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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
(Mark one) FORM 10-Q
(x) Quarterly Report Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
For Quarter Ended June 30, 1997
or
( ) Transition Report Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
Owens-Illinois, Inc.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 1-9576 22-2781933
- ---------------- ----------- -------------------
(State or other (Commission (IRS Employer
jurisdiction of File No.) Identification No.)
incorporation or
organization)
Owens-Illinois Group, Inc.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 33-13061 34-1559348
- --------------- ----------- -------------------
(State or other (Commission (IRS Employer
jurisdiction of File No.) Identification No.)
incorporation or
organization)
One SeaGate, Toledo, Ohio 43666
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
419-247-5000
- --------------------------------------------------------------------------------
(Registrants' telephone number, including area code)
Indicate by check mark whether the registrants (1) have 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 registrants were required to file
such reports), and (2) have been subject to such filing
requirements for the past 90 days. Yes X No
---- ----
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Owens-Illinois, Inc. $.01 par value common stock - 140,324,976
shares at July 31, 1997.
Owens-Illinois Group, Inc. $.01 par value common stock - 100
shares at July 31, 1997.
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PART I - FINANCIAL INFORMATION
Item 1. Financial Statements.
The Condensed Consolidated Financial Statements presented herein are unaudited
but, in the opinion of management, reflect all adjustments necessary to
present fairly such information for the periods and at the dates indicated.
Since the following condensed unaudited financial statements have been
prepared in accordance with Article 10 of Regulation S-X, they do not contain
all information and footnotes normally contained in annual consolidated
financial statements; accordingly, they should be read in conjunction with the
Consolidated Financial Statements and notes thereto included in the
Registrants' Annual Report on Form 10-K for the year ended December 31, 1996.
3
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OWENS-ILLINOIS, INC.
CONDENSED CONSOLIDATED RESULTS OF OPERATIONS
Three months ended June 30, 1997 and 1996
(Millions of dollars, except per-share amounts)
1997 1996
Revenues: -------- ------
Net sales $1,224.5 $963.7
Royalties and net technical assistance 5.3 6.4
Equity earnings .5 3.1
Interest 6.8 5.6
Other 20.6 16.9
-------- ------
1,257.7 995.7
Costs and expenses:
Manufacturing, shipping, and delivery 929.7 737.5
Research and development 6.9 7.0
Engineering 7.8 6.7
Selling and administrative 59.4 41.3
Interest 81.4 74.8
Other 23.9 15.5
-------- ------
1,109.1 882.8
-------- ------
Earnings before items below 148.6 112.9
Provision for income taxes 50.8 39.3
Minority share owners' interests in earnings
of subsidiaries 10.9 7.0
-------- ------
Earnings before extraordinary items 86.9 66.6
Extraordinary charges from early extinguishment
of debt, net of applicable income taxes (84.5)
-------- ------
Net earnings $ 2.4 $ 66.6
======== ======
Earnings per share of common stock:
Earnings before extraordinary items $ 0.66 $ 0.55
Extraordinary charges from early extinguishment
of debt, net of applicable income taxes (0.64)
-------- ------
Net earnings $ 0.02 $ 0.55
======== ======
Average shares outstanding (thousands) 131,483 120,284
======= =======
See accompanying notes.
4
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OWENS-ILLINOIS, INC.
CONDENSED CONSOLIDATED RESULTS OF OPERATIONS
Six months ended June 30, 1997 and 1996
(Millions of dollars, except per-share amounts)
1997 1996
Revenues: -------- --------
Net sales $2,280.8 $1,869.5
Royalties and net technical assistance 11.7 12.2
Equity earnings 9.3 8.4
Interest 14.6 12.1
Other 57.5 30.3
-------- --------
2,373.9 1,932.5
Costs and expenses:
Manufacturing, shipping, and delivery 1,774.6 1,446.4
Research and development 14.7 15.1
Engineering 15.2 13.2
Selling and administrative 110.4 92.0
Interest 167.3 148.3
Other 58.7 30.2
-------- --------
2,140.9 1,745.2
-------- --------
Earnings before items below 233.0 187.3
Provision for income taxes 74.2 65.2
Minority share owners' interests in earnings
of subsidiaries 17.3 15.9
-------- --------
Earnings before extraordinary items 141.5 106.2
Extraordinary charges from early extinguishment
of debt, net of applicable income taxes (84.5)
-------- --------
Net earnings $ 57.0 $ 106.2
======== ========
Earnings per share of common stock:
Earnings before extraordinary items $ 1.11 $ 0.88
Extraordinary charges from early extinguishment
of debt, net of applicable income taxes (0.67)
-------- --------
Net earnings $ 0.44 $ 0.88
======== ========
Average shares outstanding (thousands) 126,674 120,172
======= =======
See accompanying notes.
5
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OWENS-ILLINOIS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
June 30, 1997, December 31, 1996, and June 30, 1996
(Millions of dollars)
June 30, Dec. 31, June 30,
1997 1996 1996
Assets -------- -------- --------
Current assets:
Cash, including time deposits $ 239.2 $ 160.9 $ 96.4
Short-term investments, at cost which
approximates market 66.6 14.4 24.0
Receivables, less allowances for losses
and discounts ($36.6 at June 30, 1997,
$40.6 at December 31, 1996, and
$36.5 at June 30, 1996) 727.8 488.8 469.1
Inventories 621.6 494.6 489.3
Prepaid expenses 126.0 126.4 87.0
-------- -------- --------
Total current assets 1,781.2 1,285.1 1,165.8
Investments and other assets:
Investments and advances 128.2 85.6 87.5
Repair parts inventories 224.9 189.4 179.1
Prepaid pension 653.6 624.5 638.8
Insurance for asbestos-related costs 255.3 271.4 283.4
Deposits, receivables, and other assets 269.9 704.2 248.3
Excess of purchase cost over net assets
acquired, net of accumulated
amortization ($312.7 at June 30,
1997, $293.7 at December 31, 1996,
and $277.8 at June 30, 1996) 1,318.5 1,003.5 1,003.3
-------- -------- --------
Total investments and other assets 2,850.4 2,878.6 2,440.4
Property, plant, and equipment, at cost 3,797.6 3,435.9 3,262.8
Less accumulated depreciation 1,603.5 1,494.3 1,394.5
-------- -------- --------
Net property, plant, and equipment 2,194.1 1,941.6 1,868.3
-------- -------- --------
Total assets $6,825.7 $6,105.3 $5,474.5
======== ======== ========
6
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CONDENSED CONSOLIDATED BALANCE SHEETS -- continued
June 30, Dec. 31, June 30,
1997 1996 1996
-------- -------- --------
Liabilities and Share Owners' Equity
Current liabilities:
Short-term loans and long-term debt
due within one year $ 188.2 $ 141.5 $ 103.4
Current portion of asbestos-related
liabilities 110.0 110.0 145.0
Accounts payable and other liabilities 783.7 653.4 601.3
-------- -------- --------
Total current liabilities 1,081.9 904.9 849.7
Long-term debt 3,107.5 3,253.2 2,792.4
Deferred taxes 203.1 201.2 141.4
Nonpension postretirement benefits 360.2 371.7 377.9
Asbestos-related liabilities 89.4 138.2 183.3
Other liabilities 517.0 311.7 314.7
Commitments and contingencies
Minority share owners' interests 236.8 194.7 183.4
Share owners' equity:
Preferred stock 21.4 21.4 21.6
Common stock, par value $.01 per share
(140,188,376 shares outstanding
at June 30, 1997; 120,446,348 at
December 31, 1996, and
120,360,074 at June 30, 1996) 1.4 1.2 1.2
Capital in excess of par value 1,547.2 1,047.6 1,046.4
Deficit (201.2) (258.2) (343.1)
Cumulative foreign currency translation
adjustment (139.0) (82.3) (94.4)
-------- -------- --------
Total share owners' equity 1,229.8 729.7 631.7
-------- -------- --------
Total liabilities and share owners' equity $6,825.7 $6,105.3 $5,474.5
======== ======== ========
See accompanying notes.
7
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OWENS-ILLINOIS, INC.
CONDENSED CONSOLIDATED CASH FLOWS
Six months ended June 30, 1997 and 1996
(Millions of dollars)
1997 1996
--------- -------
Cash flows from operating activities:
Earnings before extraordinary items $ 141.5 $ 106.2
Non-cash charges (credits):
Depreciation 134.8 106.6
Amortization of deferred costs 29.8 25.9
Other 5.2 (3.0)
Change in non-current operating assets (36.7) (45.9)
Asbestos-related payments (48.8) (52.1)
Asbestos-related insurance proceeds 16.1 40.1
Reduction of non-current liabilities (2.7) (8.7)
Change in components of working capital (122.4) (45.4)
--------- -------
Cash provided by operating activities 116.8 123.7
Cash flows from investing activities:
Additions to property, plant, and equipment (157.7) (208.4)
Acquisitions, net of cash acquired (104.7)
Net cash proceeds from divestitures 49.7 3.1
--------- -------
Cash utilized in investing activities (212.7) (205.3)
Cash flows from financing activities:
Additions to long-term debt 1,127.6 62.0
Repayments of long-term debt (1,332.7) (24.1)
Payment of finance fees and debt retirement costs (137.8)
Increase in short-term loans 25.2 29.4
Issuance of common stock 498.6 3.3
Issuance of subsidiary's stock 4.0
--------- -------
Cash provided by financing activities 180.9 74.6
Effect of exchange rate fluctuations on cash (6.7) (6.0)
--------- -------
Increase (decrease) in cash 78.3 (13.0)
Cash at beginning of period 160.9 109.4
--------- -------
Cash at end of period $ 239.2 $ 96.4
========= =======
See accompanying notes.
8
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OWENS-ILLINOIS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Tabular data in millions of dollars
1. Acquisition of AVIR S.p.A.
At December 31, 1996, deposits, receivables, and other assets includes
approximately $440 million of escrow funding in connection with the
acquisition of AVIR S.p.A. ("AVIR"), the largest manufacturer of glass
containers in Italy. On February 3, 1997, the Company completed the
acquisition of 79% of AVIR. In addition to purchasing this controlling
interest pursuant to an acquisition agreement, the Company acquired an
additional 18% interest through a public tender offer and intends to initiate
a second tender offer for the balance. Other liabilities in the June 30, 1997
Condensed Consolidated Balance Sheet includes approximately $110 million
related to the consideration expected to be paid pursuant to the tender
offers. Total consideration for 100% of the AVIR shares is currently expected
to be approximately $571 million.
The acquisition is being accounted for under the purchase method of
accounting. The total purchase cost of approximately $571 million will be
allocated to the tangible and identifiable intangible assets and liabilities
of AVIR based upon their respective fair values. The Company believes that a
portion of the $241.5 million unallocated excess of purchase cost over net
assets acquired will ultimately be allocated to property, plant, and equipment
and certain identifiable intangible assets. Such allocations will be based
upon valuations which have not been finalized. Accordingly, the allocation of
the purchase consideration included in the accompanying Condensed Consolidated
Balance Sheet at June 30, 1997, is preliminary. The accompanying Condensed
Consolidated Results of Operations for the six months ended June 30, 1997,
includes five months of AVIR operations.
The aggregate purchase cost and its preliminary allocation to the historical
assets and liabilities of AVIR are as follows (in millions of dollars):
Cash and short-term investments $131.2
Other net working capital acquired 72.3
Property, plant and equipment 254.5
Other non-current assets 49.0
Excess of purchase cost over net assets acquired 241.5
------
748.5
Other long-term liabilities (96.9)
Debt assumed (80.5)
------
Aggregate purchase cost $571.1
======
9
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2. Pro Forma Information - AVIR Acquisition
Had the acquisition of AVIR described in Note 1 occurred on January 1, 1996,
unaudited pro forma consolidated net sales, net earnings, and net earnings per
share of common stock would have been as follows (in millions of dollars,
except per share amounts):
Three Months ended June 30, 1996
--------------------------------------
Effect of
As AVIR As
Reported Acquisition Adjusted
-------- ----------- --------
Net sales $963.7 $178.2 $1,141.9
====== ====== ========
Net earnings $ 66.6 $ 17.6 $ 84.2
====== ====== ========
Net earnings per share of common stock $ 0.55 $ 0.69
====== ========
Six Months ended June 30, 1996
--------------------------------------
Effect of
As AVIR As
Reported Acquisition Adjusted
-------- ----------- --------
Net sales $1,869.5 $299.4 $2,168.9
======== ====== ========
Net earnings $ 106.2 $ 17.5 $ 123.7
======== ====== ========
Net earnings per share of common stock $ 0.88 $ 1.02
======== ========
The pro forma information assumes financing for the acquisition will be
provided by additional borrowings under the Company's Bank Credit Agreement.
In the event any portion of the acquisition is financed or refinanced with
borrowings from sources other than under the Company's Bank Credit Agreement,
the pro forma net earnings may have been different from amounts shown above.
The Company believes that a portion of the $241.5 million unallocated excess
of purchase cost over the net assets acquired in the AVIR acquisition will
ultimately be allocated to property, plant, and equipment and certain
identifiable intangible assets. The detailed allocation of such excess has
not been finalized. The pro forma net earnings amounts reflect amortization
of such excess over 30 years.
Certain of the glass container products produced by AVIR are subject to
seasonal demand; shipments of such products have typically been greater in the
second and third quarters of the year compared to the first and fourth
quarters. Net sales of AVIR for the full year 1996 were approximately $600
million. On a pro forma basis, the Company's full year 1996 net income
10
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increases approximately $15 million after giving effect to the AVIR
acquisition.
The pro forma data does not purport to represent what the results of
operations would actually have been if the AVIR acquisition had in fact
occurred on the date indicated, or to project results of operations for any
future period.
3. Refinancing Plan
During the second quarter of 1997, the Company implemented a refinancing plan
(the "Refinancing Plan") designed to reduce interest expense, reduce the
amount of long-term debt, and improve financial flexibility. Through
August 13, 1997, completed portions of the Refinancing Plan include a $1.2
billion increase in the borrowing capacity under the Company's Bank Credit
Agreement to a total of $3.0 billion, the sale of 16,936,100 shares of common
stock, par value $.01 per share, for net proceeds of $464.2 million, the
issuance of $300 million aggregate principal amount of 7.85% Senior Notes due
May 15, 2004, the issuance of $300 million aggregate principal amount of 8.10%
Senior Notes due May 15, 2007, and the retirement of approximately $1.6
billion of higher cost debt. The sale of the shares of common stock and the
issuance of the Senior Notes were made pursuant to public offerings (the
"Offerings").
As of August 13, 1997, the Refinancing Plan also contemplates the redemption
of the $200 million aggregate principal amount of the 9.75% Senior
Subordinated Notes due 2004, and the $100 million aggregate principal amount
of the 9.95% Senior Subordinated Notes due 2004 during the second half of
1997.
Earnings per share are computed independently for each period presented. Due
to the issuance of 16,936,100 shares of common stock in the second quarter of
1997 and the resultant effect on average shares outstanding, 1997 per share
amounts calculated on a year-to-date basis do not equal the sums of such
amounts calculated separately for each quarter.
4. Pro Forma Information - Refinancing Plan
The following pro forma information gives effect to the various transactions
related to the Refinancing Plan, described in Note 3, as if they had occurred
at the beginning of the respective years.
11
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Three Months Ended June 30,
--------------------------------------------------
1997 1996
-------------------- -------------------------
As Adjusted
As As for AVIR As Further
Reported Adjusted (Note 2) Adjusted
-------- -------- ----------- ----------
Net earnings
(millions of dollars) $86.9 $95.4 $84.2 $96.8
===== ===== ===== =====
Net earnings per share of
common stock $0.66 $0.68 $0.69 $0.70
===== ===== ===== =====
Weighted average shares
outstanding (thousands) 131,483 139,972 120,284 137,220
Six Months Ended June 30,
--------------------------------------------------
1997 1996
-------------------- -------------------------
As Adjusted
As As for AVIR As Further
Reported Adjusted (Note 2) Adjusted
-------- -------- ----------- ----------
Net earnings
(millions of dollars) $141.5 $162.4 $123.7 $148.9
====== ====== ====== ======
Net earnings per share of
common stock $ 1.11 $ 1.16 $ 1.02 $ 1.08
====== ====== ====== ======
Weighted average shares
outstanding (thousands) 126,674 139,364 120,172 137,108
The pro forma amounts reflect the elimination of interest expense related to
the indebtedness redeemed or to be redeemed, additional interest expense
related to the additional borrowings under the Bank Credit Agreement (using an
assumed annual interest rate of 7.375%), interest on the Senior Notes, and
related changes in amortization of deferred finance fees. The pro forma
reduction in interest expense for the three and six months ended June 30,
1997, was $13.8 million and $33.9 million, respectively. The pro forma
reduction in interest expense for the three and six months ended June 30,
1996, was $20.4 million and $40.7 million, respectively. The provision for
income taxes was adjusted at a rate of 38.25% for all periods to reflect the
reduction in interest expense. The weighted average shares outstanding have
been adjusted to reflect the issuance of 16,936,100 shares pursuant to the
Refinancing Plan.
12
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The pro forma data does not purport to represent what the results of
operations would actually have been if the Refinancing Plan had actually
occurred on the dates indicated, or to project results of operations for any
future period.
5. Inventories
Major classes of inventory are as follows:
June 30, Dec. 31, June 30,
1997 1996 1996
-------- -------- --------
Finished goods $470.1 $374.5 $377.3
Work in process 8.1 4.2 5.5
Raw materials 84.8 81.2 72.4
Operating supplies 58.6 34.7 34.1
------ ------ ------
$621.6 $494.6 $489.3
====== ====== ======
6. Long-Term Debt
The following table summarizes the long-term debt of the Company:
- ---------------------------------------------------------------------------
June 30, Dec. 31, June 30,
1997 1996 1996
Bank Credit Agreement: -------- -------- --------
Revolving Loans $1,510.0 $1,105.0 $ 480.1
Bid Rate Loans 150.0 140.0
Senior notes:
7.85%, due 2004 300.0
8.10%, due 2007 300.0
Senior Debentures, 11%,
due 1999 to 2003 42.6 1,000.0 1,000.0
Senior Subordinated Notes:
10-1/4%, due 1999 250.0 250.0
10-1/2%, due 2002 150.0 150.0
10%, due 2002 250.0 250.0 250.0
9-3/4%, due 2004 200.0 200.0 200.0
9.95%, due 2004 100.0 100.0 100.0
Other 308.4 232.9 243.8
- ---------------------------------------------------------------------------
3,161.0 3,287.9 2,813.9
Less amounts due within one year 53.5 34.7 21.5
- ---------------------------------------------------------------------------
Long-term debt $3,107.5 $3,253.2 $2,792.4
===========================================================================
In May 1997, the Company entered into an agreement with a group of banks
("Bank Credit Agreement" or "Agreement") which provides Revolving Loan
Commitments under which the Company may borrow up to $3.0 billion through
December 31, 2001. The Agreement includes an Overdraft Account facility
providing for aggregate borrowings up to $50 million which reduce the amount
available for borrowing under the Revolving Loan Commitments. In addition,
13
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the terms of the Bank Credit Agreement permit the Company to request Bid Rate
Loans from banks participating in the Agreement. Borrowings outstanding under
Bid Rate Loans are limited to $750 million and reduce the amount available for
borrowing under the Revolving Loan Commitments. The Revolving Loan
Commitments also provide for the issuance of letters of credit totaling up to
$300 million.
At June 30, 1997, the Company had unused credit available under the Bank
Credit Agreement of $1.26 billion.
Revolving loans bear interest, at the Company's option, at the prime rate or a
Eurodollar deposit-based rate plus a margin linked to the Company's
Consolidated Leverage Ratio, as defined in the Agreement. The margin is
currently .425% and is limited to a range of .275% to .625%. Overdraft
Account loans bear interest at the prime rate minus the facility fee
percentage, defined below. The weighted average interest rate on borrowings
outstanding under the Bank Credit Agreement at June 30, 1997, was 6.18%.
While no compensating balances are required by the Agreement, the Company must
pay a facility fee on the Revolving Loan Commitments. The facility fee,
currently .20%, is limited to a range of .125% to .375%, based on changes in
the Company's Consolidated Leverage Ratio. The Agreement requires the
maintenance of certain financial ratios, restricts the creation of liens and
incurrence of indebtedness, and restricts certain types of business activities
and investments.
In April 1997, the Company filed a registration statement with the Securities
and Exchange Commission for the offering of up to $2.5 billion of debt
securities, common stock, or both from time to time as market conditions
permit. On May 16, 1997, pursuant to the registration statement, the Company
completed the offerings of: (1) 14,750,000 shares of common stock at a public
offering price of $28.50 per share; (2) $300 million aggregate principal
amount of 7.85% Senior Notes due May 15, 2004; and (3) $300 million aggregate
principal amount of 8.10% Senior notes due May 15, 2007. On May 23, 1997, the
Company used the proceeds from these offerings in addition to borrowings under
the Company's Bank Credit Agreement to redeem $957.4 million aggregate
principal amount of the 11% Senior Debentures due 2003 pursuant to a tender
offer and consent solicitation for such securities. On June 13, 1997, the
Company issued an additional 2,168,100 shares of common stock pursuant to the
partial exercise of the underwriters' overallotment option. On June 16, 1997,
the Company redeemed all $250 million aggregate principal amount of the 10.25%
Senior Subordinated Notes due 1999, and all $150 million aggregate principal
amount of the 10.50% Senior Subordinated notes due 2002. The June 16, 1997,
redemptions were funded by proceeds received from the June 13, 1997, issuance
of common stock and borrowings under the Company's Bank Credit Agreement. On
August 1, 1997, the Company redeemed all $250 million aggregate principal
amount of the 10% Senior Subordinated Notes due 2002. On June 20, 1997 the
Company announced that on August 15, 1997, all $200 million aggregate
principal amount of the 9.75% Senior Subordinated Notes due 2004 will be
redeemed. These redemptions were or will be funded by borrowings under the
Company's Bank Credit Agreement. The Refinancing Plan also contemplates the
redemption, at the Company's option, of all $100 million aggregate principal
14
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amount of the 9.95% Senior Subordinated Notes due 2004 when and as they become
redeemable on October 15, 1997.
As a result of the release of the guarantees and collateral securing the Bank
Credit Agreement and the 11% Senior Debentures, the newly issued Senior Notes
rank pari passu with such obligations. The Bank Credit Agreement, 11% Senior
Debentures, and Senior Notes are senior in right of payment to all existing
and future subordinated debt of the Company.
Under the terms of the Bank Credit Agreement and the Indenture related to the
Company's subordinated notes, dividend payments with respect to the Company's
Preferred or Common Stock and payments for redemption of shares of its Common
Stock are subject to certain limitations.
7. Extraordinary Charges from Early Extinguishment of Debt
During the second quarter of 1997, the Company used proceeds from the
Offerings along with borrowing under its Bank Credit Agreement to redeem:
(1) $957.6 million aggregate principal amount of the 11% Senior Debentures due
2003, at $1,115.60, which included a $20 payment for consents to amendments to
the related indenture, for each $1,000 principal amount; (2) all $250 million
aggregate principal amount of the 10.25% Senior Subordinated Notes due 1999,
at 100% of principal amount; and (3) all $150 million aggregate principal
amount of the 10.50% Senior Subordinated Notes due 2002, at 105.25% of the
principal amount. As a result, the Company recorded extraordinary charges for
the write-off of unamortized deferred finance fees and redemption premiums
totaling $136.9 million, net of applicable income taxes of $52.4 million.
8. Cash Flow Information
Interest paid in cash aggregated $163.1 million and $137.1 million for the six
months ended June 30, 1997 and June 30, 1996, respectively. Income taxes paid
in cash totaled $43.7 million and $17.2 million for the six months ended
June 30, 1997 and June 30, 1996, respectively.
9. Contingencies
The Company is one of a number of defendants (typically 10 to 20) in a
substantial number of lawsuits filed in numerous state and federal courts by
persons alleging bodily injury (including death) as a result of exposure to
dust from asbestos fibers. From 1948 to 1958, one of the Company's former
business units commercially produced and sold a high-temperature, clay-based
insulating material containing asbestos. The insulation material was used in
limited industrial applications such as shipyards, power plants and chemical
plants. During its ten years in the high-temperature insulation business, the
Company's aggregate sales of insulation material containing asbestos were less
than $40 million. The Company exited the insulation business in April 1958.
The traditional asbestos personal injury lawsuits and claims relating to such
production and sale of asbestos material typically allege various theories of
liability, including negligence, gross negligence and strict liability and
seek compensatory and punitive damages in various amounts (herein referred to
as "asbestos claims"). As of June 30, 1997, the Company estimates that it is
15
<PAGE>
a named defendant in asbestos claims involving approximately 14,000 plaintiffs
and claimants.
The Company's indemnity payments for these claims have varied on a per claim
basis, and are expected to continue to vary considerably over time. They are
affected by a multitude of factors, including the type and severity of the
disease sustained by the claimant; the occupation of the claimant; the extent
of the claimant's exposure to asbestos-containing insulation products
manufactured or sold by the Company; the extent of the claimant's exposure to
asbestos-containing products manufactured or sold by other producers; the
number and financial resources of other defendants and the nature and extent
of indemnity or contribution claims that may be asserted by or against such
other defendants; the jurisdiction of suit; the presence or absence of other
possible causes of the claimant's illness; the availability of legal defenses
such as the statute of limitations or state of the art; and whether the claim
was resolved on an individual basis or as part of a group settlement.
The Company's indemnity payments may also be affected by co-defendant
bankruptcy and class action filings. Since 1982 a number of former producers
of asbestos-containing products have filed for reorganization under Chapter 11
of the United States Bankruptcy Code ("Co-Defendant Bankruptcies"). Pending
lawsuits are generally stayed as to these entities, but continue against the
Company and other defendants. Certain other defendants, and certain
plaintiffs, have also sought to resolve all asbestos claims on a global basis
by filing petitions to certify nationwide litigation or settlement class
actions ("Class Actions"), certain of which the Company believes are not
supported by existing case law. The precise impact on the Company of these
Co-Defendant Bankruptcies and Class Actions is not determinable. However, the
Company believes that the Co-Defendant Bankruptcies probably have adversely
affected, and may adversely affect in the future, the Company's share of the
total liability to plaintiffs in previously settled or otherwise determined
lawsuits and claims and that the dissemination of class notices in the Class
Actions may have increased the number of claims and lawsuits against the
Company or accelerated the filing of such claims.
The Company is also one of a number of defendants in (i) bodily injury
lawsuits involving plaintiffs who allege that they are or were maritime
workers ("Maritime Claims"), (ii) a lawsuit on behalf of individuals in
Pennsylvania who have no asbestos-related impairment, but nevertheless seek
the costs of future medical monitoring ("Medical Monitoring Claims") and (iii)
lawsuits brought by public or private property owners alleging damages to
their various properties ("Property Damage Claims"). Certain of these
Maritime Claims, Medical Monitoring Claims and Property Damage Claims seek
class action treatment. Based on its past experience, the Company presently
believes that the probable ultimate disposition of these Maritime Claims,
Medical Monitoring Claims and Property Damage Claims will not involve any
material additional liability and does not include them in the description
herein of asbestos claims or in the total number of pending asbestos claims
above.
In April 1986, the Company and Aetna Life & Casualty Company ("Aetna") agreed
to a final settlement fully resolving asbestos bodily injury and property
16
<PAGE>
damage insurance coverage litigation between them (which followed the entry of
partial summary judgment in favor of the Company in such litigation). The
Company has processed claims which have effectively exhausted its coverage
under the Aetna agreement. In 1984, the Company initiated similar litigation
in New Jersey against the Company's insurers, including its wholly-owned
captive insurer Owens Insurance Limited ("OIL"), and certain other parties for
the years 1977 through 1985 in which the Company sought damages and a
declaration of coverage for both asbestos bodily injury and property damage
claims under insurance policies in effect during those years (Owens-Illinois,
Inc. v. United Insurance Co., et al, Superior Court of New Jersey, Middlesex
County, November 30, 1984).
In December 1994, the Company partially settled for approximately $100 million
its coverage claim against OIL to the extent of reinsurance provided to OIL by
certain reinsurance companies representing approximately 19% of total United
Insurance coverage limits. Subsequently, the Company reached separate
settlements for approximately $140 million with various other reinsurers, and
with OIL to the extent of reinsurance provided by such settling reinsurance
companies. These settlements also included all of the reinsurers who had
participated actively as litigating parties in the United Insurance case.
Following the settlements described above, a settlement agreement (the "OIL
Settlement") was reached with OIL. The OIL Settlement, which was endorsed by
three mediators and approved by OIL's independent directors, called for the
payment of remaining non-settled reinsurance at 78.5% of applicable
reinsurance limits, increasing to 81% on approximately March 1, 1996 and
accruing interest thereafter at 10% per annum.
In December 1995, the presiding judge in the United Insurance case entered a
Consent Judgment settling the United Insurance case as to all remaining issues
and all parties with the single exception of a broker malpractice claim
asserted by the Company, which remains pending. In the Consent Judgment
Order, the presiding judge specifically found that the OIL Settlement is a
good faith and non-collusive settlement and that it is fair and reasonable as
to OIL and all of OIL's non-settling reinsurers.
In November 1995, before all the settlements described above were finalized, a
reinsurer of OIL during the years affected by the United Insurance case
brought a separate suit against OIL seeking a declaratory judgment that it had
no reinsurance obligation to OIL due to alleged OIL fraud and also to OIL
not having joined non-party reinsurers as parties in the United Insurance case
as alleged to be required under New Jersey's "entire controversy" doctrine
(Employer's Mutual vs Owens-Insurance Limited, Superior Court of New Jersey,
Morris County, December 1995). The Company was not a named party to this
cause of action but was subsequently joined in it as a necessary party
defendant.
Subsequent to the entry of the Consent Judgment Order in the United Insurance
case described above, OIL gave notice of the OIL Settlement to all nonsettling
reinsurers affected by the United Insurance case, informing all such
reinsurers of the terms of the OIL Settlement and demanding timely payment
from such reinsurers pursuant to such terms. Certain previously nonsettling
17
<PAGE>
reinsurers made the payments called for under the OIL Settlement or otherwise
settled their obligations thereunder. Other nonsettling solvent reinsurers,
all of which are parties to the Employers Mutual case described above, did
not, however, make the payments called for under the OIL Settlement by the
date specified therein.
In June 1996, the Superior Court of New Jersey, Morris County granted OIL
summary judgment on the "entire controversy" doctrine claim in the Employers
Mutual case. A petition for interlocutory appeal of this summary judgment by
certain nonsettling OIL reinsurers was rejected first by the Appellate
Division of the New Jersey Superior Court and thereafter by the New Jersey
Supreme Court.
As a result of payments and commitments that have been made by reinsurers
pursuant to the OIL Settlement and the earlier settlement agreements described
above in the United Insurance case and certain other available insurance, the
Company has to date confirmed coverage for its asbestos-related costs of
approximately $296.8 million. Of the total amount confirmed to date, $254.7
million had been received through June 30, 1997; and the balance of
approximately $42.1 million will be received throughout 1997 and the next
several years. The remainder of the insurance asset of approximately $213.2
million relates principally to the reinsurers who have not yet paid their
reinsurance obligations under the OIL Settlement. This $213.2 million asset
valuation at June 30, 1997 also reflects 1994 and 1995 reductions of $100
million and $40 million, respectively, in the insurance asset valuation of
$650 million established in 1993, which had been made to reflect settlement
activity and litigation developments in the United Insurance case.
The Company believes, based on the rulings of the trial court, the Appellate
Division and the New Jersey Supreme Court in the United Insurance case, as
well as its understanding of the facts and legal precedents (including
specifically the legal precedent requiring that reinsurers "follow the
fortunes" of and adhere to any good faith, fair and reasonable settlement
entered into by the primary carrier which such reinsurers had agreed to
reinsure) and based on advice of counsel, McCarter & English, that it is
probable substantial additional payments will be received to cover the
Company's asbestos-related claim losses, in addition to the amounts already
received or to be received as a result of the settlements described above.
