per annum applicable to any Fixed Rate Loan.
"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).
"Unrestricted Subsidiary" shall mean any
Subsidiary designated as an Unrestricted Subsidiary by CCSC
at the time of delivery of the Compliance Certificate
<PAGE>
28
pursuant to Section 5.01(c) (it being understood that any such designation may
be changed in respect of subsequent Fiscal Quarters) (i) which is organized
under the laws of any foreign country and (ii) the assets of which, together
with the assets of all other Unrestricted Subsidiaries, comprise not more than
50% of all assets of CCSC and its Subsidiaries.
"Weekly Eurocurrency Borrowing" shall mean a
Revolving Credit Borrowing comprised of Weekly Eurocurrency
Loans.
"Weekly Eurocurrency Loan" shall have the meaning
specified in Section 2.01(c).
"Welfare Plan" means a "welfare plan", as such term is defined
in section 3(1) of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that for purposes of determining compliance
with the covenants contained in Article VI, all accounting terms herein shall be
interpreted and all accounting determinations hereunder shall be made in
accordance with GAAP as in effect on the date of this Agreement and applied on a
basis consistent with the application used in the financial statements referred
to in Section 3.05.
ARTICLE II. THE CREDITS
SECTION 2.01. Credit Commitments. (a) Subject
to the terms and conditions hereof, each Lender severally
<PAGE>
29
agrees to make Revolving Loans in Dollars or one or more Alternative Committed
Currencies to any of CCSC or any Subsidiary Borrower from time to time during
the Revolving Credit Commitment Period. 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 sum of the Aggregate
Revolving Credit Exposure and the aggregate Competitive Loan Exposure would
exceed the Total Revolving Credit Commitment then in effect, (ii) the Revolving
Credit Exposure of any Lender would exceed such Lender's Revolving Credit
Commitment, (iii) the Assigned Dollar Value of all outstanding Alternative
Committed Currency Loans denominated in French Francs would exceed
$1,000,000,000, (iv) the Assigned Dollar Value of all outstanding Alternative
Committed Currency Loans denominated in Deutschemarks would exceed $500,000,000,
(v) the Assigned Dollar Value of all outstanding Alternative Committed Currency
Loans denominated in British Pounds Sterling would exceed $1,000,000,000 or (vi)
the Assigned Dollar Value of all outstanding Alternative Committed Currency
Loans would exceed $1,500,000,000.
(b) The Revolving Loans may from time to time be (i)
Eurocurrency Loans denominated in Dollars or 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 Revolving 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.
(c) A Eurocurrency Revolving 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 Closing 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
<PAGE>
30
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.
SECTION 2.02. Procedure for Revolving Credit Borrowing;
Assigned Dollar Values. (a) Each Borrower may borrow under the Revolving Credit
Commitments during the Revolving Credit Commitment Period on any Business Day;
provided that such Borrower shall give the Administrative Agent notice (a
"Borrowing Request") which notice must be received by the Administrative Agent
prior to (a) 11:00 a.m., London time, three Business Days prior to the requested
Borrowing Date, if all or any part of the requested Revolving Loans are to be
initially Eurocurrency Loans or (b) 10:00 a.m., New York City time, on the
Business Day prior to the requested Borrowing Date, if all of the requested
Revolving Loans are to be initially ABR Loans. The Borrowing Request for each
Borrowing shall specify (i) the amount to be borrowed as measured in Dollars,
(ii) the requested Borrowing Date, (iii) whether the Borrowing is to be of
Eurocurrency Loans or ABR Loans, (iv) if the Borrowing is to be of Eurocurrency
Loans, the length of the initial Interest Period therefor and (v) if the
Borrowing is to be a Eurocurrency Borrowing, whether it is to be denominated in
either Dollars or a specified Alternative Committed Currency.
(b) Each Borrowing under the Revolving Credit Commitments
shall be in a minimum aggregate principal amount of the lesser of (i) $5,000,000
or an integral multiple of $1,000,000 in excess thereof and (ii) the aggregate
amount of the then Available Revolving Credit Commitments. Subject to Section
2.13, 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 Alternative Currency 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.
<PAGE>
31
(c) With respect to each Alternative Currency Loan (whether
such Loan is a Revolving Loan or a Competitive 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 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
Currency Borrowing shall equal the aggregate Assigned Dollar Value of
each Alternative Currency Loan included in such Borrowing plus the
aggregate principal amount of any Loans denominated in Dollars included
in such Borrowing.
(d) Upon receipt of a Borrowing Request from any Borrower, the
Administrative Agent shall promptly notify each Lender of the requested currency
and aggregate amount (in both the requested currency and 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 Revolving Credit Commitments of all the Lenders. Each Lender will make
the amount of its pro rata portion of each such Borrowing available to the
Administrative Agent for the account of the relevant Borrower at (i) in the case
of an Alternative Committed Currency Borrowing, the London office of the
Administrative Agent specified in Section 10.01 prior to 11:00 a.m., London
time, and (ii) in the case of a Revolving Credit 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
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32
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
if on the Borrowing Date of any Revolving Loans to be made to any Borrower, any
Swingline Loans made to such Borrower shall be then outstanding, the proceeds of
such Revolving Loans shall first be applied to pay in full such Swingline Loans,
with any remaining proceeds to be made available to such Borrower as provided
above.
SECTION 2.03. Conversion and Continuation Options for
Revolving Loans. (a) Each Borrower may elect from time to time to convert (i)
Eurocurrency Revolving 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 Revolving 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 Revolving 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. 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
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33
and Section 2.04, a Borrower may elect to prepay a Loan and refinance the amount
of such Loan in another currency.
(b) Any Eurocurrency Revolving 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 (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 LIBO Rate or the PIBO Rate, as the case may be,
with an Interest Period of one month commencing on the last day of the then
current Interest Period or (B) in the case of Revolving 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 Competitive
Loans or Swingline Loans.
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 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 $100,000,000 at any one time outstanding, (ii) the principal amount
of any borrowing of Swingline Loans may not exceed the aggregate amount of the
Available Revolving Credit Commitments of all Lenders immediately prior to such
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34
borrowing or result in the sum of the Aggregate Revolving Credit Exposure and
the Competitive Loan Exposure then outstanding exceeding the aggregate 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 11:00 a.m., 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 1:00 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 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.
(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
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35
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 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 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 Loans shall be applied to repay such Swingline Loan.
(c) If, for any reason, ABR 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 Loans would otherwise
have been made, each 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 Loan which would otherwise have been
made by such Lender pursuant to paragraph (b) of this Section 2.04. Each 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 Lenders in respect of Unrefunded Swingline Loans and
participations therein shall be made in accordance with Section 2.14.
(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
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36
such Event of Default or such Event of Termination is continuing.
SECTION 2.05. Prepayments of Loans. (a) Optional Prepayments.
Each Borrower may at any time and from time to time prepay the Loans (subject,
in the case of Eurocurrency Loans and Fixed Rate 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 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) whether
the prepayment is of Eurocurrency Loans, ABR Loans, Fixed Rate Loans or a
combination thereof (including in the case of Eurocurrency Loans or Fixed Rate
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 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).
(b) Required Prepayments. In the event that as of any
Revaluation Date in respect of an Alternative 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
Lenders of the amount of increase or decrease and
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37
the sum of the resulting Aggregate Revolving Credit Exposure and Competitive
Loan Exposure and (ii) in the case of an increase, if the sum of the resulting
Aggregate Revolving Credit Exposure and the Competitive Loan Exposure would
exceed the Total Revolving Credit Commitment 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 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 Loans in an amount sufficient to reduce the sum of the Aggregate
Revolving Credit Exposure and the Competitive Loan Exposure, after giving effect
to such increase, to an amount less than or equal to the Total Revolving Credit
Commitment.
SECTION 2.06. The Competitive Loans. Subject to the terms and
conditions of this Agreement, each Borrower may borrow Competitive Loans in
Dollars or an Alternative Currency from time to time during the Competitive Loan
Borrowing Period on any Business Day, provided, that in no event may Competitive
Loans be borrowed hereunder if, after giving effect thereto, the sum of the
Aggregate Revolving Credit Exposure and the aggregate Competitive Loan Exposure
then outstanding would exceed the Total Revolving Credit Commitment then in
effect. Within the limits and on the conditions hereinafter set forth with
respect to Competitive Loans, each Borrower from time to time may borrow, repay
and reborrow Competitive Loans.
SECTION 2.07. Procedure for Competitive Loan Borrowing. (a)
The relevant Borrower shall request Competitive Loans by delivering a
Competitive Bid Request to the Administrative Agent, not later than (i) 11:00
a.m., London time, three Business Days prior to the proposed Borrowing Date (in
the case of a Eurocurrency Competitive Borrowing), (ii) not later than 11:00
a.m., London time, two Business Days prior to the proposed Borrowing Date (in
the case of a Fixed Rate Borrowing denominated in an Alternative Currency) and
(iii) not later than 10:00 a.m., New York City time, one Business Day prior to
the proposed Borrowing Date (in the case of a Fixed Rate Borrowing denominated
in Dollars). Each Competitive Bid Request may solicit bids for Competitive Loans
in an aggregate principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof (based on the Assigned Dollar Amount thereof, in
the
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38
case of Alternative Currency Loans) and having not more than three alternative
Interest Periods. The Administrative Agent shall notify each Lender promptly by
facsimile transmission of the contents of each Competitive Bid Request
received by the Administrative Agent.
(b) In the case of a Competitive Bid Request for Eurocurrency
Borrowings, upon receipt of notice from the Administrative Agent of the contents
of such Competitive Bid Request, each Lender may elect, in its sole discretion,
to offer irrevocably, subject to Article IV, to make one or more Competitive
Loans at the LIBO Rate plus or minus the Margin determined by such Lender in its
sole discretion for each such Competitive Loan. Any such irrevocable offer shall
be made by delivering a Competitive Bid to the Administrative Agent, before 4:00
p.m., London time (or the equivalent time in New York City), on the day that is
three Business Days before the proposed Borrowing Date, setting forth:
(i) the maximum amount of Competitive Loans for each Interest
Period and currency and the aggregate maximum amount of Competitive
Loans for all Interest Periods and currencies, which such Lender would
be willing to make (which amounts may, subject to Section 2.06, exceed
such Lender's Revolving Credit Commitment), expressed in Dollars; and
(ii) the Margin above or below the LIBO Rate at which such
Lender is willing to make each such Competitive Loan.
The Administrative Agent shall advise the relevant Borrower before 4:30 p.m.,
London time (or the equivalent time in New York City), on the date which is
three Business Days before the proposed Borrowing Date of the contents of each
such Competitive Bid received by it. If the Administrative Agent, in its
capacity as a Lender, shall elect, in its sole discretion, to make any such
Competitive Bid, it shall advise the relevant Borrower of the contents of its
Competitive Bid before 3:30 p.m., London time (or the equivalent time in New
York City), on the date which is three Business Days before the proposed
Borrowing Date.
(c) In the case of a Competitive Bid Request for Fixed Rate
Borrowings, upon receipt of notice from the Administrative Agent of the contents
of such Competitive Bid Request, each Lender may elect, in its sole discretion,
to
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39
offer irrevocably, subject to Article IV, to make one or more Competitive Loans
at a rate of interest determined by such Lender in its sole discretion for each
such Competitive Loan. Any such irrevocable offer shall be made by delivering a
Competitive Bid to the Administrative Agent before 4:00 p.m., London time (or
the equivalent time in New York City), on the second Business Day prior to the
proposed Borrowing Date, in the case of Fixed Rate Loans to be made in an
Alternative Currency, or before 3:30 p.m., London time (or the equivalent time
in New York City), on the proposed Borrowing Date, in the case of Fixed Rate
Loans to be made in Dollars, in each case setting forth:
(i) the maximum amount of Competitive Loans for each Interest
Period and currency and the aggregate maximum amount for all Interest
Periods and currencies, which such Lender would be willing to make
(which amounts may, subject to Section 2.06, exceed such Lender's
Revolving Credit Commitment), expressed in Dollars; and
(ii) the rate of interest at which such Lender is willing to
make each such Competitive Loan.
The Administrative Agent shall advise the relevant Borrower before 4:30 p.m.,
London time (or the equivalent time in New York City), on the second Business
Day prior to the proposed Borrowing Date, in the case of Fixed Rate Loans to be
made in an Alternative Currency, or before 10:00 a.m., New York City time, on
the proposed Borrowing Date, in the case of Fixed Rate Loans to be made in
Dollars, of the contents of each such Competitive Bid received by it. If the
Administrative Agent, in its capacity as a Lender, shall elect, in its sole
discretion, to make any such Competitive Bid, it shall advise the relevant
Borrower of the contents of its Competitive Bid before 3:30 p.m., London time
(or the equivalent time in New York City), on the second Business Day prior to
the proposed Borrowing Date, in the case of Fixed Rate Loans to be made in an
Alternative Currency, or before 3:15 p.m., London time (or the equivalent time
in New York City), on the proposed Borrowing Date, in the case of Fixed Rate
Loans to be made in Dollars.
(d) Before 4:45 p.m., London time (or the equivalent time in
New York City), three Business Days before the proposed Borrowing Date (in the
case of Eurocurrency Competitive Loans), before 4:45 p.m., London time (or the
equivalent time in New York City), on the
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40
second Business Day prior to the proposed Borrowing Date (in the case of Fixed
Rate Loans to be made in an Alternative Currency) and before 4:30 p.m., London
time (or the equivalent time in New York City), on the proposed Borrowing Date
(in the case of Fixed Rate Loans to be made in Dollars), the relevant Borrower,
in its absolute discretion, shall:
(i) cancel (without fee or penalty) such Competitive Bid
Request by giving the Administrative Agent telephone notice to that
effect; or
(ii) by giving telephone notice to the Administrative Agent
(immediately confirmed by delivery to the Administrative Agent of a
Competitive Loan Confirmation in writing or by facsimile
transmission)(1) subject to the provisions of Section 2.07(e), accept
one or more of the offers made by any Lender or Lenders pursuant to
Section 2.07(b) or Section 2.07(c), as the case may be, of the amount
of Competitive Loans for each relevant maturity date and (2) reject any
remaining offers made by Lenders pursuant to Section 2.07(b) or Section
2.07(c), as the case may be.
(e) Each Borrower's acceptance of Competitive Loans in
response to any Competitive Bid Request shall be subject to the following
limitations:
(i) the amount of Competitive Loans accepted for each Interest
Period specified by any Lender in its Competitive Bid shall not exceed
the maximum amount for such Interest Period specified in such
Competitive Bid;
(ii) the aggregate amount of Competitive Loans accepted for all
Interest Periods specified by any Lender in its Competitive Bid shall
not exceed the aggregate maximum amount specified in such Competitive
Bid for all such Interest Periods;
(iii) a Borrower may not accept offers for Competitive Loans for
any Interest Period in an aggregate principal amount in excess of the
maximum principal amount requested in the related Competitive Bid
Request; and
(iv) if a Borrower accepts any of such offers,
(1) it must accept such offers based solely upon
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41
pricing for such relevant Interest Period (including any amounts which
shall be payable to the relevant Lender in respect of the relevant
Competitive Loans pursuant to Section 2.16) and upon no other criteria
whatsoever and (2) if (x) two or more Lenders submit offers for any
Interest Period at identical pricing and such Borrower accepts any of
such offers but does not wish to (or by reason of the limitations set
forth in Section 2.06 or in this Section 2.07, cannot) borrow the total
amount offered by such Lenders with such identical pricing, such
Borrower shall accept offers from all of such Lenders in amounts
allocated among them pro rata according to the amounts offered by such
Lenders (or as nearly pro rata as shall be practicable after giving
effect to the requirement that Competitive Loans made by a Lender on a
Borrowing Date for each relevant Interest Period shall be in a
principal amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof, based upon Assigned Dollar Value in the case of
Alternative Currency Loans) or (y) a Lender submits offers for multiple
Interest Periods specifying a maximum aggregate principal amount for
all Interest Periods, and the relevant Borrower accepts offers from
such Lender for more than one Interest Period, then such Borrower shall
instruct the Administrative Agent how to apportion such Borrower's
acceptances among such offers for different Interest Periods to the
extent, if any, necessary to provide for acceptance of offers from such
Lender equal to but not exceeding such specified maximum aggregate
amount.
(f) If the relevant Borrower notifies the Administrative Agent
that a Competitive Bid Request is canceled pursuant to Section 2.07(d)(i), the
Administrative Agent shall give prompt telephone notice thereof to the
Lenders.
(g) If the relevant Borrower accepts pursuant to Section
2.07(d)(ii) one or more of the offers made by any one or more Lenders, the
Administrative Agent promptly shall notify each Lender which has made such a
Competitive Bid of (i) the aggregate amount (as measured in Dollars and, in the
case of an Alternative Currency Loan, in such Alternative Currency) of such
Competitive Loans to be made on such Borrowing Date for each Interest Period and
(ii) the acceptance or rejection of any offers to make such Competitive Loans
made by such Lender, and before 12:00 noon, New York City time, on the Borrowing
Date
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42
specified in the applicable Competitive Bid Request, in the case of Competitive
Loans denominated in Dollars, or before 5:00 p.m., London time, on such
Borrowing Date, in the case of Competitive Loans denominated in an Alternative
Currency, each Lender whose Competitive Bid has been accepted shall make
available to the Administrative Agent at its New York office set forth in
Section 10.01 (in the case of Competitive Loans denominated in Dollars) or such
other office or account of the Administrative Agent as it shall specify by
notice to the applicable Lenders and Borrower and which shall be located in the
country that is the issuer of the applicable currency (in the case of
Competitive Loans denominated in an Alternative Currency) the amount of
Competitive Loans to be made by such Lender, in immediately available funds and
in the applicable currency. The Administrative Agent will make such funds
available to the relevant Borrower as soon as practicable on such date at the
Administrative Agent's aforesaid address. Subject to Section 2.13, Competitive
Loans requested to be made in an Alternative Currency pursuant to a Competitive
Bid Request shall be made in such Alternative Currency, in the aggregate amount
equal to the Alternative Currency Equivalent of the Dollar amount of such
Competitive Loans accepted pursuant to Section 2.07(d)(ii) (as determined by the
Administrative Agent based upon the applicable Spot Exchange Rate as of the
Denomination Date of such Borrowing, which determination shall be conclusive
absent manifest error). As soon as practicable after each Borrowing Date, the
Administrative Agent shall notify each Lender of the aggregate amount and
currency of Competitive Loans advanced on such Borrowing Date, the respective
Interest Periods thereof and the respective interest rates applicable thereto.
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 the Loans become due and payable pursuant to Section
2.04, Section 2.05, Section 2.13, Section 2.15 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 and (ii) on the
Competitive Loan Maturity Date in respect thereof, the unpaid principal amount
of each Competitive Loan made to it by each such Lender, in the applicable
currency of such Loan. Each Borrower hereby further agrees to pay interest in
immediately available funds (in the applicable currency of each Loan) at the
applicable office
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43
of the Administrative Agent (as specified in Section 2.14(a)) on the unpaid
principal amount of the Revolving Loans, Swingline Loans and Competitive 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 Revolving
Loan, Swingline Loan and Competitive 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
Revolving Loan, Swingline Loan and Competitive Loan made hereunder, the amount
of each such Loan, the Type of each such Loan and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from each Borrower to each Lender hereunder in respect of
each such Loan and (iii) the amount of any sum received by the Administrative
Agent hereunder from each Borrower in respect of each such Loan and each
Lender's share thereof.
(d) The entries made in the Register and accounts maintained
pursuant to paragraphs (b) and (c) of this Section 2.08 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 made by each Lender to each Borrower shall, if
requested by the applicable Lender (which request shall be made to the
Administrative Agent), be
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44
evidenced by a single Note duly executed on behalf of such Borrower, in
substantially the form attached hereto as Exhibit L, with the blanks
appropriately filled, payable to the order of such Lender.
SECTION 2.09. Interest Rates and Payment Dates. (a) Each
Eurocurrency Revolving 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 to a U.K. Borrower, (A) the LIBO Rate
determined for such Interest Period, plus (B) the Applicable Percentage
per annum, plus (C) MLA Cost; or
(ii) in the case of a Eurocurrency Revolving Loan
denominated in British Pounds Sterling to a Borrower
that is not a U.K. Borrower, (A) the PIBO Rate, plus
(B) the Applicable Percentage; or
(iii) in the case of a Eurocurrency Revolving Loan denominated in
Dollars or an Alternative Committed Currency other than British Pounds
Sterling, (A) the LIBO Rate determined for such Interest Period, plus
(B) the Applicable Percentage per annum.
(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.
(c) Each Competitive Loan shall bear interest (computed on the
basis of the actual number of days elapsed over a year of 360 days or, in the
case of a Competitive Loan denominated in British Pounds Sterling, over a year
of 365 days) for each day during the Interest Period with respect thereto at a
rate per annum equal to (i) in the case of a Eurocurrency Competitive Loan, the
LIBO Rate determined for such Interest Period plus (or minus, as applicable) the
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45
Margin applicable to such Loan or (ii) in the case of a Fixed Rate Loan, the
fixed rate of interest specified by the Lender making such Loan in its
Competitive Bid.
(d) 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 principal of any
Competitive Loan which remains overdue past the stated maturity date thereof, or
any overdue interest, Facility Fee or other amount, the rate described in
Section 2.09(b) plus 2% per annum, in each case from the date of such nonpayment
to (but excluding) the date on which such amount is paid in full (after as well
as before judgment).
(e) If on any day (after giving effect to all borrowings and
repayments of Loans on such day, if any) the Aggregate Revolving Credit Exposure
exceeds $1,000,000,000 (the amount of such excess over $1,000,000,000 being
referred to as the "Excess Amount"), then, in addition to the interest otherwise
payable hereunder, interest shall accrue for such day on the Excess Amount at a
rate per annum equal to 0.05%. Any incremental interest accrued by reason of
this paragraph (e) is referred to herein as "Excess Amount Interest". All Excess
Amount Interest shall be payable in Dollars or, at the Borrowers' option, in the
currency in which the majority of the outstanding Loans comprising the Aggregate
Revolving Credit Exposure is denominated. Liability for any Excess Amount
Interest shall be allocated among the Borrowers in such proportions as CCSC
shall determine.
(f) Interest shall be payable in arrears on each Interest
Payment Date, provided that (i) Excess Amount Interest shall be payable in
arrears on March 31, June 30, September 30 and December 31 and on the last day
of the Revolving Credit Commitment Period and shall be allocated among the
Lenders pro rata based upon their respective Revolving Credit Commitments (or,
if the Revolving Credit Commitments have terminated, their respective Revolving
Credit Exposures) and (ii) interest accruing pursuant to
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46
Section 2.09(d) shall be payable from time to time on demand. 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.
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 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 Closing Date 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 the Borrowers repay in full all
the Loans made by such Lender. The Facility Fee accrued to each Lender shall
equal the Applicable Percentage per annum multiplied by such Lender's Facility
Fee Average Daily Amount (as defined below) for the applicable quarter (or
shorter period commencing on the Closing Date 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.
(b) CCSC agrees to pay to the Administrative Agent the
administrative and other fees separately agreed upon by CCSC and the
Administrative Agent in the Commitment Letter to be payable to the
Administrative Agent for its own account and the accounts of the other parties
to the
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47
Commitment Letter, payable at the times specified in the Commitment Letter (the
"Agent Fees"). CCSC shall pay all Agent Fees in Dollars.
(c) 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 Commitment Letter. Once
paid, none of the Fees shall be refundable.
SECTION 2.12. Termination or Reduction of Revolving Credit
Commitments. (a) CCSC shall have the right, upon one Business Day's notice to
the Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the amount of the Revolving Credit Commitments; provided
that 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, the sum of the Aggregate Revolving Credit
Exposure and the Competitive Loan Exposure then outstanding would exceed the
Total 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 Revolving Credit Commitments then in
effect.
(b) CCSC shall pay to the Administrative Agent for the account
of the Lenders, on the date of such termination or reduction, the Facility Fee
on the amount of the Revolving Credit Commitments so terminated or reduced
accrued to the date of such termination or reduction.
(c) Each reduction in the Revolving Credit Commitments shall
reduce the Swingline Commitment by an equal percentage.
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
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48
ascertaining the LIBO Rate or the PIBO Rate, as the case may be, for
the currency in which any Eurocurrency Loan is denominated or the
currency specified in the Borrowing Request for such Eurocurrency
Borrowing (the "Applicable Currency") for such Interest Period, or
(ii) the Administrative Agent shall have received notice from
the Required Lenders that the LIBO Rate or the PIBO Rate, as the case
may be, determined or to be determined for such Interest Period for the
Applicable Currency will not adequately and fairly reflect the cost to
such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
then the Administrative Agent shall give telecopy or telephonic notice thereof
to the Borrowers and the Lenders by 12:00 noon, London time, on the same day. If
such notice is given under clause (a)(i) or (a)(ii) above, then (x) no
additional Eurocurrency Competitive Loans shall be made in the affected currency
until such notice is withdrawn as provided below and (y) any affected
Eurocurrency Revolving Loans shall not be converted or continued pursuant to
Section 2.03 or made pursuant to a Borrowing Request, as the case may be, except
as follows:
(I) If the Borrowers so request, no later than 1:00 p.m.,
London time, on the same day, the affected Eurocurrency Revolving 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 Revolving 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 Revolving 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
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49
Interest Rate without the prior consent of each
Required Lender;
(B) if no Substitute Interest Rate is agreed pursuant
to Section 2.13(a)(I)(A), any such Eurocurrency Revolving 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 LIBO Rate or PIBO Rate, as the case may
be, the Administrative Agent shall use the cost to the
applicable Lender (as conclusively certified by such Lender to
the Administrative Agent with a copy to the Borrowers and
expressed as a rate per annum) of funding such Loan from
whatever source it shall reasonably select; 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 the Required 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.
(II) Alternatively, if the Borrowers so request, no later than
1:00 p.m., London time, two Business Days prior to the first day of the
applicable Interest Period, the affected 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 notice by
the Required Lenders 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
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50
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 Revolving 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, (x) any Eurocurrency Revolving 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 Revolving 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 Loans
may simultaneously therewith be reborrowed in Dollars as ABR Loans.
The Administrative Agent shall promptly withdraw such notice
upon becoming aware that the circumstances giving rise thereto shall no longer
exist. Until such notice has been withdrawn by the Administrative Agent, no
further Eurocurrency Loans denominated in the affected currency shall be made or
continued as such, nor shall any Borrower have the right (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 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
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51
market generally, to obtain matching deposits in the Applicable Currency at the
required time and in sufficient amounts to fund its affected 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 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 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 (an "Alternative Dollar Loan")
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".
SECTION 2.14. Pro Rata Treatment and Payments. (a) Each
reduction of the Revolving Credit Commitments of the Lenders shall be made pro
rata according to the amounts of the Lenders' Commitment Percentages. Each
payment (including each prepayment) by a Borrower on account of principal of and
interest on Revolving Loans which are ABR Loans shall be made pro rata according
to the respective outstanding principal amounts of such ABR Loans then held by
the Lenders. Each payment (including each prepayment) by a Borrower on account
of principal of and interest on Revolving Loans which are Eurocurrency Loans
designated by a Borrower to be applied to a particular Eurocurrency Borrowing
shall be made pro rata according to the respective outstanding principal amounts
of such Eurocurrency Loans then held by the Lenders; provided that with respect
to a single Multicurrency Borrowing payments made in the specific currency of
Eurocurrency Loans that are part of such Multicurrency Borrowing shall be
applied pro rata according
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52
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 each Lender's Revolving Credit Exposure
will be reduced pro rata in accordance with the Lenders' Commitment Percentages,
then, the Administrative Agent shall convert a portion of such payments into the
currencies required to so reduce each Lender's Revolving Credit Exposure 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., New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Administrative
Agent's New York office specified in Section 10.01, in the currency in which the
applicable Obligation is denominated and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders promptly upon
receipt in like funds as received. If any payment hereunder (other than payments
on Eurocurrency Loans) becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day, and,
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension. If any payment on a Eurocurrency
Loan becomes due and payable on a day other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day (and, with respect
to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension) unless the result of such extension would
be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day.
(b) Subject to Section 2.13, 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
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53
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 Loans hereunder,
on demand, from the relevant Borrower, but without prejudice to any right or
claim that such Borrower may have against such Lender.
SECTION 2.15. 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 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 for any increase in
the cost to such Lender of, or any reduction in the amount
of any sum receivable by such Lender in respect of, making,
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54
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 Fixed Rate Loans, including, without limitation, by reason
of any requirements imposed by the Board upon the making or funding of
Eurocurrency Loans or Fixed Rate Loans. Such Lender shall promptly notify the
Administrative Agent and CCSC in writing of the occurrence of any such event,
such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable directly to
such Lender within five days of CCSC's receipt of such notice, and such notice
shall, in the absence of manifest error, be conclusive and binding on the
Borrowers.
(b) If any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in of, any law or
regulation, directive, guideline, decision or request (whether or not having the
force of law) of any court, central bank, regulator or other Governmental
Authority after the date hereof affects or would affect the amount of capital
required or expected to be maintained by any Lender and such Lender determines
(in its sole and absolute discretion) that the rate of return on its capital as
a consequence of its Revolving Credit Commitment or the Loans made by it or its
participations in Swingline Loans is reduced to a level below that which such
Lender could have achieved but for the occurrence of any such circumstance,
then, in any such case upon notice from time to time by such Lender to CCSC, the
Borrowers shall immediately pay directly to such Lender additional amounts
sufficient to compensate such Lender for such reduction in rate of return. A
statement of such Lender as to any such additional amount or amounts (including
calculations thereof in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on the Borrowers. In determining such amount,
such Lender may use any method of averaging and attribution that it (in its sole
and absolute discretion) shall deem applicable.
(c) No Lender shall be entitled to compensation under this
Section 2.16 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
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55
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, no Lender shall demand compensation for any increased cost
or reduction referred to above if it shall not at the time be the general policy
or practice of such Lender to demand such compensation in similar circumstances
under comparable provisions of other credit agreements. In the event that any
Lender determines that any event or circumstance that will lead to a claim under
this Section 2.16 has occurred or will occur, such Lender will use its best
efforts to so notify CCSC; provided, that any failure to provide such notice
shall in no way impair the rights of any Lender to demand and receive
compensation under this Section 2.16, but without prejudice to any claims of
CCSC for compensation for actual damages sustained as a result of any failure to
observe this undertaking.
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 or any Lender (or any assignee of such
Lender or a participation holder or a change in designation of the lending
office of a Lender (a "Transferee")), but excluding franchise taxes and taxes
imposed on or measured by the recipient's net income or receipts (such
non-excluded items being called "Taxes"). In the event that any withholding or
deduction from any payment to be made by any Borrower hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
such Borrower will
(a) pay directly to the relevant authority the
full amount required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and
(c) pay to the Administrative Agent for the
account of the Lenders such additional amount or
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56
amounts as is necessary to ensure that the net amount actually received
by each Lender will equal the full amount such Lender would have
received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender or Transferee with respect to any payment received by the
Administrative Agent or such Lender or Transferee hereunder, the Administrative
Agent 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.
If the Borrowers fail to pay any Taxes when due to the
appropriate taxing authority or fail to remit to the Administrative Agent, for
the account of the respective Lenders or Transferees, the required receipts or
other required documentary evidence, the Borrowers shall indemnify the Lenders
and Transferees for any incremental Taxes, interest, penalties or other costs
(including attorneys' fees and expenses) that may become payable by 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 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 date
hereof (in the case of each Lender that is a party hereto on the date hereof) or
on or prior to the date of any assignment or participation hereunder (in the
case of a Transferee) and thereafter as reasonably requested from time to time
by CCSC or the Administrative Agent, execute and deliver, if legally able to do
so, to CCSC and the Administrative Agent one or more (as CCSC or the
Administrative Agent may reasonably request) United States Internal Revenue
Service Forms 4224 or Forms 1001 and Forms W-8 or Forms W-9 or such other forms
or documents (or successor forms or documents), appropriately completed, as may
be applicable to establish the extent, if any, to which a payment to such Lender
or Transferee is exempt from or entitled to a reduced rate of, withholding or
deduction of Taxes.
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57
With respect to Obligations other than those specified in the
immediately following paragraph, the Borrowers shall not be required to
indemnify or to pay any additional amounts to any Lender or Transferee with
respect to any Taxes pursuant to this Section 2.17 to the extent that (i) any
obligation to withhold, deduct or pay amounts with respect to such Tax existed
on the date such Lender or Transferee became a party to this Agreement (and, in
such case, Borrowers may deduct and withhold such Tax from payments to such
Lender or Transferee), or (ii) any Lender or Transferee fails to comply in full
with the provisions of the immediately preceding paragraph (and, in such case,
Borrowers may deduct and withhold all Taxes required by law as a result of such
noncompliance from payments to such Lender or Transferee).
With respect to Loans not denominated in Dollars 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
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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.
No 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,
no Lender shall demand any payment referred to above if it shall not at the time
be the general policy or practice of such Lender to demand such compensation in
similar circumstances under comparable provisions of other credit agreements. In
the event that any Lender determines that any event or circumstance that will
lead to a claim by it under this Section 2.17 has occurred or will occur, such
Lender will use its best efforts to so notify CCSC; provided, that any failure
to provide such notice shall in no way impair the rights of any Lender to demand
and receive compensation under this Section 2.17, but without prejudice to any
claims of CCSC for failure to observe this undertaking.
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 or a Fixed Rate 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 Fixed Rate Loan or 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 Fixed Rate Loan or
Eurocurrency Loan after notice thereof shall have been given hereunder, whether
by reason
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59
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.
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 Loan or
Loans which at the time shall be due and payable as a result of which the unpaid
principal portion of its Loans which at the time shall be due and payable shall
be proportionately less than the unpaid principal portion of such Loans of any
other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in such Loans of such other Lender, so that
the aggregate unpaid principal amount of such Loans and participations in such
Loans held by each Lender shall be in the same proportion to the aggregate
unpaid principal amount
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of all such Loans as prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided, however, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section and the payment
giving rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. Each Borrower expressly
consents to the foregoing arrangements and agrees that any Lender holding a
participation in a Loan deemed to have been so purchased may exercise any and
all rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by such Borrower to such Lender by reason thereof as fully as if
such Lender had made a Loan directly to such Borrower in the amount of such
participation.
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, (a) to replace such Lender with an
assignee (in accordance with and subject to the restrictions contained in
Section 10.04) approved by the Administrative Agent 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 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) or (b) to prepay
all outstanding Loans of such Lender and participations in Swingline Loans held
by such Lender, terminate the right or obligation of such Lender to make Loans
and reduce the Total Revolving Credit Commitment by
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the amount of such Lender's Revolving Credit Commitment, so long as the amount
of the remaining Revolving Credit Commitments after giving effect to such
prepayment and termination exceeds the Aggregate Revolving Credit Exposure.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to
enter into this Agreement and to extend credit hereunder and under the other
Loan Documents, CCSC represents and warrants as follows:
SECTION 3.01. Organization, etc. CCSC is a corporation, and
each of its Subsidiaries is a corporation, 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, 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 have a Material Adverse Effect,
and has full power and authority and holds all requisite material governmental
licenses, permits and other approvals to enter into and perform its Obligations
under this Agreement and each other Loan Document to which it is a party and to
own or hold under lease its property and to conduct its business substantially
as currently conducted by it.
SECTION 3.02. Due Authorization, Non-Contravention, etc. The
execution, delivery and performance by each Borrower of this Agreement and each
other Loan Document executed or to be executed by it are within each Borrower's
corporate, partnership or comparable powers, as the case may be, have been duly
authorized by all necessary corporate, partnership or comparable action, as the
case may be, and do not
(a) contravene the Organic Documents of CCSC;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order
binding on or affecting CCSC; or
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(c) result in, or require the creation or
imposition of, any material Lien on any of CCSC's
properties.
SECTION 3.03. Government Approval, Regulation, etc. No
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority or regulatory body or other Person is required for
the due execution, delivery or performance by CCSC or the Subsidiary Borrowers
of this Agreement or any other Loan Document. Neither CCSC nor any of its
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 3.04. Validity, etc. This Agreement constitutes, and
each other Loan Document executed by each Borrower will, on the due execution
and delivery thereof, constitute, the legal, valid and binding obligation of
such Borrower enforceable in accordance with its respective terms, subject to
the effect of bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforceability of creditors' rights generally and to general
principles of equity.