As a result of the Co-Defendant Bankruptcies, the Class Actions, and the
continuing efforts in various federal and state courts to resolve asbestos
lawsuits and claims in nontraditional manners, as well as the continued
filings of new lawsuits and claims, the Company believes that its ultimate
asbestos-related contingent liability (i.e., its indemnity or other claim
disposition costs plus related litigation expenses) is difficult to estimate
with certainty. However, the Company has continually monitored the trends of
matters which may affect its ultimate liability and continually analyzes the
trends, developments and variables affecting or likely to affect the
resolution of pending and future asbestos claims against the Company.
Based on all the factors and matters relating to the Company's asbestos-
related litigation and claims, the Company believes that its asbestos-related
18
<PAGE>
costs and liabilities will not exceed by a material amount the sum of the
available insurance reimbursement the Company believes it has and will have
principally as a result of the United Insurance case, and the OIL Settlement,
as described above, and the amount of previous charges for asbestos-related
costs.
Other litigation is pending against the Company, in many cases involving
ordinary and routine claims incidental to the business of the Company and in
others presenting allegations that are nonroutine and involve compensatory,
punitive or treble damage claims as well as other types of relief. The
ultimate legal and financial liability of the Company in respect to the
lawsuits and proceedings referred to above, in addition to other pending
litigation, cannot be estimated with certainty. However, the Company
believes, based on its examination and review of such matters and experience
to date, that such ultimate liability will not be material in relation to the
Company's Consolidated Financial Statements.
10. New Accounting Standard
In February 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, "Earnings per Share" ("FAS No. 128"),
which is required to be adopted for periods ending after December 15, 1997.
The adoption of FAS No. 128 by the Company is expected to result in no change
in primary earnings per share for the three and six months ended June 30, 1997
and 1996. The impact of FAS No. 128 on the calculation of fully diluted
earnings per share for these quarters is not expected to be material.
19
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Results of Operations - Second Quarter 1997 compared with Second Quarter 1996
The Company recorded earnings before extraordinary items of $86.9 million for
the second quarter of 1997 compared to net earnings of $66.6 million for the
second quarter of 1996, an increase of $20.3 million, or 30.5%. The second
quarter of 1997 includes amounts relating to: (1) the recently acquired AVIR
operations (see Note 1 to the financial statements) and (2) certain assets of
Anchor Glass Container Corporation acquired on February 5, 1997 ("Anchor
Assets"). Consolidated operating profit for the second quarter of 1997 was
$222.7 million, an increase of $43.7 million, or 24.4%, compared to the same
period in 1996. The increase is principally attributable to higher operating
profit for both the Glass Containers segment and the Plastics and Closures
segment. Net earnings of $2.4 million for the second quarter of 1997 reflect
$84.5 million of extraordinary charges from the early extinguishment of debt.
Capsule segment results (in millions of dollars) for the second quarter of
1997 and 1996 were as follows:
- ----------------------------------------------------------------------------
Net sales
(Unaffiliated customers) Operating Profit
- ----------------------------------------------------------------------------
1997 1996 1997 1996
-------- -------- -------- --------
Glass Containers $ 931.1 $ 697.1 $ 165.0 $ 130.5
Plastics and Closures 293.0 266.1 57.5 49.1
Eliminations and other
retained costs .4 .5 .2 (.6)
- ----------------------------------------------------------------------------
Consolidated total $1,224.5 $ 963.7 $ 222.7 $ 179.0
============================================================================
Consolidated net sales for the second quarter of 1997 increased $260.8
million, or 27.1%, over the prior year. Net sales of the Glass Containers
segment increased $234.0 million, or 33.6%, from 1996. The combined U.S.
dollar sales of the segment's foreign affiliates increased over the prior
year, reflecting the recent acquisition of AVIR (which contributed approxi-
mately $150 million to second quarter 1997 U.S. dollar sales), improved
pricing in Venezuela, and increased unit shipments in Colombia and several
other countries. Domestically, glass container unit volume increased over
prior year, reflecting additional business gained through the acquisition of
the Anchor Assets and higher shipments to U. S. brewers. Net sales of the
Plastics and Closures segment increased $26.9 million, or 10.1%, over 1996.
Higher shipments of plastic containers for personal care items such as hair
care, skin care, and body wash products contributed to the increase.
Consolidated operating profit for the second quarter of 1997 increased $43.7
million, or 24.4%, to $222.7 million from second quarter 1996 operating profit
of $179.0 million. The operating profit of the Glass Containers segment
increased $34.5 million to $165.0 million, compared to $130.5 million in the
second quarter of 1996. The combined U.S. dollar operating profit of the
20
<PAGE>
segment's foreign affiliates increased from the second quarter of 1996. AVIR
contributed approximately $21 million to second quarter 1997 U.S. dollar
operating profit. Improved results at most of the segment's affiliates,
particularly those affiliates located in Brazil, Venezuela and Finland also
contributed to the increase. Domestically, operating profit of the Glass
Containers segment decreased slightly from the second quarter of 1996.
Integration costs and related acquisition effects in connection with the
acquisition of the Anchor Assets adversely affected operating profit in the
second quarter of 1997. The operating profit of the Plastics and Closures
segment increased $8.4 million, or 17.1%, compared to the second quarter of
1996. The increase resulted from higher unit shipments in most businesses,
particularly plastic containers for personal care items. Other retained costs
for the second quarter of 1997 were lower principally due to higher net
financial services income.
First Six Months 1997 compared with First Six Months 1996
For the first six months of 1997, the Company recorded earnings before
extraordinary items of $141.5 million compared to net earnings of $106.2
million for the first six months of 1996. Excluding the effects of the 1997
unusual items discussed below, the Company's first six months of 1997 earnings
before extraordinary items of $133.9 million increased $27.7 million, or
26.1%, over first six months of 1996 net earnings of $106.2 million. The
first six months of 1997 includes amounts relating to: (1) the recently
acquired AVIR operations and (2) the Anchor Assets acquired on February 5,
1997. Consolidated segment operating profit, excluding the 1997 unusual
items, was $374.2 million for the first six months of 1997, an increase of
$59.1 million, or 18.8%, compared to the same 1996 period. The increase is
attributable to higher operating profit for both the Glass Containers segment
and the Plastics and Closures segment, along with lower retained costs.
Interest expense, net of interest income, increased $16.5 million due in part
to debt incurred or assumed in connection with acquisitions. The Company's
estimated effective tax rate, excluding the effect of the Kimble Glass gain
discussed below, was 34.2% for the first six months of 1997, compared with
34.8% estimated for the first half of 1996 and the actual rate of 32.4% for
the full year 1996. Net earnings of $57.0 million for the first six months of
1997 reflect $84.5 million of extraordinary charges from the early extinguish-
ment of debt.
21
<PAGE>
Capsule segment results (in millions of dollars) for the first six months of
1997 and 1996 were as follows:
- ----------------------------------------------------------------------------
Net sales
(Unaffiliated customers) Operating Profit
- ----------------------------------------------------------------------------
1997 1996 1997 1996
-------- -------- -------- --------
Glass Containers $1,706.7 $1,338.9 $ 266.1 $ 229.2
Plastics and Closures 573.4 529.7 109.2 92.9
Eliminations and other
retained costs (a) .7 .9 1.1 (7.0)
- ----------------------------------------------------------------------------
Consolidated total $2,280.8 $1,869.5 $ 376.4 $ 315.1
============================================================================
(a) Operating profit for 1997 includes: (1) a gain of $16.3 million on the
sale of the remaining 49% interest in Kimble Glass, and (2) charges of
$14.1 million principally for the estimated cost of guaranteed lease
obligations of a previously divested business. These items were recorded
in the first quarter of 1997.
Consolidated net sales for the first six months of 1997 increased $411.3
million, or 22.0%, over the prior year. Net sales of the Glass Containers
segment increased $367.8 million, or 27.5%, over 1996. The combined U.S.
dollar sales of the segment's foreign affiliates increased over the prior
year, reflecting the recent acquisition of AVIR (which contributed approxi-
mately $240 million to first six months 1997 U.S. dollar sales), improved
pricing in Venezuela, and increased unit shipments at several other
affiliates, particularly those affiliates located in Colombia and the United
Kingdom. Domestically, the increase in glass container unit shipments to U.S.
brewers more than offset lower shipments of food containers. The net increase
in domestic unit shipments was principally the result of additional business
gained through the acquisition of the Anchor Assets. Net sales of the
Plastics and Closures segment increased $43.7 million, or 8.2%, over 1996.
Higher shipments of plastic containers for personal care items such as hair
care, skin care, and body wash products along with increased demand for
prescription containers contributed to the increase.
Consolidated operating profit for the first six months of 1997, excluding the
1997 unusual items, increased $59.1 million, or 18.8%, to $374.2 million from
first six months 1996 operating profit of $315.1 million. The operating
profit of the Glass Containers segment increased $36.9 million to $266.1
million, compared to $229.2 million in the first six months of 1996. The
combined U.S. dollar operating profit of the segment's foreign affiliates
increased from the first six months of 1996. AVIR contributed approximately
$33 million to first six months 1997 U.S. dollar operating profit. Improved
results at the segment's affiliates in Venezuela, Poland, and several other
countries more than offset the effects of reduced export shipments from
Hungary and soft market conditions in Brazil, which adversely affected results
of affiliates located in those countries. Domestically, operating profit of
the Glass Containers segment was about equal to that of the first six months
of 1996. The operating profit of the Plastics and Closures segment increased
22
<PAGE>
$16.3 million, or 17.5%, compared to the first six months of 1996. The
increase resulted from improved manufacturing performance and higher unit
shipments in most businesses, particularly plastic containers for personal
care items. Other retained costs, excluding the 1997 unusual items discussed
below, were $1.1 million for the first six months of 1997 compared to $7.0
million for the first six months of 1996, reflecting lower employee benefit
costs and higher net financial services income.
The first six months 1997 results include the following unusual items: (1) a
gain of $16.3 million ($16.3 million after tax) on the sale of the Company's
remaining 49% interest in Kimble Glass, and (2) charges of $14.1 million ($8.7
million after tax) principally for the estimated cost of guaranteed lease
obligations of a previously divested business. These items were recorded in
the first quarter of 1997.
Capital Resources and Liquidity
The Company's total debt at June 30, 1997 was $3.30 billion compared to $3.39
billion at December 31, 1996 and $2.90 billion at June 30, 1996.
At June 30, 1997, the Company had available credit totaling $3.0 billion under
its May 15, 1997 Bank Credit Agreement, expiring in December 2001, of which
$1.26 billion had not been utilized. At December 31, 1996, total commitments
under the Company's previous credit facility were $1.8 billion of which $628.7
million of credit had not been utilized. The increased utilization of the
Bank Credit Agreement resulted in large part from implementation of the
Refinancing Plan and expenditures related to the acquisition of the Anchor
Assets. Utilization was also higher as a result of borrowings for capital
expenditures and asbestos-related payments, partially offset by proceeds
received from the sale of the Company's remaining 49% in Kimble Glass and cash
provided by operations, including cash received for settlement of a portion of
the insurance asset for asbestos-related costs. Cash provided by operating
activities was $116.8 million for the first six months of 1997 compared to
$123.7 million in 1996.
During the second quarter of 1997, the Company filed a registration statement
with the Securities and Exchange Commission for the offering of up to $2.5
billion of debt securities, common stock, or both from time to time as market
conditions permit. On May 16, 1997, the Company completed offerings of:
(1) 14,750,000 shares of common stock at a public offering price of $28.50 per
share; (2) $300 million aggregate principal amount of 7.85% Senior Notes due
May 15, 2004; and (3) $300 million aggregate principal amount of 8.10% Senior
Notes due May 15, 2007. On May 23, 1997, the Company used the proceeds from
these offerings in addition to borrowings under the Company's Bank Credit
Agreement to redeem $957.4 million aggregate principal amount of the 11%
Senior Debentures due 2003, which represents more than 95% of the aggregate
principal amount of these securities outstanding, pursuant to a tender offer
and consent solicitation for such securities. Total consideration for each
$1,000 principal amount of the 11% Senior Debentures redeemed on May 23, 1997
was $1,115.60, which included a $20 payment for consents to amendments to the
related indenture. On June 13, 1997, the Company issued an additional
2,186,100 shares of common stock pursuant to the partial exercise of the
23
<PAGE>
underwriters' overallotment option. On June 16, 1997, the Company redeemed
all $250 million aggregate principal amount of the 10.25% Senior Subordinated
Notes due 1999, at 100% of principal amount, and all $150 million aggregate
principal amount of the 10.50% Senior Subordinated Notes due 2002, at 105.25%
of principal amount. The June 16, 1997, redemptions were funded by proceeds
received from the June 13, 1997, issuance of common stock and borrowings under
the Company's Bank Credit Agreement. On August 1, 1997, the Company redeemed
all $250 million aggregate principal amount of the 10% Senior Subordinated
Notes due 2002, at 105% of principal amount. On June 20, 1997, the Company
announced that on August 15, 1997, all $200 million aggregate principal amount
of the 9.75% Senior Subordinated Notes due 2004, will be redeemed at 104.875%
of principal amount. These redemptions were or will be funded by borrowings
under the Company's Bank Credit Agreement. The Refinancing Plan also contem-
plates the redemption, at the Company's option, of all $100 million aggregate
principal amount of the 9.95% Senior Subordinated Notes due 2004 when and as
they become redeemable on October 15, 1997, at 104.975% of principal amount.
The results of all the above refinancing actions include both a reduction of
indebtedness and lower overall interest rates. The favorable effect on annual
interest expense amounts to approximately $80 million, based upon 1996 pro
forma calculations.
The Company anticipates that cash flow from its operations and from
utilization of credit available through December 2001 under the Bank Credit
Agreement will be sufficient to fund its operating and seasonal working
capital needs, debt service including the redemptions discussed above and
relatively modest scheduled principal payments, and other obligations. The
Company faces additional demands upon its liquidity for asbestos-related
payments. Based on the Company's expectations regarding favorable trends
which should lower its aggregate payments for lawsuits and claims and its
expectation of the collection of its insurance coverage and reimbursement for
such lawsuits, and also based on the Company's expected operating cash flow,
the Company believes that the payment of any deferred amounts of previously
settled or otherwise determined lawsuits and claims, and the resolution of
presently pending and anticipated future lawsuits and claims associated with
asbestos, will not have a material adverse effect upon the Company's liquidity
on a short-term or long-term basis.
24
<PAGE>
PART II -- OTHER INFORMATION
Item 1. Legal Proceedings.
(a) Contingencies. Note 9 to the Condensed Consolidated Financial
Statements, "Contingencies," that is included in Part I of this Report, is
incorporated herein by reference.
Item 2. Changes in Securities.
On May 12, 1997, the Company executed the supplemental indenture reflecting
amendments to the indenture governing the 11% Senior Debentures. The
amendments eliminate the indenture's restrictive covenants and allow for the
release of the guarantees and collateral securing the 11% Senior Debentures.
As a result, the 11% Senior Debentures rank pari passu with all other senior
obligations of the Company, including the Bank Credit Agreement and the
recently issued 7.85% Senior Notes due 2004 and 8.10% Senior Notes due 2007.
Item 4. Submission of Matters to a Vote of Security Holders.
The Annual Meeting of Owens-Illinois' share owners was held on May 14, 1997.
Following are the results of the matters voted upon by the share owners:
(1) Each of the three nominees for a three-year term on the Company's Board
of Directors was elected as follows:
Broker
Name For Withheld Abstention Non-Votes
- -------------------- ----------- --------- ---------- ---------
Joseph H. Lemieux 112,799,766 407,445 - -
Henry R. Kravis 112,617,597 589,614 - -
Michael W. Michelson 112,795,893 411,318 - -
(2) The Second Amendment to Second Amended and Restated Stock Option Plan for
Key Employees of Owens-Illinois, Inc. was approved as follows:
Broker
For Against Abstention Non-Votes
----------- --------- ---------- ---------
106,685,757 2,271,121 189,022 4,061,311
(3) The 1997 Equity Participation Plan of Owens-Illinois, Inc. was approved
as follows:
Broker
For Against Abstention Non-Votes
---------- --------- ---------- ---------
99,539,205 9,420,299 186,396 4,061,311
25
<PAGE>
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits:
Exhibit 4.1 Amended and Restated Credit Agreement, dated as
of May 15, 1997, among Owens-Illinois, Inc., the
lenders listed therein, including those named as
lead managers and co-agents, The Bank of Nova
Scotia, NationsBank, N.A., Bank of America
National Trust and Savings Association, and
Bankers Trust Company including exhibits thereto.
Exhibit 4.2 Supplemental Indenture, dated as of May 9, 1997,
between Owens-Illinois, Inc., the Guarantors
named therein, and The Bank of New York related
to the 11% Senior Debentures.
Exhibit 10.1 Second Amendment to Second Amended and Restated
Stock Option Plan for Key Employees of Owens-
Illinois, Inc.
Exhibit 10.2 Second Amendment to Amended and Restated Owens-
Illinois, Inc. Senior Management Incentive Plan.
Exhibit 10.3 Third Amendment to Amended and Restated Owens-
Illinois, Inc. Senior Management Incentive Plan.
Exhibit 10.4 First Amendment to Amended and Restated Owens-
Illinois, Inc. Performance Award Plan.
Exhibit 10.5 1997 Equity Participation Plan of Owens-Illinois,
Inc.
Exhibit 12 Computation of Ratio of Earnings to Fixed
Charges.
Exhibit 23 Consent of McCarter & English.
Exhibit 27 Financial Data Schedule.
(b) Reports on Form 8-K:
(1) On April 17, 1997, the Registrants filed a Form 8-K which
included a press release dated April 17, 1997, announcing
first quarter 1997 results.
(2) On April 24, 1997, the Registrants filed a Form 8-K which
included a press release dated April 24, 1997, announcing
a refinancing plan, and the filing with the Securities and
Exchange Commission of prospectus supplements for
offerings of common stock and senior notes.
26
<PAGE>
(3) On May 9, 1997, the Registrants filed a Form 8-K/A,
Amendment No. 2, amending the Current Report on Form 8-K
dated December 16, 1996 (filed on December 31, 1996).
Such Amendment included the information required under
Items 7(a), 7(b) and 7(c) with regard to audited financial
statements of Avir S.p.A. as of and for the year ended
December 31, 1996, following the availability of such
financial statements.
(4) On May 14, 1997, the Registrants filed a Form 8-K which
included two press releases dated May 13, 1997,
announcing: (a) the public offering of 14,750,000 shares
of common stock at a price of $28.50 per share, and
(b) the public offering of $300 million principal amount
of 7.85% Senior Notes due May 15, 2004, and $300 million
principal amount of 8.10% Senior Notes due May 15, 2007.
(5) On May 16, 1997, the Registrants filed a Form 8-K which
included a press release dated May 16, 1997, announcing
the consummation of: (a) the previously announced common
stock offering and senior note offerings; (b) amendments
to the bank credit facility; and (c) release of collateral
securing the credit facility and the 11% senior debentures
due 2003. In addition, the press release announced the
call for redemption on June 16, 1997, of an aggregate of
$400 million principal amount of senior subordinated
notes.
(6) On May 21, 1997, the Registrants filed a Form 8-K which
included the following documents:
(a) Underwriting Agreement, dated as of May 13, 1997,
among Owens-Illinois, Inc., Morgan Stanley & Co.
Incorporated, BT Securities Corporation, Credit
Suisse First Boston Corporation, Nationsbanc Capital
markets, Inc. and Salomon Brothers Inc.
(b) Underwriting Agreement, dated as of May 13, 1997,
among Owens-Illinois, Inc., Salomon Brothers Inc.,
Goldman, Sachs & Co., Lehman Brothers Inc., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Morgan
Stanley & Co. Incorporated and PaineWebber
Incorporated.
(c) Underwriting Agreement, dated as of May 13, 1997,
among Owens-Illinois, Inc., Salomon Brothers
International Limited, Goldman Sachs International,
Lehman Brothers International (Europe), Merrill Lynch
International, Morgan Stanley & Co. International
Limited and PaineWebber International (U.K.) Ltd.
27
<PAGE>
(d) Indenture dated as of May 15, 1997, between Owens-
Illinois, Inc. and The Bank of New York, as Trustee.
(e) Officers' Certificate, dated May 16, 1997,
establishing the terms of the 7.85% Senior Notes due
2004.
(f) Officers' Certificate, dated May 16, 1997,
establishing the terms of the 8.10% Senior Notes due
2007.
(g) Form of 7.85% Senior note due 2004.
(h) Form of 8.10% Senior Note due 2007.
28
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrants have duly caused this report to be signed on their behalf by the
undersigned thereunto duly authorized.
OWENS-ILLINOIS, INC.
Date August 14, 1997 By /s/ Lee A. Wesselmann
--------------- --------------------------------------------
Lee A. Wesselmann, Senior Vice President and
Chief Financial Officer (Principal Financial
Officer)
OWENS-ILLINOIS GROUP, INC.
Date August 14, 1997 By /s/ Lee A. Wesselmann
--------------- --------------------------------------------
Lee A. Wesselmann, Senior Vice President and
Chief Financial Officer (Principal Financial
Officer)
29
<PAGE>
INDEX TO EXHIBITS
Exhibit
4.1 Amended and Restated Credit Agreement, dated as of May 15, 1997,
among Owens-Illinois, Inc., the Lenders listed therein, including
those named as lead managers and co-agents, The Bank of Nova
Scotia, NationsBank, N.A., Bank of America National Trust and
Savings Association, and Bankers Trust Company including exhibits
thereto.
4.2 Supplemental Indenture, dated as of May 9, 1997, between Owens-
Illinois, Inc., the Guarantors named therein, and The Bank of New
York related to the 11% Senior Debentures.
10.1 Second Amendment to Second Amended and Restated Stock Option Plan
for Key Employees of Owens-Illinois, Inc.
10.2 Second Amendment to Amended and Restated Owens-Illinois, Inc.
Senior Management Incentive Plan.
10.3 Third Amendment to Amended and Restated Owens-Illinois, Inc.
Senior Management Incentive Plan.
10.4 First Amendment to Amended and Restated Owens-Illinois, Inc.
Performance Award Plan.
10.5 1997 Equity Participation Plan of Owens-Illinois, Inc.
12 Computation of Ratio of Earnings to Fixed Charges.
23 Consent of McCarter & English.
27 Financial Data Schedule.
30
<PAGE>
Exhibit 4.1
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
May 15, 1997
among
OWENS-ILLINOIS, INC.,
THE LENDERS LISTED HEREIN,
BANQUE NATIONALE DE PARIS, BANQUE PARIBAS, CAISSE NATIONALE DE
CREDIT AGRICOLE, COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE, DAI-ICHI KANGYO BANK, LIMITED, FLEET NATIONAL BANK,
MELLON BANK, N.A., NATIONAL CITY BANK, and THE SANWA BANK, LIMITED
as Lead Managers,
ABN AMRO BANK N.V., THE BANK OF NEW YORK, CIBC, INC., CREDIT
LYONNAIS CHICAGO BRANCH, THE FIRST NATIONAL BANK OF CHICAGO, THE
FUJI BANK, LIMITED, THE INDUSTRIAL BANK OF JAPAN, LIMITED, KEYBANK
NATIONAL ASSOCIATION, THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
ROYAL BANK OF CANADA, THE SAKURA BANK, LIMITED, SOCIETE
GENERALE, THE SUMITOMO BANK, LIMITED, and TORONTO DOMINION
(TEXAS), INC.
as Co-Agents,
THE BANK OF NOVA SCOTIA and NATIONSBANK, N.A.,
as Co-Documentation Agents,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Syndication Agent,
and
BANKERS TRUST COMPANY,
as Administrative Agent
<PAGE>
OWENS-ILLINOIS, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 15, 1997
TABLE OF CONTENTS
Section Heading Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1
DEFINITIONS
1.1 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . .2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calulations
Under Agreement; Change in Accounting Principles. . . . . . . . . 22
1.3 Other Definitional Provisions; Anniversaries. . . . . . . . . . . 22
SECTION 2
AMOUNT AND TERMS OF REVOLVING LOAN COMMITMENTS AND LOANS;
NOTES
2.1 Revolving Loans; Overdraft Account. . . . . . . . . . . . . . . . 22
2.2 Interest on the Revolving Loans . . . . . . . . . . . . . . . . . 28
2.3 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.4 Prepayments and Payments; Reductions in Revolving Loan
Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.5 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.6 Special Provisions Governing Eurodollar Rate Loans. . . . . . . . 34
2.7 Capital Adequacy Adjustment; Increased Costs; Taxes . . . . . . . 38
2.8 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . 42
2.9 Bid Rate Loans. . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 3
CONDITIONS TO EFFECTIVENESS;
CONDITIONS TO LOANS AND LETTERS OF CREDIT
3.1 Conditions to Effectiveness . . . . . . . . . . . . . . . . . . . 54
3.2 Conditions to All Loans . . . . . . . . . . . . . . . . . . . . . 57
3.3 Conditions to All Letters of Credit . . . . . . . . . . . . . . . 58
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SECTION 4
COMPANY'S REPRESENTATIONS AND WARRANTIES
4.1 Organization, Powers, Good Standing, Business and Subsidiaries. . 58
4.2 Authorization of Borrowing, Etc . . . . . . . . . . . . . . . . . 59
4.3 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . 60
4.4 No Adverse Material Change; No Stock Payments . . . . . . . . . . 60
4.5 Litigation; Adverse Facts . . . . . . . . . . . . . . . . . . . . 60
4.6 Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 61
4.7 Governmental Regulation . . . . . . . . . . . . . . . . . . . . . 61
4.8 Securities Activities . . . . . . . . . . . . . . . . . . . . . . 61
4.9 Employee Benefit Plans. . . . . . . . . . . . . . . . . . . . . . 61
4.10 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
4.11 Environmental Protection. . . . . . . . . . . . . . . . . . . . . 62
SECTION 5
COMPANY'S AFFIRMATIVE COVENANTS
5.1 Financial Statements and Other Reports. . . . . . . . . . . . . . 63
5.2 Corporate Existence, Etc. . . . . . . . . . . . . . . . . . . . . 66
5.3 Payment of Taxes and Claims; Tax Consolidation. . . . . . . . . . 66
5.4 Maintenance of Properties; Insurance. . . . . . . . . . . . . . . 66
5.5 Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
5.6 Compliance with Laws, Etc.. . . . . . . . . . . . . . . . . . . . 67
5.7 Securities Activities . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 6
COMPANY'S NEGATIVE COVENANTS
6.1 Liens and Related Matters . . . . . . . . . . . . . . . . . . . . 67
6.2 Investments; Joint Ventures . . . . . . . . . . . . . . . . . . . 69
6.3 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . 70
6.4 Restricted Junior Payments. . . . . . . . . . . . . . . . . . . . 70
6.5 Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . 70
6.6 Restriction on Fundamental Changes. . . . . . . . . . . . . . . . 71
6.7 Transactions with Shareholders and Affiliates . . . . . . . . . . 72
6.8 Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . 72
6.9 Amendments or Waivers of Certain Documents. . . . . . . . . . . . 72
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SECTION 7
EVENTS OF DEFAULT
7.1 Failure to Make Payments When Due . . . . . . . . . . . . . . . . 72
7.2 Default in Other Agreements . . . . . . . . . . . . . . . . . . . 73
7.3 Breach of Certain Covenants . . . . . . . . . . . . . . . . . . . 73
7.4 Breach of Warranty. . . . . . . . . . . . . . . . . . . . . . . . 73
7.5 Other Defaults under Agreement or Loan Documents. . . . . . . . . 73
7.6 Involuntary Bankruptcy; Appointment of Receiver, Etc. . . . . . . 73
7.7 Voluntary Bankruptcy; Appointment of Receiver, Etc. . . . . . . . 74
7.8 Judgments and Attachments . . . . . . . . . . . . . . . . . . . . 74
7.9 Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7.10 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . 75
7.11 Employee Benefit Plans. . . . . . . . . . . . . . . . . . . . . . 75
SECTION 8
AGENTS
8.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
8.2 Powers; General Immunity. . . . . . . . . . . . . . . . . . . . . 77
8.3 Representations and Warranties; No Responsibility for Appraisal of
Creditworthiness. . . . . . . . . . . . . . . . . . . . . . . . . 78
8.4 Right to Indemnity. . . . . . . . . . . . . . . . . . . . . . . . 78
8.5 Registered Persons Treated as Owners. . . . . . . . . . . . . . . 79
8.6 Successor Administrative Agent and Overdraft Account Provider . . 79
SECTION 9
MISCELLANEOUS
9.1 Representation of Lenders . . . . . . . . . . . . . . . . . . . . 80
9.2 Assignments and Participations in Loans, Notes and
Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . 80
9.3 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
9.4 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
9.5 Set Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
9.6 Ratable Sharing . . . . . . . . . . . . . . . . . . . . . . . . . 84
9.7 Amendments and Waivers. . . . . . . . . . . . . . . . . . . . . . 85
9.8 Independence of Covenants . . . . . . . . . . . . . . . . . . . . 88
9.9 Change in Accounting Principles, Fiscal Year or Tax Laws. . . . . 88
9.10 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
9.11 Survival of Warranties and Certain Agreements . . . . . . . . . . 89
9.12 Failure or Indulgence Not Waiver; Remedies Cumulative . . . . . . 89
9.13 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . 89
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9.14 Obligations Several; Independent Nature of Lenders' Rights . . . 89
9.15 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
9.16 Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . 90
9.17 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . 90
9.18 Consent to Jurisdiction and Service of Process. . . . . . . . . . 90
9.19 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . . . 91
9.20 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . 91
9.21 Counterparts; Effectiveness . . . . . . . . . . . . . . . . . . . 91
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EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
III FORM OF NOTICE OF CONVERSION/CONTINUATION
IV FORM OF BID RATE LOAN QUOTE REQUEST
V FORM OF INVITATION FOR BID RATE LOAN QUOTES
VI FORM OF BID RATE LOAN QUOTE
VII FORM OF REVOLVING NOTE
VIII FORM OF BID RATE LOAN NOTE
IX FORM OF OVERDRAFT AGREEMENT
X FORM OF COMPLIANCE CERTIFICATE
XI FORM OF ASSIGNMENT AND ACCEPTANCE
XII FORM OF OPINION OF LATHAM & WATKINS
XIII FORM OF OPINION OF ASSOCIATE GENERAL COUNSEL FOR
COMPANY
XIV FORM OF OPINION OF O'MELVENY & MYERS
V
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Schedules
A REVOLVING LOAN COMMITMENTS; PRO RATA
SHARES
B EXISTING LIENS
C EXISTING INVESTMENTS
D REPORTING UNITS
E EXISTING LETTERS OF CREDIT
vi
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OWENS-ILLINOIS, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 15, 1997
This AMENDED AND RESTATED CREDIT AGREEMENT is dated as of May 15,
1997 (this "Agreement"), and entered into by and among OWENS-ILLINOIS, INC., a
Delaware corporation ("Company"), THE LENDERS LISTED ON THE SIGNATURE PAGES
HEREOF (individually a "Lender" and collectively, "Lenders"), BANQUE NATIONALE
DE PARIS, BANQUE PARIBAS, CAISSE NATIONALE DE CREDIT AGRICOLE, COMPAGNIE
FINANCIERE DE CIC ET DE L'UNION EUROPEENNE, DAI-ICHI KANGYO BANK, LIMITED,
FLEET NATIONAL BANK, MELLON BANK, N.A., NATIONAL CITY BANK, and THE SANWA
BANK, LIMITED, as Lead Managers for Lenders (individually referred to herein
as a "Lead Manager" and collectively as "Lead Managers"), ABN AMRO BANK N.V.,
THE BANK OF NEW YORK, CIBC, INC., CREDIT LYONNAIS CHICAGO BRANCH, THE FIRST
NATIONAL BANK OF CHICAGO, THE FUJI BANK, LIMITED, THE INDUSTRIAL BANK OF
JAPAN, LIMITED, KEYBANK NATIONAL ASSOCIATION, THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., ROYAL BANK OF CANADA, THE SAKURA BANK, LIMITED, SOCIETE GENERALE,
THE SUMITOMO BANK, LIMITED, and TORONTO DOMINION (TEXAS), INC., as Co-Agents
for Lenders (individually referred to herein as a "Co-Agent" and collectively
as "Co-Agents"), THE BANK OF NOVA SCOTIA ("ScotiaBank") and NATIONSBANK, N.A.