SECTION 3.05. Financial Information. The consolidated balance
sheets of CCSC and its Subsidiaries as of December 31, 1995, and September 30,
1996, and the related consolidated statements of earnings and cash flow of CCSC
and its Subsidiaries, copies of which have been furnished to the Administrative
Agent and each Lender, have been prepared in accordance with GAAP consistently
applied, and present fairly in all material respects the consolidated financial
condition of CCSC and its Subsidiaries as of the dates thereof and the results
of their operations for the periods then ended (subject, in the case of the
financial statements as of and for the period ended September 30, 1996, to
normal year-end adjustments and to the absence of notes).
SECTION 3.06. No Material Adverse Change. Since the date of
the later of the financial statements described in Section 3.05 there has been
no material adverse change in the financial condition or results of operations
of CCSC and its Subsidiaries taken as a whole.
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SECTION 3.07. Litigation, Labor Controversies, etc. There is
no pending or, to the knowledge of any Borrower, threatened litigation, action,
proceeding, or labor controversy affecting CCSC or any of its Subsidiaries, or
any of their respective properties, businesses, assets or revenues, which will
result in a Material Adverse Effect or which purports to affect the legality,
validity or enforceability of this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby.
SECTION 3.08. Subsidiaries. As of the date hereof, CCSC has no
Significant Subsidiaries, except those Significant Subsidiaries which are
identified on Schedule 3.08.
SECTION 3.09. Ownership of Properties. Each of CCSC and its
Subsidiaries has good and marketable title to all of its properties and assets,
real and personal, tangible and intangible, of any nature whatsoever (including
patents, trademarks, trade names, service marks and copyrights), free and clear
of all Liens, charges or claims (including infringement claims with respect to
patents, trademarks, copyrights and the like) except as permitted pursuant to
Section 6.03 and Liens, charges or claims that will not have a Material Adverse
Effect.
SECTION 3.10. Taxes. Each of CCSC and its Subsidiaries has
filed all federal and all other material income tax returns and reports required
by law to have been filed by it and has paid all taxes and governmental charges
due, except (i) any such taxes or charges which are being diligently contested
in good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books and (ii) any such
taxes or charges that would not, individually or in the aggregate, result in a
Material Adverse Effect.
SECTION 3.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement, no Pension Plan has been terminated, or has been subject to
the commencement of any termination, that could reasonably be expected to result
in a material liability to CCSC or any ERISA Affiliate, and no contribution
failure has occurred with respect to any Pension Plan sufficient to give rise to
a Lien under section 302(f) of ERISA. No condition exists or event or
transaction has occurred with respect to any Pension Plan which might result in
the incurrence by CCSC or
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any ERISA Affiliate of any liability, fine or penalty which will have a Material
Adverse Effect. Except for the post-retirement benefits described in Schedule
3.11, CCSC has no contingent liability with respect to post-retirement benefits
provided by CCSC and its Subsidiaries under a Welfare Plan, other than (i)
liability for continuation coverage described in Part 6 of Subtitle B of Title I
of ERISA and (ii) liabilities which will not, individually or in the aggregate,
have a Material Adverse Effect.
SECTION 3.12. Environmental Warranties. (a) All facilities and
property owned or leased by CCSC or any of its Subsidiaries have been, and
continue to be, owned or leased by CCSC and its Subsidiaries in compliance with
all Environmental Laws, except for such noncompliance which, singly or in the
aggregate, will not have a Material Adverse Effect;
(b) there have been no past unresolved, and there
are no pending or threatened (in writing)
(i) claims, complaints, notices or requests for information
received by CCSC or any of its Subsidiaries with respect to any alleged
violation of any Environmental Law, or
(ii) complaints, written notices or inquiries to
CCSC or any of its Subsidiaries regarding potential
liability under any Environmental Law,
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 permits, certificates, approvals, licenses and other
authorizations relating to environmental matters and necessary or desirable for
their businesses, except for such permits, approvals, licenses and other
authorizations which, if not so obtained or as to which CCSC and its
Subsidiaries are not in compliance (in each case singly or in the aggregate),
will not have a Material Adverse Effect;
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(e) no property now or, to any Borrower's knowledge,
previously owned or leased by CCSC or any of its Subsidiaries is listed or
proposed for listing (with respect to owned property only) on the CERCLIS or on
any similar state list of sites requiring investigation or clean-up, or on the
National Priorities List pursuant to CERCLA, in each case other than properties
as to which any such listing will not result in a Material Adverse Effect;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property now or,
to any Borrower's knowledge, previously owned or leased by CCSC or any of its
Subsidiaries that, singly or in the aggregate, have, or will have, a Material
Adverse Effect;
(g) to any Borrower's knowledge, neither CCSC nor any
Subsidiary has directly transported or directly arranged for the transportation
of any Hazardous Material to any location which is listed or proposed for
listing on the National Priorities List pursuant to CERCLA, on the CERCLIS or on
any similar state list or which is the subject of federal, state or local
enforcement actions or other investigations which will lead to claims against
CCSC or such Subsidiary thereof for any remedial work, damage to natural
resources or personal injury, including claims under CERCLA, which will have a
Material Adverse Effect; and
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property owned or leased by CCSC or any Subsidiary that, singly
or in the aggregate, have, or will have, a Material Adverse Effect.
SECTION 3.13. Regulations G, U and X. The Loans, the use of
the proceeds thereof, this Agreement and the transactions contemplated hereby
will not result in a violation of or be inconsistent with any provision of
Regulation G, U or X.
SECTION 3.14. Accuracy of Information. To the best of CCSC's
knowledge, neither this Agreement nor any other document, certificate or
statement furnished to the Administrative Agent or any Lender by or on behalf of
CCSC in connection herewith contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading, in light of the circumstances under
which they were made.
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ARTICLE IV. CONDITIONS OF LENDING
SECTION 4.01. Conditions to Effectiveness. On
the Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself and the Lenders, favorable written opinions of Dechert Price &
Rhoads, counsel for the Borrowers, and Richard J. Krzyzanowski, Esq.,
Executive Vice President, Secretary and General Counsel of CCSC,
substantially to the effect set forth in Exhibits H and I,
respectively, (A) dated the Closing Date and (B) addressed to the
Administrative Agent and the Lenders.
(b) All documents executed or submitted in connection with
this Agreement, the borrowings hereunder and the other Loan Documents
shall be reasonably satisfactory to the Lenders and to Cravath, Swaine
& Moore, counsel for the Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of
the certificate or articles of incorporation, including all amendments
thereto, of CCSC, certified as of a recent date by the Secretary of
State of the state of its organization, and a certificate as to the
good standing of CCSC as of a recent date, from such Secretary of
State; (ii) a certificate of the Secretary or Assistant Secretary of
CCSC dated the Closing Date and certifying (A) that attached thereto is
a true and complete copy of the by-laws of CCSC as in effect on the
Closing Date and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached thereto is
a true and complete copy of resolutions duly adopted by the Board of
Directors of CCSC authorizing the execution, delivery and performance
of the Loan Documents and the borrowings and the guarantee hereunder,
and that such resolutions have not been modified, rescinded or amended
and are in full force and effect, (C) that the certificate or articles
of incorporation of CCSC have not been amended since the date of the
last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above, and (D) as to the incumbency
and specimen signature of each officer executing any Loan Document or
any other document delivered in connection
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herewith on behalf of CCSC; (iii) a certificate of another officer as
to the incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to (ii) above; and (iv)
such other documents as the Lenders or Cravath, Swaine & Moore, counsel
for the Administrative Agent, may reasonably request.
(d) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer
of CCSC, confirming compliance with the conditions precedent set forth
in paragraphs (b) and (c) of Section 4.02 (without regard to the
exclusion of Section 3.06 from such paragraph (b)).
(e) The Administrative Agent shall have received all invoiced
Fees and other amounts due and payable pursuant to the Loan Documents
on or prior to the Closing Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrowers hereunder or under any other Loan
Document.
(f) Each of the Existing Agreements shall have been terminated
or shall have expired by its terms, and the principal of and interest
accrued on all loans, and all other obligations, outstanding thereunder
shall have been paid in full.
SECTION 4.02. Conditions to Each Loan. The agreement of each
Lender to make any Loan (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:
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.02 or 2.04, 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 (other than the representations and warranties set forth in
Section 3.06) shall be true and correct with the same effect as if then
made (unless stated to relate to an earlier date, in which case such
representations and warranties shall be true and correct as of such
earlier date).
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(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 Closing 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 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 G, 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.
Each Credit Event shall be deemed to constitute a representation and
warranty by the applicable Borrower on
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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
SECTION 5.01. Financial Information, Reports, Notices, etc.
CCSC will furnish, or will cause to be furnished, to each Lender and the
Administrative Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 60 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year
of CCSC, a consolidated balance sheet of CCSC and its Subsidiaries as
of the end of such Fiscal Quarter and consolidated statements of
earnings and cash flow of CCSC and its Subsidiaries for such Fiscal
Quarter and for the period commencing at the end of the previous Fiscal
Year and ending with the end of such Fiscal Quarter, certified by a
Financial Officer of CCSC, it being understood and agreed that the
delivery of CCSC's Form 10-Q (as filed with the Securities and Exchange
Commission) shall satisfy the requirements set forth in this clause);
(b) as soon as available and in any event within 120 days
after the end of each Fiscal Year of CCSC, a copy of the annual audit
report for such Fiscal Year for CCSC and its Subsidiaries, including
therein a consolidated balance sheet of CCSC and its Subsidiaries as of
the end of such Fiscal Year and consolidated statements of earnings and
cash flow of CCSC and its Subsidiaries for such Fiscal Year, in each
case certified (without any Impermissible Qualification) in a manner
acceptable to the Administrative Agent and the Required Lenders by
Price Waterhouse or other independent public accountants reasonably
acceptable to the Administrative Agent and the Required Lenders (it
being understood and agreed that the delivery of CCSC's Form 10-K (as
filed with the Securities and Exchange Commission) shall satisfy such
delivery requirement in this clause) together with a certificate from a
Financial Officer of CCSC containing a computation in reasonable detail
of, and showing compliance with, each of the financial ratios and
restrictions contained in Section 6.04 and to the effect that, in
making the examination necessary for the signing of such
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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;
(c) as soon as available and in any event within 60 days after
the end of each Fiscal Quarter, a Compliance Certificate, executed by a
Financial Officer of CCSC, showing (in reasonable detail and with
appropriate calculations and computations in all respects satisfactory
to the Administrative Agent) compliance with the financial covenants
set forth in Section 6.04 and representing as to the absence of any
Default;
(d) as soon as possible and in any event within three Business
Days after becoming aware of the occurrence of 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;
(e) as soon as possible and in any event within five Business
Days after (i) the occurrence of any adverse development with respect
to any litigation, action, proceeding, or labor controversy described
in Section 3.07 which will result in a Material Adverse Effect or (ii)
the commencement of any labor controversy, litigation, action or
proceeding of the type described in Section 3.07, 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, notice thereof and
copies of all documentation relating thereto;
(f) promptly after the sending or filing thereof, copies of
all reports which CCSC sends to any of its security holders, and all
reports, registration statements (other than on Form S-8 or any
successor form) or other materials which CCSC or any of its
Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange;
(g) immediately upon becoming aware of the taking of any
specific actions by CCSC or any other Person to terminate any Pension
Plan (other than a termination
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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 will have a
Material Adverse Effect, or any increase in the contingent liability of
CCSC with respect to any post-retirement Welfare Plan benefit if the
increase in such contingent liability will result in a Material Adverse
Effect, notice thereof and copies of all documentation relating
thereto; and
(h) such other information respecting the condition or
operations, financial or otherwise, of CCSC or any of its Subsidiaries
as any Lender through the Administrative Agent may from time to time
reasonably request.
SECTION 5.02. Compliance with Laws, etc. CCSC will, and will
cause each of its Subsidiaries to, comply in all respects with all applicable
laws, rules, regulations and orders, except where such non-compliance would not
have a Material Adverse Effect, such compliance to include, subject to the
foregoing (without limitation):
(a) the maintenance and preservation of its 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 to the extent being diligently contested in good faith
by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
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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 responsible insurance
companies insurance with respect to its properties material to the business of
CCSC and its Subsidiaries against such casualties and contingencies and of such
types and in such amounts as is customary in the case of similar businesses and
will, upon request of the Administrative Agent, furnish to each Lender at
reasonable intervals a certificate of an Authorized Officer of CCSC setting
forth the nature and extent of all insurance maintained by CCSC and its
Subsidiaries in accordance with this Section; provided that CCSC and its
Subsidiaries may self-insure to the extent customary for similarly situated
corporations or partnerships engaged in the same or similar business.
SECTION 5.05. Books and Records. CCSC will, and will cause
each of its Subsidiaries to, keep books and records which accurately reflect all
of its business affairs and material transactions and permit the Administrative
Agent and each Lender or any of their respective representatives, at reasonable
times and intervals, to visit all of its offices, to discuss its financial
matters with its officers and independent public accountant and, upon the
reasonable request of the Administrative Agent or a Lender, to examine (and, at
the expense of the relevant Borrower, photocopy extracts from) any of its books
or other corporate or partnership records.
SECTION 5.06. Environmental Covenant. CCSC will,
and will cause each of its Subsidiaries to:
(a) use and operate all of its facilities and properties in
compliance with all Environmental Laws except for such noncompliance
which, singly or in the aggregate, will not have a Material Adverse
Effect, keep all necessary permits, approvals, certificates, licenses
and other authorizations relating to
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environmental matters in effect and remain in compliance therewith,
except where the failure to keep in effect such permits, approvals,
certificates, licenses or other authorizations, or any noncompliance
with the provisions thereof, will not have a Material Adverse Effect,
and handle all Hazardous Materials in compliance with all applicable
Environmental Laws, except for any noncompliance that will not have a
Material Adverse Effect;
(b) promptly notify the Administrative Agent and provide
copies of all written inquiries from any local, state or Federal
governmental agency, claims, complaints or notices relating to the
condition of its facilities and properties or compliance with
Environmental Laws which will have a Material Adverse Effect, and
promptly cure and have dismissed with prejudice or contest in good
faith any actions and proceedings relating to material non-compliance
with Environmental Laws; and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to
evidence compliance with this Section 5.06.
SECTION 5.07. Significant Subsidiaries. In the event that more
than 10% of the consolidated assets of CCSC and its Subsidiaries shall at any
time following the delivery by CCSC, and during the effectiveness, of a
Significant Subsidiary Election Notice be held by Subsidiaries of CCSC other
than Significant Subsidiaries, CCSC shall deliver to the Administrative Agent
written notice designating one or more Subsidiaries as Significant Subsidiaries
such that, after giving effect to such designation, no more than 10% of the
consolidated assets of CCSC and its Subsidiaries shall be held by Subsidiaries
other than Significant Subsidiaries. CCSC may, following delivery of a
Significant Subsidiary Election Notice, deliver to the Administrative Agent
written notice terminating the effectiveness of such Significant Subsidiary
Election Notice (a "Significant Subsidiary Termination Notice"), provided that
CCSC shall not deliver any Significant Subsidiary Election Notice at any time
after a Significant Subsidiary Termination Notice has been so delivered.
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SECTION 5.08. Use of Proceeds. CCSC covenants and agrees that
the proceeds of all Borrowings hereunder will be used for general corporate
purposes.
ARTICLE VI. NEGATIVE COVENANTS
SECTION 6.01. Transactions with Affiliates. CCSC will not, and
will not permit any of its Significant Subsidiaries to, enter into, or cause,
suffer or permit to exist, any arrangement or contract with any of its other
Affiliates (other than other Subsidiaries and joint ventures) unless such
arrangement or contract is fair and equitable to CCSC or such Significant
Subsidiary based upon the good faith judgment of CCSC's Board of Directors.
SECTION 6.02. Indebtedness. CCSC will not, and will not permit
any of its Subsidiaries (other than Unrestricted Subsidiaries) to, create,
incur, assume or suffer to exist or otherwise become or be liable in respect of
any Indebtedness, other than, without duplication, the following:
(a) Indebtedness in respect of the Loans and other
Obligations;
(b) Indebtedness existing as of the Closing Date which is
identified in Schedule 6.02 and all refinancing and replacements
thereof (provided, that after giving effect to any such refinancing or
replacements, CCSC shall be in compliance with the Leverage Ratio set
forth in clause (a) of Section 6.04);
(c) unsecured Indebtedness incurred by the Subsidiaries
payable to Persons other than CCSC or a Subsidiary in an aggregate
amount not to exceed the greater of $1,150,000,000 and 40% of Total
Capitalization at any time; provided, however, that Indebtedness
incurred by a special purpose, wholly-owned Subsidiary of CCSC that
purchases accounts receivable from CCSC shall be excluded as
Indebtedness under this clause (c) to the extent that such Indebtedness
is nonrecourse to CCSC and each Subsidiary and is not required to be
reflected on the consolidated balance sheet of CCSC; provided further
that no Indebtedness permitted by other clauses of this Section 6.02
shall
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be deemed to be included in the Indebtedness permitted
by this clause (c);
(d) Indebtedness of CCSC to its Subsidiaries or joint ventures
and Indebtedness of any Subsidiary or joint venture of CCSC to CCSC or
any other Subsidiary or joint venture of CCSC;
(e) Indebtedness incurred in the ordinary course
of business (excluding Indebtedness incurred through
the borrowing of money);
(f) Indebtedness of a Person existing on the date CCSC or any
of its Subsidiaries acquires such Person which CCSC intends to (i)
thereafter assume as its own obligation, or (ii) refinance in a
transaction in which CCSC becomes the direct obligor of such
Indebtedness; provided that CCSC does in fact assume, or become the
direct obligor of, such Indebtedness, and such Person (and any
Subsidiary which shall have become liable in respect of such
Indebtedness) is released from any and all liability, direct or
contingent, in connection with such Indebtedness, within 180 days
following such acquisition and, after giving effect thereto, CCSC is in
compliance with clause (h) of this Section 6.02;
(g) Indebtedness of a Person existing on the date CCSC or any
of its Subsidiaries acquires such Person; provided (i) more than 50% in
value of the consideration paid, directly or indirectly, by CCSC and
its Subsidiaries in connection with such acquisition shall have
consisted of equity securities of CCSC or (ii) CCSC shall have caused
such Person to guarantee the Obligations on terms reasonably
satisfactory to the Administrative Agent (and in connection with such
guarantee shall have delivered such evidence of authority, legal
opinions, evidence of solvency and other documents and information as
the Administrative Agent shall have reasonably requested); and
(h) other Indebtedness of CCSC; provided that after giving
effect to the incurrence of any such Indebtedness, and the Indebtedness
otherwise permitted by this Section, CCSC shall be in compliance with
the Leverage Ratio set forth in clause (a) of Section 6.04;
provided, however, that, notwithstanding anything to the
contrary set forth above in this Section, the unsecured
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Indebtedness otherwise permitted by this Section may be secured by the assets of
CCSC and its Subsidiaries to the extent that the Indebtedness so secured does
not exceed, in the aggregate an amount equal to 20% of Total Capitalization as
of the end of the most recently completed Fiscal Quarter.
SECTION 6.03. Liens. CCSC will not, and will not permit any of
its Significant Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its property, revenues or assets, whether now owned or
hereafter acquired, except:
(a) Liens granted prior to the Closing Date to
secure payment of Indebtedness of the type permitted
and described in clause (b) of Section 6.02;
(b) Liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without
penalty or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(c) Liens of carriers, warehousemen, mechanics, materialmen
and landlords incurred in the ordinary course of business for sums not
overdue or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(d) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or other
forms of governmental insurance or benefits, or to secure performance
of tenders, statutory obligations, leases and contracts (other than for
borrowed money) entered into in the ordinary course of business or to
secure obligations on surety or appeal bonds;
(e) judgment Liens in existence less than 30 days after the
entry thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary deductible)
by insurance maintained with responsible insurance companies;
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(f) Liens arising in favor of sellers or lessors with respect
to Indebtedness and obligations incurred to purchase or lease fixed or
capital assets; provided, however, that such Liens secure only the
Indebtedness and obligations created thereunder and are limited to the
assets purchased or leased pursuant thereto;
(g) other Liens incidental to the conduct of CCSC's or any of
its Subsidiaries' businesses (including, without limitation, Liens on
goods securing trade letters of credit issued in respect of the
importation of goods in the ordinary course of business, or the
ownership of any of CCSC's or any Subsidiary's property and assets
which were not incurred in connection with the borrowing of money or
the obtaining of advances or credit and which do not in the aggregate
materially detract from the value of CCSC's or any of its Subsidiaries'
property or assets or materially impair the use thereof in the
operation of CCSC's or any of its Subsidiaries' businesses);
(h) Liens in favor of CCSC on assets of its
Subsidiaries, and Liens in favor of Subsidiaries of the
Borrower on assets of CCSC;
(i) Liens consisting of capitalized leases;
(j) Liens existing on any real or personal property of any
corporation or other Person at the time it becomes a Subsidiary, or
existing at the time of acquisition upon any real or personal property
acquired by CCSC or any of its Subsidiaries through purchase, merger,
consolidation or otherwise, whether or not assumed by CCSC or such
Subsidiary, or placed upon real or personal property being acquired by
CCSC or any Subsidiary to secure all or a portion of the purchase price
thereof or any Indebtedness incurred to finance all or any portion of
such purchase price; provided that (x) such property is not and shall
not thereby become encumbered in any amount in excess of the lesser of
the cost thereof and the fair value thereof (as determined in good
faith by the Board of Directors, President or chief financial
Authorized Officer of CCSC), and (y) any such Lien shall not encumber
any other property of CCSC or such Subsidiary;
(k) Liens granted by a special purpose, wholly-
owned Subsidiary of CCSC that purchases accounts
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receivable from CCSC to the extent such Liens are granted on such
accounts receivable to secure the payment of Indebtedness of such
wholly-owned Subsidiary that is permitted by the first proviso of
Section 6.02(c); and
(l) Liens that secure the payment of Indebtedness in an
aggregate amount not to exceed 20% of Total Capitalization, determined
as of the end of the most recently completed Fiscal Quarter; provided
that Liens permitted by this clause (l) shall be inclusive of (and not
in addition to) other Liens that secure the payment of Indebtedness
specifically permitted in this Section and the last sentence of Section
6.02.
SECTION 6.04. Financial Condition. CCSC will not permit:
(a) its Leverage Ratio to be greater than 0.60:1;
or
(b) its Interest Coverage Ratio to be less than
1.25:1.
SECTION 6.05. Consolidation, Merger, etc. CCSC will not
liquidate or dissolve or consolidate with, or merge into or with, any other
corporation, except that CCSC may consolidate or merge with any other Person,
provided that (i) CCSC is the surviving corporation of such merger, and (ii)
both before and after giving effect to such consolidation or merger, no Event of
Default or Event of Termination shall have occurred and be continuing.
SECTION 6.06. Restrictive Agreements. CCSC will not, and will
not permit any of its Significant Subsidiaries to, enter into any agreement
(excluding this Agreement, any other Loan Document and any agreement governing
any Indebtedness permitted by clause (b) of Section 6.02 as in effect on the
Closing Date) prohibiting
(a) the ability of CCSC to amend or otherwise
modify this Agreement or any other Loan Document; or
(b) the ability of Subsidiaries the aggregate Net Income of
which equals or exceeds 50% of the consolidated Net Income of CCSC and
its Subsidiaries, taken as a whole, to make any payments to CCSC by way
of dividends, advances, repayments of loans or
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advances, reimbursements of management and other intercompany charges,
expenses and accruals or other returns on investments.
ARTICLE VII. EVENTS OF DEFAULT
SECTION 7.01. Listing of Events of Default. Each of the
following events or occurrences described in this Section 7.01 shall constitute
(i) an "Event of Default", if any Loans or Obligations in respect of Loans are
outstanding, and (ii) an "Event of Termination", if no Loans or Obligations in
respect of Loans are outstanding.
(a) Any Borrower shall default in the payment when due of any
principal of any Loan or any Borrower shall default (and such default shall
continue unremedied for a period of three Business Days) in the payment when due
of any interest on any Loan, or any Borrower shall default after notice
(including, without limitation, notice delivered by way of submission of an
invoice) (and such default shall continue unremedied for a period of five days)
in the payment when due of any Fee described in Section 2.11 or of any other
Obligation.
(b) Any representation or warranty of CCSC or any other
Borrower made or deemed to be made hereunder or in any other Loan Document or
any other writing or certificate furnished by or on behalf of CCSC or any
Borrower to the Administrative Agent or any Lender for the purposes of or in
connection with this Agreement or any such other Loan Document is or shall be
incorrect when made in any material respect.
(c) CCSC shall default in the due performance and observance
of any of its obligations under clause (a) of Section 5.02 (with respect to the
maintenance and preservation of CCSC's corporate existence) or Article VI and,
with respect to any default by CCSC in the performance of its obligations under
Article VI, any such default (if capable of being remedied within such period)
shall not be remedied within five Business Days after any officer of CCSC
obtains actual knowledge thereof.
(d) CCSC or any Borrower shall default in the due performance
and observance of any other agreement contained herein or in any other Loan
Document, and such default shall continue unremedied for a period of 30 days
after notice
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thereof shall have been given to CCSC or such Borrower by the Administrative
Agent or any Lender.
(e) A default shall occur (i) in the payment when due (subject
to any applicable grace period), whether by acceleration or otherwise, of any
Indebtedness (other than Indebtedness described in paragraph (a) above) of CCSC
or any of its Subsidiaries having a principal amount, individually or in the
aggregate, equal to or in excess of $100,000,000 or (ii) in the performance or
observance of any obligation or condition with respect to such Indebtedness if
the effect of such default referred to in this clause (ii) is to accelerate the
maturity of any such Indebtedness; provided, that this clause (ii) shall not
apply to any default under any such Indebtedness of a Subsidiary existing at the
time it is acquired by CCSC or another Subsidiary (or by virtue of such
acquisition) to the extent that (A) such Indebtedness is repaid or prepaid in
full promptly following such acquisition (provided that, in any event and
notwithstanding clause (i) above, such Indebtedness may remain outstanding for
up to 180 days following such acquisition so long as the holders thereof shall
not have exercised remedies, other than acceleration, with respect thereto) or
(B) such Indebtedness is in an aggregate principal amount not equal to or in
excess of $100,000,000.
(f) Any judgment or order for the payment of money equal to or
in excess of $100,000,000 shall be rendered against CCSC or any of its
Subsidiaries and either
(i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order
and not stayed, or
(ii) there shall be any period (after any applicable statutory
grace period) of 10 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect and (A) such judgment is not fully insured
against by a policy or policies of insurance (with reasonable or
standard deductible provisions) issued by an insurer other than an
Affiliate of CCSC, or (B) CCSC does not have sufficient cash reserves
to pay in full such judgment.
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(g) Any of the following events shall occur with
respect to any Pension Plan:
(i) the taking of any specific actions by CCSC, any member of
its Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, CCSC or any such member could be
required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension
Plan, in excess of $75,000,000; provided, that, if CCSC or a Subsidiary
of CCSC acquires another Person, then such amount shall be net of the
amount of any reduction in the purchase price of such Person that is
specifically allocable to the assumption by CCSC or such Subsidiary of
liability under such Person's Pension Plan as a result of the
acquisition, or
(ii) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA
which is not cured within 20 days from the date that such contribution
was due.
(h) Any Change in Control shall occur.
(i) CCSC or any of its Significant Subsidiaries
shall
(i) become insolvent or generally fail to pay
debts as they become due;
(ii) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, sequestrator or other custodian for CCSC or any of
its Significant Subsidiaries or substantially all of the property of
any thereof, or make a general assignment for the benefit of creditors;
(iii) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for CCSC or any of its Significant
Subsidiaries or for a substantial part of the property of any thereof,
and such trustee, receiver, sequestrator or other custodian shall not
be discharged or stayed within 60 days, provided that CCSC and each
Significant Subsidiary hereby expressly authorizes the Administrative
Agent and each Lender to appear in any court conducting any relevant
proceeding during such 60-day period to
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preserve, protect and defend their rights under the
Loan Documents;
(iv) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of CCSC or any of its
Significant Subsidiaries, and, if any such case or proceeding is not
commenced by CCSC or such Significant Subsidiary, such case or
proceeding shall be consented to or acquiesced in by CCSC or such
Significant Subsidiary or shall result in the entry of an order for
relief or shall remain for 60 days undismissed and unstayed, provided
that CCSC and each Significant Subsidiary hereby expressly authorizes
the Administrative Agent and each Lender to appear in any court
conducting any such case or proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents; or
(v) take any corporate or partnership action (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 shall cease to be
in full force and effect or CCSC shall repudiate its obligations thereunder, if
at the time of or at any time following such cessation or repudiation, any
Subsidiary Borrower Obligation is outstanding.
SECTION 7.02. Action if Bankruptcy. If any Event of Default
described in clauses (i) through (iv) of Section 7.01(i) shall occur, the
Revolving Credit Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Loans and all
other Obligations shall automatically be and become immediately due and payable,
without notice or demand.
SECTION 7.03. Action if Other Event of Default. If any Event
of Default (other than any Event of Default described in clauses (i) through
(iv) of Section 7.01(i)) shall occur for any reason, whether voluntary or
involuntary, and be continuing, the Administrative Agent, upon the direction of
the Required Lenders, shall by written notice to CCSC and each Lender declare
all or any portion of
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the outstanding principal amount of the Loans and other Obligations to be due
and payable and/or the Revolving Credit Commitments (if not theretofore
terminated) to be terminated, whereupon the full unpaid amount of such Loans and
other Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment
and/or, as the case may be, the Revolving Credit Commitments shall terminate.
SECTION 7.04. Action if Event of Termination. Upon the
occurrence and continuation of any Event of Termination, the Required Lenders
may, by notice from the Administrative Agent to 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 Revolving Credit Commitments (if not
theretofore terminated) shall, without notice of any kind, automatically
terminate) declare their Revolving Credit Commitments terminated, and upon such
declaration the Lenders shall have no further obligation to make any Loans
hereunder. Upon such termination of the Revolving Credit Commitments, all
accrued fees and expenses shall be immediately due and payable.
ARTICLE VIII. THE ADMINISTRATIVE AGENT
In order to expedite the transactions contemplated by this
Agreement, The Chase Manhattan Bank is hereby appointed to act as Administrative
Agent on behalf of the Lenders. Each of the Lenders and each assignee of any
such Lender, hereby irrevocably authorizes the Administrative Agent to take such
actions on behalf of such Lender or assignee and to exercise such powers as are
specifically delegated to the Administrative Agent by the terms and provisions
hereof and of the other Loan Documents, together with such actions and powers as
are reasonably incidental thereto. The Administrative Agent is hereby expressly
authorized by the Lenders, without hereby limiting any implied authority, (a) to
receive on behalf of the Lenders all payments of principal of and interest on
the Loans, all payments and all other amounts due to the Lenders hereunder, and
promptly to distribute to each Lender its proper share of each payment so
received; (b) to give notice on behalf of each of the Lenders to any of the
Borrowers of any Default specified in this Agreement of which the Administrative
Agent has actual knowledge acquired in connection with its agency hereunder; and
(c) to distribute to each Lender
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copies of all notices, financial statements and other materials delivered by the
Borrowers pursuant to this Agreement as received by the Administrative Agent.
Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable to the Lenders as such for any
action taken or omitted by any of them except for its or his 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 Borrower of any of the terms, conditions,
covenants or agreements contained in any Loan Document. The Administrative Agent
shall not be responsible to the Lenders for the due execution, genuineness,
validity, enforceability or effectiveness of this Agreement or any other Loan
Documents or other instruments or agreements. The Administrative Agent shall in
all cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Required Lenders (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. The Administrative Agent shall, in the absence of
knowledge to the contrary, be entitled to rely on any instrument or document
believed by it in good faith to be genuine and correct and to have been signed
or sent by the proper person or persons. Neither the Administrative Agent nor
any of its directors, officers, employees or agents shall have any
responsibility to the Borrowers on account of the failure of or delay in
performance or breach by any Lender of any of its obligations hereunder or to
any Lender on account of the failure of or delay in performance or breach by any
other Lender or the Borrowers of any of their respective obligations hereunder
or under any other Loan Document or in connection herewith or therewith. The
Administrative Agent may execute any and all duties hereunder by or through
agents or employees and shall be entitled to rely upon the advice of legal
counsel selected by it with respect to all matters arising hereunder and shall
not be liable for any action taken or suffered in good faith by it in accordance
with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agent
shall be under no duty to take any discretionary action permitted to be taken by
it pursuant to
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the provisions of this Agreement unless it shall be
requested in writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Lenders and the Borrowers. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent which shall be a
bank with an office in New York, New York, having a combined capital and surplus
of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance
of any appointment as Administrative Agent hereunder by such a successor bank,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 10.05 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
With respect to the Loans made by it hereunder, the
Administrative Agent in its individual capacity and not as Administrative Agent
shall have the same rights and powers as any other Lender and may exercise the
same as though it were not the Administrative Agent, and the Administrative
Agent and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with CCSC or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent.
Each Lender agrees (i) to reimburse the Administrative Agent,
on demand, in the amount of its Commitment Percentage of any expenses incurred
for the benefit of the Lenders by the Administrative Agent, including counsel
fees and compensation of agents and employees paid for services rendered on
behalf of the Lenders, which shall not have been reimbursed by the Borrowers and
(ii) to indemnify and hold harmless the Administrative Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such
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Commitment Percentage, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against it in its capacity as the Administrative
Agent or any of them in any way relating to or arising out of this Agreement or
any other Loan Document or any action taken or omitted by it or any of them
under this Agreement or any other Loan Document, to the extent the same shall
not have been reimbursed by the Borrowers; provided that no Lender shall be
liable to the Administrative Agent or any such other Person for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence or
wilful misconduct of the Administrative Agent or any of its directors, officers,
employees or agents.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement
or any other Loan Document, any related agreement or any document furnished
hereunder or thereunder.
ARTICLE IX. GUARANTEE
SECTION 9.01. Guarantee. In order to induce the Administrative
Agent and the Lenders to execute and deliver this Agreement and to make or
maintain the Loans, and in consideration thereof, CCSC hereby unconditionally
and irrevocably guarantees, as primary obligor and not merely as surety, to the
Administrative Agent, for the ratable benefit of the Lenders, the prompt and
complete payment and performance by each Subsidiary Borrower when due (whether
at stated maturity, by acceleration or otherwise) of the Subsidiary Borrower
Obligations, and CCSC further agrees to pay any and all reasonable expenses
(including, without limitation, all reasonable fees, charges and disbursements
of counsel) which may be paid or incurred by the
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Administrative Agent or by the Lenders in enforcing any of their rights under
the guarantee contained in this Article IX. The guarantee contained in this
Article IX, subject to Section 9.04, shall remain in full force and effect until
the Subsidiary Borrower Obligations are paid in full and the Revolving Credit
Commitments are terminated, notwithstanding that from time to time prior thereto
any Subsidiary Borrower may be free from any Subsidiary Borrower Obligations.
CCSC agrees that whenever, at any time, or from time to time,
it shall make any payment to the Administrative Agent or any Lender on account
of its liability under this Article IX, it will notify the Administrative Agent
and such Lender in writing that such payment is made under the guarantee
contained in this Article IX for such purpose. No payment or payments made by
any Subsidiary Borrower or any other Person or received or collected by the
Administrative Agent or any Lender from any Subsidiary Borrower or any other
Person by virtue of any action or proceeding or any setoff or appropriation or
application, at any 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 Revolving Credit
Commitments are terminated.
SECTION 9.02. Amendments, etc., with respect to the Subsidiary
Borrower Obligations. CCSC shall remain obligated under this Article IX
notwithstanding that, without any reservation of rights against CCSC, and
without notice to or further assent by CCSC, any demand for payment of or
reduction in the principal amount of any of the Subsidiary Borrower Obligations
made by the Administrative Agent or any Lender may be rescinded by the
Administrative Agent or such Lender, and any of the Subsidiary Borrower
Obligations continued, and the Subsidiary Borrower Obligations, or the liability
of any other party upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any
Lender, and this Agreement and any other documents executed
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and delivered in connection herewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Lenders (or the Required Lenders, as the
case may be) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Administrative Agent or any
Lender for the payment of the Subsidiary Borrower Obligations may be sold,
exchanged, waived, surrendered or released. Neither the Administrative Agent nor
any Lender shall have any obligation to protect, secure, perfect or insure any
lien at any time held by it as security for the Subsidiary Borrower Obligations
or for the guarantee contained in this Article IX or any property subject
thereto.