("NationsBank"), as Co-Documentation Agents for Lenders (individually referred
to herein as a "Co-Documentation Agent" and collectively as "Co-Documentation
Agents"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"), as
Syndication Agent for Lenders ("Syndication Agent"), and BANKERS TRUST COMPANY
("Bankers"), as Administrative Agent for Lenders ("Administrative Agent";
together with Co-Documentation Agents and Syndication Agent, "Agents").
RECITALS
WHEREAS, pursuant to that certain Refinancing Credit Agreement
dated as of November 19, 1996 (the "Existing Credit Agreement") by and among
Company, the lenders that are parties thereto ("Existing Lenders"), the lead
managers and co-agents that are parties thereto, BofA, as documentation agent,
and Bankers, as administrative agent, Existing Lenders have made
$1,800,000,000 of credit facilities available to Company in accordance with
the terms thereof; and
WHEREAS, pursuant to the Existing Lender Consent, Existing Lenders
have agreed, among other things, to (i) release all of Company's present and
future Subsidiaries (this and other capitalized terms used in these recitals
without definition being used as defined in subsection 1.1) from all
obligations under the O-I Subsidiary Guaranty (as such terms are defined in
the Existing Credit Agreement) and (ii) release all Liens under the Pledge
Agreements (as such term is defined in the Existing Credit Agreement), in each
case subject to the satisfaction of certain conditions that will be satisfied
concurrently with the effectiveness of this Agreement; and
WHEREAS, Company desires that Lenders make an additional $1,200,000,000
of credit facilities available to Company, all or any portion of the proceeds
of which, together with proceeds of the credit facilities under the Existing
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Credit Agreement, the net proceeds from the Equity Offering and the net
proceeds from the issuance of the New Senior Notes, if any, will be used by
Company to finance the Senior Debenture Tender Offer and may be used by
Company to finance the Subordinated Note Redemption; and
WHEREAS, Lenders have agreed to amend and restate the Existing Credit
Agreement in its entirety for the purpose of providing such additional credit
facilities to Company and making certain other changes to the provisions of
the Existing Credit Agreement on the terms and conditions set forth herein:
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Lenders, Co-Agents and
Agents hereby agree to amend and restate the Existing Credit Agreement in its
entirety as follows:
SECTION 1
DEFINITIONS
1.1 Certain Defined Terms
The following terms used in this Agreement shall have the
following meanings:
"Adjusted Eurodollar Rate" means, for any Interest Rate
Determination Date with respect to a Eurodollar Rate Loan, the rate obtained
by dividing (i) the arithmetic average (rounded upward to the nearest 1/100 of
one percent) of the offered quotation, if any, to first class banks in
the interbank Eurodollar market by each of the Reference Lenders for U.S.
dollar deposits of amounts in same day funds comparable to the principal
amount of the Eurodollar Rate Loan of that Reference Lender for which the
Adjusted Eurodollar Rate is then being determined with maturities comparable
to the Interest Period for which such Adjusted Eurodollar Rate will apply as
of approximately 10:00 A.M. (New York time) on such Interest Rate
Determination Date by (ii) a percentage equal to 100% minus the stated maximum
rate of all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) applicable to any member
bank of the Federal Reserve System in respect of "Eurocurrency liabilities" as
defined in Regulation D (or any successor category of liabilities under
Regulation D); provided that if any Reference Lender fails to provide
Administrative Agent with its aforementioned quotation then the Adjusted
Eurodollar Rate shall be determined based on the quotation(s) provided to
Administrative Agent by the other Reference Lender(s).
"Administrative Agent" has the meaning assigned to that term in
the introduction to this Agreement.
"Affected Lender" means any Lender affected by any of the events
described in subsection 2.6B or 2.6C.
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control
with, that Person. For the purposes of this definition, "control" (including
with correlative meanings, the terms "controlling", "controlled by" and "under
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common control with"), as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of
voting securities or by contract or otherwise.
"Agents" has the meaning assigned to that term in the introduction
to this Agreement.
"Aggregate Amounts Due" has the meaning assigned to that term in
subsection 9.6.
"Agreement" means this Amended and Restated Credit Agreement dated
as of May 15, 1997, as it may be amended, supplemented or otherwise modified
from time to time.
"Applicable Eurodollar Margin" means, as at any date of
determination, a rate per annum equal to the percentage set forth below
opposite the Applicable Leverage Ratio in effect as of such date of
determination, any change in the Applicable Eurodollar Margin to be effective
on the date of any corresponding change in the Applicable Leverage Ratio:
Applicable
Applicable Leverage Ratio Eurodollar Margin
4.00:1.00 or greater 0.625%
3.50:1.00 or greater, but
less than 4.00:1.00 0.50%
3.00:1.00 or greater, but
less than 3.50:1.00 0.425%
2.50:1.00 or greater, but
less than 3.00:1.00 0.325%
2.00:1.00 or greater, but
less than 2.50:1.00 0.30%
less than 2.00:1.00 0.275%
"Applicable Facility Fee Percentage" means, as at any date of
determination, a rate per annum equal to the percentage set forth below
opposite the Applicable Leverage Ratio in effect as of such date of
determination, any change in the Applicable Facility Fee Percentage to be
effective on the date of any corresponding change in the Applicable Leverage
Ratio:
Applicable Leverage Ratio Applicable Facility Fee Percentage
4.00:1.00 or greater 0.375%
3.50:1.00 or greater, but
less than 4.00:1.00 0.25%
3.00:1.00 or greater, but
less than 3.50:1.00 0.20%
2.50:1.00 or greater, but
less than 3.00:1.00 0.175%
2.00:1.00 or greater, but
less than 2.50:1.00 0.15%
less than 2.00:1.00 0.125%
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"Applicable Leverage Ratio" means, with respect to any date of
determination, the Consolidated Leverage Ratio set forth in the Effective
Pricing Certificate (as defined below) in respect of the Pricing Period (as
defined below) in which such date of determination occurs; provided that the
Applicable Leverage Ratio for the period from the Effective Date to but
excluding the date of commencement of the first Pricing Period shall be deemed
to be the "Applicable Leverage Ratio" in effect on the Effective Date under
the Existing Credit Agreement. For purposes of this definition, (i) "Pricing
Certificate" means an Officers' Certificate of Company delivered (a) in the
case of any of the first three Fiscal Quarters of any Fiscal Year, within 45
days after the end of such Fiscal Quarter, and (b) in the case of the fourth
Fiscal Quarter of any Fiscal Year, within 90 days after the end of such Fiscal
Quarter, in each case certifying as to the Consolidated Leverage Ratio as of
the last day of such Fiscal Quarter and setting forth the calculation of such
Consolidated Leverage Ratio in reasonable detail, and (ii) "Pricing Period"
means each period commencing on the first Business Day after the delivery (or
deemed delivery as provided below) to Administrative Agent of a Pricing
Certificate (the "Effective Pricing Certificate" in respect of such Pricing
Period) and ending on the first Business Day after the next Pricing
Certificate is delivered (or deemed to be delivered as provided below) to
Administrative Agent; provided that, in the event Company fails to deliver to
Administrative Agent a Pricing Certificate on or before the 45th day after the
end of any of the first three Fiscal Quarters of any Fiscal Year or the 90th
day after the end of the fourth Fiscal Quarter of any Fiscal Year (the "Cutoff
Date" with respect to any such Fiscal Quarter), Company shall be deemed to
have delivered to Administrative Agent, on the Cutoff Date, a Pricing
Certificate which establishes that the Consolidated Leverage Ratio as of the
last day of such Fiscal Quarter was 4.00:1.00.
"Asset Sale" means the sale, transfer or other disposition by
Company or any of its Subsidiaries to any Person other than Company or any of
its Subsidiaries of (i) any of the stock of any of Company's Subsidiaries
(including any Foreign Subsidiary), (ii) substantially all of the assets of
any geographic or other division or line of business of Company or any of its
Subsidiaries (including any Foreign Subsidiary), or (iii) any other assets
(including, without limitation, any assets which do not constitute
substantially all of the assets of any geographic or other division or line of
business but excluding (a) any assets manufactured, constructed or otherwise
produced or purchased for sale to others in the ordinary course of business
consistent with the past practices of Company and its Subsidiaries, (b) any
accounts receivable sold by Company or any of its Subsidiaries in accordance
with subsection 6.6(v), and (c) for purposes of this clause (iii) only, the
assets of the Foreign Subsidiaries) of Company or any of its Subsidiaries
having a value in excess of $10,000,000 or more; provided that any asset sale
described in clause (iii) shall be deemed not to be an "Asset Sale" until the
aggregate amount of all such sales by Company and its Subsidiaries occurring
in any Fiscal Year equals or exceeds $100,000,000; provided, further, that any
sale, transfer or other disposition described in clause (i) or (ii) shall be
deemed not to be an "Asset Sale" with respect to any sale, transfer or other
disposition by any Foreign Subsidiary of all or any of the stock of, or all or
any of the assets of, any of its Subsidiaries so long as the proceeds of such
sale, transfer or other disposition remain in the applicable territory of the
United States of America or jurisdiction outside the United States of America
and are used for purposes consistent with the business or operations of such
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Foreign Subsidiary as previously conducted.
"Assignment and Acceptance" means an Assignment and Acceptance, in
substantially the form of Exhibit XI annexed hereto.
"Bankers" has the meaning assigned to that term in the
introduction to this Agreement.
"Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy" as now and hereafter in effect, or any successor
statute.
"Base Rate" means, at any time, the higher of (x) the Prime Rate
or (y) the rate which is 1/2 of 1% in excess of the Federal Funds Effective
Rate.
"Base Rate Loans" means Loans bearing interest at rates determined
by reference to the Base Rate as provided in subsection 2.2A.
"Bid Rate Loans" means Loans made by Lenders to Company pursuant
to subsection 2.9.
"Bid Rate Loan Agent" means Administrative Agent acting in the
capacity of agent with respect to the Bid Rate Loans hereunder.
"Bid Rate Loan Interest Payment Date" means, with respect to any
Bid Rate Loan, the last day of the Bid Rate Loan Interest Period applicable to
such Bid Rate Loan; provided that in the case of a Bid Rate Loan with a Bid
Rate Loan Interest Period of 180 days "Bid Rate Loan Interest Payment Date"
shall also include the 90-day anniversary of the commencement of that Bid
Rate Loan Interest Period.
"Bid Rate Loan Interest Period" means, with respect to any Bid
Rate Loans, the period commencing on the date such Bid Rate Loans are made and
ending on a date 30, 60, 90 or 180 days thereafter, as Company may select as
provided in subsection 2.9B. Notwithstanding the foregoing, (i) if any Bid
Rate Loan Interest Period would otherwise end after the Revolving Loan
Commitment Termination Date, such Bid Rate Loan Interest Period shall end on
the Revolving Loan Commitment Termination Date, (ii) each Bid Rate Loan
Interest Period which would otherwise end on a day which is not a Business Day
shall end on the next succeeding Business Day, and (iii) notwithstanding
clause (i) above, no Bid Rate Loan Interest Period for any Bid Rate Loans
shall have a duration of less than 30 days and, if the Bid Rate Loan Interest
Period for any Bid Rate Loans would otherwise be a shorter period, such Bid
Rate Loans shall not be available hereunder.
"Bid Rate Loan Notes" means the promissory notes of Company,
substantially in the form of Exhibit VIII annexed hereto, issued in favor of
one or more Lenders pursuant to subsection 2.9K to evidence the Bid Rate
Loans.
"Bid Rate Loan Quote" means an offer by a Lender to make Bid Rate
Loans, substantially in the form of Exhibit VI annexed hereto, delivered to
Administrative Agent by such Lender pursuant to subsection 2.9D.
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"Bid Rate Loan Quote Request" means a request by Company to each
Lender to submit Bid Rate Loan Quotes, substantially in the form of Exhibit IV
annexed hereto, delivered by Company to Administrative Agent pursuant to
subsection 2.9B.
"Bid Rate Loan Shortfall Amount" means the amount, if any, by
which the amount of Bid Rate Loans requested in a Bid Rate Loan Quote Request
exceeds the amount equal to (i) the aggregate amount of Bid Rate Loans offered
in any Bid Rate Loan Quotes delivered by Lenders relating to such Bid Rate
Loan Quote Request minus (ii) the amount of Bid Rate Loans so offered which
are rejected in good faith by Company.
"Bid Rate Loan Shortfall Date" means a proposed Funding Date of
Bid Rate Loans in respect of which a Bid Rate Loan Shortfall Amount exists.
"Business Day" means (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the States of New York or Ohio or is a day on
which banking institutions located in such states are authorized or required
by law or other governmental action to close and (ii) with respect to all
notices, determinations, fundings and payments in connection with the Adjusted
Eurodollar Rate, any day which is a Business Day described in clause (i) and
which is also a day for trading by and between banks in Dollar deposits in the
applicable interbank Eurodollar market.
"Capital Lease", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP (subject to subsection 1.2 hereof), is accounted for as a
capital lease on the balance sheet of that Person.
"Cash" means money, currency or a credit balance in a Deposit
Account.
"Cash Equivalents" means (i) marketable direct obligations issued
or unconditionally guarantied by the United States Government or issued by any
agency thereof and (a) backed by the full faith and credit of the United
States or (b) having a rating of at least AAA from S&P or at least Aaa from
Moody's, in each case maturing within one year from the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having the highest rating obtainable
from either S&P or Moody's; (iii) commercial paper maturing no more than one
year from the date of creation thereof and, at the time of acquisition, having
a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any Lender or any commercial bank
organized under the laws of the United States of America or any state thereof
or the District of Columbia having combined capital and surplus of not less
than $250,000,000; (v) Eurodollar time deposits having a maturity of less than
one year purchased directly from any Lender or any Affiliate of any Lender
(whether such deposit is with such Lender or Affiliate or any other Lender);
(vi) repurchase agreements and reverse repurchase agreements with any Lender
or any Affiliate of any Lender relating to marketable direct obligations
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issued or unconditionally guarantied by the United States Government or issued
by any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition
thereof; and (vii) shares of any money market mutual fund that (a) has at
least a majority of its assets invested continuously in the types of
investments referred to in clauses (i), (ii) and (vi) above (without regard to
the requirement in said clause (vi) that the applicable repurchase agreements
or reverse repurchase agreements be entered into with a Lender or an Affiliate
of a Lender), and (b) has net assets of not less than $250,000,000.
"Change of Control" means such time as a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other
than KKR and its Affiliates, becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of more than 35% of the total voting power
of the then outstanding Voting Stock. For purposes of this definition of
"Change of Control", (i) the term "Capital Stock" means any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock of Company and (ii) the term "Voting Stock" means Capital
Stock of any class or kind ordinarily (without regard to the occurrence of any
contingency) having the power to vote for the election of directors of
Company.
"Co-Agent" and "Co-Agents" have the meanings assigned to those
terms in the introduction to this Agreement.
"Co-Documentation Agent" and "Co-Documentation Agents" have the
meanings assigned to those terms in the introduction to this Agreement.
"Commercial Letter of Credit" means any letter of credit or
similar instrument issued for the purpose of providing the primary payment
mechanism in connection with the purchase of any materials, goods or services
by Company or any of its Subsidiaries in the ordinary course of business of
Company or such Subsidiary.
"Commodities Agreement" means any forward commodities contract,
commodities option contract, commodities futures contract, commodities futures
option, or similar agreement or arrangement.
"Common Stock" means the common stock of Company, par value $.01
per share.
"Company" has the meaning assigned to that term in the
introduction to this Agreement.
"Compliance Certificate" means a certificate substantially in the
form annexed hereto as Exhibit X delivered to Lenders by Company pursuant to
subsection 5.1(iii).
"Consent Solicitation" means the solicitation by Company, from the
holders of outstanding Existing Senior Debentures, of consents to certain
amendments to the Existing Senior Debenture Indenture in accordance with the
terms of the Senior Debenture Tender Offer Materials.
"Consolidated Adjusted EBITDA" means, for any period, Consolidated
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Net Income adjusted to exclude (without duplication) the effects of (i)
Consolidated Interest Expense, (ii) provisions for taxes based on income,
(iii) depreciation expense, (iv) amortization expense, and (v) material
non-recurring gains and losses, all of the foregoing as determined on a
consolidated basis for Company and its Subsidiaries in conformity with GAAP.
"Consolidated Interest Expense" means, for any period, interest
expense with respect to all outstanding Indebtedness (including, without
limitation, net costs under Interest Rate Agreements and any such expense
attributable to Capital Leases in accordance with GAAP) of Company and its
Subsidiaries for such period determined on a consolidated basis in conformity
with GAAP.
"Consolidated Leverage Ratio" means, as at any date of
determination, the ratio of (i) Consolidated Total Debt as of the last day of
the most recent Fiscal Quarter in respect of which Company has delivered (or
is then required to have (but has not yet) delivered) to Administrative Agent
the financial statements required to be delivered pursuant to subsection
5.1(i) or (in the case of the last Fiscal Quarter of any Fiscal Year)
subsection 5.1(ii) to (ii) Consolidated Pro Forma EBITDA (as hereinafter
defined) for the four-Fiscal Quarter period ending on the last day of the
applicable Fiscal Quarter under clause (i) above. As used in this definition,
the term "Consolidated Pro Forma EBITDA" means, for purposes of calculating
the Consolidated Leverage Ratio in respect of any four Fiscal-Quarter period,
Consolidated Adjusted EBITDA for such period calculated on a pro forma basis
after giving effect to any acquisitions of new Subsidiaries by Company or any
of its Subsidiaries during such period as if such acquisitions had been
consummated on the first day of such period.
"Consolidated Net Income" means, for any period, the net income
(or loss), before extraordinary items, of Company and its Subsidiaries on a
consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP.
"Consolidated Subsidiaries" means all Subsidiaries of Company
other than the Foreign Subsidiaries.
"Consolidated Total Debt" means, as at any date of determination,
the aggregate stated balance sheet amount of all Indebtedness of Company and
its Subsidiaries, all as determined on a consolidated basis in conformity with
GAAP.
"Contractual Obligation", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument
to which that Person is a party or by which it or any of its properties is
bound or to which it or any of its properties is subject.
"Covered Tax" means any Tax that is not an Excluded Tax.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement.
"Deposit Account" means a demand, time, savings, passbook or like
8
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account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"Dollars" or the sign "$" means the lawful money of the United
States of America.
"Effective Date" means the date on or before June 30, 1997, on
which all of the conditions set forth in subsection 3.1A are satisfied.
"Eligible Assignee" means (A)(i) a commercial bank organized under
the laws of the United States or any state thereof; (ii) a savings and loan
association or savings bank organized under the laws of the United States or
any state thereof; (iii) a commercial bank organized under the laws of any
other country or a political subdivision thereof; provided that (x) such bank
is acting through a branch or agency located in the United States or (y) such
bank is organized under the laws of a country that is a member of the
Organization for Economic Cooperation and Development or a political
subdivision of such country; and (iv) any other entity which is an "accredited
investor" (as defined in Regulation D under the Securities Act) which extends
credit as one of its businesses including, but not limited to, insurance
companies, mutual funds and lease financing companies, in each case (under
clauses (i) through (iv) above) that is reasonably acceptable to Agents; and
(B) any Lender and any Affiliate of any Lender; provided that no Affiliate of
Company shall be an Eligible Assignee; provided further that, in order to be
an Eligible Assignee, a Person must have at the time of determination
unimpaired capital and surplus of not less than $100,000,000.
"Environmental Laws" means any and all present and future laws,
statutes, ordinances, rules, regulations, requirements, restrictions, permits,
orders, and determinations of any governmental authority that have the force
and effect of law, and that pertain to pollution (including hazardous or toxic
substances), natural resources or the environment, whether federal, state, or
local, domestic or foreign, including environmental response laws such as the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended by the Superfund Amendments and Reauthorization Act of 1986 and as
the same may be further amended (collectively, "CERCLA").
"Equity Offering" means the receipt by Company, in clearinghouse
funds or same day funds, of not less than $300,000,000 of net proceeds from
the issuance, on or prior to the Effective Date, of Common Stock in a
registered public offering under the Securities Act.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and any regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with Company or any of its Subsidiaries
within the meaning of Section 414(b) or (c) of the Internal Revenue Code or
(for purposes of Section 412 of the Internal Revenue Code and provisions of
the Internal Revenue Code relating to said Section 412) Section 414(m) or (o)
of the Internal Revenue Code.
"ERISA Event" means any of the following events or occurrences if
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such event or occurrence would, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect: (i) the failure by Company,
any of its Subsidiaries or any ERISA Affiliate to make a required contribution
to a Pension Plan; (ii) a withdrawal by Company, any of its Subsidiaries
or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA), or a cessation of operation which is treated as
such a withdrawal under Section 4062(e) of ERISA; (iii) a complete or partial
withdrawal by Company, any of its Subsidiaries or any ERISA Affiliate from a
Multiemployer Plan or the receipt by Company, any of its Subsidiaries or any
ERISA Affiliate of notification that a Multiemployer Plan is in reorganization
or is insolvent pursuant to Section 4241 or 4245 of ERISA; (iv) the filing of
a notice of intent to terminate, the treatment of a Plan amendment as a
termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate, in each case with respect to a Pension
Plan or receipt by the Company, any of its Subsidiaries or any ERISA Affiliate
of notice of any such event with respect to a Multiemployer Plan; (v) an event
or condition which might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Pension Plan or, to the knowledge of Company, any
Multiemployer Plan; (vi) the imposition of any liability upon Company, any of
its Subsidiaries or any ERISA Affiliate under Title IV of ERISA (other than
with respect to PBGC premiums due but not delinquent under Section 4007 of
ERISA) upon Company, any of its Subsidiaries or any ERISA Affiliate; (vii) the
imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or pursuant to ERISA with respect to any Pension Plan; (viii)
receipt from the Internal Revenue Service of notice of the failure of any Plan
intended to qualify under Section 401(a) of the Internal Revenue Code to
qualify under Section 401(a) of the Internal Revenue Code, or the failure of
any trust forming part of any such Plan to qualify for exemption from taxation
under Section 501(a) of the Internal Revenue Code; or (ix) the violation of
any applicable foreign law, or an event or occurrence that is comparable to
any of the foregoing events or occurrences, in either case with respect to a
Plan that is not subject to regulation under ERISA by reason of Section
4(b)(4) of ERISA.
"Eurodollar Rate Loans" means Loans bearing interest at rates
determined by reference to the Adjusted Eurodollar Rate as provided in
subsection 2.2A.
"Event of Default" means each of the events set forth in Section
7.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"Exchange Rate" means, on any date when an amount expressed in a
currency other than Dollars is to be determined with respect to any Letter of
Credit, the spot rate of exchange (as published in the Wall Street Journal) in
the New York foreign exchange market for the purchase of such currency in
exchange for Dollars two Business Days prior to such date, expressed as a
number of units of such currency per one Dollar.
"Excluded Tax" means any of the following taxes, levies, imposts,
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duties, deductions, withholdings or charges, and all liabilities (including
without limitation all penalties, interest and other additions to tax) with
respect thereto: (i) Taxes imposed on the net income of a Lender, Co-Agent,
Agent or Tax Transferee (including without limitation branch profits taxes,
minimum taxes and taxes computed under alternative methods, at least one of
which is based on net income (collectively referred to as "net income taxes"))
by (A) the jurisdiction under the laws of which such Lender, Co-Agent, Agent
or Tax Transferee is organized or any political subdivision thereof or (B) the
jurisdiction of such Lender's, Tax Transferee's, Co-Agent's or Agent's
applicable lending office or any political subdivision thereof or (C) any
jurisdiction in which the Lender, Co-Agent, Agent or Tax Transferee is doing
business (other than solely by virtue of being a Lender under this Agreement),
(ii) any Taxes to the extent that they are in effect and would apply to a
payment to such Lender, Co-Agent or Agent, as applicable, as of the Effective
Date, or as of the date such Person becomes a Lender, in the case of any
assignee pursuant to subsection 9.2, (iii) any Taxes that are in effect and
would apply to a payment to a Tax Transferee as of the date of acquisition of
any Loans by such Tax Transferee or the date of the change of lending office
of such Tax Transferee, as the case may be (provided, however, that a Person
shall not be considered a Tax Transferee for purposes of this clause (iii) as
a result of a change of its lending office or the taking of any other steps
pursuant to subsection 2.6J), (iv) with respect to any Taxes for which any
credit or other Tax benefit, in the reasonable good faith judgment of such
Lender, Tax Transferee, Co-Agent or Agent, as the case may be, is available to
such Lender, Tax Transferee, Co-Agent or Agent, as applicable, as a result
thereof and is allocable to the transactions contemplated by this Agreement,
the amount of such credit or other Tax benefit or (v) any Taxes that would not
have been imposed but for (A) the failure by such Agent, Co-Agent, Lender or
Tax Transferee, as applicable, to provide and keep current any certification
or other documentation required to qualify for an exemption from or reduced
rate of any Tax (unless such failure results from a change in applicable law
after the Effective Date or the date of the applicable Assignment and
Acceptance, as the case may be, which precludes such Agent, Co-Agent, Lender
or Tax Transferee, as applicable, from qualifying for such exemption or
reduced rate) or (B) the gross negligence or willful misconduct of such Agent,
Co-Agent, Lender or Tax Transferee.
"Existing Credit Agreement" has the meaning assigned to that term
in the Recitals to this Agreement.
"Existing Lender Consent" means that certain Consent Regarding
Release of Pledged Collateral and O-I Subsidiary Guaranty, Amendment of
Indentures and Issuance of New Senior Notes dated May 9, 1997 and executed by
Company, by "Administrative Agent" and "Collateral Agent" (as such terms are
defined in the Existing Credit Agreement), and by Existing Lenders
constituting "Requisite Lenders" under the Existing Credit Agreement.
"Existing Lenders" has the meaning assigned to that term in the
Recitals to this Agreement.
"Existing Revolving Loans" means "Revolving Loans" (as defined in
the Existing Credit Agreement) of Existing Lenders outstanding on the
Effective Date.
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"Existing Senior Debentures" means the 11% Senior Debentures due
2003 of Company in an aggregate original principal amount of $1,000,000,000
issued pursuant to the Existing Senior Debenture Indenture, as such Senior
Debentures may have been and may hereafter be amended, supplemented or
otherwise modified from time to time.
"Existing Senior Debenture Indenture" means the Indenture dated as
of December 15, 1991 among Company, as issuer, Owens-Illinois Group, Inc., as
guarantor, and The Bank of New York, as indenture trustee, as such Indenture
may have been and may hereafter be amended, supplemented or otherwise modified
from time to time.
"Existing Subordinated Notes" means each of Company's (i) 10-1/4%
Senior Subordinated Notes Due April 1, 1999 in the aggregate principal amount
of $250,000,000, (ii) 10-1/2% Senior Subordinated Notes Due June 15, 2002 in
the aggregate principal amount of $150,000,000, (iii) 10% Senior Subordinated
Notes Due August 1, 2002 in the aggregate principal amount of $250,000,000,
(iv) 9-3/4% Senior Subordinated Notes Due August 15, 2004 in the aggregate
principal amount of $200,000,000 and (v) 9.95% Senior Subordinated Notes Due
October 15, 2004 in the aggregate principal amount of $100,000,000, in each
case issued pursuant to the Existing Subordinated Note Indenture, as such
Senior Subordinated Notes may be amended, supplemented or otherwise modified
from time to time after the Effective Date.
"Existing Subordinated Note Indenture" means the Indenture dated
as of April 1, 1992 among Company, as issuer, and the Existing Subordinated
Note Trustee, as supplemented to the date hereof and as such Indenture may be
amended, supplemented or otherwise modified from time to time after the
Effective Date.
"Existing Subordinated Note Trustee" means Harris Trust and
Savings Bank, as indenture trustee for the Existing Subordinated Notes, and
its successors.
"Federal Funds Effective Rate" means, for any period, a
fluctuating interest rate equal for each day during such period to 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 for such day (or, if such day is not a Business Day, for the next
preceding 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 such day on such transactions received by Administrative
Agent from three Federal funds brokers of recognized standing selected by
Administrative Agent.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its
Consolidated Subsidiaries ending on December 31 of each calendar year.
"Foreign Entity" means any Subsidiary or Joint Venture of Company
more than 80% of the sales, earnings or assets (determined on a consolidated
basis) of which are located or derived from operations outside of the United
States of America.
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"Foreign Subsidiary" means any Subsidiary or Joint Venture of
Company identified as such on Schedule A annexed to the Existing Credit
Agreement and, in addition, any Subsidiary or Joint Venture acquired,
incorporated or otherwise established by Company after the Closing Date (as
defined in the Existing Credit Agreement) which is organized under the laws of
a jurisdiction other than the United States of America or any State thereof
and more than 80% of the sales, earnings or assets (determined on a
consolidated basis) of which are located or derived from operations in
territories of the United States of America and jurisdictions outside the
United States of America.
"Funding and Payment Office" means the office of Administrative
Agent located at One Bankers Trust Plaza, New York, New York.
"Funding Date" means the date of the funding of a Loan.
"GAAP" means, subject to the provisions of subsection 1.2,
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Governmental Authorization" means any permit, license,
authorization, plan, directive, consent order or consent decree of or from any
foreign, federal, state or local governmental authority, agency or court.
"Hazardous Materials" means any substance that is defined or
listed as a hazardous or toxic substance under any present or future
Environmental Law or that is otherwise regulated or prohibited or subject to
investigation or remediation under any present or future Environmental
Law because of its hazardous or toxic properties, including (i) any substance
that is a "hazardous substance" under CERCLA (as defined in the definition of
"Environmental Laws") and (ii) petroleum wastes or products.
"Indebtedness", as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) that portion of obligations with respect
to Capital Leases which is properly classified as a liability on a balance
sheet in conformity with GAAP (subject to subsection 1.2 hereof), (iii) notes
payable and drafts accepted representing extensions of credit whether or not
representing obligations for borrowed money, (iv) the amount of all honored
but unreimbursed drawings under letters of credit, (v) any obligation owed for
all or any part of the deferred purchase price of property or services, which
purchase price is (a) due more than six months from the date of incurrence of
the obligation in respect thereof or (b) evidenced by a note or similar
written instrument, and (vi) all indebtedness secured by any Lien on any
property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person; provided, however, that with respect
to any indebtedness of the type described in the foregoing clause (vi) which
has not been assumed by that Person or is otherwise nonrecourse to the credit
of that Person, the amount of such indebtedness shall be deemed to be the
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lesser of the outstanding principal amount of such indebtedness and the fair
market value of the property or assets of such Person securing such
indebtedness.
"Interest Payment Date" means, with respect to any Eurodollar Rate
Loan, the last day of each Interest Period applicable to such Loan; provided
that in the case of each Interest Period of six months or longer, "Interest
Payment Date" shall also include each three-month anniversary of the
commencement of that Interest Period.
"Interest Period" means any interest period applicable to a
Eurodollar Rate Loan as determined pursuant to subsection 2.2B.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement.
"Interest Rate Determination Date" means each date for calculating
the Adjusted Eurodollar Rate for purposes of determining the interest rate in
respect of an Interest Period. The Interest Rate Determination Date shall be
the second Business Day prior to the first day of the related Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter.