SECTION 9.03. Guarantee Absolute and Unconditional. CCSC
waives any and all notice of the creation, renewal, extension or accrual of any
of the Subsidiary Borrower Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon the guarantee contained in this Article
IX or acceptance of the guarantee contained in this Article IX; the Subsidiary
Borrower Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived, in
reliance upon the guarantee contained in this Article IX, and all dealings
between CCSC or the Subsidiary Borrowers, on the one hand, and the
Administrative Agent and the Lenders, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Article IX. The Administrative Agent will, to the
extent permitted by applicable law, request payment of any Subsidiary Borrower
Obligation from the applicable Subsidiary Borrower before making any claim
against CCSC under this Article IX, but will have no further obligation to
proceed against a Subsidiary Borrower or to defer for any period a claim against
CCSC hereunder. Except as expressly provided in the preceding sentence, CCSC
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon CCSC or any Subsidiary Borrower with respect to the
Subsidiary Borrower Obligations. The guarantee contained in this Article IX
shall be construed as a continuing, absolute and unconditional guarantee of
payment without regard to (a) the validity or enforceability of this Agreement
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 the Administrative Agent or any
Lender, (b) the
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legality under applicable laws of repayment by the relevant Subsidiary Borrower
of any Subsidiary Borrower Obligations or the adoption of any applicable laws
purporting to render any Subsidiary Borrower Obligations null and void, (c) any
defense, setoff or counterclaim (other than a defense of payment or performance)
which may at any time be available to or be asserted by CCSC or the applicable
Subsidiary Borrower against the Administrative Agent or any Lender, or (d) any
other circumstance whatsoever (with or without notice to or knowledge of CCSC or
any Subsidiary Borrower) which constitutes, or might be construed to constitute,
an equitable or legal discharge of any Subsidiary Borrower for any Subsidiary
Borrower Obligations, or of CCSC under the guarantee contained in this Article
IX, in bankruptcy or in any other instance. When the Administrative Agent or any
Lender is pursuing its rights and remedies under this Article IX against CCSC,
the Administrative Agent or any Lender may, but shall be under no obligation to,
pursue such rights and remedies as it may have against any Subsidiary Borrower
or any other Person or against any collateral security or guarantee for the
Subsidiary Borrower Obligations or any right of offset with respect thereto, and
any failure by the Administrative Agent or any Lender to pursue such other
rights or remedies or to collect any payments from any Subsidiary Borrower or
any such other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of any
Subsidiary Borrower or any such other Person or of any such collateral security,
guarantee or right of offset, shall not relieve CCSC of any liability under this
Article IX, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Administrative Agent
and the Lenders against CCSC.
SECTION 9.04. Reinstatement. The guarantee contained in this
Article IX shall continue to be effective, or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any of the Subsidiary Borrower
Obligations is rescinded or must otherwise be restored or returned by the
Administrative Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any Subsidiary Borrower or upon or as a result
of the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, any Subsidiary Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
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SECTION 9.05. Payments. CCSC hereby agrees that any payments
in respect of the Subsidiary Borrower Obligations pursuant to Article IX will be
paid without setoff or counterclaim, at the option of the relevant Lender(s), in
Dollars or in the applicable Alternative Currency (if applicable) at the
applicable office of the Administrative Agent specified in Section 10.01.
SECTION 9.06. Independent Obligations. The obligations of CCSC
under the guarantee contained in this Article IX are independent of the
obligations of each Subsidiary Borrower, and a separate action or actions may be
brought and prosecuted against CCSC whether or not the relevant Subsidiary
Borrower is joined in any such action or actions. CCSC waives, to the full
extent permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the 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 9300 Ashton Road,
Philadelphia, Pennsylvania 19136, attention of
Mr. Craig R. L. Calle; (Telecopy No. (215)-676-6011);
(ii) if to any Borrower other than CCSC, to it at the address set
forth in the applicable Subsidiary Borrower Notice and Designation,
with a copy to CCSC at the address set forth above;
(iii) if to the Administrative Agent (x) at its London office to
Chase Manhattan International Limited, 9 Thomas More Street, London E1
9YT, Attention of Stephen Clarke (Telecopy No. 44-171-777-2360 or
2085), with a copy to The Chase Manhattan Bank, Agency Services Group,
One Chase Manhattan Plaza, 8th Floor, New York, New York 10081,
Attention of Sandra Miklave (Telecopy No. (212) 552-5658) and (y) at
its New York
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office to The Chase Manhattan Bank, Agency Services Group, at its
address in (x) above, with copies to (A) The Chase Manhattan Bank, at
270 Park Avenue, New York, New York 10017, Attention of Karen Sharf
(Telecopy No. (212) 270-5120) and (B) Chase Manhattan International
Limited, at its address in (x) above; and
(iv) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 10.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 10.01.
(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 Lenders and shall survive the making by the Lenders
of the Loans, regardless of any investigation made by the Lenders or on
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their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid and so long as the Revolving Credit Commitments have not been terminated.
SECTION 10.03. Binding Effect. This Agreement shall become
effective when it shall have been executed by CCSC and the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
SECTION 10.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Borrowers, the
Administrative Agent or the Lenders that are contained in this Agreement shall
bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Revolving Credit Commitment and the Loans at the time
owing to it); provided, however, that (i) except in the case of an assignment to
a Lender or an Affiliate of such Lender, CCSC and the Administrative Agent (and,
in the case of any assignment of a Revolving Credit Commitment, the Swingline
Lender) must give their prior written consent to such assignment (which consent
shall not, unless the amount of such Lender's Revolving Credit Commitment after
giving effect to such assignment shall be zero, be unreasonably withheld, it
being agreed that neither CCSC nor any Swingline Lender will be deemed to act
unreasonably if it shall withhold consent on the basis of concerns relating to a
proposed assignee's creditworthiness or reputation), (ii) the amount of the
Revolving Credit Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $20,000,000 and the amount of such Lender's Revolving Credit Commitment
after giving effect to such assignment shall not be less than $25,000,000
(unless
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such amount shall be zero), (iii) except in the case of the assignment to an
Affiliate of such Lender, the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500 (except that no such fee shall be
payable in the case of an assignment required to be made pursuant to Section
2.21) and (iv) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to paragraph (e) of this Section 10.04, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, provided that the Borrowers shall not be required
to reimburse such assignee pursuant to Section 2.16, 2.17 or 2.18 in an amount
which exceeds the amount that would have been payable thereunder to such
assigning Lender, and (B) the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be 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).
(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 Revolving Credit Commitment, and the outstanding balances of its Revolving
Loans and Competitive 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
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of this Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto, or the financial condition of CCSC or any Subsidiary
or the performance or observance by CCSC or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements, if any,
delivered pursuant to Section 5.01 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (v) such assignee will independently and
without reliance upon the Administrative Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an
agent of the Borrowers, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Revolving
Credit Commitment of, and principal amount of the Loans, 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
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrowers and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
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(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
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).
(f) Each Lender may without the consent of CCSC, the Swingline
Lender or the Administrative Agent sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment and the
Loans owing to it); provided, however, that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating banks or other entities shall be entitled to the benefit
of the cost protection provisions contained in Sections 2.16, 2.17 and 2.18 and
the provisions of Section 5.01 to the same extent as if they were Lenders
(provided that no participant shall be entitled to receive any greater amount
pursuant to such Sections than the Lender would have been entitled to receive in
respect of the interest transferred had no such transfer occurred) and (iv) the
Borrowers, the Administrative Agent and the Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right
(which each Lender agrees will not be limited by the terms of any participation
agreement or other agreement with a participant) to enforce the obligations of
the Borrowers relating to the Loans and to approve any amendment, modification
or waiver of any provision of this Agreement (other than amendments,
modifications or waivers decreasing any fees payable hereunder or the amount of
principal of or the rate at which interest is payable on the Loans, extending
any scheduled principal payment date or date fixed for the payment of interest
on the Loans, changing or extending the Revolving
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Credit Commitments or releasing the guaranty contained in Article IX).
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 10.04, disclose to the assignee or participant or proposed assignee
or participant any information relating to the Borrowers furnished to such
Lender by or on behalf of the Borrowers; provided that, prior to any such
disclosure of information designated by any Borrower as confidential, each such
assignee or participant or proposed assignee or participant shall execute an
agreement whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information.
(h) Any Lender may at any time assign as collateral all or any
portion of its rights under this Agreement to a Federal Reserve Bank to secure
extensions of credit by such Federal Reserve Bank to such Lender; provided that
no such assignment shall release a Lender from any of its obligations hereunder
or substitute any such Bank for such Lender as a party hereto. In order to
facilitate such an assignment to a Federal Reserve Bank, each Borrower shall, at
the request of the assigning Lender, duly execute and deliver to the assigning
Lender a promissory note or notes evidencing the Loans made to such Borrower by
the assigning Lender hereunder.
(i) The Borrowers shall not assign or delegate any of their
rights or duties hereunder without the prior written consent of the
Administrative Agent and each Lender, and any attempted assignment without such
consent shall be null and void; provided that any Subsidiary Borrower may assign
and delegate any of its rights or obligations hereunder to one or more other
Subsidiary Borrowers which shall assume the same upon notice and the delivery of
a reasonably satisfactory assignment and assumption agreement 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
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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 all reasonable out-of-pocket expenses incurred by the
Administrative Agent in connection with the preparation and administration of
this Agreement and the other Loan Documents or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof
requested by the Borrowers or made pursuant to Section 10.17 (whether or not the
transactions hereby contemplated shall be consummated) or incurred by the
Administrative Agent or any Lender in connection with the enforcement or
protection of their rights in connection with this Agreement, the other Loan
Documents or the Loans made hereunder, including the reasonable fees, charges
and disbursements of Cravath, Swaine & Moore, counsel for the Administrative
Agent, and, in connection with any such enforcement or protection, the
reasonable fees, charges and disbursements of any other counsel for the
Administrative Agent or any Lender, provided, however, that the Borrowers shall
not be obligated to pay for expenses incurred by the Administrative Agent or a
Lender in connection with the assignment of Loans to an assignee Lender (except
pursuant to Section 2.21) or the sale of Loans to a participant pursuant to
Section 10.04.
(b) The Borrowers jointly and severally agree to indemnify the
Administrative Agent, each Lender, each Affiliate of any of the foregoing
Persons and each of their respective directors, officers, employees and agents
(each such Person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related reasonable expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto
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of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby, (ii) the use of
the proceeds of the Loans, (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto, or (iv) any actual or alleged presence or Release of Hazardous
Materials on any property owned or operated by CCSC or any of the Subsidiaries,
or any Environmental Claim related in any way to CCSC or the Subsidiaries;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related reasonable
expenses arise (a) in connection with any action by any stockholder or creditor
of the Indemnitee (in its capacity as such), (b) in connection with any action
by any Borrower, by reason of the Indemnitee's negligence or (c) in connection
with any action not brought by any Borrower or any stockholder or creditor of
the Indemnitee (in its capacity as such), by reason of the Indemnitee's gross
negligence or wilful misconduct.
(c) 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 Revolving Credit
Commitments, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on 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
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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.
SECTION 10.07. Applicable Law. THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
SECTION 10.08. Waivers; Amendment. (a) No failure or delay of
the Administrative Agent or any Lender in exercising any power or right
hereunder or under any Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies which they would otherwise have. No waiver
of any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrowers therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on any Borrower in any case shall entitle such
Borrower to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrowers and the Required Lenders; provided,
however, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date or date for the
payment of any interest on any Loan, or waive or excuse any such payment or any
part
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thereof, or decrease the rate of interest on any Loan, without the prior written
consent of each Lender affected thereby, (ii) change or extend the Revolving
Credit Commitment or decrease the Facility Fee of any Lender without the prior
written consent of such Lender, (iii) amend or modify the provisions of Section
2.14, the provisions of this Section or the definition of "Required Lenders",
without the prior written consent of each Lender, or (iv) release the guarantee
contained in Article IX or modify the provisions of Article IX in a manner
deemed by the Administrative Agent to be material, without the prior written
consent of each Lender; provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent or
the Swingline Lender hereunder or under any other Loan Document without the
prior written consent of the Administrative Agent or the Swingline Lender.
SECTION 10.09. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan or
participation in accordance with applicable law, the rate of interest payable in
respect of such Loan or participation hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in respect
of such Loan or participation but were not payable as a result of the operation
of this Section shall be cumulated and the interest and Charges payable to such
Lender in respect of other Loans or participations or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 10.10. Entire Agreement. This Agreement and the other
Loan Documents constitute the entire contract between the parties relative to
the subject matter hereof. Any previous agreement among the parties with respect
to the subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and
<PAGE>
101
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.
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.
<PAGE>
102
SECTION 10.15. Jurisdiction; Consent to Service of Process.
(a) Each Borrower hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against any Borrower or its properties in
the courts of any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the other
Loan Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
(d) Each Subsidiary Borrower hereby designates and appoints
CCSC at its offices at 9300 Ashton Road, 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
<PAGE>
103
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
<PAGE>
104
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.
SECTION 10.17. Unification of Certain Currencies. If the
"Euro" (or some other similar unit of account) becomes a currency in its own
right in connection with European monetary union contemplated by the Maastricht
Treaty, then each of the Borrowers, the Lenders and the
<PAGE>
105
Administrative Agent agrees to negotiate in good faith an amendment to this
Agreement satisfactory in form and substance to the Borrowers, the Lenders and
the Administrative Agent to account therefor.
SECTION 10.18. Waiver Under Existing Agreements. By its
execution hereof, each undersigned Lender that also is a party to either of the
Existing Agreements hereby waives the provisions of each such Existing Agreement
that would require advance notice for the termination of commitments thereunder
or the prepayment of loans thereunder; provided that (a) the foregoing waiver
shall apply only to the termination of all commitments under such Existing
Agreements and repayment of all loans outstanding thereunder in connection with
the effectiveness of this Agreement and (b) CCSC shall, in lieu of advance
notice of any such termination or prepayment, give notice thereof to the
Administrative Agent (as defined in such Existing Agreements) on the date of
such termination or prepayment.
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/ Craig R.L. Calle
Name: Craig R.L. Calle
Title: Senior Vice President -
Finance and Treasurer
Attest:
[Corporate Seal]
by /s/ Richard L. Krzyzanowski
Name: Richard L. Krzyzanowski
Title: Executive Vice President,
Secretary and General Counsel
<PAGE>
106
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by /s/ Karen May Sharf
Name: Karen May Sharf
Title: Vice President
SOCIETE GENERALE, individually and
as Documentation Agent,
by /s/ James H. Nangle
Name: James H. Nangle
Title: First Vice President and
Regional Manager
BANK OF AMERICA ILLINOIS,
individually and as
Syndication Agent,
by /s/ David Noda
Name: David Noda
Title: Vice President
ABN AMRO BANK N.V., NEW YORK BRANCH,
by /s/ David B. Martens
Name: David B. Martens
Title: Vice President
by /s/ John Kinney
Name: John Kinney
Title: Assistant Vice President
<PAGE>
107
BANCA COMMERCIALE ITALIANA -
NEW YORK BRANCH,
by /s/ Charles P. Dougherty
Name: Charles P. Dougherty
Title: Vice President
by /s/ Brian C. Carlson
Name: Brian C. Carlson
Title: Assistant Vice President
BANK BRUSSELS LAMBERT,
NEW YORK BRANCH,
by /s/ Ann E. Hardy
Name: Ann E. Hardy
Title: Assistant Vice President
by /s/ Dominick H.J. Vangaever
Name: Dominick H.J. Vangaever
Title: Senior Vice President
THE BANK OF NEW YORK,
by /s/ Peter H. Abdill
Name: Peter H. Abdill
Title: Vice President
BANQUE NATIONALE DE PARIS,
by /s/ Thomas N. George
Name: Thomas N. George
Title: Vice President
by /s/ Richard L. Sted
Name: Richard L. Sted
Title: Senior Vice President
<PAGE>
108
CAISSE NATIONALE DE CREDIT AGRICOLE,
by /s/ R. Craig Welch
Name: R. Craig Welch
Title: First Vice President
CIBC INC.,
by /s/ Christopher R. Kleczkowski
Name: Christopher R.
Kleczkowski
Title: Director
CITIBANK, NA,
by /s/ Robert D. Wetrus
Name: Robert D. Wetrus
Title: Attorney-in-Fact
CORESTATES BANK, N.A.,
by /s/ Joseph M. Finley
Name: Joseph M. Finley
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
by /s/ Eileen O'Connell Fox
Name: Eileen O'Connell Fox
Title: Director
by /s/ Elizabeth A. Whalen
Name: Elizabeth A. Whalen
Title: Associate
<PAGE>
109
THE DAI-ICHI KANGYO BANK, LTD.,
by /s/ Robert P. Gallagher
Name: Robert P. Gallagher
Title: Assistant Vice President
DEUTSCHE BANK AG, NEW YORK BRANCH,
by /s/ Hans-Josef Thiele
Name: Hans-Josef Thiele
Title: Vice President
by /s/ Belinda Wheeler
Name: Belinda Wheeler
Title: Corporate Finance -
Domestic
THE FIRST NATIONAL BANK OF BOSTON,
by /s/ William F. Hamilton
Name: William F. Hamilton
Title: Director
GENERALE BANK,
by /s/ A. Edwin Matthews
Name: A. Edwin Matthews
Title: Senior Vice President
by /s/ Peter Pollaert
Name: Peter Pollaert
Title: Senior Vice President
<PAGE>
110
THE INDUSTRIAL BANK OF JAPAN,
LIMITED,
by /s/ Robert W. Ramage, Jr.
Name: Robert W. Ramage, Jr.
Title: Senior Vice President
ISTITUTO BANCARIO SAN PAOLO
DI TORINO, SPA,
by /s/ Robert S. Wurster
Name: Robert S. Wurster
Title: First Vice President
by /s/ William J. DeAngelo
Name: William J. DeAngelo
Title: First Vice President
MELLON BANK, N.A.,
by /s/ Maria D'Antonio Kalilec
Name: Maria D'Antonio Kalilec
Title: Vice President
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK,
by /s/ Laura E. Reim
Name: Laura E. Reim
Title: Vice President
THE NORTHERN TRUST COMPANY,
by /s/ John J. Conway
Name: John J. Conway
Title: Vice President
<PAGE>
111
ROYAL BANK OF CANADA,
by /s/ Lorna P. Mendelson
Name: Lorna P. Mendelson
Title: Manager
STANDARD CHARTERED BANK,
by /s/ Peter G.R. Dodds
Name: Peter G.R. Dodds
Title: Vice President
by /s/ Kristina McDavid
Name: Kristina McDavid
Title: Vice President
THE SUMITOMO BANK, LIMITED,
by /s/ John C. Kissinger
Name: John C. Kissinger
Title: Joint General Manager
SUNTRUST BANK, ATLANTA,
by /s/ Maria C. Mamilovich
Name: Maria C. Mamilovich
Title: Vice President
by /s/ Mary Anne Zagroba
Name: Mary Anne Zagroba
Title: Vice President
<PAGE>
EXHIBIT A
[FORM OF]
ADMINISTRATIVE QUESTIONNAIRE
CROWN CORK & SEAL COMPANY, INC.
Please accurately complete the following information and return via FAX to the
attention of Sandra Miclave at The Chase Manhattan Bank Agency Services Group as
soon as possible.
FAX Number: 212-552-5658
LEGAL NAME OF YOUR INSTITUTION TO APPEAR IN DOCUMENTATION:
____________________________________________________________________
GENERAL INFORMATION - ALTERNATE BASE RATE LENDING OFFICE:
Institution Name: ______________________________________________
Street Address: ________________________________________________
City, State, Zip Code: _________________________________________
GENERAL INFORMATION - EURODOLLAR LENDING OFFICE:
Institution Name: ______________________________________________
Street Address: ________________________________________________
City, State, Zip Code: _________________________________________
CREDIT CONTACTS/NOTIFICATION METHODS:
Primary Contact: _______________________________________________
Street Address: ________________________________________________
City, State, Zip Code: _________________________________________
Phone Number: __________________________________________________
FAX Number: ____________________________________________________
Backup Credit Contact: _________________________________________
Street Address: ________________________________________________
City, State, Zip Code: _________________________________________
Phone Number: __________________________________________________
FAX Number: ____________________________________________________
TAX WITHHOLDING:
UNITED STATES
Non-Resident Alien or Foreign Corporation or Other Foreign
Entity
__________ YES __________ NO
<PAGE>
2
If yes, please enclose Form 4224, 1001 or W-8. If no, please
enclose Form W-9.
Tax ID Number _________________________________
UNITED KINGDOM
Non-Resident Alien or Foreign Corporation or other Foreign
Entity
__________ YES __________ NO
Please enclose relevant tax forms.
Tax ID Number _________________________________
CONTACTS/NOTIFICATION METHODS:
ADMINISTRATIVE CONTACTS - BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact: _______________________________________________________
Street Address: ________________________________________________
City, State, Zip Code: _________________________________________
Phone Number: __________________________________________________
FAX Number: ____________________________________________________
Telex & Answer Back: ___________________________________________
PAYMENT INSTRUCTIONS:
Name of Bank where funds are to be transferred:
____________________________________________________________________
Routing Transit/ABA number of Bank where funds are to be transferred:
____________________________________________________________________
Name of Account, if applicable:
____________________________________________________________________
Account Number: ________________________________________________
Additional Information: ________________________________________
____________________________________________________________________
MAILINGS:
Please specify who should receive financial information:
Name: __________________________________________________________
Street Address: ________________________________________________
City, State, Zip Code: _________________________________________
It is very important that all of the above information is accurately filled in
and returned promptly. If there is someone other than yourself who should
receive this questionnaire, please notify us of their name and FAX number and we
will FAX them a copy of the questionnaire. If you have any questions, please
call Sandra Miclave at (212) 552-7953.
<PAGE>
EXHIBIT B
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Credit and Competitive
Advance Facility Agreement dated as of February 4, 1997 (as amended and in
effect at the date hereof, the "Credit Agreement"), among Crown Cork & Seal
Company, Inc. ("CCSC"), certain subsidiaries of CCSC, the Lenders parties
thereto, The Chase Manhattan Bank, as Administrative Agent, Societe Generale, as
Documentation Agent, and Bank of America Illinois, as Syndication Agent. Terms
defined in the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to
the Assignee, and the Assignee hereby purchases and assumes, without recourse,
from the Assignor, effective as of the Assignment Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned Interest")
in the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on the reverse hereof in the
Revolving Credit Commitment of the Assignor on the Assignment Date and the
Revolving Loans and Competitive Loans owing to the Assignor which are
outstanding on the Assignment Date, together with the participations in
Swingline Loans held by the Assignor on the Assignment Date, but excluding
accrued interest and fees to and excluding the Assignment Date. Each of the
Assignor and the Assignee hereby makes and agrees to be bound by all the
representations, warranties and agreements set forth in Section 10.04(c) of the
Credit Agreement, a copy of which has been received by each such party. From and
after the Assignment Date (i) the Assignee shall be a party to and be bound by
the provisions of the Credit Agreement and, to the extent of the interests
assigned by this Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and under the other Loan Documents and (ii) the Assignor
shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Credit Agreement.
2. This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is organized under the
laws of a jurisdiction outside the United States, the forms specified in Section
2.17 of the Credit Agreement, duly completed and executed by such Assignee, (ii)
if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form of Exhibit A to the
<PAGE>
2
Credit Agreement and (iii) a processing and recordation fee of $3,500.
3. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Assignment Date (may not be fewer than 5 Business Days after the Date of
Assignment):
Percentage Assigned
of aggregate
Revolving Credit
Commitments (set
forth, to at least
8 decimals, as a
percentage of the
aggregate
Principal Amount Assigned Revolving Credit
(and identifying information Commitments of all
as to individual Competitive Lenders thereunder)
Loans)
Credit Facility
Revolving Credit $ %
Commitment Assigned:
Revolving Loans:
Participations in
Swingline Loans:
Competitive Loans:
<PAGE>
3
4. This Assignment and Acceptance shall become effective when
counterparts hereof have been executed on behalf of each of the parties required
pursuant to Section 10.04(b) of the Credit Agreement.
The terms set forth above and on the reverse side hereof are hereby agreed to:
Accepted: */
__________________, as Assignor CROWN CORK & SEAL COMPANY,
INC.
By:__________________ By:__________________
Name: Name:
Title: Title:
__________________, as Assignee Accepted: */
By:__________________ THE CHASE MANHATTAN BANK, as
Name: Administrative Agent
By:_______________________
Name:
Title:
Accepted: */
THE CHASE MANHATTAN BANK, as
Swingline Lender
By:_______________________
Name:
Title:
__________________
*/ To be completed only if consents are required under Section 10.04(b) of the
Credit Agreement.
<PAGE>
EXHIBIT C
[FORM OF]
COMPETITIVE BID REQUEST
To: The Chase Manhattan Bank,
as Administrative Agent for
the Lenders referred to below 1/
Attention:
[Date]
Dear Sirs:
The undersigned, [SPECIFY BORROWER] (the "Borrower"), refers
to the Revolving Credit and Competitive Advance Facility Agreement dated as of
February 4, 1997 (as amended, modified, extended or restated from time to time,
the "Credit Agreement"), among Crown Cork & Seal Company, Inc. ("CCSC"), certain
subsidiaries of CCSC, the Lenders parties thereto, The Chase Manhattan Bank, as
Administrative Agent, Societe Generale, as Documentation Agent, and Bank of
America Illinois, as Syndication Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The Borrower hereby gives you notice pursuant to Section
2.07(a) of the Credit Agreement that it requests a Competitive Borrowing under
the Credit Agreement, and in connection therewith sets forth below the terms on
which such Competitive Borrowing is requested to be made:
(A) Date of Competitive Borrowing (which is a Business
Day) __________________
__________________
1/ To be sent to the Administrative Agent at its applicable addresses in
New York and London specified in Section 10.01 of the Credit Agreement.
<PAGE>
(B) Principal amount of Competitive Borrowing 1/ __________________
(C) Interest rate basis 1/ __________________
(D) Interest Period and the last day thereof 1/ __________________
(E) Currency of Competitive Borrowing 1/ __________________
Upon acceptance of any or all of the Loans offered by the
Lenders in response to this request, the Borrower shall be deemed to have
represented and warranted that the conditions to lending specified in Sections
4.02(b) and (c) of the Credit Agreement have been satisfied.
Very truly yours,
[BORROWER NAME],
by
__________________
2/ Not less than $5,000,000 (and in integral multiples of $1,000,000)
(based on the Assigned Dollar Amount thereof, in the case of Alternative
Currency Loans) or greater than the Total Revolving Credit Commitment then
available.
3/ Eurocurrency Loan or Fixed Rate Loan.
4/ Which shall be subject to the definition of "Interest Period" and end
not later than the Revolving Credit Maturity Date.
5/ Dollars or an Alternative Currency.
<PAGE>
4
Title: [Responsible
officer]
<PAGE>
EXHIBIT D
[FORM OF]
COMPETITIVE LOAN CONFIRMATION
[Date]
The Chase Manhattan Bank,
as Administrative Agent for
the Lenders referred to below 1/
Dear Sirs:
The undersigned, [SPECIFY BORROWER] (the "Borrower"), refers
to the Revolving Credit and Competitive Advance Facility Agreement dated as of
February 4, 1997 (as amended, modified, extended or restated from time to time,
the "Credit Agreement"), among Crown Cork & Seal Company, Inc. ("CCSC"), certain
subsidiaries of CCSC, the Lenders parties thereto, The Chase Manhattan Bank, as
Administrative Agent, Societe Generale, as Documentation Agent, and Bank of
America Illinois, as Syndication Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement.
In accordance with Section 2.07(b) or (c), as applicable, of
the Credit Agreement, we have received a summary of bids in connection with our
Competitive Bid Request dated __________________ and in accordance with Section
2.07(d) of the Credit Agreement, we hereby accept the following bids for
Competitive Loans to be made in [specify currency] with a maturity on [date]:
Principal Amount 2/ Fixed Rate/Margin Lender
$ [%]/[+/-. %]
__________________
1/ To be sent to the Administrative Agent at its applicable addresses in
New York and London specified in Section 10.01 of the Credit Agreement.
2/ To be based upon Assigned Dollar Values in the case of Alternative
Currency Loans.
<PAGE>
We hereby reject the following bids:
Principal Amount 2/ Fixed Rate/Margin Lender
$ [%]/[+/-. %]
The proceeds of the Competitive Borrowing, in the amount of [_____], should
be deposited in The Chase Manhattan Bank account number [_____] on [date].
Very truly yours,
[Specify Borrower]
by
Name:
Title:
<PAGE>
EXHIBIT E
[FORM OF]
SIGNIFICANT SUBSIDIARY ELECTION NOTICE
The Chase Manhattan Bank, as Administrative
Agent for the Lenders referred
to below
270 Park Avenue
New York, NY 10017
Dear Sirs:
Reference is made to the Revolving Credit and Competitive
Advance Facility Agreement dated as of February 4, 1997 (as amended, modified,
extended or restated from time to time, the "Credit Agreement"), among Crown
Cork & Seal Company, Inc. ("CCSC"), certain subsidiaries of CCSC, the Lenders
parties thereto, The Chase Manhattan Bank, as Administrative Agent, Societe
Generale, as Documentation Agent, and Bank of America Illinois, as Syndication
Agent. Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
CCSC hereby gives notice of its decision to undertake the
obligations set forth in Section 5.07 of the Credit Agreement. CCSC acknowledges
that in the event it rescinds this notice pursuant to such Section 5.07, it may
not deliver another such notice at any time.
Very truly yours,
CROWN CORK & SEAL COMPANY, INC.,
by
Name:
Title:
<PAGE>
EXHIBIT F
[FORM OF]
SUBSIDIARY BORROWER NOTICE AND DESIGNATION
To: The Chase Manhattan Bank, as Administrative Agent
From: Crown Cork & Seal Company, Inc.
1. This Subsidiary Borrower Notice and Designation is being
delivered to you pursuant to Section 4.02(d) of the Revolving Credit and
Competitive Advance Facility Agreement dated as of February 4, 1997 (as amended,
modified, extended or restated from time to time, the "Credit Agreement"), among
Crown Cork & Seal Company, Inc. ("CCSC"), certain subsidiaries of CCSC, the
Lenders parties thereto, The Chase Manhattan Bank, as Administrative Agent,
Societe Generale, as Documentation Agent, and Bank of America Illinois, as
Syndication Agent. Terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
2. The effective date of this Subsidiary Borrower Notice and
Designation will be [ ].
3. Please be advised by CCSC that the following Subsidiary is
hereby designated as a Subsidiary Borrower and is authorized to use the credit
facilities provided for under Sections 2.01, 2.04 and 2.06 of the Credit
Agreement. By its execution of this Subsidiary Borrower Notice and Designation,
such undersigned Subsidiary hereby shall become a party to, and be bound by the
provisions of, the Credit Agreement, having the rights and obligations of a
Subsidiary Borrower thereunder and under the other Loan Documents.
Name and Address
of Subsidiary
Borrower
[3. Please be advised that the designation of the following
Subsidiary as a Subsidiary Borrower is terminated effective on the date referred
to in paragraph 2 above.]
CROWN CORK & SEAL COMPANY,INC.
by ___________________
<PAGE>
2
Name:
Title:
[SUBSIDIARY BORROWER],
by ___________________
Name:
Title:
Accepted and Acknowledged:
THE CHASE MANHATTAN BANK, as Administrative
Agent
by ___________________
Name:
Title:
<PAGE>
EXHIBIT G
[FORM OF]
SUBSIDIARY BORROWER CLOSING CERTIFICATE 1/
Pursuant to Section 4.02(e) of the Revolving Credit and
Competitive Advance Facility Agreement dated as of February 4, 1997 (as amended,
modified, extended or restated from time to time, the "Credit Agreement"; unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement) among Crown Cork
& Seal Company, Inc., a Pennsylvania corporation ("CCSC"), certain subsidiaries
of CCSC, the Lenders parties thereto, The Chase Manhattan Bank, as
Administrative Agent, Societe Generale, as Documentation Agent, and Bank of
America Illinois, as Syndication Agent, the undersigned [ ] of [ ] (the
"Borrower") hereby certifies on behalf of the Borrower as follows:
1. The representations and warranties contained in Article III
of the Credit Agreement, to the extent applicable to the Borrower, are true and
correct in all material respects on and as of the date hereof with the same
effect as if made on the date hereof except for (a) representations and
warranties stated to relate to a specific earlier date, in which case such
representations and warranties were true and correct in all material respects as
of such earlier date and (b) representations and warranties contained in Section
3.06 of the Credit Agreement;
2. No Default has occurred and is continuing or will result
from the making of any Loans to be made to the Borrower on the date hereof;
3. is and at all times since , has been the duly elected and
qualified [Assistant] Secretary of the Borrower and the signature set forth on
the signature line for such officer below is such officer's true genuine
signature;
___________________
1/ If necessary, appropriate modifications should be made to references to
officer titles and to paragraphs 4-7 below with respect to Subsidiary Borrowers.
<PAGE>
and the undersigned [Assistant] Secretary of the Borrower hereby certifies as
follows:
4. There are no liquidation or dissolution proceedings pending
or to my knowledge threatened against the Borrower, nor to my knowledge has any
other event occurred threatening the corporate existence of the Borrower;
5. Attached hereto as Exhibit A is a complete and correct copy
of resolutions duly adopted by the Board of Directors (or a duly authorized
committee thereof) of the Borrower on ______, ______; such resolutions have not
in any way been amended, modified, revoked or rescinded and have been in full
force and effect since their adoption to and including the date hereof; such
resolutions are the only corporate proceedings of the Borrower now in force
relating to or affecting the matters referred to therein;
6. Attached hereto as Exhibit B is a complete and correct copy
of the by-laws of the Borrower as in effect at all times since ______, ______ to
and including the date hereof; and attached hereto as Exhibit C is a true and
complete copy of the articles of association or other organizational documents
of the Borrower as in effect at all times since ______, ______ to and including
the date hereof; and
7. The following persons are now duly elected and qualified
officers of the Borrower holding the offices indicated next to their respective
names below, and such officers have held such offices with the Borrower at all
times since ______, ______ to and including the date hereof, and the signatures
appearing opposite their respective names below are the true and genuine
signatures of such officers, and each of such officers is duly authorized to
executive and deliver on behalf of the Borrower the Subsidiary Borrower Notice
and Designation and any certificate or other document to be delivered by the
Borrower pursuant to the Credit Agreement:
Name Office Signature
________________ [ ] ________________
________________ [Assistant] Secretary ________________
IN WITNESS WHEREOF, the undersigned have hereto set our names.
<PAGE>
3
_________________________ ________________________________
Title: [ ] Title: [Assistant] Secretary
Date: ,
<PAGE>
EXHIBIT H
[FORM OF]
OPINION OF DECHERT PRICE & RHOADS
To each of the Lenders party
to the Revolving Credit and
Competitive Advance Facility
Agreement referred to below and
The Chase Manhattan Bank,
as Administrative Agent
___________, 1997
Ladies and Gentlemen:
We have acted as counsel to Crown Cork & Seal Company, Inc., a
Pennsylvania corporation ("CCSC"), in connection with the execution and delivery
of the Revolving Credit and Competitive Advance Facility Agreement, dated as of
February 4, 1997 (the "Credit Agreement"), among CCSC, each Subsidiary Borrower
(as defined in the Credit Agreement) and you. This opinion letter is delivered
to you pursuant to Section 4.01(a) of the Credit Agreement. Capitalized terms
used herein that are not defined herein have the respective specified meanings
in the Credit Agreement.
In rendering the opinions set forth below, we have examined
executed originals of the Credit Agreement and the other Loan Documents; the
Articles of Incorporation of CCSC and all amendments thereto (the "Charter");
the Bylaws of CCSC and all amendments thereto (the "Bylaws"); and a certificate
of the Secretary of the Commonwealth of Pennsylvania, dated __________, 1997,
attesting to the continued corporate existence and good standing of CCSC in the
Commonwealth. In addition, we have examined originals or photostatic or
certified copies of certain of the corporate records and documents of CCSC and
its Subsidiaries, copies of public documents, certificates of
<PAGE>
officers of CCSC and public officials, and such other documents as we have
deemed necessary and appropriate as a basis for the opinions hereinafter set
forth.