"Investment", as applied to any Person, means any direct or
indirect purchase or other acquisition by that Person of, or of a beneficial
interest in, stock or other Securities of any other Person (other than a
Person that prior to such purchase or acquisition was, or as a result of
such purchase or acquisition becomes, a Subsidiary of Company), or any direct
or indirect loan, advance (other than advances to employees for moving and
travel expenses, drawing accounts and similar expenditures in the ordinary
course of business) or capital contribution by that Person to any other Person
other than a Subsidiary of Company, including all indebtedness and accounts
receivable from that other Person which are not current assets or did not
arise from sales to that other Person in the ordinary course of business. The
amount of any Investment shall be the original cost (which shall not include
(i) the amount of any Indebtedness of the Person that is the subject of such
Investment that is assumed by the Person making such Investment or (ii) the
value of any Common Stock issued as all or a portion of the consideration
payable in connection with such Investment) or, in the case of an Investment
consisting of non-cash consideration received in connection with an Asset Sale
or other sale of assets, the original value of such Investment plus the cost
of all additions thereto, without any adjustments for increases or decreases
in value, or write-ups, write-downs or write-offs with respect to such
Investment.
"Invitation for Bid Rate Loan Quotes" means an invitation to each
Lender to submit a Bid Rate Loan Quote, substantially in the form of Exhibit V
annexed hereto, delivered by Administrative Agent to such Lender pursuant to
subsection 2.9C with respect to a Bid Rate Loan Quote Request.
"Issuing Lender" means, with respect to any Letter of Credit, the
Lender which agrees or is otherwise obligated to issue such Letter of Credit,
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determined as provided in subsection 2.8C.
"Joint Venture" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form;
provided that, as to any such arrangement in corporate form, such corporation
shall not, as to any Person of which such corporation is a Subsidiary, be
considered to be a Joint Venture to which such Person is a party.
"KKR" means Kohlberg Kravis Roberts & Co., L.P., a Delaware
limited partnership.
"Lender" and "Lenders" have the meanings assigned to those terms
in the introduction to this Agreement and shall include each Agent and
Co-Agent in their respective individual capacities; provided that "Lender" and
"Lenders" shall also include the successors and permitted assigns of Lenders
pursuant to subsection 9.2B.
"Letter of Credit" or "Letters of Credit" means Commercial Letters
of Credit an Standby Letters of Credit issued or to be issued by Issuing
Lenders for the account of Company pursuant to subsection 2.8.
"Letter of Credit Usage" means, as at any date of determination,
the sum of (i) the maximum aggregate amount which is or at any time thereafter
may become available for drawing under all Letters of Credit then outstanding
plus (ii) the aggregate amount of all drawings under Letters of Credit
honored by Issuing Lenders and not theretofore reimbursed by Company. For
purposes of this definition, any amount described in clause (i) or (ii) of the
preceding sentence which is denominated in a currency other than Dollars shall
be valued based on the applicable Exchange Rate for such currency as of the
applicable date of determination.
"Lien" means any lien, mortgage, pledge, security interest, charge
or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to
give any security interest) and any other agreement intended to create any of
the foregoing.
"Loan" or "Loans" means one or more of the Revolving Loans or the
Bid Rate Loans or any combination thereof.
"Loan Documents" means this Agreement, the Notes, the Overdraft
Agreement and the Letters of Credit.
"Margin Stock" has the meaning assigned to that term in Regulation
U of the Board of Governors of the Federal Reserve System as in effect from
time to time.
"Material Adverse Effect" means (i) a material adverse effect upon
the business, operations, properties, assets or condition (financial or
otherwise) of Company and its Subsidiaries, taken as a whole, or (ii) a
material adverse effect on the ability of Company and its Subsidiaries,
taken as a whole, to perform, or of any Agent, Co-Agent or Lender to enforce,
the Obligations.
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"Material Subsidiary" means each Subsidiary of Company now
existing or hereafter acquired or formed by Company which (x) for the most
recent Fiscal Year of Company, accounted for more than 5% of the consolidated
revenues of Company or (y) as at the end of such Fiscal Year, was the owner of
more than 5% of the consolidated assets of Company.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, with respect to which Company, any of
its Subsidiaries or any ERISA Affiliate may have liability.
"New Senior Notes" means, collectively, the 7.85% Senior Notes due
2004 of Company in an aggregate original principal amount of $300,000,000 and
the 8.10% Senior Notes due 2007 of Company in an aggregate original principal
amount of $300,000,000, each issued pursuant to the New Senior Note Indenture,
as such Senior Notes may be amended, supplemented or otherwise modified from
time to time after the Effective Date.
"New Senior Note Indenture" means the Indenture dated as of May
15, 1997, between Company, as issuer, and The Bank of New York, as trustee, as
such Indenture may be
amended, supplemented or otherwise modified from time to time after the
Effective Date.
"Notes" means one or more of the Revolving Notes or the Bid Rate
Loan Notes or any combination thereof.
"Notice of Bid Rate Loan Borrowing" has the meaning assigned to
that term in subsection 2.9F.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit I annexed hereto with respect to a proposed borrowing.
"Notice of Conversion/Continuation" means a notice substantially
in the form of Exhibit III annexed hereto with respect to a proposed
conversion or continuation.
"Notice of Issuance of Letter of Credit" means a notice
substantially in the form of Exhibit II annexed hereto with respect to the
proposed issuance of a Letter of Credit.
"Obligations" means all obligations of every nature of Company
from time to time owed to Agents, Co-Agents or Lenders or any of them under or
in respect of this Agreement, the Notes, the Letters of Credit or the
Overdraft Agreement.
"Officers' Certificate" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its Chairman of the
Board (if an officer) or its President or one of its Vice Presidents, and by
its Chief Financial Officer, its Treasurer or any of its Assistant Treasurers;
provided, that any Officers' Certificate required to be delivered by Company
on the Effective Date may be executed on behalf of Company by any one of the
foregoing officers; provided, further, that every Officers' Certificate with
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respect to the compliance with a condition precedent to the making of any
Loans hereunder shall include (i) a statement that the officer or officers
making or giving such Officers' Certificate have read such condition and any
definitions or other provisions contained in this Agreement relating thereto,
(ii) a statement that, in the opinion of the signers, they have made or have
caused to be made such examination or investigation as is necessary to enable
them to express an informed opinion as to whether or not such condition has
been complied with, and (iii) a statement as to whether, in the opinion of the
signers, such condition has been complied with.
"Overdraft Account" means the account established by Company with
Administrative Agent and referenced in the Overdraft Agreement.
"Overdraft Agreement" means the Overdraft Agreement executed and
delivered by Company and Administrative Agent on the Effective Date, in
substantially the form of Exhibit IX annexed hereto, and any successor
Overdraft Agreement executed and delivered by Company and any successor
Administrative Agent pursuant to subsection 8.6, as any such Overdraft
Agreement may hereafter be amended, amended and restated, supplemented or
otherwise modified from time to time.
"Overdraft Amount" means, as at any date of determination, the
aggregate amount of outstanding overdrafts charged to the Overdraft Account.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"Pension Plan" means a "pension plan", as defined in Section 3(2)
of ERISA (other than a Multiemployer Plan), with respect to which Company, any
of its Subsidiaries or any ERISA Affiliate may have any liability.
"Permitted Encumbrances" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not at the time required by subsection 5.3;
(ii) Statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other liens imposed by law incurred
in the ordinary course of business for sums not yet delinquent or being
contested in good faith, if such reserve or other appropriate provision, if
any, as shall be required by GAAP (subject to subsection 1.2) shall have been
made therefor;
(iii) Liens (other than any Lien imposed pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA) incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the payment
of borrowed money);
(iv) Any attachment or judgment Lien not constituting an Event of
Default under subsection 7.8;
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(v) Leases, subleases or licenses of occupancy granted to others
not interfering in any material respect with the business of Company and its
Subsidiaries, taken as a whole;
(vi) Easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the business
of Company and its Subsidiaries, taken as a whole;
(vii) Any (a) interest or title of a lessor under any lease, (b)
restriction or encumbrance that the interest or title of such lessor or
sublessor may be subject to, or (c) subordination of the interest of the
lessee or sublessee under such lease to any restriction or encumbrance
referred to in the preceding clause (b), so long as the holder of such
restriction or encumbrance agrees to recognize the rights of such lessee or
sublessee under such lease;
(viii) Liens arising from UCC financing statements regarding
leases permitted by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising as
a matter of law to secure payment of customs duties in connection with the
importation of goods;
(x) Liens incurred in the ordinary course of business encumbering
deposits made to secure obligations arising from statutory, regulatory,
contractual or warranty requirements of Company and its Subsidiaries
(excluding deposits securing the repayment of Indebtedness);
(xi) Liens encumbering customary initial deposits and margin
deposits securing obligations under Interest Rate Agreements, Currency
Agreements and Commodities Agreements, and other Liens incurred in the
ordinary course of business and which are within the general parameters
customary in the industry securing obligations under Commodities Agreements;
and
(xii) Liens securing reimbursement obligations under Commercial
Letters of Credit or bankers' acceptance facilities, which Liens encumber
documents and other property to be acquired by drawings under such Commercial
Letters of Credit or drafts accepted under such bankers' acceptance
facilities.
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, joint stock companies, joint ventures,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Plan" means an employee benefit plan (as defined in Section 3(3)
of ERISA) which Company or any of its Subsidiaries sponsors or maintains, or
to which Company or any of its Subsidiaries makes, is making or is obligated
to make contributions, or to which Company or any of its Subsidiaries may have
any liability, and includes any Pension Plan.
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"Potential Event of Default" means a condition or event which,
after notice or lapse of time or both, would constitute an Event of Default if
that condition or event were not cured or removed within any applicable grace
or cure period.
"Prime Rate" means the rate which Bankers announces from time to
time as its prime lending rate, as in effect from time to time. The Prime
Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. Bankers may make commercial loans or
other loans at rates of interest at, above or below the Prime Rate.
"Pro Rata Share" means, with respect to each Lender, the
percentage designated as such Lender's Pro Rata Share set forth opposite the
name of such Lender on Part II of Schedule A annexed hereto, as such
percentages shall be adjusted from time to time to give effect to any
assignments permitted pursuant to subsection 9.2. The sum of the Pro Rata
Shares of all Lenders at any date of determination shall equal 100%.
"Reference Lenders" means Bankers and BofA.
"Refinancing" means (i) the consummation of the Equity Offering,
(ii) the issuance, if any, of the New Senior Notes, (iii) the increase in the
Revolving Loan Commitments effected pursuant to this Agreement, (iv) the
consummation, if any, of the Senior Debenture Tender Offer and the Consent
Solicitation, and (v) the Subordinated Note Redemption, if any.
"Register" has the meaning assigned to that term in subsection
2.1E.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reporting Unit" means each of the units of the operations of
Company, as set forth on Schedule D annexed hereto, as such Schedule D may
hereafter be amended, supplemented or modified from time to time by Company.
"Requisite Lenders" means Lenders having more than 50% of the
aggregate Revolving Loan Commitments or, if the Revolving Loan Commitments
have been terminated, Lenders holding more than 50% of the sum of (i) the
aggregate outstanding principal amount of the Revolving Loans plus (ii) the
aggregate outstanding principal amount of the Bid Rate Loans plus (iii) the
aggregate Pro Rata Shares of the Letter of Credit Usage.
"Responsible Officer" means any of the chief executive officer,
the president, any vice president, the chief financial officer, the
comptroller, the treasurer or any assistant treasurer of Company.
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
stock of Company now or hereafter outstanding, except a dividend payable
solely in shares of that class of stock to the holders of that class, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of stock
of Company now or hereafter outstanding, and (iii) any payment made to retire,
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or to obtain the surrender of, any outstanding warrants, options or other
rights to acquire shares of any class of stock of Company now or hereafter
outstanding.
"Revolving Loan Commitment" or "Revolving Loan Commitments" means
the commitment or commitments of a Lender or Lenders to make Revolving Loans
as set forth in subsection 2.1A.
"Revolving Loan Commitment Termination Date" means December 31,
2001.
"Revolving Loans" means the Loans made by Lenders to Company
pursuant to subsection 2.1A.
"Revolving Notes" means the promissory notes of Company
substantially in the form of Exhibit VII annexed hereto, issued in favor of
Lenders pursuant to subsection 2.1E(iv) to evidence the Revolving Loans, as
they may be amended, supplemented or otherwise modified from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc.
"Securities" means any stock, shares, voting trust certificates,
bonds, debentures, options, warrants, notes, or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities" or any certificates
of interest, shares or participations in temporary or interim certificates for
the purchase or acquisition of, or any right to subscribe to, purchase or
acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"Senior Debenture Tender Offer" means the offer by Company to
repurchase up to 100% of the outstanding Existing Senior Debentures pursuant
to the Senior Debenture Tender Offer Materials.
"Senior Debenture Tender Offer Materials" means the Offer to
Purchase and Consent Solicitation Statement dated April 25, 1997, as amended
or supplemented (if at all), relating to the Senior Debenture Tender Offer and
the Consent Solicitation.
"Standby Letter of Credit" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i) Indebtedness
incurred by any Foreign Subsidiary or Foreign Entity or any Joint Venture to
which Company or any of its Consolidated Subsidiaries is a party for working
capital and general business purposes, (ii) obligations of Company or any of
its Consolidated Subsidiaries with respect to capital calls or similar
requirements in respect of Joint Ventures to which Company or such
Consolidated Subsidiary is a party, (iii) workers compensation liabilities of
Company or any of its Consolidated Subsidiaries, (iv) the obligations of third
party insurers of Company or any of its Consolidated Subsidiaries arising by
virtue of the laws of any jurisdiction requiring third party insurers, (v)
Indebtedness of Company or any of its Consolidated Subsidiaries in respect of
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industrial revenue or development bonds or financings, (vi) obligations with
respect to leases of Company or any of its Consolidated Subsidiaries, (vii)
obligations of Company or any of its Consolidated Subsidiaries imposed by
statute or by a court of competent jurisdiction to post appeal bonds or other
security in connection with litigation appeals, and other performance,
payment, deposit or surety obligations of Company or any of its Consolidated
Subsidiaries, in any such other case if required by law or governmental rule
or regulation or in accordance with custom and practice in the industry,
(viii) obligations of Owens Insurance Limited with respect to certain self
insurance and reinsurance programs, including obligations under insurance
treaties, or (ix) other obligations of Company for which letter of credit
support would be used in the ordinary course of Company's business consistent
with its past practices or otherwise consistent with custom and practice in
the industry.
"Subordinated Note Redemption" means the redemption of up to 100%
of each series of the Existing Subordinated Notes.
"Subsidiary" means any corporation, association or other business
entity of which more than 50% of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
"Syndication Agent" has the meaning assigned to that term in the
introduction to this Agreement.
"Tax" or "Taxes" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever called,
by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld
or assessed; provided that "Tax on the overall net income" of a Person shall
be construed as a reference to a tax imposed by the jurisdiction in which
that Person's principal office (and/or, in the case of a Lender, its lending
office) is located on all or part of the net income, profits or gains of that
Person (whether worldwide, or only insofar as such income, profits or gains
are considered to arise in or to relate to a particular jurisdiction, or
otherwise).
"Tax Transferee" means any Person who acquires any interest in the
Loans (whether or not by operation of law) or the office to which a Lender,
Co-Agent or Agent has transferred its Loans for purposes of determining where
the Loans are made, accounted for or booked.
"Total Utilization of Revolving Loan Commitments" means, as at any
date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans plus (ii) the aggregate principal amount of all
outstanding Bid Rate Loans plus (iii) the Letter of Credit Usage plus (iv) the
Overdraft Amount.
"Unfunded Pension Liability" means, with respect to any Pension
Plan, the amount of unfunded benefit liabilities of such Pension Plan as
defined in Section 4001(a)(18) of ERISA.
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1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement; Change in Accounting Principles
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP as in effect from time to time, and all
calculations in connection with the financial covenants, standards or terms
found in Sections 1, 5 and 6 hereof (collectively, "Calculations") shall
utilize accounting principles and policies in conformity with GAAP as in
effect from time to time; provided that, in the event there is a change in
accounting principles and policies that would result in a change in the method
of performing any Calculations as described in subsection 9.9, such change
shall not be given effect for purposes of any Calculations until such time as
Company and Lenders complete the negotiations provided for in subsection 9.9.
Financial statements and other information required to be delivered by Company
to Lenders pursuant to clauses (i), (ii) and (x) of subsection 5.1 shall be
prepared in accordance with GAAP as in effect at the time of such preparation
(and, if necessary, delivered together with the written statements provided
for in subsection 5.1(iv)).
1.3 Other Definitional Provisions; Anniversaries
References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in subsection 1.1 may, unless the context
otherwise requires, be used in the singular or the plural depending on the
reference. For purposes of this Agreement, a monthly anniversary of a
specified date shall occur on the same day of the applicable month as the day
of the month on which such date occurred; provided that if there is no
numerically corresponding day in the applicable month to the day of the month
on which such date occurred, the monthly anniversary of such date shall be the
last day of the applicable month.
SECTION 2
AMOUNT AND TERMS OF REVOLVING LOAN COMMITMENTS AND LOANS;
NOTES
2.1 Revolving Loans; Overdraft Account
A. Revolving Loan Commitments. Subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties of Company herein set forth, (i) each Existing Lender hereby
severally agrees to maintain its Existing Revolving Loans (which shall be
treated as Revolving Loans for all purposes of this Agreement and the other
Loan Documents) and (ii) each Lender hereby severally agrees, subject to the
limitations set forth below with respect to the maximum amount of Revolving
Loans permitted to be outstanding from time to time, to make additional
Revolving Loans to Company from time to time during the period from the
Effective Date to but excluding the Revolving Loan Commitment Termination
Date, in an amount at any one time outstanding (including any Existing
Revolving Loans of such Lender) not exceeding its Pro Rata Share of the
aggregate Revolving Loan Commitments (as defined below) to be used for the
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purposes identified in subsection 2.5A. Each Lender's commitment to maintain
and/or make Revolving Loans to Company pursuant to this subsection 2.1A is
herein called its "Revolving Loan Commitment" and such commitments of all
Lenders in the aggregate are herein called the "Revolving Loan Commitments".
The initial amount of each Lender's Revolving Loan Commitment is set forth on
Schedule A annexed hereto and the aggregate initial amount of the Revolving
Loan Commitments is $3,000,000,000. Each Lender's Revolving Loan Commitment
shall expire on the Revolving Loan Commitment Termination Date and all
Revolving Loans and all other amounts owed hereunder with respect to the
Revolving Loans shall be paid in full no later than that date. The amount of
the Revolving Loan Commitments shall be reduced by the amount of all
reductions thereof made pursuant to subsection 2.4F through the date of
determination. In no event shall the aggregate principal amount of the
Revolving Loans from any Lender outstanding at any time (including any
Existing Revolving Loans of such Lender) exceed its Revolving Loan Commitment
then in effect.
Notwithstanding the foregoing provisions of this subsection 2.1A
and the provisions of subsection 2.1B, the amount otherwise available to be
borrowed or maintained as Revolving Loans under the Revolving Loan Commitments
as of any time of determination (other than (x) to repay Bid Rate Loans and
accrued and unpaid interest thereon, (y) to reimburse any Issuing Lender for
the amount of any drawings under any Letters of Credit honored by such Issuing
Lender and not theretofore reimbursed by Company, and (z) to repay overdrafts
charged to the Overdraft Account) shall be reduced by an amount equal to the
sum of (a) the principal amount of all outstanding Bid Rate Loans plus (b) the
Letter of Credit Usage plus (c) the Overdraft Amount as of such time of
determination.
Subject to subsection 2.6D, all Revolving Loans made under this Agreement on
or after the Effective Date shall be made by Lenders simultaneously and
proportionately to their Pro Rata Shares, it being understood that no Lender
shall be responsible for any default by any other Lender in that other
Lender's obligation to make Revolving Loans hereunder nor shall the Revol-
ving Loan Commitment of any Lender be increased or decreased as a result of
the default by any other Lender in that other Lender's obligation to make
Revolving Loans hereunder. Subject to the limitations set forth in this
Agreement, amounts borrowed by Company under this subsection 2.1A may be
repaid and, to but excluding the Revolving Loan Commitment Termination Date,
reborrowed. Revolving Loans (other than Revolving Loans in respect of a Bid
Rate Loan Shortfall Amount, which shall be in the amount of such Bid Rate Loan
Shortfall Amount) made on any Funding Date shall be in an aggregate minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess of that
amount.
B. Overdraft Account. Lenders agree that Company and
Administrative Agent may establish and maintain the Overdraft Account to be
established pursuant to the Overdraft Agreement; provided that (i) the
aggregate amount of extensions of credit outstanding with respect to the
Overdraft Account shall not exceed at any time $50,000,000 and (ii) the
aggregate amount of extensions of credit outstanding with respect to the
Overdraft Account at any time shall not exceed the Revolving Loan Commitments
reduced by the sum of the aggregate principal amount of Revolving Loans and
Bid Rate Loans and the Letter of Credit Usage at such time. Notwithstanding
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anything contained in this Agreement to the contrary (but subject, however, to
the limitations set forth in subsection 2.1A with respect to the making of
Revolving Loans), Lenders and Company further agree that Administrative Agent
at any time in its sole and absolute discretion may, upon notice to Company
and Lenders, require each Lender (including Administrative Agent) on one
Business Day's notice to make a Revolving Loan in an amount equal to that
Lender's Pro Rata Share of the Overdraft Amount and all accrued and unpaid
interest thereon or, in the sole and absolute discretion of Administrative
Agent, require each other Lender to purchase a participation in amounts due
with respect to the Overdraft Account in an amount equal to that Lender's Pro
Rata Share of the Overdraft Amount and all accrued and unpaid interest
thereon; provided, however, that the obligation of each Lender to make each
such Revolving Loan or to purchase each such participation with respect to any
extension of credit included in the Overdraft Amount is subject to the
condition that at the time such extension of credit under the Overdraft
Agreement was made (A) the duly authorized officer of Administrative Agent
responsible for the administration of Administrative Agent's credit
relationship with Company believed in good faith that (i) no Event of Default
had occurred and was continuing or (ii) any Event of Default that had occurred
and was continuing had been waived by Requisite Lenders (or, if applicable
under subsection 9.7, all Lenders) at the time such extension of credit under
the Overdraft Agreement was made or (B) such Lender had actual knowledge, by
receipt of the statements required pursuant to subsection 5.1 or otherwise,
that an Event of Default had occurred and was continuing and remained unwaived
by Requisite Lenders (or, if applicable under subsection 9.7, all Lenders) at
the time such extension of credit under the Overdraft Agreement was made and
failed to notify Administrative Agent in writing on or prior to the date of
such extension of credit (which notice shall be effective as of the date of
receipt by Administrative Agent). In the case of Revolving Loans made by
Lenders other than Administrative Agent under the immediately preceding
sentence, each such Lender shall make the amount of its Revolving Loan
available to Administrative Agent, in same day funds, at the Funding and
Payment Office not later than 1:00 P.M. (New York time) on the Business Day
next succeeding the date such notice is given. The proceeds of such Revolving
Loans shall be immediately delivered to Administrative Agent (and not to
Company) and applied to repay the Overdraft Amount. On the day such Revolving
Loans are made, Administrative Agent's Pro Rata Share of the Overdraft Amount
being refunded shall be deemed to be paid with the proceeds of a Revolving
Loan made by Administrative Agent and such portion of the Overdraft Amount
deemed to be so paid shall no longer be outstanding. Company authorizes
Administrative Agent to charge Company's accounts with Administrative
Agent (up to the amount available in each such account) in order to
immediately pay Administrative Agent the amount of the Overdraft Amount to be
refunded to the extent amounts received from Lenders, including amounts deemed
to be received from Administrative Agent, are not sufficient to repay in full
the Overdraft Amount to be refunded; provided that Administrative Agent shall
give Company notice of such charges prior thereto or as soon as reasonably
practicable thereafter. Each Revolving Loan made in accordance with the
foregoing shall be made as a Base Rate Loan. If any portion of any such
amount paid to Administrative Agent should be recovered by or on behalf of
Company from Administrative Agent in bankruptcy, by assignment for the benefit
of creditors or otherwise, the loss of the amount so recovered shall be
ratably shared among all Lenders in the manner contemplated by subsection 9.6.
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In the event that Administrative Agent requires the other Lenders to purchase
participations in amounts due with respect to the Overdraft Account, payment
for such participations shall be made directly to Administrative Agent at the
Funding and Payment Office not later than 1:00 P.M. (New York time) on the
Business Day next succeeding the date notice to purchase such participations
is given. Except as provided above in this subsection 2.1B and except for the
satisfaction of the conditions specified in subsection 3.1, each Lender's
obligation to make Revolving Loans pursuant to this subsection 2.1B and to
purchase participations in amounts due with respect to the Overdraft Account
pursuant to this subsection 2.1B shall be absolute and unconditional and shall
not be affected by any circumstance, including, without limitation, (i) any
set-off, counterclaim, recoupment, defense or other right which such Lender
may have against Administrative Agent, Company or any other Person for any
reason whatsoever; (ii) the occurrence or continuance of an Event of Default
or a Potential Event of Default; (iii) any adverse change in the condition
(financial or otherwise) of Company; (iv) any breach of this Agreement by
Company or any other Lender; or (v) any other circumstance, happening, or
event whatsoever, whether or not similar to any of the foregoing; provided
that in the event that the obligations of Lenders to make Revolving Loans are
terminated in accordance with Section 7, Lenders shall thereafter only be
obligated to purchase participations in amounts due with respect to the
Overdraft Account as provided in this subsection 2.1B. In the event that any
Lender fails to make available to Administrative Agent the amount of any of
such Lender's Revolving Loans required to be made pursuant to this subsection
2.1B or the amount of any participations in amounts due with respect to the
Overdraft Account which are required to be purchased from Administrative Agent
by such Lender pursuant to this subsection 2.1B, Administrative Agent shall be
entitled to recover such amount on demand from such Lender together with
interest at the customary rate set by Administrative Agent for the correction
of errors among banks for three Business Days and thereafter at the Base Rate.
Nothing in this subsection 2.1B shall be deemed to prejudice the right of any
Lender to recover from Administrative Agent any amounts made available by such
Lender to Administrative Agent pursuant to this subsection 2.1B in respect of
any extension of credit by Administrative Agent under the Overdraft Agreement
in the event that it is determined by a court of competent jurisdiction that
such extension of credit by Administrative Agent constituted gross negligence
or willful misconduct on the part of Administrative Agent.
Any notice given by Administrative Agent to Lenders pursuant to
the immediately preceding paragraph shall be concurrently given by
Administrative Agent to Company or its designated representative.
C. Notice of Borrowing. Whenever Company desires that Lenders
make Revolving Loans under subsection 2.1A, it shall deliver to Administrative
Agent a Notice of Borrowing no later than 12:00 Noon (New York time) on the
proposed Funding Date in the case of Base Rate Loans to be made on a Bid Rate
Loan Shortfall Date in an aggregate amount not to exceed the applicable Bid
Rate Loan Shortfall Amount or at least one Business Day in advance of the
proposed Funding Date in the case of any other Base Rate Loan or three
Business Days in advance of the proposed Funding Date in the case of a
Eurodollar Rate Loan. The Notice of Borrowing shall specify (i) the proposed
Funding Date (which shall be a Business Day), (ii) the amount of the proposed
Loans; provided that in the case of a Notice of Borrowing delivered on a
Bid Rate Loan Shortfall Date requesting Base Rate Loans to be made as
Revolving Loans on such Bid Rate Loan Shortfall Date, the amount of such
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proposed Revolving Loans may not exceed the Bid Rate Loan Shortfall Amount in
respect of such Bid Rate Loan Shortfall Date, (iii) whether such Revolving
Loans are initially to consist of Base Rate Loans or Eurodollar Rate Loans or
a combination thereof, and (iv) if such Revolving Loans, or any portion
thereof, are initially to be Eurodollar Rate Loans, the amounts thereof and
the initial Interest Periods therefor; and such Notice of Borrowing shall
further certify that subsection 3.2B is satisfied on and as of that Funding
Date; provided that the minimum amount of Eurodollar Rate Loans with a
particular Interest Period included as a portion of any such combination, if
any, shall be $10,000,000 and integral multiples of $1,000,000 in excess of
that amount. Revolving Loans may be continued as or converted into Base Rate
Loans and Eurodollar Rate Loans in the manner provided in subsection 2.2D. In
lieu of delivering the above-described Notice of Borrowing, Company may give
Administrative Agent telephonic notice by the required time of any proposed
borrowing under this subsection 2.1; provided that such notice shall be
promptly confirmed in writing by delivery of a Notice of Borrowing to
Administrative Agent on or prior to the Funding Date of the requested
Revolving Loans.
Neither Administrative Agent nor any Lender shall incur any
liability to Company in acting upon any telephonic notice referred to above
which Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of Company
or for otherwise acting in good faith under this subsection 2.1C and upon
funding of Revolving Loans by any Lender in accordance with this Agreement
pursuant to any such telephonic notice Company shall have effected Revolving
Loans hereunder.
Except as provided in subsection 2.6D, a Notice of Borrowing for a
Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and
Company shall be bound to make a borrowing in accordance therewith, unless
Company pays to Lenders such amounts as may be due under subsection 2.6E for
failure of a borrowing of a Eurodollar Rate Loan to occur on the date
specified therefor in a Notice of Borrowing (or telephonic notice in lieu
thereof).
D. Disbursement of Funds. Promptly after receipt of a Notice of
Borrowing pursuant to subsection 2.1C (or telephonic notice in lieu thereof)
or the deemed receipt of a Notice of Borrowing pursuant to subsection 2.8D,
Administrative Agent shall notify each Lender of the proposed borrowing if the
Loan to be made pursuant to such proposed borrowing will be a Revolving Loan.
Each Lender shall make the amount of its Revolving Loan available to
Administrative Agent, in same day funds, at the Funding and Payment Office not
later than 12:00 noon (New York time) on the Funding Date. Except as provided
in subsection 2.1B with respect to the repayment of the Overdraft Amount and
accrued and unpaid interest thereon, and in subsection 2.8D with respect to
the reimbursement of amounts drawn under Letters of Credit, upon satisfaction
or waiver of the conditions precedent specified in subsections 3.1 and 3.2,
Administrative Agent shall make the proceeds of such Loans available to
Company on such Funding Date by causing an amount of same day funds equal to
the proceeds of all such Loans received by Administrative Agent to be credited
to the account of Company at such office of Administrative Agent.
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Unless Administrative Agent shall have been notified by any Lender
prior to any Funding Date that such Lender does not intend to make available
to Administrative Agent such Lender's Loan on such Funding Date,
Administrative Agent may assume that such Lender has made such amount
available to Administrative Agent on such Funding Date and Administrative
Agent in its sole discretion may, but shall not be obligated to, make
available to Company a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest
thereon, for each day from such Funding Date until the date such amount is
paid to Administrative Agent, at the customary rate set by Administrative
Agent for the correction of errors among banks for three Business Days and
thereafter at the Base Rate. If such Lender does not pay such corresponding
amount forthwith upon Administrative Agent's demand therefor, Administrative
Agent shall promptly notify Company, and Company shall immediately pay such
corresponding amount to Administrative Agent. Nothing in this subsection 2.1D
shall be deemed to relieve any Lender from its obligation to fulfill its
Revolving Loan Commitment hereunder or to prejudice any rights which Company
may have against any Lender as a result of any default by such Lender
hereunder.
E. The Register; Notes.
(i) Administrative Agent shall maintain, at its address referred
to in subsection 9.10, a register for the recordation of the names and
addresses of Lenders and the Revolving Loan Commitments and Loans of each
Lender from time to time (the "Register"). Company, Agents, Co-Agents and
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by Company, Syndication Agent, Co-Documentation
Agents, Co-Agents or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(ii) Administrative Agent shall record in the Register the
Revolving Loan Commitments and the Loans from time to time of each Lender and
each repayment or prepayment in respect of the principal amount of the Loans
of each Lender. Any such recordation shall be conclusive and binding on
Company and each Lender, absent manifest or demonstrable error; provided that
failure to make any such recordation, or any error in such recordation, shall
not affect Company's Obligations in respect of the applicable Loans.