In our examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
corporate records, documents, instruments and certificates submitted to us as
originals and the conformity to authentic original corporate records, documents,
instruments and certificates of all corporate records, documents, instruments
and certificates submitted to us as certified, conformed or photostatic copies.
As to questions of fact material to our opinions, we have relied upon
representations and warranties of the parties in the Loan Documents and the
other agreements and documents contemplated therein, and on certificates of
officers of CCSC and certain other entities (including, without limitation,
those given pursuant to the Credit Agreement) and of public officials.
We have further assumed that you have the power and authority
and have taken the corporate action necessary to execute and deliver the Credit
Agreement and that no approvals, waivers, filings, notices or consents,
governmental or non-governmental, are required for the valid execution, delivery
and performance by you of the Credit Agreement, and that the Credit Agreement
executed by you constitutes the legal, valid and binding obligation of you.
Based upon the foregoing and subject to the qualifications set
forth above and hereinafter, we are of the opinion that:
1. CCSC is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of Pennsylvania.
2. The execution, delivery and performance by CCSC of the
Credit Agreement are within CCSC's corporate powers, have been duly authorized
by all necessary corporate action, and do not (i) contravene the Charter or the
By-laws, (ii) to the best of our knowledge, violate any Federal, New York or
Pennsylvania law, rule or regulation applicable to CCSC (including, without
limitation, Regulations G, T, U and X of the Board of Governors of the Federal
Reserve System, insofar as the proceeds of the Loans are used solely for the
purposes set forth in, and in accordance with the provisions of, the Credit
Agreement) or
<PAGE>
3
(iii) to the best of our knowledge, result in any breach or violation of, or
constitute a default under, any material agreement or instrument known to us.
3. The Credit Agreement has been duly executed and delivered
by or on behalf of CCSC and constitutes the legal, valid and binding obligation
of CCSC, enforceable against CCSC in accordance with its terms.
4. No authorization or approval or other action by, and no
notice to or filing with, any Federal, New York or Pennsylvania governmental
authority or regulatory body (other than any applicable securities law filings)
is required in respect of CCSC for the due execution, delivery or performance by
CCSC of the Credit Agreement.
5. CCSC is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, or a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
6. We are not aware (based upon our inquiry of officers of
CCSC) of any pending or threatened litigation, proceeding or labor controversy
affecting CCSC or any of its properties, business, assets or revenues which will
have a Material Adverse Effect, or which purports to affect the legality,
validity or enforceability of the Credit Agreement.
The foregoing opinions are subject to the following additional
qualifications:
(a) The opinions expressed herein are limited to the laws and
regulations of the United States of America, the State of New York and the
Commonwealth of Pennsylvania.
(b) Our opinions regarding the enforceability of the Credit
Agreement are limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws or decisions affecting the enforcement of
debtors' obligations and creditors' rights generally, and by general principles
of equity and public policy. Our opinions are also subject to the effect of
certain laws and judicial decisions which may limit the enforceability of
certain provisions of the Credit Agreement, although such
<PAGE>
limitations do not, in our judgment, make the remedies provided for therein
(taken as a whole) inadequate for the practical realization of the benefits
afforded thereby.
(c) Whenever our opinion with respect to the existence or
absence of facts is indicated based on our knowledge or awareness we are
referring to the actual knowledge of the Dechert Price & Rhoads attorneys who
have given substantive attention to the matters concerning CCSC in connection
with the transactions contemplated by the Credit Agreement.
The opinions expressed herein are solely for your benefit in
connection with the performance of the Credit Agreement, and without our express
prior written consent, neither our opinions nor this opinion letter may be
circulated or furnished to or relied upon by any other person (other than your
permitted assignees that become Lenders under the Credit Agreement).
Very truly yours,
<PAGE>
EXHIBIT I
[FORM OF]
OPINION OF RICHARD L. KRZYZANOWSKI
To each of the Lenders party
to the Revolving Credit and
Competitive Advance Facility
Agreement referred to below
and The Chase Manhattan Bank,
as Administrative Agent
___________, 1997
Dear Ladies and Gentlemen:
I am Executive Vice President, Secretary and General Counsel
of Crown Cork & Seal Company, Inc., a Pennsylvania corporation ("CCSC"). This
opinion is being rendered to you pursuant to Section 4.01(a) of the Revolving
Credit and Competitive Advance Facility Agreement, dated as of February 4, 1997
(the "Credit Agreement"), among CCSC, each Subsidiary Borrower (as defined
therein) and you. Capitalized terms used herein that are not defined herein have
the respective specified meanings in the Credit Agreement.
I have examined such corporate records of CCSC and other
certificates and documents as I have deemed necessary for the opinion
hereinafter set forth.
Based on the foregoing, I am of the opinion that each
Significant Subsidiary of CCSC listed on Schedule A attached hereto that is
organized under the laws of any jurisdiction within the United States of America
has been duly incorporated and is validly existing and in good standing under
the laws of its respective jurisdiction of incorporation, with corporate power
and authority to own its respective properties and conduct its respective
business as now being conducted; and CCSC and each of such Significant
Subsidiaries are duly qualified to do business as foreign corporations in good
standing in all other jurisdictions in which any such corporation owns or leases
substantial
<PAGE>
2
properties or in which the conduct of any such corporation's business requires
such qualification (except where the failure so to qualify would not have a
Material Adverse Effect).
This opinion is limited to the laws of the United States of
America and the Commonwealth of Pennsylvania.
The opinions expressed herein are solely for your benefit in
connection with the performance of the Credit Agreement, and without my express
prior written consent, neither my opinions nor this opinion letter may be
circulated or furnished to or relied upon by any other person (other than your
permitted assignees that become Lenders under the Credit Agreement).
Very truly yours,
Richard L. Krzyzanowski
Executive Vice President,
Secretary and General Counsel
<PAGE>
SCHEDULE A
Significant Subsidiaries
<PAGE>
EXHIBIT J
[FORM OF]
COMPLIANCE CERTIFICATE
To: Each of the Lenders (as defined
below) and The Chase Manhattan Bank,
as Administrative Agent for such Lenders
270 Park Avenue
New York, New York 10017
Attention: Karen Sharf
Crown Cork & Seal Company, Inc.
Gentlemen:
This Compliance Certificate is being delivered pursuant to Section
5.01(c) of the Revolving Credit and Competitive Advance Facility Agreement,
dated as of February 4, 1997 (as amended, supplemented, amended and restated or
otherwise modified, the "Credit Agreement"), among Crown Cork & Seal Company,
Inc., a Pennsylvania corporation ("CCSC"), the Subsidiary Borrowers referred to
therein, various financial institutions now or hereafter parties thereto (the
"Lenders"), The Chase Manhattan Bank, as Administrative Agent, Societe Generale,
as Documentation Agent, and Bank of America Illinois, as Syndication Agent.
Terms used herein without definition shall have the meanings assigned to such
terms in the Credit Agreement.
CCSC hereby certifies, represents and warrants that as of ,
(the "Computation Date"): 1/
(a) The Leverage Ratio was : , as computed on Attachment 1 hereto and
such ratio [complies] [does not
___________________
1/ Computation Date should be date of most recent financial statements
delivered under Section 5.01 of the Credit Agreement.
<PAGE>
comply] with the provisions of Section 6.04(a) of the Credit Agreement;
(b) The Interest Coverage Ratio was : , as computed on Attachment 2
hereto and such amount [complies] [does not comply] with the provisions of
Section 6.04(b) of the Credit Agreement; and
(c) No Default or Event of Default has occurred and is continuing
[other than as follows:].
IN WITNESS WHEREOF, CCSC has caused this Compliance Certificate to be
executed and delivered by its duly Authorized Officer on this day of ,
.
CROWN CORK & SEAL COMPANY, INC.,
By:________________________
Name:
Title:
<PAGE>
ATTACHMENT 1
1. Leverage Ratio:
A. Funded Debt: All (i) Loans and (ii) all other
Indebtedness of CCSC and its Subsidiaries (including,
without duplication, Contingent Liabilities relating to
such Indebtedness), on a consolidated basis, which by
its terms
(i) matures or is payable more than one year from
the date on which it was created, or
(ii) matures within one year from the date on
which it was created, but is renewable or extendible
under terms such that under GAAP such Indebtedness
would be treated as long-term indebtedness
(other than Funded Debt which is nonrecourse to
CCSC and its Subsidiaries and giving effect only to
CCSC's or its Subsidiaries' pro-rata share of
consolidated Indebtedness of joint
ventures)............................................... $_______
B. Long-Term Capitalization: The sum of (i) Funded Debt of
CCSC and its Subsidiaries on a consolidated basis and
(ii) the amount, determined on a consolidated basis, in
the capital stock account (including preferred stock
when outstanding) plus (or minus in the case of a
deficit) the additional paid-in capital and retained
earnings of CCSC and its Subsidiaries, and in any
event, net of the value of treasury stock in such
capital stock account, plus accounting liabilities for
post-
<PAGE>
retirement benefits (FAS 106) and post-employment
benefits (FAS 112), net of changes for income tax (FAS
109)................................................. $_______
C. LEVERAGE RATIO: The ratio of Item 1.A to Item
l.B................................................. ______ : _____
<PAGE>
ATTACHMENT 2
2. Interest Coverage Ratio*:
A. The sum of all amounts which, in accordance with GAAP,
would be included on the consolidated financial
statements of CCSC and its Subsidiaries as
(i) Net Income (excluding any extraordinary gains
and losses, and any net income (or net loss)
attributable to the write-up (or write-down, as the
case may be) in value of any
assets)...................................................
(ii) Net Interest
Expense...................................................
(iii) to the extent deducted in determining Net
Income, provisions for income
taxes.....................................................
B. EBIT: The sum of Items 2.A.(i) through
2.A.(iii)................................................. $________
C. Net Interest Expense: The aggregate amount of interest
expense of CCSC and its Subsidiaries for the relevant
period which, in accordance with GAAP, would be
included on the consolidated financial statements of
CCSC and its Subsidiaries, including without limitation
the portion of any rent paid on Capitalized Lease
Liabilities which is allocable to interest expense in
accordance with GAAP, minus the amount ----- of
interest income received by CCSC and its Subsidiaries
for such
period................................................... $________
D. INTEREST COVERAGE RATIO: The ratio of Item 2.B. to Item
2.C..................................................... _____ : ____
_____________________
* Calculated on the basis of the most recent Fiscal Quarter ended and the
three immediately preceding Fiscal Quarters.
<PAGE>
EXHIBIT K
CALCULATION OF THE MLA COST
1. Until further notice, MLA Cost in relation to any Interest Period (or part of
an Interest Period) relating to any particular loan or overdue sum denominated
in British Pounds Sterling or overdue sum will be determined by the
Administrative Agent on the basis of calculations made by each Reference Bank
(as defined below) as at 11:00 a.m., London time, on the first day of that
Interest Period by reference to circumstances existing as at that time, in
accordance with the following formula:
AB + C(B-D) + E(B-F)
--------------------
100 - (A + E)
where:
A= the minimum percentage of eligible liabilities which authorized
institutions are then required by the Bank of England to hold in
non-interest bearing balances with the Bank of England.
B= the percentage rate per annum equal to the rate at which that
Reference Bank is offering British Pounds Sterling deposits for a
period equal to such Interest Period to prime banks in the London
interbank market at or about 11:00 a.m., London time, on the date of
calculation.
C= the average percentage of eligible liabilities which authorized
institutions are then required by the Bank of England to maintain as
secured deposits with certain financial institutions recognized for
this purpose by the Bank of England.
D= the lower of B and the percentage rate per annum equal to the rate
offered to that Reference Bank by a financial institution recognized
for the purpose by the Bank of England at or about 11:00 a.m., London
time, on the date of calculation for the placing of a British Pounds
Sterling deposit for a period equal to such Interest Period by that
Reference Bank with that financial institution.
<PAGE>
4 E= the minimum percentage of eligible liabilities which authorized
institutions are then required by the Bank of England to place as
special deposits with the Bank of England.
F= the lower of B and the percentage rate per annum at which interest is
then paid by the Bank of England on special deposits.
For the purpose of this formula, each of those six percentages shall be
expressed as a number (not a percentage).
2. Each Reference Bank shall use reasonable endeavors to supply to the
Administrative Agent on request the percentage rate per annum so calculated by
it on any date. If any Reference Bank does not do so on request of the
Administrative Agent, the Administrative Agent shall make the relevant
determination on the basis of the quotations supplied by the remaining Reference
Banks. If no, or only one, Reference Bank supplies a quotation, then instead of
MLA Cost being payable in respect of the relevant Interest Period or part of an
Interest Period, each Lender shall be entitled to claim compensation under
Section 2.16 of the Credit Agreement.
3. On or before each MLA calculation date during any Interest Period relating to
any Loan or overdue sum, the Administrative Agent shall determine the arithmetic
mean of the percentage rates per annum so calculated by the Reference Banks on
the MLA calculation date (rounded up if necessary to the nearest fourth decimal
place). The figure so determined shall be the MLA Cost applicable for that
Interest Period or, as the case may be, the relevant part of that Interest
Period.
4. In the event of the introduction of or any change in any present or future
reserve asset ratio, cash ratio, secured deposit, monetary control ratio,
special deposit, liquidity and/or similar requirement imposed from time to time
by the Bank of England and/or any other agency of the United Kingdom (but
excluding capital adequacy requirements or any change in the minimum percentage
of eligible liabilities which authorized institutions are required to maintain
in reserve assets, cash ratio deposits, secured
<PAGE>
5
deposits or special deposits) or any change in the interpretation or application
of any such requirement, the Administrative Agent may at any time give notice to
CCSC and the Lenders of (A) the amendments determined by the Administrative
Agent (after consultation with the Lenders) to be necessary to the above formula
and/or date of calculation so as to (but only so as to) restore the position in
terms of overall return to that which prevailed before such change occurred and
(B) the date as from which the amended formula and/or date(s) of calculation are
to apply. As from the date notified until any later date notified by the
Administrative Agent under this paragraph 4, MLA Cost shall be calculated in
accordance with the formula and/or on the date(s) of calculation so notified.
5. The determination by the Administrative Agent of the MLA Cost for any
Interest Period shall, in the absence of manifest error, be conclusive and
binding on the Lenders, CCSC, any Subsidiary Borrower and any other party.
6. "Reference Bank" shall mean the London offices of the Administrative Agent,
Societe Generale and Bank of America Illinois; provided, however, if a Reference
Bank ceases to be a Lender or ceases to have a London office, the Administrative
Agent shall appoint another Lender with a London office to replace that
Reference Bank.
<PAGE>
EXHIBIT L
[FORM OF]
NOTE
New York, New York
[insert date]
FOR VALUE RECEIVED, the undersigned, [insert Borrower], a [ ] (the
"Borrower"), hereby unconditionally promises to pay to the order of
(the "Lender"), at the office of The Chase Manhattan Bank, at
270 Park Avenue, New York, New York 10017, on (i) the Revolving Credit Maturity
Date (such term and each other capitalized term used and not defined herein
being used as defined in the Revolving Credit and Competitive Advance Facility
Agreement dated as of February 4, 1997 (as amended, modified, extended or
restated from time to time, the "Credit Agreement"), among Crown Cork & Seal
Company, Inc. ("CCSC"), certain subsidiaries of CCSC, the Lenders parties
thereto, The Chase Manhattan Bank, as Administrative Agent, Societe Generale, as
Documentation Agent, and Bank of America Illinois, as Syndication Agent), the
aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to Section 2.01 or 2.04 of the Credit Agreement and (ii) the
applicable Competitive Loan Maturity Date, the aggregate unpaid principal amount
of each Competitive Loan made by the Lender to the Borrower pursuant to the
Credit Agreement, such payment or payments to be in immediately available funds
and denominated in the applicable amount of each currency in which such Loans
are denominated pursuant to the applicable provisions of the Credit Agreement,
and to pay interest from the date hereof on such principal amount from time to
time outstanding, in like funds, at said office, at a rate or rates per annum
and payable on such dates as are determined pursuant to the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal of and, to the extent permitted by law, overdue interest on the Loans
from their due dates at a rate or rates determined as set forth in the Credit
Agreement.
The Borrower hereby waives diligence, presentment,
<PAGE>
2
demand, protest and notice of any kind whatsoever. The nonexercise by the holder
of any of its rights hereunder in any particular instance shall not constitute a
waiver thereof in that or any subsequent instance.
All Loans evidenced by this Note, the applicable currencies in which
such Loans are denominated and all payments and prepayments of the principal
hereof and interest hereon (including the currencies in which such payments,
prepayments and interest are denominated) and the respective dates thereof shall
be endorsed by the holder hereof on the schedule attached hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, or otherwise recorded by such holder in its internal records;
provided, however, that any failure of the holder hereof to make such a notation
or any error in such notation shall not in any manner affect the obligation of
the Borrower to make payments of principal and interest in accordance with the
terms of this Note and the Credit Agreement.
This Note evidences Loans referred to in the Credit Agreement which,
among other things, contains provisions for the acceleration of the maturity
hereof upon the happening of certain events, for optional and mandatory
prepayment of the principal hereof prior to the maturity hereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. This Note is entitled to the benefit of
the Credit Agreement[, including the guarantee thereunder]. THIS NOTE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
[insert borrower]
by
____________________________
Name:
Title:
<PAGE>
3
Attest:
[Corporate Seal]
by
____________________________
Name:
Title:
<PAGE>
4
Loans and Payments
Payments
Amount Unpaid Name of
and Type Maturity Principal Person
Balance Making
of Loan Date Principal Interest of Note Notation
------- -------- --------- -------- -------- --------
<PAGE>
Schedule 2.01
Institution Commitment Swingline
Commitment
The Chase Manhattan Bank $225,000,000 $100,000,000
270 Park Avenue, 10th Floor
New York, NY 10017
Attention: Karen Sharf
Tel: (212) 270-5659
Fax: (212) 270-5120
ABN AMRO Bank N.V. $125,000,000
New York Branch
500 Park Avenue
New York, NY 10022
Attention: Michael Kowalczuk
Tel: (212) 446-4319
Fax: (212) 832-7129
Banca Commerciale Italiana - New $45,000,000
York Branch
One William Street
New York, NY 10004
Attention: Brian Carlson
Tel: (212) 607-3886
Fax: (212) 809-2124
Bank Brussels Lambert $45,000,000
New York Branch
630 Fifth Avenue, 6th Floor
New York, NY 10111
Attention: John Kippax
Tel: (212) 632-5316
Fax: (212) 333-5786
Bank of America Illinois $195,000,000
335 Madison Avenue
New York, NY 10017
Attention: David Noda
Tel: (212) 503-7948
Fax: (212) 503-7066
<PAGE>
2
The Bank of New York $75,000,000
One Wall Street, 22nd Floor
New York, NY 10286
Attention: Walter Parelli
Tel: (212) 635-6820
Fax: (212) 635-6999
Banque Nationale de Paris $125,000,000
499 Park Avenue, 9th Floor
New York, NY 10022
Attention: Thomas N. George
Tel: (212) 415-9718
Fax: (212) 415-9606
Caisse Nationale de Credit $125,000,000
Agricole
520 Madison Avenue
New York, NY 10022
Attention: Craig Welch
Tel: (212) 418-2200
Fax: (212) 418-2228
CIBC Inc. $75,000,000
425 Lexington Avenue
New York, NY 10017
Attention: Paul LaHiff
Tel: (212) 856-3681
Fax: (212) 856-3991
Citibank, NA $125,000,000
399 Park Avenue, 8th Floor
New York, NY 10043
Attention: William Martens, III
Tel: (212) 559-3895
Fax: (212) 793-3053
CoreStates Bank, N.A. $45,000,000
1339 Chestnut Street, 3rd Floor
Philadelphia, PA 19101-7618
Attention: Joseph M. Finley
Tel: (215) 973-2197
Fax: (215) 973-6745
<PAGE>
3
Credit Suisse First Boston $125,000,000
11 Madison Avenue, 23rd Floor
New York, NY 10010-3628
Attention: Eileen O'Connell Fox
Tel: (212) 325-9099
Fax: (212) 325-8319
The Dai-Ichi Kangyo Bank, Ltd. $45,000,000
One World Trade Center
Suite 4911
New York, NY 10048
Attention: Robert P. Gallagher
Tel: (212) 432-6642
Fax: (212) 524-0579
Deutsche Bank AG $125,000,000
New York Branch
31 West 52nd Street, 24th Floor
New York, NY 10019
Attention: Rolf-Peter Mikolayczyk
Tel: (212) 469-8237
Fax: (212) 469-8212
The First National Bank of Boston $45,000,000
100 Federal Street
Boston, MA 02110
Attention: William F. Hamilton
Tel: (617) 434-7889
Fax: (617) 434-0601
Generale Bank $75,000,000
520 Madison Avenue, 3rd Floor
New York, NY 10022
Attention: Douglas V. Riahi
Tel: (212) 418-8736
Fax: (212) 750-9597
<PAGE>
4
The Industrial Bank of Japan, $125,000,000
Limited
245 Park Avenue
New York, NY 10167
Attention: John Dippo
Tel: (212) 309-6689
Fax: (212) 856-9450
Istituto Bancario San Paolo di $45,000,000
Torino, SpA
245 Park Avenue, 35th Floor
New York, NY 10167
Attention: Luca Sacchi
Tel: (212) 692-3130
Fax: (212) 599-5303
Mellon Bank, N.A. $75,000,000
1735 Market Street, 7th Floor
Philadelphia, PA 19101
Attention: Maria Kalilec
Tel: (215) 553-3126
Fax: (215) 553-4899
Morgan Guaranty Trust Company $125,000,000
of New York
60 Wall Street, 22nd Floor
New York, NY 10260-0060
Attention: Laura Reim
Tel: (212) 648-6793
Fax: (212) 648-5336
The Northern Trust Company $75,000,000
50 South LaSalle Street
Chicago, IL 60675
Attention: Nicole Kidder
Tel: (312) 557-8205
Fax: (312) 444-5055
<PAGE>
5
The Royal Bank of Canada $75,000,000
(for credit extended to borrowers in
the U.S.)
Grand Cayman (North America
No. 1) Branch
c/o New York Branch
Financial Square, 23rd Floor
New York, NY 10005-3531
Attention: Linda Swanston
Tel: (212) 428-6321
Fax: (212) 428-2372
(for credit extended to borrowers in
the U.K.)
London Branch
71 Queen Victoria Street
London EC4V 4DE
England
Attention: Manager, Loans
Administration
Tel: 171-489-1188
Fax: 171-329-6144
(for credit extended to borrowers in
France)
RBC Finance B.V.
Keizergracht 604
1017 EP Amsterdam
The Netherlands
Attention: Manager, Loans
Administration
Tel: (31-20) 5233 233
Fax: (31-20) 6262 196
with a copy of all notices to:
Financial Square, 24th Floor
New York, NY 10005-3531
Attention: P.D. Steffen
Tel: (212) 428-6494
Fax: (212) 428-6459
<PAGE>
6
Societe Generale $195,000,000
1221 Avenue of the Americas
New York, NY 10020
Attention: James Nangle
Tel: (212) 278-6135
Fax: (212) 278-7430
Standard Chartered Bank $45,000,000
7 World Trade Center, 27th Floor
New York, NY 10048
Attention: Peter G. R. Dodds
Tel: (212) 667-0367
Fax: (212) 667-0790
The Sumitomo Bank, Limited $75,000,000
277 Park Avenue
New York, NY 10172
Attention: Leo E. Pagarigan
Tel: (212) 224-4116
Fax: (212) 224-5188
SunTrust Bank, Atlanta $45,000,000
711 Fifth Avenue, 16th Floor
New York, NY 10022
Attention: Maria Mamilovich
Tel: (212) 583-2602
Fax: (212) 371-9386
Crown Cork & Seal Company, Inc.
Exhibit 11
Statement Re Computation of Per Share Earnings
<TABLE>
<CAPTION>
Three months ended Twelve Months ended
December 31, December 31,
1996 1995 1996 1995
(in millions except per share data)
<S> <C> <C> <C> <C>
1 Net income available to common shareholders $33.3 $ 6.1 $264.2 $ 74.9
2 Weighted average number of common shares outstanding during period 128.3 90.6 122.5 90.2
3 Net shares issuable upon exercise of dilutive outstanding stock options 0.7 0.3 0.7 0.4
4 Weighted average convertible preferred stock* 11.3 9.6
5 Preference dividends $5.9 $19.8
6 Primary earnings per common share $0.26 $0.07 $2.16 $0.83
7 Fully diluted earnings per common share** $0.26 $0.07 $2.14 $0.83
<FN>
* Preferred shares are convertible into common stock (at the discretion of
the holder) at a rate of .911 and amounts presented are based on the
issuance date of February 26, 1996.
** The 4.5% cumulative convertible preferred stock and the related dividends
were excluded from the calculation of fourth quarter 1996 fully diluted
earnings per share as they were anti-dilutive.
</FN>
</TABLE>
Crown Cork & Seal Company, Inc.
Exhibit 12
Computation of Ratio of Earnings to Fixed Charges
Twelve months
ended
December 31,
1996
--------------
Computation of Earnings
Pre-tax income from continuing operations $431.0
Adjustments to income:
Add: Distributed income from less than
50% owned companies 7.3
Add: Portion of rental expense representative
of interest expense 4.3
Add: Interest incurred, net of amounts
capitalized 328.2
Add: Amortization of interest previously
capitalized 2.6
Add: Amortization of debt issue costs and discount
or premium on indebtedness .8
------
Earnings $774.2
======
Computation of Fixed Charges
Interest incurred $335.9
Amortization of debt issue costs and discount
or premium on indebtedness .8
Portion of rental expense representative
of interest expense 4.3
Preferred stock dividend requirements 28.8
------
Fixed Charges $369.8
======
Ratio of Earnings to Fixed Charges 2.1x
Crown Cork & Seal Company, Inc.
Exhibit 21 - Subsidiaries of Registrant
1 of 4
<TABLE>
<CAPTION>
STATE OR COUNTRY OF
INCORPORATION OR
NAME ORGANIZATION
<S> <C>
Crown Cork & Seal Company, Inc. Pennsylvania
Crown Cork & Seal Company (PA) Inc. Pennsylvania
CONSTAR Plastics, Inc. Georgia
Anchor Hocking Packaging Co. Delaware
CarnaudMetalbox Enterprises, Inc. Delaware
CarnaudMetalbox Investments (USA), Inc. Delaware
CarnaudMetalbox Holdings (USA), Inc. Delaware
Risdon Corporation Delaware
Simplimatic Engineering Company Delaware
Zeller (USA) Plastik, Inc. Delaware
Crown Cork & Seal Holdings, Inc. Delaware
Crown Cork & Seal Technologies Corporation Delaware
Crown Cork & Seal Company (USA), Inc. Delaware
Crown Financial Management, Inc. Delaware
Crown Overseas Investment Corporation Delaware
Crown Beverage Packaging, Inc. Delaware
Central States Can Company of Puerto Rico, Inc. Ohio
Aluplata SA Argentina
Crown Cork de Argentina S.A. Argentina
CMB Packaging International NV Belgium
Crown Cork Company (Belgium) N.V. Belgium
Crown Cork Coordination Center, N.V. Belgium
Speciality Packaging Belgie NV Belgium
Crown Brasil Holding Ltd. Brazil
Crown Cork Embalagens S.A. Brazil
Crown Cork do Nordeste Ltd. Brazil
Crown Cork & Seal Canada Inc. Canada
Risdon Cosmetic Containers Inc. Canada
Crown Cork de Chile, S.A.I. Chile
Beijing Crown Can Co., Ltd. China
CarnaudMetalbox Huapeng (Wuxi) Closures Co., Ltd. China
Foshan Crown Can Company, Limited China
Foshan Crown Easy-Opening Ends Co., Ltd. China
Huizhou Crown Can Co., Ltd. China
Shanghai Crown Packaging Co., Ltd. China
Crown Litometal S.A. Colombia
Crown Cork de Puerto Rico, Inc. Delaware
Astra Plastique France
CarnaudMetalbox France
CarnaudMetalbox Alimentaire France France
CarnaudMetalbox Capsules SA France
<PAGE>
Crown Cork & Seal Company, Inc.
Exhibit 21 - Subsidiaries of Registrant
2 of 4
STATE OR COUNTRY OF
INCORPORATION OR
NAME ORGANIZATION
CarnaudMetalbox Group Services France
CarnaudMetalbox Industries France
CarnaudMetalbox Plastique SA France
CarnaudMetalbox Sante Beaute France
CMB Plastique France
Crown Cork & Seal Finance S.A. France
Crown Cork Company (France) S.A. France
Crown Development SNC France
Crown Financial Corporation - France France
Polyflex France
Societe Bourguignonne D'Applications Plastiques France
Societe de Participations Entrangers CarnaudMetalbox France
Societe de Participations CarnaudMetalbox France
Societe De Mecanique Generale France
Societe Francasie De Development De La Boite Boisson France
Blechpackungswerk Eberswalde GmbH Germany
CarnaudMetalbox Deutschland GmbH Germany
CarnaudMetalbox Nahrungsmitteldosen GmbH Germany
CarnaudMetalbox Plastik Holding GmbH Germany
Crown Bender (Germany) GmbH Germany
Crown Cork Holding GmbH Germany
Eberswalde Verpackungen GmbH Germany
Stephan & Hoffman Blechverpackungen GmbH Germany
Wehrstedt GmbH Germany
Zeller Plastik GmbH Germany
Zuchner Gruss Metallverpackungen GmbH Germany
Zuchner Metallverpackugen GmbH Germany
Zuchner Verpackugen GmbH & Co Germany
Zuchner Verschlusse GmbH Germany
Hellas Can Packaging Manufacturers Greece
Crown Can Hong Kong Limited Hong Kong
CarnaudMetalbox Magyarorszag Hungary
CarnaudMetalbox Italia SRL Italy
CMB Italcaps SRL Italy
Crown Cork Company (Italy) S.P.A. Italy
FABA Sud Spa Italy
Nuova Sirma Italy
Superbox Aerosols SRL Italy
Superbox Contenitori per Bevande SRL Italy
Societe Malgache D'Emgallages Metalliques Madagascar
CarnaudMetalbox Bevcan SDN BHD Malaysia
<PAGE>
Crown Cork & Seal Company, Inc.
Exhibit 21 - Subsidiaries of Registrant
3 of 4
STATE OR COUNTRY OF
INCORPORATION OR
NAME ORGANIZATION
CarnaudMetalbox Packaging SDH BHD Malaysia
Crown Cork de Mexico, S.A. Mexico
Envases Generales Crown, S.A. DE C.V. Mexico
Crown Cork Company (Morocco) S.A. Morocco
CarnaudMetalbox NV The Netherlands
CMB Closures Benelux BV The Netherlands
CMB Promotional Packaging (Netherlands) BV The Netherlands
Crown Cork Company (Holland) B.V. The Netherlands
Crown Cork Mijdrecht B.V. The Netherlands
Crown Cork Netherlands Holding B.V. The Netherlands
Speciality Packaging Nederland BV The Netherlands
CarnaudMetalbox Nigeria PLC Nigeria
CarnaudMetalbox Tworzyna Sztuczne SP Z.O.D. Poland
CMB Colep Embalagens SA Portugal
Crown Cork & Seal (Portugal) S.A. Portugal
CarnaudMetalbox (Asia-Pacific) Holdings PTE Ltd. Singapore
CarnaudMetalbox Asia Limited Singapore
CarnaudMetalbox Closures Asia Pacific Ltd Singapore
CarnaudMetalbox Packaging PTE Limited Singapore
CarnaudMetalbox Slovakia Spol. S.R.O. Slovakia
Crown Cork Company, S.A. (Pty) Ltd. South Africa
Crown Investment Holdings (Pty) Ltd. South Africa
CMB Envases Alimentarios SA Spain
Crown Cork Company Iberica (Spain) S.A. Spain
Envases CarnaudMetalbox SA Spain
Envases de Bebidas SA Spain
Envases Metalicos Namlleu SA Manlleu Spain
Envases Metalner SA Spain
Envases Murcianos SA Spain
Risdon Productos de Metal LTDA Spain
CarnaudMetalbox Tanzania Limited Tanzania
CarnaudMetalbox (Thailand) PLC Thailand
CarnaudMetalbox Bevcan Limited Thailand
Crown Cork & Seal (Thailand) Co., Ltd. Thailand
CarnaudMetalbox Ambalaj Sanayi Ve Ticaret Anonim Sirketi Turkey
CMB Plaspak Plastic Ambalaj Sanayi AS Turkey
CONSTAR Ambalaj Sanayi Ve Ticaret A.S. Turkey
Emirates Can Company, Ltd. (Dubai, UAE) United Arab Emirates
CarnaudMetalbox Bevcan PLC United Kingdom
CarnaudMetalbox Closures PLC United Kingdom
CarnaudMetalbox Engineering PLC United Kingdom
<PAGE>
Crown Cork & Seal Company, Inc.
Exhibit 21 - Subsidiaries of Registrant
4 of 4
STATE OR COUNTRY OF
INCORPORATION OR
NAME ORGANIZATION
CarnaudMetalbox Group UK Limited United Kingdom
CarnaudMetalbox Holding (UK) Limited United Kingdom
CarnaudMetalbox Overseas Limited United Kingdom
CarnaudMetalbox PLC United Kingdom
CMB Bottles and Closures United Kingdom
CONSTAR International U.K., Ltd. United Kingdom
Crown Cork & Seal Finance PLC United Kingdom
Crown UK Holdings Ltd. United Kingdom
Risdon Limited United Kingdom
Speciality Packaging (UK) PLC United Kingdom
The Crown Cork Company Limited United Kingdom
United Closures & Plastic PLC United Kingdom
Zeller Plastik UK Limited United Kingdom
CarnaudMetalbox (Saigon) Limited Vietnam
<FN>
(1) The list includes only consolidated subsidiaries which are directly owned
or indirectly owned by the Registrant.
(2) In accordance with Regulation S-K, Item 601(b)(22)(ii), the names of
certain subsidiaries have been omitted from the foregoing list. The unnamed
subsidiaries, considered in the aggregate as a single subsidiary, would not
constitute a significant subsidiary, as defined in Regulation S-X, Rule
1-02 (w).
</FN>
</TABLE>
Exhibit 23
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectuses
constituting part of the Registration Statements on Form S-3 (Nos. 33-56965,
333-16869 and 333-04971) and in the Registration Statements on Form S-8 (Nos.
33-01893, 33-45900, 33-39529, 33-63732, 33-61240, 33-61238, 33-50369 and
33-52699) of Crown Cork & Seal Company, Inc. of our report dated March 17, 1997
appearing on page 23 of this Form 10-K.
PRICE WATERHOUSE LLP
Philadelphia, Pennsylvania
March 28, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS, CONSOLIDATED STATEMENTS OF INCOME AND NOTES TO
CONSOLIDATED FINANCIAL STATEMENTS ON PAGES 24 THROUGH 46 OF THE COMPANY'S 1996
ANNUAL REPORT TO SHAREHOLDERS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> DEC-31-1996
<CASH> 160
<SECURITIES> 0
<RECEIVABLES> 1,441
<ALLOWANCES> 92
<INVENTORY> 1,424
<CURRENT-ASSETS> 3,292
<PP&E> 5,255
<DEPRECIATION> 1,538
<TOTAL-ASSETS> 12,590
<CURRENT-LIABILITIES> 3,663
<BONDS> 3,924
0
521
<COMMON> 779
<OTHER-SE> 2,263
<TOTAL-LIABILITY-AND-EQUITY> 12,590
<SALES> 8,332
<TOTAL-REVENUES> 8,332
<CGS> 6,733
<TOTAL-COSTS> 7,269
<OTHER-EXPENSES> (60)
<LOSS-PROVISION> 10
<INTEREST-EXPENSE> 328
<INCOME-PRETAX> 431
<INCOME-TAX> 134
<INCOME-CONTINUING> 284
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 284
<EPS-PRIMARY> 2.16
<EPS-DILUTED> 2.16
</TABLE>