(iii) Each Lender shall record on its internal records
(including, without limitation, any promissory note described in subsection
2.1E(iv)) the amount of each Loan made by it and each payment in respect
thereof; provided that in the event of any inconsistency between the Register
and any Lender's records, the recordations in the Register shall govern,
absent manifest or demonstrable error.
(iv) If so requested by any Lender by written notice to Company
(with a copy to Administrative Agent) at least two Business Days' prior to the
Effective Date or at any time thereafter, Company shall execute and deliver to
such Lender (and/or, if so specified in such notice, any Person who is an
assignee of such Lender pursuant to subsection 9.2 hereof) on the Effective
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Date (or, if such notice is delivered after the Effective Date, promptly after
Company's receipt of such notice) a promissory note or promissory notes to
evidence such Lender's Revolving Loans or Bid Rate Loans, substantially in the
form of Exhibit VII or Exhibit VIII hereto, respectively.
2.2 Interest on the Revolving Loans
A. Rate of Interest.
The Revolving Loans shall bear interest on the unpaid principal
amount thereof from the date made through maturity (whether by acceleration or
otherwise) at a rate determined by reference to the Base Rate or the Adjusted
Eurodollar Rate. The Bid Rate Loans shall bear interest as provided in
subsection 2.9. Except to the extent that this Agreement specifically
provides that certain Revolving Loans must be made at the Base Rate, the
applicable basis for determining the rate of interest with respect to
Revolving Loans shall be selected by Company at the time a Notice of Borrowing
is given pursuant to subsection 2.1C (or is deemed to be given pursuant to
subsection 2.8D) or at the time a Notice of Conversion/Continuation is given
pursuant to subsection 2.2D. If on any day a Revolving Loan is outstanding
with respect to which notice has not been delivered to Administrative Agent in
accordance with the terms of this Agreement specifying the basis for
determining the rate of interest, then for that day that Revolving Loan shall
bear interest determined by reference to the Base Rate.
Revolving Loans shall bear interest through maturity as follows:
(i) if a Base Rate Loan, then at the Base Rate per annum; or
(ii) if a Eurodollar Rate Loan, then at the sum of the Adjusted
Eurodollar Rate plus the Applicable Eurodollar Margin per annum.
B. Interest Periods.
In connection with each Eurodollar Rate Loan, Company shall elect
an interest period (each an "Interest Period") to be applicable to such Loan,
which Interest Period shall be either a one, two, three, six, nine or twelve
month period; provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan
shall commence on the Funding Date in respect of such Loan, in the case of a
Loan initially made as a Eurodollar Rate Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case of a Loan converted
to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a Eurodollar Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on the
day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that if any Interest Period would otherwise
expire on a day which is not a Business Day but is a day of the month after
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which no further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day;
(iv) any Interest Period which begins on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of a calendar month;
(v) no Interest Period shall extend beyond the Revolving Loan
Commitment Termination Date;
(vi) there shall be no more than 20 Interest Periods outstanding
at any time;
(vii) in the event Company fails to specify an Interest Period in
the applicable Notice of Borrowing or Notice of Conversion/Continuation,
Company shall be deemed to have selected an Interest Period of one month; and
(viii) there shall be no Interest Period of nine or twelve months
unless Administrative Agent, after consultation with Lenders, has determined
in good faith based on prevailing conditions in the Eurodollar market on any
date of determination that U.S. dollar deposits are offered by each Lender to
first class banks in the Eurodollar market for a comparable maturity.
C. Interest Payments. Subject to subsection 2.2E, interest shall
be payable on the Loans (other than Bid Rate Loans, interest on which shall be
payable as provided in subsection 2.9J) as follows:
(i) interest on each Base Rate Loan shall be payable in arrears
on and to each March 15, June 15, September 15, and December 15 of each year,
commencing June 15, 1997, and at maturity; and
(ii) interest on each Eurodollar Rate Loan shall be payable in
arrears on and to each Interest Payment Date applicable to that Loan, upon any
prepayment of that Loan (to the extent accrued on the amount being prepaid)
and at maturity.
D. Conversion or Continuation. Subject to the provisions of
subsection 2.6, Company shall have the option (i) to convert at any time all
or any part of its outstanding Revolving Loans equal to $10,000,000 and
integral multiples of $1,000,000 in excess of that amount from Loans bearing
interest at a rate determined by reference to one basis to Loans bearing
interest at a rate determined by reference to an alternative basis or (ii)
upon the expiration of any Interest Period applicable to a Eurodollar Rate
Loan, to continue all or any portion of its outstanding Revolving Loans equal
to $10,000,000 and integral multiples of $1,000,000 in excess of that amount
as a Eurodollar Rate Loan, and the succeeding Interest Period(s) of such
continued Loan shall commence on the last day of the Interest Period of the
Loan to be continued; provided, however, that a Eurodollar Rate Loan may only
be converted into a Base Rate Loan on the expiration date of an Interest
Period applicable thereto; and provided, further, that, unless Requisite
Lenders otherwise agree, no outstanding Loan may be continued as, or be
converted into, a Eurodollar Rate Loan when any Event of Default has occurred
and is continuing.
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Company shall deliver a Notice of Conversion/Continuation to
Administrative Agent no later than 12:00 Noon (New York time) at least one
Business Day in advance of the proposed conversion/continuation date (in the
case of a conversion to a Base Rate Loan) or three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to, or
a continuation of, a Eurodollar Rate Loan). A Notice of Conversion/
Continuation shall specify (i) the proposed conversion/continuation date
(which shall be a Business Day), (ii) the amount of the Loan to be
converted/continued, (iii) the nature of the proposed conversion/continuation
and (iv) in the case of a conversion to, or a continuation of, a Eurodollar
Rate Loan, the requested Interest Period. In lieu of delivering the above
described Notice of Conversion/Continuation, Company may give Administrative
Agent telephonic notice by the required time of any proposed
conversion/continuation under this subsection 2.2D; provided that such notice
shall be promptly confirmed in writing by delivery of a Notice of
Conversion/Continuation to Administrative Agent on or before the proposed
conversion/continuation date.
Administrative Agent shall incur no liability to Company in acting
upon any telephonic notice referred to above which Administrative Agent
believes in good faith to have been given by a duly authorized officer or
other person authorized to act on behalf of Company or for otherwise acting in
good faith under this subsection 2.2D and upon conversion/continuation by
Administrative Agent in accordance with this Agreement pursuant to any
telephonic notice, Company shall have effected Loans hereunder.
Except as provided in subsection 2.6D, a Notice of Conversion/
Continuation for conversion to, or continuation of, a Eurodollar Rate Loan (or
telephonic notice in lieu thereof) shall be irrevocable on and after the
related Interest Rate Determination Date, and upon delivering a Notice of
Conversion/Continuation Company shall be bound to convert or continue in
accordance therewith, unless Company pays to Lenders such amounts as may be
due under subsection 2.6E for failure of a conversion to or continuation of
any Eurodollar Rate Loan to occur on the date specified therefor in a Notice
of Conversion/Continuation (or telephonic notice in lieu thereof).
E. Post-Maturity Interest. Any principal payments on the Loans
not paid when due and, to the extent permitted by applicable law, any interest
payments on the Loans not paid when due, in each case whether at stated
maturity, by notice of prepayment, by acceleration or otherwise, shall
thereafter bear interest payable upon demand at a rate equal to the sum of the
Base Rate plus 2.00% per annum.
F. Computation of Interest. Interest on the Loans shall be
computed on the basis of a 360-day year and the actual number of days elapsed
in the period during which it accrues. In computing interest on any Loan, the
date of the making of the Loan or the first day of an Interest Period, as the
case may be, shall be included and the date of payment or the expiration date
of an Interest Period, as the case may be, shall be excluded; provided that if
a Loan is repaid on the same day on which it is made, one day's interest shall
be paid on that Loan.
2.3 Fees
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A. Facility Fees. Company agrees to pay to Administrative Agent
(for distribution to each Lender in accordance with such Lender's Pro Rata
Share) facility fees with respect to the Revolving Loan Commitments, for the
period from and including the Effective Date to and excluding the Revolving
Loan Commitment Termination Date, equal to the daily average amount of the
Revolving Loan Commitments (without regard to the Total Utilization of
Revolving Loan Commitments at any time or from time to time) multiplied by the
Applicable Facility Fee Percentage, such facility fees to be computed on the
basis of a 360-day year and to be payable in arrears on but excluding March
15, June 15, September 15 and December 15 of each year for the quarter ending
on such date, commencing on the first such date to occur after the Effective
Date, and on the Revolving Loan Commitment Termination Date.
B. Other Fees. Company agrees to pay an annual administrative
fee to Administrative Agent and such other fees to Agents, in each case in the
amounts and at the times agreed upon between Company and the applicable Agent.
2.4 Prepayments and Payments; Reductions in Revolving Loan
Commitments
A. Prepayments.
(i) Voluntary Prepayments. Company may not prepay any Bid Rate
Loan without the prior consent of the applicable Lender, such consent not to
be unreasonably withheld; provided that in the event the applicable Lender so
consents to the prepayment of a Bid Rate Loan, Company shall deliver to
Administrative Agent a notice of such prepayment on or prior to the date of
such prepayment. Subject to the foregoing provisions of this subsection
2.4A(i), Company may, upon written or telephonic notice to Administrative
Agent on or prior to 12:00 Noon (New York time) on the date of prepayment (in
the case of Base Rate Loans) or three Business Days' prior written or
telephonic notice (in the case of Eurodollar Rate Loans), which notice, if
telephonic, shall be promptly confirmed in writing to Administrative Agent and
which notice Administrative Agent will promptly transmit by telegram, telex or
telephone to each Lender, at any time and from time to time prepay any
Revolving Loan in whole or in part in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of that amount;
provided, however, that if a Eurodollar Rate Loan is prepaid on a date other
than the last day of the Interest Period applicable thereto, Company shall be
liable for any payments required by subsection 2.6E. Notice of prepayment
having been given as aforesaid, the principal amount of the Loans specified in
such notice shall become due and payable on the prepayment date.
(ii) Mandatory Prepayments. Company shall make prepayments of
Revolving Loans to the extent necessary so that the aggregate outstanding
principal amount of Revolving Loans at any time does not exceed the Revolving
Loan Commitments then in effect. Company shall also make prepayments of the
Revolving Loans and Bid Rate Loans to the extent necessary so that the Total
Utilization of Revolving Loan Commitments at no time exceeds the Revolving
Loan Commitments.
(iii) Application of Prepayments. Any mandatory prepayment of
Revolving Loans shall be applied first to Base Rate Loans to the full extent
thereof before application to Eurodollar Rate Loans as determined by
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Administrative Agent, in each case in a manner which minimizes the amount of
any payments required to be made by Company pursuant to subsection 2.6E. All
prepayments of Eurodollar Rate Loans shall include payment of accrued interest
on the principal amount so prepaid and shall be applied to payment of
interest before application to principal.
B. Manner and Time of Payment. Except as provided in subsection
2.8E, all payments of principal, interest and fees hereunder and under the
Notes by Company shall be made without defense, setoff and counterclaim and in
same day funds and delivered to Administrative Agent not later than 12:00 Noon
(New York time) on the date due at the Funding and Payment Office for the
account of Lenders; funds received by Administrative Agent after that time
shall be deemed to have been paid by Company on the next succeeding Business
Day. Company hereby authorizes Administrative Agent to charge its accounts
with Administrative Agent in order to cause timely payment to be made to
Administrative Agent of all principal, interest and fees due hereunder
(subject to sufficient funds being available in its accounts for that
purpose); provided that Administrative Agent shall give Company notice of such
charges prior thereto or as soon as reasonably practicable thereafter.
C. Apportionment of Payments.
(i) Generally. Subject to the provisions of subsection 2.4C(ii),
aggregate principal and interest payments in respect of Revolving Loans and,
to the extent payments are made by Company after payments have been made by
Lenders pursuant to subsection 2.8E, payments in respect of Letters of Credit,
shall be apportioned among the Revolving Loans and Letters of Credit to which
such payments relate, and payments of the aggregate facility fees and Letter
of Credit commissions shall be apportioned ratably among Lenders, in each case
proportionally to their respective Pro Rata Shares. All principal and
interest payments in respect of the Overdraft Account shall be transferred to
and retained by Administrative Agent; provided that Administrative Agent shall
distribute to each Lender that has purchased a participation in amounts due
with respect to the Overdraft Account pursuant to subsection 2.1B such
Lender's Pro Rata Share of any payments subsequently received by
Administrative Agent in respect of such amounts due with respect to the
Overdraft Account. All principal and interest payments in respect of any Bid
Rate Loans shall be apportioned ratably among Lenders making such Bid Rate
Loans in accordance with the respective outstanding amounts of such Bid Rate
Loans. Subject to the last sentence of subsection 2.8E, Administrative Agent
(or, in the case of payments received by any Issuing Lender from Company after
payments have been made to such Issuing Lender by Lenders pursuant to
subsection 2.8E, such Issuing Lender) shall promptly distribute to each
Lender, at its primary address set forth below its name on the appropriate
signature page hereof or at such other address as any Lender may request, its
share of all such payments received by Administrative Agent (or such Issuing
Lender) and the facility fees of such Lender when received by Administrative
Agent pursuant to subsection 2.3A. Notwithstanding the foregoing provisions
of this subsection 2.4C, (i) if, pursuant to the provisions of subsection
2.6D, any Notice of Borrowing or Notice of Conversion/Continuation is
withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate
Loans in lieu of its Pro Rata Share of Eurodollar Rate Loans, Administrative
Agent shall give effect thereto in apportioning payments received thereafter
and (ii) after the occurrence of an Event of Default and acceleration of the
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maturity of the Loans and amounts available for drawing under Letters of
Credit as provided in Section 7, Administrative Agent shall apportion all
payments received by it in the manner specified in Section 7.
(ii) Non-Pro Rata Prepayment on the Effective Date. Anything
contained herein or in any of the other Loan Documents to the contrary
notwithstanding, the parties hereto agree that any prepayment of the Revolving
Loans on the Effective Date shall be applied to the outstanding Revolving
Loans of Lenders on a non-pro rata basis (rather than applying such prepayment
to all Revolving Loans outstanding at the time of such prepayment in
proportion to Lenders' respective Pro Rata Shares as would otherwise be
required pursuant to subsection 2.4C(i)), such application to be made in a
manner such that, after giving effect thereto, the outstanding Revolving Loans
of each Lender shall be in an amount directly proportional to such Lender's
Pro Rata Share of all Revolving Loans then outstanding.
D. Payments on Non-Business Days. Whenever any payment to be
made hereunder or under the Notes shall be stated to be due on a day which is
not a Business Day, the payment shall be made on the next succeeding Business
Day and such extension of time shall be included in the computation of the
payment of interest hereunder or under the Notes or of the facility fees and
other fees hereunder, as the case may be.
E. Notation of Payment. Each Lender agrees that before disposing
of any Note held by it, or any part thereof (other than by granting
participations therein), that Lender will make a notation thereon of all Loans
and principal payments previously made thereon and of the date to which
interest thereon has been paid and will notify Company and Administrative
Agent of the name and address of the transferee of that Note; provided that
the failure to make (or any error in the making of) a notation of any Loan
made under such Note or to notify Company or Administrative Agent of the name
and address of such transferee shall not limit or otherwise affect the
obligation of Company hereunder or under such Note with respect to any Loan
and payments of principal or interest on any such Note.
F. Voluntary Reductions of Revolving Loan Commitments. Company
shall have the right, at any time and from time to time, to terminate in whole
or permanently reduce in part, without premium or penalty, the Revolving Loan
Commitments in an amount up to the amount by which the Revolving Loan
Commitments exceed the Total Utilization of Revolving Loan Commitments at the
time of such proposed termination or reduction.
Company shall give not less than three Business Days' prior
written notice to Administrative Agent designating the date (which shall be a
Business Day) of such termination or reduction and the amount of any partial
reduction. Promptly after receipt of a notice of such termination or partial
reduction, Administrative Agent shall notify each Lender of the proposed
termination or partial reduction. Such termination or partial reduction of
the Revolving Loan Commitments shall be effective on the date specified in the
notice delivered by Company and shall reduce the Revolving Loan Commitment of
each Lender proportionately to its Pro Rata Share. Any such partial reduction
of the Revolving Loan Commitments shall be in an aggregate minimum amount of
$5,000,000, and integral multiples of $1,000,000 in excess of that amount.
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2.5 Use of Proceeds
A. Loans. The proceeds of any Loans made on or after the
Effective Date shall be used to provide for the working capital requirements
and general corporate purposes of Company and its Subsidiaries, which may
include the financing, if any, of the Senior Debenture Tender Offer and the
Subordinated Note Redemption, the payment of the Overdraft Amount pursuant to
subsection 2.1B, the payment of the Bid Rate Loans, the reimbursement to any
Issuing Lender of any amounts drawn under any Letters of Credit issued by such
Issuing Lender as provided in subsection 2.8D, and the making of intercompany
loans to Company's Subsidiaries for their own general corporate purposes.
B. Letters of Credit. Letters of Credit shall be issued solely
for the purposes specified in the definitions of Commercial Letter of Credit
and Standby Letter of Credit.
C. Margin Regulations. No portion of the proceeds of any
borrowing under this Agreement shall be used by Company in any manner which
would cause the borrowing or the application of such proceeds to violate
Regulation G, Regulation U, Regulation T, or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board
or to violate the Exchange Act, in each case as in effect on the date or dates
of such borrowing and such use of proceeds.
2.6 Special Provisions Governing Eurodollar Rate Loans
Notwithstanding other provisions of this Agreement, the following
provisions shall govern with respect to Eurodollar Rate Loans as to the
matters covered:
A. Determination of Interest Rate. As soon as practicable after
10:00 A.M. (New York time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent
manifest or demonstrable error, be final, conclusive and binding upon all
parties) the interest rate which shall apply to the Eurodollar Rate Loans for
which an interest rate is then being determined for the applicable Interest
Period (subject to any changes in the Applicable Eurodollar Margin pursuant to
the terms of the definition thereof) and shall promptly give notice thereof
(in writing or by telephone confirmed in writing) to Company and to each
Lender.
B. Substituted Rate of Borrowing. In the event that on any
Interest Rate Determination Date any Lender (including Administrative Agent)
shall have determined (which determination shall, absent manifest or
demonstrable error, be final and conclusive and binding upon all parties but,
with respect to the following clauses (i) and (ii)(b), shall be made only
after consultation with Company and Administrative Agent) that:
(i) by reason of any changes arising after the date of this
Agreement affecting the Eurodollar market or affecting the position of
that Lender in such market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for
in the definition of Adjusted Eurodollar Rate with respect to the
Eurodollar Rate Loans as to which an interest rate determination is then
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being made; or
(ii) by reason of (a) any change after the date hereof in any
applicable law or governmental rule, regulation or order (or any
interpretation thereof and including the introduction of any new law or
governmental rule, regulation or order) or (b) other circumstances
affecting that Lender or the Eurodollar market or the position of that
Lender in such market (such as for example, but not limited to, official
reserve requirements required by Regulation D to the extent not given
effect in the Adjusted Eurodollar Rate), the Adjusted Eurodollar Rate
shall not represent the effective pricing to that Lender for Dollar
deposits of comparable amounts for the relevant period;
then, and in any such event, that Lender shall be an Affected Lender and it
shall promptly (and in any event as soon as possible after being notified of a
borrowing, conversion or continuation) give notice (by telephone confirmed in
writing) to Company and Administrative Agent (which notice Administrative
Agent shall promptly transmit to each other Lender) of such determination.
There-after, Company shall pay to the Affected Lender with respect to
Company's Eurodollar Rate Loans, upon written demand therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as the Affected Lender in its sole
discretion shall reasonably determine) as shall be required to cause the
Affected Lender to receive interest with respect to such Affected Lender's
Eurodollar Rate Loans for the Interest Period(s) following that Interest Rate
Determination Date at a rate per annum equal to the sum of the effective
pricing to the Affected Lender for Dollar deposits to make or maintain its
Eurodollar Rate Loans plus the Applicable Eurodollar Margin. A certificate as
to additional amounts owed the Affected Lender, showing in reasonable detail
the basis for the calculation thereof, submitted in good faith to Company and
Administrative Agent by the Affected Lender shall, absent manifest or
demonstrable error, be final and conclusive and binding upon all of the
parties hereto.
C. Required Termination and Prepayment. In the event that on any
date any Lender shall have reasonably determined (which determination shall,
absent manifest or demonstrable error, be final and conclusive and binding
upon all parties) that the making or continuation of its Eurodollar Rate Loans
has become unlawful by compliance by that Lender in good faith with any law,
governmental rule, regulation or order (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful), then, and
in any such event, that Lender shall be an Affected Lender and it shall
promptly give notice (by telephone confirmed in writing) to Company and
Administrative Agent (which notice Administrative Agent shall promptly
transmit to each Lender) of that determination. Subject to the following
subsection 2.6D, the obligation of the Affected Lender to make or maintain its
Eurodollar Rate Loans during any such period shall be terminated at the
earlier of the termination of the Interest Period then in effect or when
required by law and Company shall, no later than the termination of the
Interest Period in effect at the time any such determination pursuant to this
subsection 2.6C is made, or earlier when required by law, repay the Eurodollar
Rate Loans of the Affected Lender, together with all interest accrued thereon.
D. Options of Company. In lieu of paying an Affected Lender such
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additional moneys as are required by subsection 2.6B or the prepayment of an
Affected Lender required by subsection 2.6C, Company may exercise any one of
the following options:
(i) If the determination by an Affected Lender relates only to
Eurodollar Rate Loans then being requested by Company pursuant to a
Notice of Borrowing or a Notice of Conversion/Continuation, Company may
by giving notice (by telephone confirmed in writing) to Administrative
Agent (who shall promptly give similar notice to each Lender) no later
than the date immediately prior to the date on which such Eurodollar
Rate Loans are to be made, converted or continued, withdraw as to the
Affected Lender that Notice of Borrowing or such Notice of Conversion/
Continuation and such Affected Lender shall thereupon make or maintain
its Pro Rata Share of the Eurodollar Rate Loan then being requested,
converted or continued as a Base Rate Loan; or
(ii) Upon written notice to Administrative Agent and each Lender,
Company may terminate the obligations of Lenders to make or maintain
Loans as, and to convert Loans into, Eurodollar Rate Loans and in such
event, Company shall, prior to the time any payment pursuant to
subsection 2.6C is required to be made or, if the provisions of
subsection 2.6B are applicable, at the end of the then current Interest
Period, convert all of the Eurodollar Rate Loans into Base Rate Loans in
the manner contemplated by subsection 2.2D but without satisfying the
advance notice requirements therein; or
(iii) Company may give notice (by telephone confirmed in writing)
to the Affected Lender and Administrative Agent (who shall promptly give
similar notice to each Lender) and require the Affected Lender to make
the Eurodollar Rate Loan then being requested as a Base Rate Loan or to
continue to maintain its outstanding Base Rate Loan then the subject of
a Notice of Conversion/ Continuation as a Base Rate Loan or to convert
its Eurodollar Rate Loans then outstanding that are so affected into
Base Rate Loans at the end of the then current Interest Period (or at
such earlier time as prepayment is otherwise required to be made
pursuant to subsection 2.6C) in the manner contemplated by subsection
2.2D but without satisfying the advance notice requirements therein,
that notice to pertain only to the Loans of the Affected Lender and to
have no effect on the obligations of the other Lenders to make or
maintain Eurodollar Rate Loans or to convert Base Rate Loans into
Eurodollar Rate Loans.
E. Compensation. Company shall compensate each Lender, upon
written request by that Lender (which request shall set forth in reasonable
detail the basis for requesting such amounts), for all reasonable losses,
expenses and liabilities (including, without limitation, any interest paid by
that Lender to lenders of funds borrowed by it to make or carry its Eurodollar
Rate Loans and any loss sustained by that Lender in connection with the
re-employment of such funds), which that Lender may sustain with respect to
Company's Eurodollar Rate Loans: (i) if for any reason (other than a default
by that Lender) a borrowing of any Eurodollar Rate Loan does not occur on a
date specified therefor in a Notice of Borrowing, a Notice of Conversion/
Continuation or a telephonic request for borrowing or conversion/continuation
or a successive Interest Period does not commence after notice therefor is
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given pursuant to subsection 2.2D, (ii) if any prepayment or other principal
payment of any of its Eurodollar Rate Loans occurs on a date prior to the last
day of the Interest Period applicable to that Loan, (iii) if any prepayment of
any of such Lender's Eurodollar Rate Loans is not made on any date specified
in a notice of prepayment given by Company, or (iv) as a consequence of any
other default by Company to repay such Lender's Eurodollar Rate Loans when
required by the terms of this Agreement.
F. Quotation of Adjusted Eurodollar Rate. Anything herein to the
contrary notwithstanding, if on any Interest Rate Determination Date no
Adjusted Eurodollar Rate is available by reason of the failure of all
Reference Lenders to provide offered quotations to Administrative Agent in
accordance with the definition of "Adjusted Eurodollar Rate," Administrative
Agent shall give Company and each Lender prompt notice thereof and the Loans
requested shall be made as Base Rate Loans.
G. Booking of Eurodollar Rate Loans. Any Lender may make, carry
or transfer Eurodollar Rate Loans at, to, or for the account of, any of its
branch offices or the office of an Affiliate of that Lender.
H. Assumptions Concerning Funding of Eurodollar Rate Loans.
Calculation of all amounts payable to a Lender under this subsection 2.6 shall
be made as though that Lender had actually funded its relevant Eurodollar Rate
Loan through the purchase of a Eurodollar deposit bearing interest at the rate
obtained pursuant to clause (i) of the definition of Adjusted Eurodollar Rate
in an amount equal to the amount of that Eurodollar Rate Loan and having a
maturity comparable to the relevant Interest Period and through the transfer
of such Eurodollar deposit from an offshore office of that Lender to a
domestic office of that Lender in the United States of America; provided,
however, that each Lender may fund each of its Eurodollar Rate Loans in any
manner it sees fit and the foregoing assumption shall be utilized only for the
calculation of amounts payable under this subsection 2.6.
I. Eurodollar Rate Loans After Default. Unless Requisite Lenders
shall otherwise agree, after the occurrence of and during the continuance of
an Event of Default, Company may not elect to have a Loan be made or
maintained as, or converted to, a Eurodollar Rate Loan after the expiration of
any Interest Period then in effect for that Loan.
J. Affected Lenders' Obligation to Mitigate. Each Lender agrees
that, as promptly as practicable after it becomes aware of the occurrence of
an event or the existence of a condition that would cause it to be an Affected
Lender under subsection 2.6B or 2.6C, it will, to the extent not inconsistent
with such Lender's internal policies, use its best efforts to make, fund or
maintain the affected Eurodollar Rate Loans of such Lender through another
lending office of such Lender if as a result thereof the additional moneys
which would otherwise be required to be paid in respect of such Loans pursuant
to subsection 2.6B would be materially reduced or the illegality or other
adverse circumstances which would otherwise require prepayment of such Loans
pursuant to subsection 2.6C would cease to exist and if, as determined by such
Lender, in its sole discretion, the making, funding or maintaining of such
Loans through such other lending office would not otherwise materially
adversely affect such Loans or such Lender. Company hereby agrees to pay all
reasonable expenses incurred by any Lender in utilizing another lending office
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of such Lender pursuant to this subsection 2.6J.
K. Replacement of Lender. If Company receives a notice pursuant
to subsection 2.6B or 2.6C, so long as no Event of Default shall have occurred
and be continuing and Company has obtained a commitment from another Lender or
an Eligible Assignee to become a Lender for all purposes under this Agreement
and to assume all obligations of the Lender to be replaced, Company may
require the Lender giving such notice to assign all of its Loans, its
Revolving Loan Commitment and its other Obligations to such other Lender or
Eligible Assignee, at par, pursuant to the provisions of subsection 9.2B;
provided that, prior to or concurrently with such replacement (i) Company has
paid or caused to be paid to the Lender giving such notice all principal,
interest, fees and other amounts due and owing to such Lender hereunder
through such date of replacement (including any amounts payable under
subsection 2.6E), (ii) Company has paid to Administrative Agent the processing
and recordation fee required to be paid by subsection 9.2B(i), and (iii) all
of the requirements for such assignment contained in subsection 9.2B,
including, without limitation, the receipt by Administrative Agent of an
executed Assignment and Acceptance and other supporting documents, have been
fulfilled.
2.7 Capital Adequacy Adjustment; Increased Costs; Taxes
A. Capital Adequacy. If any Lender shall have determined in good
faith that the adoption, effectiveness, phase-in or applicability (excluding
any adoption, effectiveness, phase-in or applicability published as of the
Effective Date and currently scheduled to take effect) after the date hereof
of any law, rule or regulation (or any provision thereof) regarding capital
adequacy, or any change therein or in the interpretation or administration
thereof after the date hereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof,
or compliance by any Lender (or its applicable lending office) with any
guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such governmental authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on the capital of such Lender or any corporation controlling such Lender as a
consequence of, or with reference to, such Lender's Loans or Revolving Loan
Commitment or Letters of Credit or participations therein or other obligations
hereunder to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness,
phase-in, applicability, change or compliance (taking into consideration the
policies of such Lender or such controlling corporation with regard to capital
adequacy), then from time to time, within fifteen Business Days after receipt
by Company from such Lender of the statement referred to in the next sentence,
Company shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such controlling corporation on an after-tax basis
for such reduction; provided that a Lender shall not be entitled to avail
itself of the benefit of this subsection 2.7A to the extent that any such
reduction in return was incurred more than six months prior to the time it
first makes a demand therefor, unless the circumstance giving rise to such
reduced return arose or became applicable retrospectively, in which case no
time limit shall apply (provided that such Lender has notified Company within
six months from the date such circumstances arose or became applicable). Each
Lender, upon determining in good faith that any additional amounts will be
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payable pursuant to this subsection 2.7A, will give prompt written notice
thereof to Company (with a copy to Administrative Agent), which notice shall
set forth in reasonable detail the basis of the calculation of such additional
amounts.
B. Compensation for Increased Costs and Taxes. In the event that
any Lender shall determine in good faith (which determination shall, absent
manifest or demonstrable error, be final and conclusive and binding upon all
parties hereto) that any law, treaty or governmental rule, regulation or
order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
governmental authority, in each case that is adopted after the date hereof, or
compliance by such Lender with any guideline, request or directive issued or
made after the date hereof by any central bank or other governmental or quasi-
governmental authority (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to
any additional Tax (other than any Tax on the overall net income of such
Lender) with respect to this Agreement or any of the Loans or any of its
obligations hereunder, or changes the basis of taxation of payments to
such Lender (or its applicable lending office) of principal, interest,
fees or any other amount payable hereunder (except for changes in the
rate of Tax on the overall net income of such Lender or its applicable
lending office);
(ii) imposes, modifies or holds applicable any reserve (including
without limitation any marginal, emergency, supplemental, special or
other reserve), special deposit, compulsory loan, FDIC insurance or
similar requirement against assets held by, or deposits or other
liabilities in or for the account of, or advances or loans by, or other
credit extended by, or any other acquisition of funds by, any office of
such Lender (other than any such reserve or other requirements with
respect to Eurodollar Rate Loans that are reflected in the definition of
Adjusted Eurodollar Rate); or
(iii) imposes any other condition on or affecting such Lender (or
its applicable lending office) or its obligations hereunder or the
interbank Eurodollar market, other than with respect to Taxes;
and the result of any of the foregoing is to increase the cost to such Lender
of agreeing to make, making or maintaining Loans hereunder or to reduce any
amount received or receivable by such Lender (or its applicable lending
office) with respect thereto; then, in any such case, Company shall promptly
pay to such Lender, upon written demand and receipt of the written notice
referred to below, such additional amount or amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its sole discretion shall determine) as may be necessary to
compensate such Lender on an after-tax basis for any such increased cost
or reduction in amounts received or receivable hereunder; provided that any
increased cost arising as a result of any of the foregoing other than in
respect of Taxes shall apply only to Eurodollar Rate Loans; provided further
that a Lender shall not be entitled to avail itself of the benefit of this
subsection 2.7B to the extent that any such increased cost or reduction was
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incurred more than six months prior to the time it gives notice to Company (as
provided in the next sentence) of the relevant circumstance, unless such
circumstance arose or became applicable retrospectively, in which case no time
limit shall apply (provided that such Lender has notified Company within six
months from the date such circumstances arose or became applicable). Such
Lender shall deliver to Company a written notice, setting forth in reasonable
detail the basis for calculating the additional amounts owed to such Lender
under this subsection 2.7B, which statement shall be conclusive and binding
upon all parties hereto absent manifest or demonstrable error.
C. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable by Company
under this Agreement and the other Loan Documents shall be paid free and
clear of and (except to the extent required by law) without any
deduction or withholding on account of any Covered Tax imposed, levied,
collected, withheld or assessed by or within the United States of
America or any political subdivision in or of the United States of
America or any other jurisdiction from or to which a payment is made by
or on behalf of Company or by any federation or organization of which
the United States of America or any such jurisdiction is a member at the
time of payment.
(ii) Withholding in respect of Payments. If Company or any other
Person is required by law to make any deduction or withholding on
account of any such Tax from any sum paid or payable by Company to
Administrative Agent or any Lender under any of the Loan Documents:
(a) Company shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as
Company becomes aware of it;
(b) Company shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if the
liability to pay is imposed on Company) for its own account or (if
that liability is imposed on Administrative Agent or such Lender,
as the case may be) on behalf of and in the name of
Administrative Agent or such Lender;
(c) in the event such Tax is a Covered Tax, the sum payable
by Company in respect of which the relevant deduction, withholding
or payment is required shall be increased to the extent necessary
to ensure that, after the making of that deduction, withholding or
payment, Administrative Agent or such Lender, as the case may be,
receives on the due date and retains (free from any liability in
respect of any such deduction, withholding or payment) a net sum
equal to what it would have received and so retained had no such
deduction, withholding or payment in respect of Covered Taxes been
required or made; and
(d) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within
30 days after the due date of payment of any Tax which it is
required by clause (b) above to pay, Company shall deliver to
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Administrative Agent evidence reasonably satisfactory to the other
affected parties of such deduction, withholding or payment and of
the remittance thereof to the relevant taxing or other authority;
provided that no such additional amount shall be required to be paid to
any Lender under clause (c) above except to the extent that any change
after the date hereof in any such requirement for a deduction,
withholding or payment as is mentioned in clause (c) above shall result
in an increase in the rate of such deduction, withholding or payment
from that in effect at the date of this Agreement in respect of payments
to such Lender.
(iii) Tax Refund. If Company determines in good faith that a
reasonable basis exists for contesting a Covered Tax, the relevant
Lender or Tax Transferee or Administrative Agent, as applicable, shall
cooperate with Company (but shall have no obligation to disclose any
confidential information, unless arrangements satisfactory to the
relevant Lender have been made to preserve the confidential nature of
such information) in challenging such Tax at Company's expense if
requested by Company (it being understood and agreed that none of
Administrative Agent or any Lender shall have any obligation to
contest, or any responsibility for contesting, any Tax). If any Lender,
Tax Transferee or Administrative Agent, as applicable, receives a refund
(whether by way of a direct payment or by offset) of any Covered Tax for
which a payment has been made pursuant to this subsection 2.7C which, in
the reasonable good faith judgment of such Lender, Tax Transferee or
Administrative Agent, as the case may be, is allocable to such payment
made under this subsection 2.7C, the amount of such refund (together
with any interest received thereon) shall be paid to Company to the
extent payment has been made in full as and when required pursuant to
this subsection 2.7C.
(iv) U.S. Tax Certificates. Each Lender that is organized under
the laws of any jurisdiction other than the United States or any state
or other political subdivision thereof shall deliver to Administrative
Agent for transmission to Company, on or prior to the Effective Date (in
the case of each Lender listed on the signature pages hereof) or on the
date of the Assignment and Acceptance pursuant to which it becomes a
Lender (in the case of each other Lender), and at such other times as
may be necessary in the determination of Company or Administrative Agent
(each in the reasonable exercise of its discretion), such certificates,
documents or other evidence, properly and accurately completed and duly
executed by such Lender (including, without limitation, Internal Revenue
Service Form 1001 or Form 4224 or any other certificate or statement of
exemption required by Treasury Regulations Section 1.1441-4(a) or
Section 1.1441-6(c) or any successor thereto) to establish that such
Lender is not subject to deduction or withholding of United States
federal income tax under Section 1441 or 1442 of the Internal Revenue
Code or otherwise (or under any comparable provisions of any successor
statute) with respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of the Loan Documents.
Company shall not be required to pay any additional amount to any such
Lender under subsection 2.7C(ii) if such Lender shall have failed to
satisfy the requirements of the immediately preceding sentence; provided
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that if such Lender shall have satisfied such requirements on the
Effective Date (in the case of each Lender listed on the signature
pages hereof) or on the date of the Assignment and Acceptance pursuant
to which it became a Lender (in the case of each other Lender), nothing
in this subsection 2.7C(iv) shall relieve Company of its obligation to
pay any additional amounts pursuant to clause (c) of subsection 2.7C(ii)
in the event that, as a result of any change in applicable law after the
Effective Date or the date of the applicable Assignment and Acceptance,
as the case may be, such Lender is no longer properly entitled to
deliver certificates, documents or other evidence at a subsequent date
establishing the fact that such Lender is not subject to withholding as
described in the immediately preceding sentence.
D. Replacement of Lender. If Company receives a notice pursuant
to subsections 2.7A, 2.7B or 2.7C, so long as no Event of Default shall have
occurred and be continuing and Company has obtained a commitment from another
Lender or an Eligible Assignee to become a Lender for all purposes under this
Agreement and to assume all obligations of the Lender to be replaced, Company
may require the Lender giving such notice to assign all of its Loans, its
Revolving Loan Commitment and its other Obligations to such other Lender or
Eligible Assignee, at par, pursuant to the provisions of subsection 9.2B;
provided that, prior to or concurrently with such replacement (i) Company has
paid or caused to be paid to the Lender giving such notice all principal,
interest, fees and other amounts due and owing to such Lender hereunder
through such date of replacement (including any amounts payable under
subsection 2.6E), (ii) Company has paid to Administrative Agent the processing
and recordation fee required to be paid by subsection 9.2B(i), and (iii) all
of the requirements for such assignment contained in subsection 9.2B,
including, without limitation, the receipt by Administrative Agent of an
executed Assignment and Acceptance and other supporting documents, have been
fulfilled.
2.8 Letters of Credit
A. Letters of Credit. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
Company set forth herein, Company may request, in accordance with the
provisions of this subsection 2.8A, in addition to requesting that
Lenders make Loans pursuant to subsections 2.1 and 2.9, that on and after the
Effective Date one or more Issuing Lenders issue, and one or more Issuing
Lenders will issue, subject to the terms and conditions hereof, Standby
Letters of Credit and Commercial Letters of Credit for the account of Company.
Issuances of Letters of Credit shall be subject to the following limitations:
(i) Company shall not request that any Lender issue any Letter of
Credit if, after giving effect to such issuance, the Total Utilization
of Revolving Loan Commitments would exceed the Revolving Loan
Commitments then in effect;
(ii) In no event shall any Issuing Lender issue (w) any Letter of
Credit having an expiration date later than the Revolving Loan
Commitment Termination Date; (x) subject to the foregoing clause (w),
any Standby Letter of Credit having an expiration date more than one
year after its date of issuance; provided that, subject to the foregoing
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clause (w) and to subsection 2.8A(iii), this clause (x) shall not
prevent any Issuing Lender from issuing a Standby Letter of Credit
having an expiration date up to two years after its date of issuance if
such Standby Letter of Credit will be used by Company in connection
with, or in lieu of, posting an appeal bond; provided, further that,
subject to the foregoing clause (w), this clause (x) shall not prevent
any Issuing Lender from agreeing that a Standby Letter of Credit will
automatically be extended annually for a period not to exceed one year
unless such Issuing Lender gives notice that it will not extend;
provided, further that such Issuing Lender shall deliver a written
notice to Administrative Agent setting forth the last day on which such
Issuing Lender may give notice that it will not extend (the Notification
Date" with respect to such Standby Letter of Credit) at least ten
Business Days prior to such Notification Date; and provided, further
that, unless Requisite Lenders otherwise consent, such Issuing Lender
shall give notice that it will not extend if it has knowledge that an
Event of Default has occurred and is continuing on such Notification
Date; or (y) any Commercial Letter of Credit (1) having a tenor other
than sight or (2) having an expiration date which is more than 180 days
after its date of issuance or which is less than 30 days prior to the
Revolving Loan Commitment Termination Date or which is otherwise
unacceptable to such Issuing Lender in its reasonable discretion;
(iii) Company shall not request that any Issuing Lender issue any
Standby Letter of Credit having an expiration date more than one year
after its date of issuance which will be used by Company in connection
with, or in lieu of, posting an appeal bond if, after giving effect to
such issuance, the Letter of Credit Usage in respect of all such Standby
Letters of Credit would exceed $25,000,000; and
(iv) Company shall not request that any Issuing Lender issue any
Letter of Credit if, after giving effect to such issuance, the Letter of
Credit Usage in respect of Letters of Credit would exceed $300,000,000.
The issuance of any Letter of Credit in accordance with the
provisions of this subsection 2.8 shall be given effect in the calculation of
the Total Utilization of Revolving Loan Commitments and shall require the
satisfaction of each condition set forth in subsections 3.1 and 3.3.
Company and Lenders agree that any Standby Letter of Credit issued
by any Lender as a "Letter of Credit" (as defined in the Existing Credit
Agreement) pursuant to the Existing Credit Agreement and outstanding as of the
Effective Date shall for all purposes of this Agreement be deemed to have been
issued as a Standby Letter of Credit as of the Effective Date under and
pursuant to the terms of this Agreement, and all fees payable under subsection
2.8F with respect to such Standby Letters of Credit shall accrue from and
after the Effective Date. All Standby Letters of Credit originally issued
pursuant to the Existing Credit Agreement are described in Schedule E annexed
hereto.
Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby agrees to, have irrevocably purchased
from the Issuing Lender a participation in such Letter of Credit and drawings
thereunder in an amount equal to such Lender's Pro Rata Share of the maximum
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amount which is or at any time may become available to be drawn thereunder.
B. Notice of Issuance. Whenever Company desires the issuance of
a Letter of Credit, it shall deliver to Administrative Agent and to the Lender
which Company has requested to issue such Letter of Credit a Notice of
Issuance of Letter of Credit no later than 1:00 P.M. (New York time) at least
five Business Days, or such shorter period as may be agreed to by an Issuing
Lender in any particular instance, in advance of the proposed date of
issuance. The Notice of Issuance of Letter of Credit shall specify (i) the
proposed date of issuance (which shall be a business day under the laws of the
jurisdiction of the Issuing Lender), (ii) the face amount of the Letter of
Credit, (iii) in the case of a Letter of Credit which Company requests to be
denominated in a currency other than Dollars, the currency in which Company
requests such Letter of Credit to be issued, (iv) the expiration date of the
Letter of Credit, (v) the name and address of the beneficiary, and (vi) the
Lender which Company has requested to issue such Letter of Credit; and such
Notice of Issuance of Letter of Credit shall further certify that subsection
3.2B is satisfied on and as of the date of issuance of such Letter of Credit.
As soon as practicable after delivery of such notice with respect to any
Letter of Credit, the Issuing Lender for such Letter of Credit shall be
determined as provided in subsection 2.8C(ii). Prior to the date of issuance,
Company shall specify a precise description of the documents and the verbatim
text of any certificate to be presented by the beneficiary which, if presented
by the beneficiary prior to the expiration date of the Letter of Credit, would
require the Issuing Lender to make payment under the Letter of Credit;
provided that the Issuing Lender, in its sole reasonable judgment, may require
changes in any such documents and certificates; and provided further that no
Letter of Credit shall require payment against a conforming draft to be made
thereunder on the same business day (under the laws of the jurisdiction of the
Issuing Lender) that such draft is presented if such presentation is made
after 11:00 a.m. in the time zone of the Issuing Lender on such business day.
In determining whether to pay under any Letter of Credit, the Issuing Lender
shall be responsible only to determine that the documents and certificates
required to be delivered under that Letter of Credit have been delivered and
that they comply on their face with the requirements of that Letter of Credit.
C. Determination of Issuing Lender.
(i) Company may request any Lender to issue a Letter of Credit
and, upon receipt by a Lender of a notice from Company pursuant to
subsection 2.8B requesting the issuance of a Letter of Credit, such
Lender shall promptly notify Company and Administrative Agent whether or
not, in its sole discretion, it has elected to issue such Letter of
Credit. If such Lender elects to issue such Letter of Credit, such
Lender shall be the Issuing Lender with respect thereto. If such Lender
declines to issue such Letter of Credit, the Company may request any
other Lender to issue such Letter of Credit, by delivering the notice
described in subsection 2.8B to such Lender. In the event that all
Lenders shall have declined to issue such Letter of Credit,
Administrative Agent shall be obligated to issue the Letter of Credit
requested by Company and shall be the Issuing Lender with respect to
such Letter of Credit; provided that Administrative Agent shall not
be obligated to issue any Letter of Credit denominated in a foreign
currency which in the reasonable judgment of Administrative Agent is not
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readily and freely available.
(ii) Each Issuing Lender which elects to issue a Letter of Credit
shall promptly give written notice to Administrative Agent and each
other Lender of the information required under clauses (i)-(iv) of
subsection 2.8B relating to such Letter of Credit and shall provide a
copy of such Letter of Credit to Administrative Agent and each other
Lender. Promptly after receipt of such notice, Administrative Agent
shall notify each Lender (other than the Issuing Lender) of the amount
of its respective participation therein, determined in accordance with
subsection 2.8A.
(iii) On March 10, June 10, September 10 and December 10 of each
year, each Issuing Lender in respect of any Letter of Credit that was
outstanding during all or any portion of the period since the
immediately preceding December 10, March 10, June 10 or September 10, as
the case may be, shall deliver to each other Lender a report setting
forth for such period the daily aggregate amount available to be drawn
under each such Letter of Credit issued by such Issuing Lender.
D. Payment of Amounts Drawn Under Letters of Credit. In the
event of any request for drawing under any Letter of Credit by the beneficiary
thereof, the Issuing Lender shall notify Company and Administrative Agent on
or before the date which is two Business Days prior to the date on which such
Issuing Lender intends to honor such drawing (unless such Letter of Credit by
its terms requires the Issuing Lender to honor a drawing on or prior to the
second Business Day following such drawing, in which case the Issuing Lender
shall notify Company and Administrative Agent as soon as reasonably
practicable but in any event on or before the date on which such Issuing
Lender intends to honor such drawing), and Company shall reimburse such
Issuing Lender on the date on which such drawing is honored, in each case in
an amount in Dollars and in same day funds equal to the amount of such drawing
(which amount, in the case of a drawing under a Letter of Credit which is
denominated in a currency other than Dollars, shall be calculated by reference
to the applicable Exchange Rate); provided that, anything contained in this
Agreement to the contrary notwithstanding, (i) unless Company shall have
notified Administrative Agent and such Issuing Lender prior to 11:00 a.m. (New
York time) on the Business Day immediately prior to the date of such drawing
that Company intends to reimburse such Issuing Lender for the amount of such
drawing with funds other than the proceeds of Revolving Loans, Company shall
be deemed to have given a Notice of Borrowing to Administrative Agent
requesting Lenders to make Revolving Loans which are Base Rate Loans, on the
date on which such drawing is honored, in an amount in Dollars equal to the
amount of such honored drawing (which amount, in the case of a drawing under a
Letter of Credit which is denominated in a currency other than Dollars, shall
be calculated by reference to the applicable Exchange Rate), and (ii) subject
to satisfaction or waiver of the conditions specified in subsection 3.2B,
Lenders shall, on the date of such requested borrowing, make Revolving Loans
which are Base Rate Loans in the amount of such drawing as aforesaid, the
proceeds of which shall be applied directly by Administrative Agent to
reimburse such Issuing Lender for the amount of such drawing; and further
provided that, if for any reason proceeds of Revolving Loans are not received
by such Issuing Lender on such date in an amount equal to the amount of such
drawing, Company shall reimburse such Issuing Lender, on the business day
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(under the laws of the jurisdiction of such Issuing Lender) immediately
following the date on which reimbursement of such drawing is required as
provided above, in an amount in same day funds equal to the excess of the
amount of such drawing over the amount of such Revolving Loans, if any, which
are so received, plus accrued interest on such amount at the rate set forth in
subsection 2.8F(4).
E. Payment by Lenders with Respect to Letters of Credit. In the
event that Company shall fail to reimburse an Issuing Lender as provided in
subsection 2.8D in an amount in Dollars (calculated, in the case of a drawing
under a Letter of Credit denominated in a currency other than Dollars, by
reference to the applicable Exchange Rate) equal to the amount of any drawing
honored by such Issuing Lender under a Letter of Credit issued by it, such
Issuing Lender shall promptly notify Administrative Agent of the unreimbursed
amount of such drawing and Administrative Agent shall promptly notify each
Lender of such unreimbursed amount and of such Lender's respective
participation therein. Each Lender shall make available to such Issuing
Lender an amount equal to its respective participation, in Dollars and in same
day funds, at the office of such Issuing Lender specified in such notice, not
later than 1:00 P.M. (New York time) on the business day (under the laws of
the jurisdiction of such Issuing Lender) after the date notified by such
Issuing Lender. In the event that any Lender fails to make available to such
Issuing Lender the amount of such Lender's participation in such Letter of
Credit as provided in this subsection 2.8E, such Issuing Lender shall be
entitled to recover such amount on demand from such Lender together with
interest at the customary rate set by such Issuing Lender for the correction
of errors among banks for three Business Days and thereafter at the Base Rate.
Nothing in this subsection 2.8 shall be deemed to prejudice the right of any
Lender to recover from such Issuing Lender any amounts made available by such
Lender to such Issuing Lender pursuant to this subsection 2.8E in the event
that it is determined by a court of competent jurisdiction that the payment
with respect to a Letter of Credit by such Issuing Lender in respect of which
payment was made by such Lender constituted gross negligence or willful
misconduct on the part of such Issuing Lender. Each Issuing Lender shall
distribute to each other Lender which has paid all amounts payable by it under
this subsection 2.8E with respect to any Letter of Credit issued by such
Issuing Lender such other Lender's Pro Rata Share of all payments received by
such Issuing Lender from Company in reimbursement of drawings honored by such
Issuing Lender under such Letter of Credit when such payments are received.
F. Compensation. Company agrees to pay the following amounts to
each Issuing Lender for its own account with respect to Letters of Credit
issued by it (with respect to paragraphs (1), (3) and (5) below) and to
Administrative Agent for the account of each Lender (with respect to
paragraphs (2) and (4) below) with respect to all Letters of Credit:
(1) with respect to each Standby Letter of Credit, an
administrative fee equal to 0.125% per annum of the maximum amount
available from time to time to be drawn under such Letter of Credit,
payable in arrears on and through the last day of each Fiscal Quarter
and calculated on the basis of a 360-day year and the actual number of
days elapsed;
(2) with respect to each Standby Letter of Credit, a commission
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equal to, on a per annum basis, (a) the Applicable Eurodollar Margin as
in effect from time to time multiplied by (b) the maximum amount
available from time to time to be drawn under such Standby Letter of
Credit, payable in arrears on and through the last day of each Fiscal
Quarter and calculated on the basis of a 360-day year and the actual
number of days elapsed;
(3) with respect to each Commercial Letter of Credit, the
administrative fee and commission mutually agreed to by Company and the
Issuing Lender issuing such Commercial Letter of Credit, payable at the
times and calculated in the manner required by such Issuing Lender;
provided that the aggregate amount of such administrative fee and
commission with respect to any Commercial Letter of Credit shall not be
greater than, on a per annum basis, (a) the Applicable Eurodollar Margin
plus 0.125% multiplied by (b) the maximum amount available from time to
time to be drawn under such Commercial Letter of Credit; and provided,
further that to the extent such Issuing Lender receives any per annum
fees in respect of such Commercial Letter of Credit at a rate in excess
of 0.125% per annum, such Issuing Lender shall deliver such excess fees
to Administrative Agent, promptly upon receipt thereof, for distribution
to Lenders in accordance with their respective Pro Rata Shares;
(4) with respect to drawings made under any Letter of Credit,
interest, payable on demand, on the amount paid by such Issuing Lender
in respect of each such drawing from the date of payment of the drawing
through the date such amount is reimbursed by Company (including any
such reimbursement out of the proceeds of Loans pursuant to subsection
2.8D) at a rate equal to the sum of the Base Rate plus 2.00% per annum;
and
(5) with respect to the issuance, amendment or transfer of, or
payment of a drawing under, each Letter of Credit, documentary and
processing charges in accordance with such Issuing Lender's standard
schedule for such charges in effect at the time of such issuance,
amendment, transfer or payment, as the case may be.
For purposes of calculating any fees payable under clauses (1),
(2) and (3) of this subsection 2.8F, (a) the maximum amount available to be
drawn under any Letter of Credit as of any date of determination shall be
determined as of the close of business on such date and (b) any amount
described in such clauses which is denominated in a currency other than
Dollars shall be valued based on the applicable Exchange Rate for such
currency as of the applicable date of determination. Promptly upon receipt by
Administrative Agent of any amount described in clause (2) or (4) of this
subsection 2.8F, Administrative Agent shall distribute to each Lender its Pro
Rata Share of such amount.
G. Obligations Absolute. The obligation of Company to reimburse
each Issuing Lender for drawings made under the Letters of Credit issued by it
and the obligations of Lenders under subsection 2.8E shall be unconditional
and irrevocable and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances including, without limitation, any of
the following circumstances:
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(1) any lack of validity or enforceability of any Letter of
Credit;
(2) the existence of any claim, set-off, defense or other right
which Company may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any persons or entities for whom
any such transferee may be acting), such Issuing Lender, any Lender or
any other Person, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction (including
any underlying transaction between Company or one of its Subsidiaries
and the beneficiary for which the Letter of Credit was procured);
(3) any draft, demand, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(4) payment by such Issuing Lender under any Letter of Credit
against presentation of a demand, draft or certificate or other document
which does not comply with the terms of such Letter of Credit, provided
that such payment does not constitute gross negligence or willful
misconduct of such Issuing Lender;
(5) any other circumstance or happening whatsoever, which is
similar to any of the foregoing; or
(6) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing.
H. Additional Payments. If by reason of (a) any change after the
date hereof in applicable law, regulation, rule, decree or regulatory
requirement or any change after the date hereof in the interpretation or
application by any judicial or regulatory authority of any law, regulation,
rule, decree or regulatory requirement (in each case other than any law,
regulation, rule, decree or regulatory requirement regarding capital adequacy)
or (b) compliance by any Issuing Lender or any Lender with any direction,
request or requirement (whether or not having the force of law) of any
governmental or monetary authority imposed after the date hereof including,
without limitation, Regulation D (but excluding, however, any direction,
request or requirement regarding capital adequacy):
(i) such Issuing Lender or any Lender shall be subject to any
tax, levy, charge or withholding of any nature or to any variation
thereof or to any penalty with respect to the maintenance or fulfillment
of its obligations under this subsection 2.8, whether directly or by
such being imposed on or suffered by such Issuing Lender or any Lender;
(ii) any reserve, deposit or similar requirement is or shall be
applicable, imposed or modified in respect of any Letters of Credit
issued by such Issuing Lender or participations therein purchased by any
Lender; or
(iii) there shall be imposed on such Issuing Lender or any Lender
any other condition regarding this subsection 2.8, any Letter of Credit
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or any participation therein;
and the result of the foregoing is to directly or indirectly increase the cost
to such Issuing Lender or any Lender of issuing, making or maintaining any
Letter of Credit or of purchasing or maintaining any participation therein, or
to reduce the amount receivable in respect thereof by such Issuing Lender or
any Lender, then and in any such case such Issuing Lender or such Lender may,
at any time within six months after the additional cost is incurred or the
amount received is reduced, notify Company, and Company shall pay within ten
days of receipt of such notice such amounts as such Issuing Lender or such
Lender may specify to be necessary to compensate such Issuing Lender or such
Lender for such additional cost or reduced receipt,together with interest on
such amount from 10 days after the date of such demand until payment in full
thereof at a rate equal at all times to the Base Rate per annum. The
determination by such Issuing Lender or any Lender, as the case may be, of any
amount due pursuant to this subsection 2.8H as set forth in a certificate
setting forth the calculation thereof in reasonable detail, shall, in the
absence of manifest or demonstrable error, be final and conclusive and binding
on all of the parties hereto.
I. Indemnification; Nature of Issuing Lender's Duties. In
addition to amounts payable as elsewhere provided in this subsection 2.8,
Company hereby agrees to protect, indemnify, pay and save each Issuing Lender
harmless from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys' fees and
allocated costs of internal counsel) which such Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of the
Letters of Credit, other than as a result of the gross negligence or willful
misconduct of such Issuing Lender as determined by a court of competent
jurisdiction or (ii) the failure of such Issuing Lender to honor a drawing
under any Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto government
or governmental authority (all such acts or omissions herein called
"Government Acts").
As between Company and each Issuing Lender, Company assumes all
risks of the acts and omissions of, or misuse of the Letters of Credit issued
by such Issuing Lender by, the respective beneficiaries of such Letters of
Credit. In furtherance and not in limitation of the foregoing, such Issuing
Lender shall not be responsible: (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party
in connection with the application for and issuance of such Letters of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for failure of the beneficiary of
any such Letter of Credit to comply fully with conditions required in order to
draw upon such Letter of Credit; (iv) for errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise; (v) for errors in interpretation of technical terms; (vi)
for any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any such Letter of Credit or of the
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proceeds thereof; (vii) for the misapplication by the beneficiary of any such
Letter of Credit of the proceeds of any drawing under such Letter of Credit;
and (viii) for any consequences arising from causes beyond the control of such
Issuing Lender, including, without limitation, any Government Acts. None of
the above shall affect, impair, or prevent the vesting of any of such Issuing
Lender's rights or powers hereunder; provided, however, that such Issuing
Lender shall be responsible for any payment it makes under any Letter of
Credit against presentation of a demand, draft or certificate or other
document which does not comply with the terms of such Letter of Credit in the
event such payment constitutes gross negligence or willful misconduct of such
Issuing Lender as determined by a court of competent jurisdiction.
In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Issuing
Lender under or in connection with the Letters of Credit issued by it or the
related certificates, if taken or omitted in good faith and in the absence of
gross negligence or willful misconduct, shall not put such Issuing Lender
under any resulting liability to Company.
Notwithstanding anything to the contrary contained in this
subsection 2.8I, Company shall not have any obligation to indemnify any
Issuing Lender in respect of any liability incurred by such Issuing Lender
arising solely out of the gross negligence or willful misconduct of such
Issuing Lender, as determined by a court of competent jurisdiction, or out of
the wrongful dishonor by such Issuing Lender of proper demand for payment made
under the Letters of Credit issued by it.
J. Computation of Interest. Interest payable pursuant to this
subsection 2.8 shall be computed on the basis of a 360-day year and the actual
number of days elapsed in the period during which it accrues.
2.9 Bid Rate Loans
A. The Bid Rate Option. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
Company set forth herein, in addition to Company requesting that Lenders make
Revolving Loans pursuant to subsection 2.1, Company may, as set forth in this
subsection 2.9, request Lenders during the period from and including the
Effective Date to but excluding the Revolving Loan Commitment Termination Date
to make offers to make Bid Rate Loans to Company; provided that (i) the
aggregate principal amount of Bid Rate Loans outstanding at any time shall not
exceed $750,000,000, (ii) the aggregate principal amount of Bid Rate Loans
outstanding at any time shall not, when added to the aggregate principal
amount of all outstanding Revolving Loans plus the Letter of Credit Usage plus
the Overdraft Amount, exceed the Revolving Loan Commitments then in effect and
(iii) the aggregate principal amount of Bid Rate Loans of any Lender
outstanding at any time shall not exceed $200,000,000. Lenders may, but shall
have no obligation to, make such offers and Company may, but shall have no
obligation to, accept any such offers in the manner set forth in this
subsection 2.9.
B. Bid Rate Loan Quote Request. Whenever Company desires to
request offers to make Bid Rate Loans, it shall transmit to Bid Rate Loan
Agent by telecopy a Bid Rate Loan Quote Request substantially in the form of
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Exhibit IV annexed hereto no later than 12:00 Noon (New York time) two
Business Days in advance of the proposed Funding Date set forth therein. The
Bid Rate Loan Quote Request shall specify (i) the proposed Funding Date (which
shall be a Business Day), (ii) the amount of Bid Rate Loans for which offers
are requested, which shall be in a minimum principal amount of $5,000,000 and
in integral multiples of $1,000,000 in excess of that amount and (iii) the
duration of the Bid Rate Loan Interest Period applicable thereto, subject
to the provisions set forth in the definition of Bid Rate Loan Interest
Period; and such Bid Rate Loan Quote Request shall further certify that
subsection 3.2B is satisfied on and as of the date of such Bid Rate Loan Quote
Request and on and as of the date of the making of such Bid Rate Loans.
No Bid Rate Loan Quote Request shall be given within five Business Days of any
other Bid Rate Loan Quote Request.
C. Invitation for Bid Rate Loan Quotes. Promptly upon any
request by Company for Bid Rate Loan Quotes pursuant to the delivery of a Bid
Rate Loan Quote Request in accordance with the provisions of subsection 2.9B,
but in no event later than the close of business on the date of receipt
thereof, Bid Rate Loan Agent shall send to Lenders by telecopy an Invitation
for Bid Rate Loan Quotes substantially in the form of Exhibit V annexed
hereto, which shall constitute an invitation by Company to each Lender to
submit Bid Rate Loan Quotes offering to make Bid Rate Loans to which such Bid
Rate Loan Quote Request relates in accordance with this subsection 2.9.
D. Submission and Contents of Bid Rate Loan Quotes.
(i) Each Lender may, in its sole discretion, submit a Bid Rate
Loan Quote containing an offer or offers to make Bid Rate Loans in
response to any Invitation for Bid Rate Loan Quotes. Each Bid Rate Loan
Quote must comply with the requirements of this subsection 2.9D and must
be received by Bid Rate Loan Agent by telecopy no later than 10:00 A.M.
(New York time) on the proposed Funding Date of such Bid Rate Loans;
provided that Bid Rate Loan Quotes submitted by Administrative Agent (or
any Affiliate of Administrative Agent) in the capacity of a Lender may
be submitted, and may only be submitted, if Administrative Agent or such
Affiliate notifies Company of the terms of the offer or offers contained
therein no later than 9:45 A.M. (New York time) on the proposed Funding
Date of such Bid Rate Loans. Any Bid Rate Loan Quote so made shall be,
subject to subsection 2.9G, irrevocable except with the written consent
of Bid Rate Loan Agent given on the instructions of Company.
(ii) Each Bid Rate Loan Quote shall be in substantially the form
of Exhibit VI annexed hereto and shall refer to this Agreement and
specify (a) the proposed Funding Date, (b) the principal amount of the
Bid Rate Loan offered for each Bid Rate Loan Interest Period in respect
of which an offer is being made, which principal amount (x) may be
greater than or less than the Revolving Loan Commitment of the quoting
Lender, (y) must be in a minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount and (z) may not exceed
the principal amount of Bid Rate Loans for such Bid Rate Loan Interest
Period for which offers were requested, (c) in the event the sum of the
Bid Rate Loans being offered for all Bid Rate Loan Interest Periods
exceeds the maximum aggregate amount of Bid Rate Loans that the quoting
Lender is willing to make pursuant to such Bid Rate Loan Quote, such
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maximum aggregate amount, (d) the rate of interest per annum (expressed
as an absolute number and not in terms of a specified margin over the
quoting Lender's cost of funds and rounded to the nearest 1/100 of 1%)
at which such Lender is willing to make each such Bid Rate Loan and (e)
the identity of the quoting Lender.
(iii) Any Bid Rate Loan Quote shall be disregarded that (a) is
not substantially in the form of Exhibit VI annexed hereto or does not
specify all of the information required in subsection 2.9D(ii), (b)
contains qualifying, conditional or similar language, (c) proposes terms
other than or in addition to those set forth in the applicable
Invitation for Bid Rate Loan Quotes or (d) arrives after the time set
forth in subsection 2.9D(i).
(iv) If any Lender shall elect not to make such an offer, such
Lender shall so notify Bid Rate Loan Agent via telecopy no later than
10:00 a.m. (New York time) on the proposed Funding Date; provided,
however, that failure by any Lender to give such notice shall not
constitute a breach or default by such Lender nor cause such Lender to
be liable to Company or any other party or be obligated to make any Bid
Rate Loan as part of such requested Bid Rate Loans.
E. Notice to Company. Bid Rate Loan Agent shall (by telephone
confirmed by telecopy) promptly notify Company of the terms (x) of any Bid
Rate Loan Quote submitted by a Lender that is in accordance with subsection
2.9D and (y) of any Bid Rate Loan Quote that amends, modifies or is otherwise
inconsistent with a previous Bid Rate Loan Quote submitted by such Lender with
respect to the same Bid Rate Loan Quote Request; provided that any such
subsequent Bid Rate Loan Quote shall be disregarded by Bid Rate Loan Agent
unless such subsequent Bid Rate Loan Quote is submitted solely to correct a
manifest error in such former Bid Rate Loan Quote. Bid Rate Loan Agent's
notice to Company shall specify (i) the aggregate principal amount of Bid Rate
Loans for which offers have been received for each Bid Rate Loan Interest
Period specified in the related Bid Rate Loan Quote Request, (ii) the
respective principal amounts and interest rates so offered and (iii) the
identity of each quoting Lender.
F. Acceptance and Notice by Company. Not later than 11:00 a.m.
(New York time) on the proposed Funding Date, Company shall (by telephone
confirmed by telecopy) notify Bid Rate Loan Agent (who shall promptly so
notify Administrative Agent and Lenders as set forth in subsection 2.9H) of
its acceptance or non-acceptance of the offers so notified to it pursuant to
subsection 2.9E. For the purposes of this subsection 2.9F, silence on the
part of Company shall be deemed to be a non-acceptance of all offers so
notified to it pursuant to subsection 2.9E. In the case of acceptance, such
notice (a "Notice of Bid Rate Loan Borrowing") shall specify the aggre-
gate principal amount of offers for each Bid Rate Loan Interest Period that
are accepted. Company may accept any Bid Rate Loan Quote in whole or in part;
provided that (i) acceptance of offers may only be made on the basis of
ascending interest rates, (ii) the aggregate principal amount of each
borrowing of Bid Rate Loans may not exceed the applicable amount set forth in
the related Bid Rate Loan Quote Request, (iii) the principal amount of each
Bid Rate Loan must be $5,000,000 or integral multiples of $1,000,000 in excess
of that amount and (iv) Company may not accept any offer that is described in
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subsection 2.9D(iii) or that otherwise fails to comply with the requirements
of this Agreement.
A Notice of Bid Rate Loan Borrowing given by Company pursuant to
this subsection 2.9F shall be irrevocable without the prior consent of all
Lenders whose Bid Rate Loan offers have been accepted.
G. Allocation by Company. If offers are made by two or more
Lenders at the same rate of interest for a greater aggregate principal amount
than the amount in respect of which offers are accepted for the related Bid
Rate Loan Interest Period, the principal amount of Bid Rate Loans in respect
of which such offers are accepted shall be allocated pro rata by Company among
such Lenders; provided that no Lender whose Bid Rate Loan Quote is accepted
shall be allocated a Bid Rate Loan in a principal amount less than $5,000,000
without its consent, and if such Lender does not so consent it shall be deemed
to have withdrawn its Bid Rate Loan Quote. Determinations by Company of the
amounts of Bid Rate Loans shall be conclusive in the absence of manifest
error.
H. Notice to Administrative Agent and Lenders. Bid Rate Loan
Agent shall (by telephone confirmed by telecopy) promptly notify
Administrative Agent and each Lender that has submitted a Bid Rate Loan Quote
as described in subsection 2.9D(i) whether or not any offer made by such
Lender pursuant to such Bid Rate Loan Quote has been accepted by Company
pursuant to the delivery of a Notice of Bid Rate Loan Borrowing (whereupon
such Lender will become bound, subject to the other applicable conditions
hereof, to make the Bid Rate Loan in respect of which its offer has been
accepted) and (ii) of the aggregate principal amount of Bid Rate Loan Quotes
accepted by Company and the range of interest rates applicable to such Bid
Rate Loan Quotes.
I. Funding of Bid Rate Loans. Not later than 12:00 Noon (New
York time) on the proposed Funding Date specified for each Bid Rate Loan
hereunder, each Lender participating therein shall make the amount of its Bid
Rate Loan available to Administrative Agent, in same day funds, at the Funding
and Payment Office. Upon satisfaction or waiver of the conditions precedent
specified in subsection 3.2, Administrative Agent shall make the proceeds of
all such Bid Rate Loans available to Company on such Funding Date by causing
an amount of same day funds equal to the proceeds of all such Bid Rate Loans
received by Administrative Agent to be credited to the account of Company at
such office of Administrative Agent.
Unless Administrative Agent shall have received notice from a
Lender participating in a Bid Rate Loan prior to the Funding Date of such Bid
Rate Loan that such Lender will not make available to Administrative Agent
such Lender's Bid Rate Loan, Administrative Agent may (but shall not be
obligated to) assume that such Lender has made such Bid Rate Loan available to
Administrative Agent on the Funding Date of such Bid Rate Loan in accordance
with this subsection 2.9I and Administrative Agent may, in reliance upon such
assumption, make available to Company a corresponding amount on such Funding
Date. If and to the extent such Lender shall not have so made such Bid Rate
Loan available to Administrative Agent, then Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Lender
together with interest thereon, for each day from such Funding Date until the
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date such amount is paid to Administrative Agent, at the customary rate set by
Administrative Agent for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. If such Lender does not pay
such corresponding amount forthwith upon Administrative Agent's demand
therefor, Administrative Agent shall promptly notify Company of the amount of
such Bid Rate Loan not funded by such Lender and Company shall immediately pay
such corresponding amount to Administrative Agent. Nothing in this subsection
2.9I shall be deemed to relieve any Lender from its obligation to fulfill its
commitment hereunder or to prejudice any rights which Company may have against
any Lender as a result of any default by such Lender hereunder.
J. Payment of Principal and Interest. The principal of each Bid
Rate Loan shall be payable on and the last day of the Bid Rate Loan Interest
Payment Date applicable to such Bid Rate Loan. Interest with respect to each
outstanding Bid Rate Loan shall be payable in arrears on and to each Bid Rate
Loan Interest Payment Date applicable to that Bid Rate Loan, upon any
prepayment of such Bid Rate Loan (to the extent accrued on the amount being
prepaid) and at maturity.
K. Bid Rate Loan Notes. Upon the request of any Lender in
accordance with subsection 2.1E(iv), Company shall execute and deliver to each
Lender (or to Administrative Agent for that Lender) a Bid Rate Loan Note,
substantially in the form of Exhibit VIII annexed hereto with appropriate
insertions, to evidence that Lender's Bid Rate Loans.
L. Compensation. Unless otherwise agreed by Company and the
applicable Lender, Company shall compensate each Lender, upon written request
by that Lender (which request shall set forth in reasonable detail the basis
for requesting such amounts), for all reasonable losses, expenses and
liabilities (including, without limitation, any interest paid by that Lender
to lenders of funds borrowed by it to make or carry its Bid Rate Loans and any
loss sustained by that Lender in connection with re-employment of such funds),
which that Lender may sustain with respect to Bid Rate Loans: (i) if for any
reason (other than a default or error by that Lender) a borrowing of any Bid
Rate Loan does not occur on the date specified therefor in a Notice of Bid
Rate Loan Borrowing, (ii) if any prepayment or other principal payment of any
of such Lender's Bid Rate Loans occurs on a date prior to the last day of the
Bid Rate Loan Interest Period applicable to that Bid Rate Loan, (iii) if any
prepayment of any of such Lender's Bid Rate Loans is not made on any date
specified in a notice of prepayment given by Company and consented to by such
Lender, or (iv) as a consequence of any other default by Company to repay such
Lender's Bid Rate Loans when required by the terms of this Agreement.
SECTION 3
CONDITIONS TO EFFECTIVENESS;
CONDITIONS TO LOANS AND LETTERS OF CREDIT
3.1 Conditions to Effectiveness
This Agreement shall become effective only upon the satisfaction
of all of the following conditions:
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A. Company Documents. On or before the Effective Date, Company
shall deliver to Lenders (or to Administrative Agent for Lenders with
sufficient originally executed copies, where appropriate, for each Lender and
its counsel) each, unless otherwise noted, dated the Effective Date:
1. Certified copies of its Certificate of Incorporation, together
with evidence of good standing from the Secretary of State of the State
of Delaware, each to be dated a recent date prior to the Effective Date;
2. Copies of its Bylaws, certified as of the Effective Date by
its corporate secretary or an assistant secretary;
3. Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this Agreement
and the Overdraft Agreement and approving and authorizing the execution,
delivery and payment of the Revolving Notes and Bid Rate Loan Notes,
each certified as of the Effective Date by its corporate secretary or
an assistant secretary as being in full force and effect without
modification or amendment;
4. Signature and incumbency certificates of its officers
executing this Agreement and the other Loan Documents to which it is a
party;
5. Executed copies of this Agreement and the other Loan Documents
to which it is a party; and
6. Such other documents as Administrative Agent may reasonably
request.
B. No Material Adverse Change Regarding Company and its
Subsidiaries. Since December 31, 1996, there shall not have occurred any
material adverse change in the business, operations, properties, assets, or
condition (financial or otherwise) of Company and its Subsidiaries, taken as a
whole.
C. No Material Adverse Change Regarding Syndication Markets,
Etc. As of the Effective Date, there shall have been no material adverse
change since April 25, 1997 to the syndication markets for credit facilities
similar in nature to the credit facilities provided herein, and there shall
not have occurred and be continuing a material disruption of or material
adverse change in financial, banking or capital markets that would have an
adverse effect on such syndication market, in each case as determined by
Administrative Agent and Syndication Agent in their sole discretion.
D. Proceeds of Equity Offering; Terms of New Senior Notes.
(i) Equity Offering. On or before the Effective Date, Company
shall have consummated the Equity Offering.
(ii) New Senior Notes. Any New Senior Notes issued on or before
the Effective Date shall be unsecured and unguaranteed, and the interest
rate, covenants, defaults, remedies and all other material terms thereof
shall be reasonably satisfactory to Administrative Agent.
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E. Satisfaction of Conditions to Effectiveness of Existing Lender
Consent. All conditions precedent to the effectiveness of the Existing Lender
Consent shall have been satisfied.
F. Opinions of Counsel to Company. Lenders shall have received
(i) originally executed copies of one or more favorable written opinions of
Latham & Watkins, counsel for Company, in substantially the form of Exhibit
XII annexed hereto, and (ii) originally executed copies of one or more
favorable written opinions of James W. Baehren, Associate General Counsel for
Company, in substantially the form of Exhibit XIII annexed hereto, in each
case dated as of the Effective Date and covering such other matters and
including such changes as shall be reasonably requested or approved by
Administrative Agent on behalf of Lenders and their counsel.
G. Opinions of Counsel to Administrative Agent. Lenders shall
have received an originally executed copy of one or more favorable written
opinions of O'Melveny & Myers LLP, counsel to Agents, dated as of the
Effective Date, substantially in the form of Exhibit XIV annexed hereto and as
to such other matters as Administrative Agent on behalf of Lenders may
reasonably request.
H. Conversion of Existing Revolving Loans; Payment of Accrued
Interest and Fees Under Existing Credit Agreement. Anything contained in the
Existing Credit Agreement to the contrary notwithstanding, (i) on or before
the Effective Date, Company shall have converted all Existing Revolving Loans
that are outstanding as Eurodollar Rate Loans into Base Rate Loans (and, in
connection therewith, Company hereby agrees to pay to Existing Lenders such
amounts as would have been payable pursuant to subsection 2.6E of the Existing
Credit Agreement if such Eurodollar Rate Loans had been prepaid on the
Effective Date), (ii) Company shall have paid to Administrative Agent, for
distribution (as appropriate) to Existing Lenders, all accrued and unpaid
interest with respect to all Existing Revolving Loans as of the Effective
Date, and (iii) Company shall have paid to Administrative Agent, for
distribution (as appropriate) to Existing Lenders, all commitment fees and
letter of credit fees which are accrued and unpaid as of the Effective Date
under subsections 2.3A and 2.8F of the Existing Credit Agreement.
I. No Event of Default under Existing Credit Agreement.
Administrative Agent shall have received an Officers' Certificate from
Company, dated the Effective Date, to the effect that, as of the Effective
Date, there exists no "Event of Default" or "Potential Event of Default" under
and as defined in the Existing Credit Agreement.
J. Payment of Agents' Fees and "Additional Bank Financing Fees".
On or before the Effective Date, (i) Company shall have paid to Agents any
fees referred to in subsection 2.3B that are payable on the Effective Date and
(ii) Company shall have paid to Administrative Agent, for distribution (as
appropriate) to Lenders, the "Additional Bank Financing Fees" described in
that certain letter agreement dated April 24, 1997, among Company, Bankers,
BofA, NationsBank and ScotiaBank.
K. Corporate Proceedings, Etc. On or before the Effective Date,
all corporate and other proceedings taken or to be taken in connection with
the transactions contemplated hereby and all documents incidental thereto not
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previously found acceptable by Agents, acting on behalf of Lenders, and their
counsel shall be reasonably satisfactory in form and substance to Agents and
such counsel, and Agents and such counsel shall have received all such
counterpart originals or certified copies of such documents as Agents may
reasonably request.
L. Performance of Agreements. On or before the Effective Date,
Company shall have performed in all material respects all agreements which
this Agreement provides shall be performed by it on or before the Effective
Date except as otherwise disclosed to and agreed to in writing by Lenders.
3.2 Conditions to All Loans
Subject to the provisions of subsections 2.1B and 2.8D, the
obligations of Lenders to make all Loans are subject to the following further
conditions precedent:
A. Administrative Agent shall have received, in accordance with
the provisions of subsection 2.1C or 2.9B, as the case may be, on or before
any Funding Date, an originally executed Notice of Borrowing or Bid Rate Loan
Quote Request, as the case may be, signed by the chief executive officer, the
chief financial officer, the treasurer or an assistant treasurer of Company or
by any executive officer of Company designated by any of the above-described
officers on behalf of Company in writing delivered to Administrative Agent.
B. As of that Funding Date:
1. The representations and warranties contained herein shall be
true, correct and complete in all material respects on and as of that
Funding Date to the aame extent as though made on and as of that date,
except that the representations and warranties need not be true and
correct (a) to the extent such representations and warranties
specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and
complete in all material respects on and as of such earlier date and (b)
to the extent that changes in the facts and conditions on which such
representations and warranties are based are required or permitted under
this Agreement;
2. No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing or Bid Rate Loan Quote Request which would constitute (a) an
Event of Default or (b) a Potential Event of Default;
3. Company shall have performed in all material respects all
agreements and satisfied all conditions which this Agreement provides
shall be performed by it on or before such Funding Date;
4. No order, judgment or decree of any court, arbitrator or
governmental authority shall purport to enjoin or restrain any Lender
from making that Loan;
5. The making of the Loans requested on such Funding Date shall
not violate Regulation U of the Board of Governors of the Federal
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Reserve System; and
6. There shall not be pending or, to the knowledge of Company
threatened, any action, suit, proceeding, governmental investigation or
arbitration against or affecting Company or any of its Subsidiaries or
any property of Company or any of its Subsidiaries, which has not been
disclosed by Company in writing pursuant to subsection 4.5 or 5.1(vii)
prior to the making of the last preceding Loans (or, in the case of the
initial Loans made hereunder, prior to the execution of this Agreement)
and there shall have occurred no development not so disclosed in any
such action, suit, proceeding, governmental investigation or arbitration
so disclosed, which, in either event, in the opinion of Requisite
Lenders (as communicated by Requisite Lenders to Administrative Agent
and evidenced by a written notice from Administrative Agent to Company),
would reasonably be expected to have a Material Adverse Effect.
C. Each borrowing by Company hereunder shall constitute a
representation and warranty by Company hereunder as of the applicable Funding
Date that subsection 3.2B is satisfied on and as of such Funding Date.
3.3 Conditions to All Letters of Credit
The issuance of any Letter of Credit by any Lender hereunder is
subject to prior or concurrent satisfaction of all of the following
conditions:
A. On or before the date of issuance of such Letter of Credit,
Administrative Agent (and the Issuing Lender, if Administrative Agent is not
the Issuing Lender) shall have received, in accordance with the provisions of
subsection 2.8B, an originally executed Notice of Issuance of Letter of Credit
requesting the issuance of such Letter of Credit, all other information
specified in subsection 2.8B, and such other documents as the Issuing Lender
may reasonably require in connection with the issuance of such Letter of
Credit.
B. On the date of issuance of such Letter of Credit, all
conditions precedent described in subsection 3.2B shall be satisfied to the
same extent as though the issuance of such Letter of Credit were the making of
a Loan and the date of issuance of such Letter of Credit were a Funding Date.
SECTION 4
COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to
make the Loans, to induce Administrative Agent to make overdrafts in respect
of the Overdraft Account, to induce Issuing Lenders to issue Letters of Credit
and to induce Lenders to purchase participations in Letters of Credit, Company
represents and warrants to each Lender that the following statements
are true, correct and complete:
4.1 Organization, Powers, Good Standing, Business and Subsidiaries
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A. Organization and Powers. Company is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware. Company has all requisite corporate power and authority to own
and operate its properties, to carry on its business as now conducted and
proposed to be conducted, to enter into each Loan Document to which it is a
party and to carry out the transactions contemplated hereby and thereby, and
to issue the Notes
B. Good Standing. Company is in good standing wherever necessary
to carry on its present business and operations, except in jurisdictions in
which the failure to be in good standing has not had and will not have a
material adverse effect on the conduct of the business of Company and its
Subsidiaries taken as a whole.
C. Conduct of Business. Company and its Subsidiaries are engaged
only in the businesses permitted to be engaged in under subsection 6.8.
D. Subsidiaries. Each of Company's corporate Subsidiaries is
validly existing and in good standing under the laws of its respective
jurisdiction of incorporation and has full corporate power and authority to
own its assets and properties and to operate its business as presently owned
and conducted except where failure to be in good standing or a lack of
corporate power and authority has not had and will not have a material adverse
effect on Company and its Subsidiaries taken as a whole.
4.2 Authorization of Borrowing, Etc.
A. Authorization of Borrowing. The execution, delivery and
performance of the Loan Documents and the issuance, delivery and payment of
the Notes have been duly authorized by all necessary corporate action by
Company.
B. No Conflict. The execution, delivery and performance by
Company of each Loan Document, the issuance, delivery and performance of the
Notes and the New Senior Notes, and the consummation of the Refinancing did
not, do not and will not (i) violate any provision of law applicable to
Company or any of its Subsidiaries, the Certificate of Incorporation or Bylaws
of Company, or any order, judgment or decree of any court or other agency of
government binding on Company, (ii) conflict with, result in a material breach
of or constitute (with due notice or lapse of time or both) a material default
under any Contractual Obligation of Company or any of its Subsidiaries, (iii)
result in or require the creation or imposition of any Lien upon any of the
properties or assets of Company or any of its Subsidiaries, or (iv) require
any approval of stockholders or any approval or consent (other than consents
obtained pursuant to the Existing Lender Consent and the Consent Solicitation)
of any Person under any Contractual Obligation of Company or any of its
Subsidiaries.
C. Governmental Consents. The execution, delivery and
performance by Company of the Loan Documents, the issuance, delivery and
performance of the Notes and the New Senior Notes, and the consummation of the
Refinancing did not, do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body except for
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filings, consents or notices required by federal or state securities laws,
which filings, consents or notices have been or will be made during the period
in which they are required to be made.
D. Binding Obligations. This Agreement and the other Loan
Documents executed prior to the date of this Agreement are, and the other Loan
Documents and the Notes to be executed subsequent to the date of this
Agreement, when executed and delivered will be, the legally valid and binding
obligations of Company, enforceable against Company in accordance with
their respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
E. Obligations Constitute "Senior Indebtedness". All monetary
Obligations, including without limitation Company's obligations to repay the
Loans and the Overdraft Amount and to reimburse any drawings under Letters of
Credit, do and will constitute "Senior Indebtedness" under the Existing
Subordinated Note Indenture.
4.3 Financial Condition
Company has heretofore delivered to Lenders, at Lenders' request, the
audited consolidated balance sheet of Company and its Subsidiaries as at
December 31, 1996 and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its Subsidiaries for the
Fiscal Year then ended. All such statements were prepared in conformity
with GAAP. All such consolidated financial statements fairly present the
consolidated financial position of Company and its Subsidiaries as at the date
thereof and the consolidated results of operations and changes in financial
position of Company and its Subsidiaries for the period covered thereby.
Neither Company nor any of its Subsidiaries has any material contingent
liability or liability for taxes, long-term lease or unusual forward or
long-term commitment, which is not reflected in the foregoing financial
statements or in the most recent consolidated financial statements delivered
pursuant to subsection 5.1 of this Agreement, except for those incurred since
the date of such financial statements that are not prohibited hereunder.
4.4 No Adverse Material Change; No Stock Payments
Since December 31, 1996 there has been no change in the business,
operations, properties, assets or condition (financial or otherwise) of
Company and its Subsidiaries, which has been, either in any case or in the
aggregate, materially adverse to Company and its Subsidiaries, taken as a
whole. Since the Effective Date, neither Company nor any of its Subsidiaries
have directly or indirectly declared, ordered, paid or made or set apart any
sum or property for any Restricted Junior Payment or agreed so to do except as
permitted by subsection 6.4.
4.5 Litigation; Adverse Facts
Except as disclosed in Company's annual report on Form 10-K for
the Fiscal Year ended December 31, 1996, there is no action, suit, proceeding,
governmental investigation or arbitration of which Company has knowledge
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(whether or not purportedly on behalf of Company or any of its Subsidiaries)
at law or in equity or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, pending or, to the knowledge of Company, threatened
against or affecting Company or any of its Subsidiaries or any property of
Company or any of its Subsidiaries which would reasonably be expected to
result in a Material Adverse Effect.
4.6 Payment of Taxes
Except to the extent permitted by subsection 5.3, all material tax
returns and reports of Company and each of its Subsidiaries required to be
filed by any of them have been timely filed, and all material taxes,
assessments, fees and other governmental charges upon such Persons and upon
their respective properties, assets, income and franchises which are due and
payable have been paid when due and payable.
4.7 Governmental Regulation
Neither Company nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935 or the
Investment Company Act of 1940 or to any federal or state statute or
regulation limiting its ability to incur Indebtedness for money borrowed.
4.8 Securities Activities
Neither Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock.
4.9 Employee Benefit Plans
A. Each of Company and each of its Subsidiaries is in compliance
with all applicable provisions of ERISA, the Internal Revenue Code and other
applicable federal, state or foreign law with respect to each Plan, and has
performed all of its obligations under each Plan, except to the extent that
failure to comply, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. Company, each of its Subsidiaries
and each ERISA Affiliate has made all required contributions to any Plan
subject to Section 412 of the Internal Revenue Code, except to the extent that
a failure to do so would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of
the Internal Revenue Code has been made with respect to any Plan.
B. (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan which is reasonably likely to be terminated has
any Unfunded Pension Liability in an amount which, individually or in the
aggregate for all such Pension Plans (excluding for purposes of such
computation any such Pension Plans with respect to which assets exceed benefit
liabilities), would reasonably be expected to have a Material Adverse Effect
if such Pension Plan or Pension Plans were then terminated; and (iii) neither
Company, any of its Subsidiaries or any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA that,
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individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
4.10 Disclosure
No representation or warranty of Company contained in this
Agreement or any other document, certificate or written statement furnished to
Lenders by or on behalf of Company for use in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material
fact or omits to state a material fact (known to Company in the case of any
document not furnished by it) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made. The projections and pro forma financial information
contained in such materials are based upon good faith estimates and
assumptions believed by Company to be reasonable at the time made, it being
recognized by Lenders that such projections as to future events are not to be
viewed as facts and that actual results during the period or periods covered
by any such projections may differ from the projected results. There is no
fact known to Company (other than matters of a general economic nature) which
materially and adversely affects the business, operations, property, assets or
condition (financial or otherwise) of Company and its Subsidiaries, taken as a
whole, which has not been disclosed herein or in such other documents,
certificates and statements furnished to Lenders for use in connection with
the transactions contemplated hereby.
4.11 Environmental Protection
Company and each of its Subsidiaries is in compliance with all
applicable Environmental Laws in respect of the conduct of its business and
the ownership of its property, except such noncompliance as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Without limiting the effect of the preceding sentence:
A. to the best of Company's knowledge, neither Company nor any of
its Subsidiaries has received a complaint, order, citation, notice or other
written communication with respect to the existence or alleged existence of a
violation of, or liability arising under, any Environmental Law, the outcome
of which, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect; and
B. to the best of Company's knowledge there are no environmental,
health or safety conditions existing at any real property owned, operated or
leased by Company or any of its existing or former Subsidiaries or any of
their respective predecessors, including off-site treatment or disposal
facilities used by Company or any of its existing or former Subsidiaries for
waste treatment or disposal, which would reasonably be expected to require any
construction or other capital costs or clean-up obligations to be incurred
prior to the final scheduled maturity of the Obligations in order to assure
compliance with any Environmental Law, including provisions regarding
clean-up, to the extent that any of such conditions, construction or other
capital costs or clean-up obligations, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
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SECTION 5
COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Revolving
Loan Commitments hereunder shall be in effect and until payment in full of all
of the Loans, the Notes and the Overdraft Amount, the cancellation or
expiration of all Letters of Credit and the reimbursement of all amounts drawn
thereunder, unless Requisite Lenders shall otherwise give prior written
consent, Company shall perform all covenants in this Section 5.
5.1 Financial Statements and Other Reports
Company will maintain, and cause each of its Consolidated
Subsidiaries to maintain, a system of accounting established and administered
in accordance with sound business practices to permit preparation of
consolidated financial statements in conformity with GAAP. Company will
deliver to Lenders:
(i) Quarterly Financials. as soon as practicable and in any
event within 45 days after the end of each Fiscal Quarter, other than
quarters which are the last quarter in a Fiscal Year, (a) the
consolidated balance sheet of Company as at the end of such period and
the related consolidated statements of income and cash flows of Company
for the period from the beginning of the then current Fiscal Year to the
end of such Fiscal Quarter and (b) a statement setting forth sales and
operating income data by Reporting Unit for the last month of such
Fiscal Quarter and for the period from the beginning of the then current
Fiscal Year to the end of such Fiscal Quarter, setting forth in the case
of the statements described in clauses (a) and (b) above in comparative
form the corresponding figures for the corresponding periods of the
previous Fiscal Year and, with respect to the consolidated statements of
income and the statement of sales and operating income data by Reporting
Unit, the corresponding figures from the consolidated plan and financial
forecast for the current Fiscal Year delivered pursuant to subsection
5.1(x), all in reasonable detail and certified by the chief accounting
officer, the chief financial officer or treasurer of Company that they
fairly present the consolidated financial condition of Company and its
Subsidiaries as at the dates indicated and the consolidated results of
operations and cash flows for the periods indicated, subject to changes
resulting from audit and normal year-end adjustment and insofar as
relates to Reporting Units based on Company's normal accounting
procedures applied on a consistent basis;
(ii) Year-End Financials. as soon as practicable and in any
event within 90 days after the end of each Fiscal Year of Company (a)
the consolidated balance sheet of Company as at the end of such year and
the related consolidated statements of income, stockholders' equity and
cash flows of Company for such Fiscal Year and (b) a statement setting
forth sales and operating income data by Reporting Unit for such Fiscal
Year, setting forth in the case of the statements described in clauses
(a) and (b) above, in comparative form the corresponding figures for the
previous year and, with respect to the consolidated statements of income
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and the statement of sales and operating income data by Reporting Unit,
the corresponding figures from the consolidated plan and financial
forecast for the current Fiscal Year delivered pursuant to subsection
5.1(x), all in reasonable detail, (c) in the case of such consolidated
financial statements, accompanied by a report thereon of independent
certified public accountants of recognized national standing selected by
Company which report shall be unqualified as to going concern and scope
of audit and shall state that such consolidated financial statements
present fairly the financial position of Company and its Subsidiaries as
at the dates indicated and the results of their operations and cash
flows for the periods indicated in conformity with GAAP consistently
applied and that the examination by such accountants in connection with
such consolidated financial statements has been made in accordance with
generally accepted auditing standards and (d) in the case of such
financial statements with respect to Reporting Units, certified by the
chief accounting officer, the chief financial officer or treasurer of
Company based on Company's normal accounting procedures applied on a
consistent basis;
(iii) Officers' Certificates and Compliance Certificates.
together with each delivery of financial statements of Company and its
Subsidiaries pursuant to subdivisions (i) and (ii) above, (a) an
Officers' Certificate of Company stating that the signers have reviewed
the terms of this Agreement and the Notes and have made, or caused to be
made under their supervision, a review in reasonable detail of the
transactions and condition of Company and its Subsidiaries during the
accounting period covered by such financial statements and that such
review has not disclosed the existence during or at the end of such
accounting period, and that the signers do not have knowledge of the
existence as at the date of the Officers' Certificate, of any condition
or event which constitutes an Event of Default or Potential Event of
Default, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what action
Company has taken, is taking and proposes to take with respect thereto;
and (b) a Compliance Certificate demonstrating compliance (as determined
in accordance with GAAP) during and at the end of such accounting
periods with the restrictions contained in subsections 6.1, 6.2, 6.3,
6.4, 6.5 and 6.6 and, in addition, a written statement of the chief
accounting officer or chief financial officer of Company describing in
reasonable detail the differences between the financial information
contained in such financial statements and the information contained in
the Compliance Certificate relating to Company's compliance with
subsection 6.5;
(iv) Accountants' Certification. to the extent required pursuant
to clause (a) or (b) below, together with each delivery of financial
statements pursuant to subdivisions (i) or (ii) of this subsection 5.1,
a written statement from the chief accounting officer or chief financial
officer or treasurer of Company setting forth (a) if necessary to
explain any material changes in the consolidated financial statements
caused by the adoption of new accounting principles, a comparison and
reconciliation of the consolidated financial statements with pro forma
consolidated financial statements prepared as if the new accounting
principles had not been adopted (it being understood that, subject to
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the following clause (b), only one such statement shall be required with
respect to any particular adoption of any new accounting principles) and
(b) during the pendency of any negotiations provided for in subsection
9.9 resulting from any change in accounting principles and policies, the
differences which would have resulted if such financial statements had
been prepared without giving effect to such change;
(v) SEC Filings and Press Releases. promptly upon their becoming
available, copies of (a) all annual reports and proxy statements sent or
made available generally by Company to its security holders or by any
Subsidiary of Company to its security holders other than Company or
another Subsidiary, (b) all reports and all registration statements of
Company or any of its Subsidiaries filed with the Securities and
Exchange Commission on Forms S-2, S-3, S-4 and 8-K, (c) all press
releases and other statements made available generally by Company or any
of its Consolidated Subsidiaries or any of its material Foreign
Subsidiaries to the public concerning material developments in the
business of Company or any of such Subsidiaries, and (d) such other
filings with the Securities and Exchange Commission or any other
regulatory agency having jurisdiction over the affairs of Company
and its Subsidiaries as Administrative Agent may reasonably request;
(vi) Events of Default, Etc. promptly upon any Responsible
Officer of Company obtaining knowledge (a) of any condition or event
which constitutes an Event of Default or Potential Event of Default, or
becoming aware that any Lender or Administrative Agent has given any
notice or taken any other action with respect to a claimed Event of
Default or Potential Event of Default under this Agreement, (b) that any
Person has given any notice to Company or any Subsidiary of Company or
taken any other action with respect to a claimed default or event or
condition of the type referred to in subsection 7.2, or (c) of the
occurrence of any event or change (including any event or change
relating to environmental or ERISA matters) that has caused or
evidences, or would reasonably be expected to give rise to, either in
any case or in the aggregate, a Material Adverse Effect, an Officers'
Certificate specifying the nature and period of existence of any such
condition or event, or specifying the notice given or action taken by
such holder or Person and the nature of such claimed default, Event of
Default, Potential Event of Default, event or condition, and what action
Company has taken, is taking and proposes to take with respect thereto;
(vii) Litigation or Other Proceedings. promptly upon any
Responsible Officer of Company obtaining knowledge of (a) the
institution of, or non-frivolous threat of, any action, suit,
proceeding, governmental investigation or arbitration against or
affecting Company or any of its Subsidiaries or any property of Company
or any of its Subsidiaries not previously disclosed by Company to
Lenders, or (b) any material development in any such action, suit,
proceeding, governmental investigation or arbitration, which, in either
case, if adversely determined, would reasonably be expected to cause a
Material Adverse Effect, written notice thereof to Lenders and provide
such other information as may be reasonably available to it to enable
Lenders and their counsel to evaluate such matters;
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(viii) Financial Plans. as soon as practicable and in any event
within 90 days after the end of each Fiscal Year of Company, a
consolidated plan and financial forecast, prepared in accordance with
Company's normal accounting procedures applied on a consistent basis,
for such Fiscal Year of Company and its Subsidiaries, including, without
limitation, (a) a forecasted consolidated balance sheet, consolidated
statement of income and consolidated statement of cash flow of Company
for such Fiscal Year, (b) forecasted consolidated balance sheets and
statements of income of Company and a statement setting forth forecasted
sales and operating income data for each Reporting Unit for each Fiscal
Quarter of such Fiscal Year, and (c) the amount of forecasted capital
expenditures and unallocated overhead for such Fiscal Year; and
(ix) Other Information. with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries
as from time to time may be reasonably requested by any Lender through
Administrative Agent.
5.2 Corporate Existence, Etc.
Company will at all times preserve and keep in full force and
effect its corporate existence and rights and franchises material to its
business and the businesses of each of its Subsidiaries; provided, however,
that the corporate existence of any such Subsidiary may be terminated if its
parent corporation determines that such termination is in the best interest of
such parent corporation.
5.3 Payment of Taxes and Claims; Tax Consolidation
A. Company will, and will cause each of its Subsidiaries to, pay
all taxes, assessments and other governmental charges imposed upon it or any
of its properties or assets or in respect of any of its franchises, business,
income or property before any material penalty accrues thereon, and all claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which by law have or
may become a material Lien upon any of its properties or assets, prior to the
time when any material penalty or fine shall be incurred with respect thereto;
provided that no such charge or claim need be paid if being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted
and if such reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made therefor.
B. Company will not, nor will it permit any of its Subsidiaries to,
file or consent to the filing of any consolidated income tax return with any
Person (other than Company or any of its Subsidiaries or such other Person as
may be reasonably acceptable to Requisite Lenders).
5.4 Maintenance of Properties; Insurance
Company will maintain or cause to be maintained in good repair,
working order and condition all material properties used or useful in the
business of Company and its Subsidiaries and from time to time will make or
cause to be made all appropriate repairs, renewals and replacements
thereof. Company will maintain or cause to be maintained, with financially
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sound and reputable insurers, insurance with respect to its properties and
business and the properties and business of its Subsidiaries against loss or
damage of the kinds customarily insured against by corporations of established
reputation engaged in the same or similar businesses and similarly situated,
of such types and in such amounts as are customarily carried under similar
circumstances by such other corporations ("Industry Standards") and may self
insure to the extent, and only to the extent, consistent with Industry
Standards.
5.5 Inspection
Company shall permit any authorized representatives designated by
any Lender, at the expense of that Lender, to visit and inspect any of the
properties of Company or any of its Subsidiaries, including its and their
financial and accounting records, and to make copies and take extracts
therefrom, and to discuss its and their affairs, finances and accounts with
its and their officers and independent public accountants, all upon reasonable
notice and at such reasonable times during normal business hours and as often
as may be reasonably requested.
5.6 Compliance with Laws, Etc.
Company and its Subsidiaries shall exercise all due diligence in
order to comply with the requirements of all applicable laws, rules,
regulations and orders (including all Environmental Laws) of any governmental
authority, noncompliance with which in any case or in the aggregate would
reasonably be expected to cause a Material Adverse Effect.
5.7 Securities Activities.
Following the application of the proceeds of any Loans, not more
than 25% of the value of the assets (either of Company only or of Company and
its Subsidiaries on a consolidated basis) subject to the provisions of
subsection 6.1 or 6.6, or subject to any restriction contained in any
agreement or instrument between Company and any Lender or any Affiliate of any
Lender relating to Indebtedness and within the scope of subsection 7.2, will
be Margin Stock.
SECTION 6
COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Revolving
Loan Commitments shall be in effect and until payment in full of all of the
Loans, the Notes and the Overdraft Amount, the cancellation or expiration of
all Letters of Credit and the reimbursement of all amounts drawn thereunder,
unless Requisite Lenders shall otherwise give prior written consent, Company
will perform all covenants in this Section 6.
6.1 Liens and Related Matters
A. Company will not, and will not permit any of its Consolidated
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset (including any
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document or instrument in respect of goods or accounts receivable) of Company
or any of its Consolidated Subsidiaries, whether now owned or hereafter
acquired, or any income or profits therefrom, except:
(i) Permitted Encumbrances;
(ii) Liens described in Schedule B annexed hereto ("Existing
Liens") and Liens securing Indebtedness incurred to refinance any
Indebtedness secured by Existing Liens so long as (a) the principal
amount of such refinancing Indebtedness does not exceed the greater of
(1) the fair market value of the assets subject to such Lien and (2) the
principal amount (or, if greater, the committed amount) of the
Indebtedness refinanced thereby and (b) such refinancing Indebtedness is
not secured by any collateral which did not secure the Indebtedness
refinanced thereby;
(iii) Liens arising from the giving, simultaneously with or
within 180 days after the acquisition or construction of real property
or tangible personal property, of any purchase money Lien (including
vendors' rights under purchase contracts under an agreement whereby
title is retained for the purpose of securing the purchase price
thereof) on real property or tangible personal property hereafter
acquired or constructed and not heretofore owned by Company or any of
its Subsidiaries, or from the acquiring hereafter of real property or
tangible personal property not heretofore owned by Company or any of
its Subsidiaries subject to any then-existing Lien (whether or not
assumed), or from the extension, renewal or replacement of any
Indebtedness secured by any of the foregoing Liens so long as the
aggregate principal amount thereof and the security therefor is not
thereby increased; provided, however, that in each case (a) such Lien is
limited to such acquired or constructed real or tangible personal
property and fixed improvements, if any, then existing or thereafter
erected thereon, and (b) the principal amount of the Indebtedness
secured by such Lien, together (without duplication) with the principal
amount of all other Indebtedness secured by liens on such property,
shall not exceed the cost (which shall be deemed to include, without
duplication, the amount of Indebtedness secured by Liens, including
existing Liens, on such property) of such property to Company or any of
its Subsidiaries;
(iv) Liens encumbering accounts receivable sold and cash reserves
established in connection therewith pursuant to any transaction
permitted under subsection 6.6(v); and
(v) Additional Liens securing Indebtedness of Company and its
Consolidated Subsidiaries in an aggregate principal amount not to exceed
$350,000,000 at any time outstanding.
B. Except as provided herein, Company will not, and will not
permit any of its Consolidated Subsidiaries to, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction
of any kind on the ability of any such Subsidiary to (i) pay dividends or make
any other distributions on any of such Subsidiary's capital stock owned by
Company or any other Subsidiary of Company, (ii) repay or prepay any
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Indebtedness owed by such Subsidiary to Company or any other Subsidiary of
Company, (iii) make loans or advances to Company or any other Subsidiary of
Company, or (iv) transfer any of its property or assets to Company or any
other Subsidiary of Company, except for such restrictions or encumbrances
existing by reason of (a) any restrictions existing under any of the Loan
Documents or any other agreements or contracts in effect on the Effective
Date, (b) any restrictions with respect to any Person that becomes a
Subsidiary of Company after the Effective Date under any agreement in
existence at the time such Person becomes such a Subsidiary, (c) any
restrictions with respect to any Subsidiary of Company imposed pursuant to an
agreement which has been entered into for the sale or disposition of all or
substantially all of the capital stock or assets of such Subsidiary, (d) any
restrictions with respect to any Subsidiary of Company all or substantially
all of whose assets consist of property encumbered by Liens permitted under
subsection 6.1A, (e) restrictions imposed by applicable laws, (f) restrictions
under leases of, or mortgages and other agreements relating to Liens on,
specified property or assets limiting or prohibiting transfers of such
property or assets (including, without limitation, non-assignment clauses,
due-on-sale clauses and clauses prohibiting junior Liens), and (g) any
restrictions existing under any agreement that amends, refinances or replaces
any agreement containing restrictions permitted under the preceding clauses
(a) through (f); provided that the terms and conditions of any such agreement
are no less favorable to Company than those under the agreement so amended,
refinanced or replaced.
6.2 Investments; Joint Ventures
Company will not, and will not permit any of its Consolidated
Subsidiaries to, directly or indirectly make or own any Investment in any
Person or enter into any Joint Venture, except:
(i) Company and its Consolidated Subsidiaries may make and own
Investments in Cash Equivalents;
(ii) Company and its Consolidated Subsidiaries may continue to
own Investments described in Schedule C annexed hereto;
(iii) Company and its Consolidated Subsidiaries may continue to
own and may make intercompany loans;
(iv) Company and its Consolidated Subsidiaries may make and own
Investments received in connection with the bankruptcy or reorganization
of suppliers and customers and in settlement of delinquent obligations
of, and other disputes with, customers and suppliers arising in the
ordinary course of business;
(v) Company and its Consolidated Subsidiaries may continue to own
Investments in, and may make and own Investments resulting from capital
calls, buyout obligations or similar requirements in respect of, Joint
Ventures operating outside of the United States which are in existence
on the date hereof;
(vi) Company and its Consolidated Subsidiaries may make and own
Investments in Joint Ventures operating outside of the United States if
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such arrangement is required pursuant to the law of the jurisdiction in
which such Joint Venture is operating;
(vii) Company and its Consolidated Subsidiaries may make and own
Investments arising in connection with Commodities Agreements entered
into in accordance with current industry practice (at the time of making
any such Investment) or the past practices of Company and its
Subsidiaries; and
(viii) In addition to Investments permitted by clauses (i)-(vii)
above, Company and its Consolidated Subsidiaries may make and own
Investments with an aggregate fair market value of not more than
$500,000,000.
6.3 Letters of Credit
Company will not, and will not permit any of its Consolidated
Subsidiaries to, directly or indirectly become liable with respect to
reimbursement obligations in respect of Standby Letters of Credit or
Commercial Letters of Credit having a maximum aggregate amount available for
drawing at any time in excess of $500,000,000.
6.4 Restricted Junior Payments
Company will not, and will not permit any of its Consolidated
Subsidiaries to, directly or indirectly, declare, order, pay, make or set
apart any sum for any Restricted Junior Payment (any such action constituting
the "making" of a Restricted Junior Payment for purposes of this subsection
6.4) except that, so long as no Event of Default, and no Potential Event of
Default under subsection 7.6, shall have occurred and be continuing or shall
be caused thereby, Company may (i) make Restricted Junior Payments consisting
of purchases of Common Stock in connection with the administration of
Company's employee benefits program and (ii) make additional Restricted Junior
Payments so long as, after giving effect to each such Restricted Junior
Payment, the aggregate amount of all such Restricted Junior Payments made from
and after the Effective Date does not exceed the sum of (a) $200,000,000 plus
(b) 50% of Consolidated Net Income for the period from December 31, 1996 to
the applicable date of determination.
6.5 Financial Covenant
A. Interest Coverage Ratio.
Company will not permit the ratio of (i) Consolidated Adjusted
EBITDA to (ii) Consolidated Interest Expense on the last day of each Fiscal
Quarter (the "Reference Date") during each period indicated below to be less
than the correlative ratio indicated for the four Fiscal-Quarter period ending
on the Reference Date:
MINIMUM INTEREST
PERIOD COVERAGE RATIO
Effective Date - 03/31/00 2.25:1.00
Thereafter 2.50:1.00
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B. Maximum Consolidated Leverage Ratio.
Company will not permit the Consolidated Leverage Ratio as of the
last day of any Fiscal Quarter ending during any period indicated below to be
more than the correlative ratio indicated for such period:
MAXIMUM CONSOLIDATED
PERIOD LEVERAGE RATIO
Effective Date - 12/31/97 4.50:1.00
01/01/98 - 12/31/98 4.25:1.00
01/01/99 - 12/31/99 4.00:1.00
01/01/00 - 12/31/00 3.75:1.00
01/01/01 - 12/31/01 3.50:1.00
6.6 Restriction on Fundamental Changes
Subject to subsection 5.2, each of Company and its Subsidiaries
will not enter into any transaction of merger or consolidation, or liquidate,
wind-up or dissolve itself (or suffer any liquidation or dissolution), or
convey, sell, lease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any part of its business, property or fixed
assets, whether now owned or hereafter acquired, except:
(i) any Subsidiary of Company may be merged or consolidated with
or into Company or any Subsidiary of Company, or be liquidated, wound up
or dissolved, or all or any part of its business, property or assets may
be conveyed, sold, leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to Company or any Subsidiary of
Company; provided that, in the case of such a merger or consolidation
involving Company, Company shall be the continuing or surviving
corporation;
(ii) Company and its Subsidiaries may convey, sell, lease or
otherwise dispose of in the ordinary course of business any property or
asset which is obsolete or no longer useful in any of its businesses or
is of de minimis value, as determined in good faith by the Board of
Directors of Company or such Subsidiary, as the case may be;
(iii) so long as no Event of Default has occurred and is
continuing or shall be caused thereby, Company and its Subsidiaries may
convey, sell, lease or otherwise dispose of any of their assets outside
the ordinary course of business; provided that (a) any such sale or
other disposition is made for at least the fair market value of such
assets; and (b) Company and its Subsidiaries may not sell or otherwise
dispose of, in any one or more Asset Sales consummated after the date
hereof, an amount equal to or greater than an aggregate of (i)
$300,000,000 in fair market value of stock or other assets pursuant to
this subsection 6.6(iii) during any consecutive 12-month period or (ii)
$600,000,000 in fair market value of stock or other assets pursuant to
this subsection 6.6(iii) during the term of this Agreement;
(iv) Company and its Subsidiaries may sell, resell or otherwise
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dispose of real or personal property held for sale or resale in the
ordinary course of business; and
(v) Company and its Subsidiaries may sell accounts receivable
pursuant to accounts receivable securitization facilities on customary
terms for such facilities (including customary terms as to the non-
recourse nature of such facilities to Company and its Subsidiaries with
respect to defaults by account debtors in payment of any accounts
receivable sold pursuant thereto).
6.7 Transactions with Shareholders and Affiliates
Company will not, and will not permit any of its Consolidated
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder of
5% or more of any class of equity securities of Company or with any Affiliate
of Company or of any such holder, on terms that are less favorable to Company
or that Subsidiary, as the case may be, than those which might be obtained at
the time from Persons who are not such a holder or Affiliate; provided that
the foregoing restriction shall not apply to (i) any transaction between
Company and any of its wholly-owned Subsidiaries or between any of its
wholly-owned Subsidiaries, (ii) customary fees paid to members of the Board of
Directors of Company and its Subsidiaries, (iii) transactions approved by a
majority of the disinterested members of the Board of Directors of Company or
the applicable Subsidiary, (iv) purchases and sales of goods from
retailers and suppliers affiliated with KKR in the ordinary course of business
on terms not materially less favorable than generally available from such
retailers or suppliers, or (v) the payment of an annual fee to KKR for
rendering management and consulting services to Company and the reimbursement
of expenses in connection therewith.
6.8 Conduct of Business
From and after the Effective Date, Company will not, and will not
permit any of its Subsidiaries to, fundamentally or substantively alter the
character of its business from that conducted by Company and its Subsidiaries,
taken as a whole, as of the Effective Date.
6.9 Amendments or Waivers of Certain Documents
Neither Company nor any of its Consolidated Subsidiaries will
amend or otherwise change the subordination provisions of the Existing
Subordinated Notes or the Existing Subordinated Note Indenture, or make any
payment consistent with such an amendment or change.
SECTION 7
EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default")
shall occur and be continuing:
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7.1 Failure to Make Payments When Due
Failure to pay any installment of principal of any Loan when due,
whether at stated maturity, by acceleration, by notice of prepayment or
otherwise; or failure to pay any interest on any Loan or any other amount due
under this Agreement within five days after the date due; or
7.2 Default in Other Agreements
A. Failure of Company or any of its Subsidiaries to pay when due
any principal or interest on any Indebtedness (other than Indebtedness
referred to in subsection 7.1) or guaranties of Indebtedness in an individual
principal amount of $50,000,000 or more or with an aggregate principal amount
of $100,000,000 or more, in each case beyond the end of any period prior to
which the obligee thereunder is prohibited from accelerating payment
thereunder; or
B. Breach or default of Company or any of its Subsidiaries with
respect to any other term of any evidence of any Indebtedness or guaranties of
Indebtedness in an individual principal amount of $50,000,000 or more or with
an aggregate principal amount of $100,000,000 or more (or any loan agreement,
mortgage, indenture or other agreement relating thereto) if the effect of such
failure, default or breach is to cause, or (in the case of a breach or default
with respect to a material term of the applicable Indebtedness or guaranty) to
permit the holder or holders of that Indebtedness or guaranty (or a trustee on
behalf of such holder or holders) then to cause, that Indebtedness or guaranty
to become or be declared due prior to its stated maturity (or the stated
maturity of any underlying obligation, as the case may be); provided that such
failure, default or breach has not been waived by such holder or holders or
trustee on behalf of such holder or holders; or
7.3 Breach of Certain Covenants
Failure of Company to perform or comply with any term or condition
contained in subsections 2.5 or 5.2 or Section 6 of this Agreement; or
7.4 Breach of Warranty
Any representation or warranty made Company in any Loan Document
or in any statement or certificate at any time given by Company in writing
pursuant hereto or thereto or in connection herewith or therewith shall be
false in any material respect on the date as of which made; or
7.5 Other Defaults under Agreement or Loan Documents
Company shall default in the performance of or compliance with any
term contained in this Agreement or the other Loan Documents other than those
referred to above in subsections 7.1, 7.3 or 7.4 and such default shall not
have been remedied or waived within 30 days after receipt of notice from
Administrative Agent or any Lender of such default; or
7.6 Involuntary Bankruptcy; Appointment of Receiver, Etc.
(A) A court having jurisdiction in the premises shall enter a
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decree or order for relief in respect of Company or any of its Material
Subsidiaries in an involuntary case under the Bankruptcy Code or any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, which decree or order is not stayed; or any other similar relief
shall be granted under any applicable federal or state law; or (B) an
involuntary case is commenced against Company or any of its Material
Subsidiaries under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over
Company or any of its Material Subsidiaries, or over all or a substantial part
of its property, shall have been entered; or the involuntary appointment of an
interim receiver, trustee or other custodian of Company or any of its Material
Subsidiaries for all or a substantial part of its property; or the issuance of
a warrant of attachment, execution or similar process against any substantial
part of the property of Company or any of its Material Subsidiaries, and the
continuance of any such events in subpart (B) for 60 days unless dismissed,
bonded or discharged; or
7.7 Voluntary Bankruptcy; Appointment of Receiver, Etc.
Company or any of its Material Subsidiaries shall have an order
for relief entered with respect to it or commence a voluntary case under the
Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary case to
a voluntary case, under any such law, or shall consent to the appointment of
or taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; the making by Company or any of its Material
Subsidiaries of any general assignment for the benefit of creditors; or the
inability or failure of Company or any of its Material Subsidiaries, or the
admission by Company or any of its Material Subsidiaries in writing of its
inability to pay its debts as such debts become due; or the Board of Directors
of Company or any of its Material Subsidiaries (or any committee thereof)
adopts any resolution or otherwise authorizes action to approve any of the
foregoing; or
7.8 Judgments and Attachments
Any money judgment, writ or warrant of attachment, or similar
process involving (i) in any individual case an amount in excess of
$25,000,000 or (ii) in the aggregate at any time an amount in excess of
$50,000,000 (in either case not adequately covered by insurance as to which
the insurance company has acknowledged coverage) shall be entered or filed
against Company or any of its Material Subsidiaries or any of their respective
assets and shall remain undischarged, unvacated, unbonded or unstayed for a
period of 60 days or in any event later than five days prior to the date of
any proposed sale thereunder; or
7.9 Dissolution
Any order, judgment or decree shall be entered against Company or
any of its Material Subsidiaries decreeing the dissolution or split up of
Company or that Subsidiary and such order shall remain undischarged or
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unstayed for a period in excess of 30 days; or
7.10 Change of Control
A Change of Control shall have occurred; or
7.11 Employee Benefit Plans
An ERISA Event shall occur with respect to a Pension Plan or
Multiemployer Plan.
THEN (i) upon the occurrence of any Event of Default described in
the foregoing subsection 7.6 or 7.7, each of (x) the unpaid principal amount
of and accrued interest on the Loans, (y) the Overdraft Amount and all accrued
and unpaid interest thereon, and (z) an amount equal to the maximum amount
which may at any time be drawn under all Letters of Credit then outstanding
(whether or not any beneficiary under any Letter of Credit shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letter of Credit) shall automatically
become immediately due and payable, without presentment, demand, protest or
other requirements of any kind, all of which are hereby expressly waived by
Company, and the obligation of Administrative Agent to honor any overdraft in
respect of the Overdraft Account, the obligation of each Lender to make any
Loan, the obligation of Administrative Agent to issue any Letter of Credit and
the right of any other Lender to issue any Letter of Credit hereunder shall
thereupon terminate, and (ii) upon the occurrence of any other Event of
Default, Requisite Lenders (or Administrative Agent, at the direction or with
the consent of Requisite Lenders) may, by written notice to Company, declare
an amount equal to the amounts described in clauses (x), (y) and (z) above to
be, and the same shall forthwith become, due and payable, together with
accrued interest thereon, and the obligation of Administrative Agent to honor
any overdraft in respect of the Overdraft Account, the obligation of each
Lender to make any Loan, the obligation of Administrative Agent to issue any
Letter of Credit and the right of any other Lender to issue any Letter of
Credit hereunder shall thereupon terminate; provided that the foregoing shall
not affect in any way (A) the right of Administrative Agent to cause Lenders
to make Revolving Loans in order to repay the then outstanding Overdraft
Amount as provided in (and subject to the conditions set forth in) subsection
2.1B, (B) the obligations of Lenders to purchase from Administrative Agent
participations in the Overdraft Amount as provided in subsection 2.1B, and (C)
the obligations of Lenders to purchase from Issuing Lenders participations in
the unreimbursed amount of any drawings under any Letters of Credit as
provided in subsection 2.8E.
Any amounts described in clause (z) above, when received by
Administrative Agent, shall be held by Administrative Agent, for the benefit
of Lenders, as collateral security for the Obligations of Company in respect
of all outstanding Letters of Credit, and Company hereby (X) grants to
Administrative Agent a security interest in all such amounts, together with
any interest accrued thereon and any Investments of such amounts, as security
for such Obligations, (Y) agrees to execute and deliver to Administrative
Agent all such documents and instruments as may be necessary or, in the
opinion of Administrative Agent, desirable in order to more fully evidence,
perfect or protect such security interest, and (Z) agrees that, upon the
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honoring by any Issuing Bank of any drawing under a Letter of Credit issued by
it, Administrative Agent is authorized and directed to apply any amounts held
as collateral security in accordance with the terms of this paragraph to
reimburse such Issuing Lender for the amount of such drawing.
Notwithstanding the foregoing, if at any time within 60 days after
acceleration of the maturity of any Loan, Company shall pay all arrears of
interest and all payments on account of principal which shall have become due
otherwise than by acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified in this
Agreement or the Notes) and all Events of Default and Potential Events of
Default (other than non-payment of principal of and accrued interest on the
Loans and the Notes, and payments of amounts referred to in clause (z) above,
in each case which is due and payable solely by virtue of acceleration) shall
be remedied or waived pursuant to subsection 9.7, then Requisite Lenders by
written notice to Company may rescind and annul the acceleration and its
consequences (and upon such written notice all obligations of each Lender
hereunder shall be reinstated, in each case as in effect immediately prior to
such acceleration), and Administrative Agent shall return to Company any
amounts held by Administrative Agent pursuant to the immediately preceding
paragraph as cash collateral in respect of amounts described in clause (z)
above; but such action shall not affect any subsequent Event of Default or
Potential Event of Default or impair any right consequent thereon.
Anything contained in this Agreement to the contrary notwithstanding,
after the occurrence of an Event of Default and the acceleration of the
maturity of the Loans and the amounts referred to in clauses (y) and (z)
above, all payments relating to the Loans and such amounts shall be made to
Administrative Agent for the account of Lenders and all amounts received by
Administrative Agent which are to be applied to the payment of the Obligations
shall be distributed to Lenders in such a manner that each Lender receives the
same proportionate share of such amounts based on the ratio of the Aggregate
Amounts Due to such Lender to the Aggregate Amounts Due to all Lenders.
SECTION 8
AGENTS
8.1 Appointment
Bankers is hereby appointed Administrative Agent hereunder by each
Lender and in such capacity as Administrative Agent to serve as Bid Rate Loan
Agent, and each Lender hereby authorizes Administrative Agent to act hereunder
and under the other instruments and agreements referred to herein as its agent
hereunder and thereunder, and Bankers agrees to act as such upon the express
conditions contained in this Section 8. BofA is hereby appointed Syndication
Agent hereunder by each Lender, and BofA agrees to act as such upon the
express conditions contained in this Section 8. Each of NationsBank and
ScotiaBank is hereby appointed Co-Documentation Agent hereunder by each
Lender, and each of NationsBank and ScotiaBank agrees to act as such upon the
express conditions contained in this Section 8. The provisions of this
Section 8 are solely for the benefit of Agents and Lenders, and Company shall
not have any rights as a third party beneficiary of any of the provisions
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hereof. In performing their functions and duties under this Agreement, Agents
shall act solely as agents of Lenders and do not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or
trust with or for Company. Neither Syndication Agent nor Co-Documentation
Agents nor any Lenders named as Lead Managers or Co-Agents hereunder shall
have any liability under this Agreement to any Person, other than as Lenders
hereunder.
8.2 Powers; General Immunity
A. Duties Specified. Each Lender irrevocably authorizes
Administrative Agent to take such action on such Lender's behalf and to
exercise such powers hereunder and under the other instruments and agreements
referred to herein as are specifically delegated to Administrative Agent by
the terms hereof and thereof, together with such powers as are reasonably
incidental thereto. Administrative Agent shall have only those duties and
responsibilities which are expressly specified in this Agreement and it may
perform such duties by or through its agents or employees. Each of the
Co-Documentation Agents and Syndication Agent shall have no powers or duties
hereunder except as expressly specified in this Agreement. The duties of
Agents shall be mechanical and administrative in nature; Agents shall not have
by reason of this Agreement a fiduciary relationship in respect of any Lender;
and nothing in this Agreement, expressed or implied, is intended to or shall
be so construed as to impose upon Agents any obligations in respect of this
Agreement or the other instruments and agreements referred to herein except as
expressly set forth herein or therein.
B. No Responsibility for Certain Matters. Agents shall not be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectability or sufficiency of this Agreement or
the Notes issued hereunder, or for any representations, warranties, recitals
or statements made herein or therein or made in any written or oral statement
or in any financial or other statements, instruments, reports, certificates or
any other documents in connection herewith or therewith furnished or made by
Administrative Agent to Lenders or by or on behalf of Company to
Administrative Agent or any Lender or be required to ascertain or inquire
as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained herein or therein or as to the
use of the proceeds of the Loans or the use of Letters of Credit or of the
existence or possible existence of any Event of Default or Potential Event of
Default. Anything contained in this Agreement to the contrary
notwithstanding, Administrative Agent shall have no liability arising from
confirmations of the amount of outstanding Loans or the Letter of Credit Usage
or the component amounts thereof.
C. Exculpatory Provisions. No Agent nor any of its respective
officers, directors, employees or agents shall be liable to Lenders for any
action taken or omitted hereunder or in connection herewith unless caused by
its or their gross negligence or willful misconduct. If Administrative Agent
shall request instructions from Lenders with respect to any act or action
(including the failure to take an action) in connection with this Agreement,
or the other instruments and agreements referred to herein, Administrative
Agent shall be entitled to refrain from such act or taking such action unless
and until Administrative Agent shall have received instructions from Requisite
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Lenders. Without prejudice to the generality of the foregoing, (i)
Administrative Agent shall be entitled to rely, and shall be fully protected
in relying, upon any communication, 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, and shall be entitled to rely and shall be protected
in relying on opinions and judgments of attorneys (who may be attorneys for
Company), accountants, experts and other professional advisors selected by it;
and (ii) no Lender shall have any right of action whatsoever against
Administrative Agent as a result of Administrative Agent acting or (where so
instructed) refraining from acting under this Agreement or the other
instruments and agreements referred to herein in accordance with the
instructions of Requisite Lenders. Administrative Agent shall be entitled to
refrain from exercising any power, discretion or authority vested in it under
this Agreement or the other instruments and agreements referred to herein
unless and until it has obtained the instructions of Requisite Lenders.
D. Agents Entitled to Act as Lender. The agency hereby created
shall in no way impair or affect any of the rights and powers of, or impose
any duties or obligations upon, any Agent in its individual capacity as a
Lender hereunder. With respect to its participation in the Loans and Letters
of Credit, each Agent shall have the same rights and powers hereunder as any
other Lender and may exercise the same as though it were not performing the
duties and functions delegated to it hereunder and the term "Lender" or
"Lenders" or any similar term shall, unless the context clearly otherwise
indicates, include each Agent in its individual capacity. Each Agent and
each of its Affiliates may accept deposits from, lend money to and generally
engage in any kind of banking, trust, financial advisory or other business
with Company or any Affiliate of Company as if it were not performing the
duties specified herein, and may accept fees and other consideration from
Company for services in connection with this Agreement and otherwise without
having to account for the same to Lenders.
8.3 Representations and Warranties; No Responsibility for
Appraisal of Creditworthiness
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company in
connection with the making of the Loans and the issuance of Letters of Credit
hereunder and such Lender's purchasing of participations in such Letters of
Credit and has made and shall continue to make its own appraisal of the
creditworthiness of Company. No Agent shall have any duty or responsibility
either initially or on a continuing basis to make any such investigation or
any such appraisal on behalf of Lenders or to provide any Lender with any
credit or other information with respect thereto whether coming into its
possession before the making of the Loans or the issuance of the Letters of
Credit or any time or times thereafter and no Agent shall further have any
responsibility with respect to the accuracy of or the completeness of the
information provided to Lenders.
8.4 Right to Indemnity
Each Lender severally agrees to indemnify each Agent,
proportionately to its Pro Rata Share, to the extent such Agent shall not have
been reimbursed by Company, for and against any and all liabilities,
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obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against such Agent in performing its duties hereunder
or in any way relating to or arising out of this Agreement or the other
instruments and agreements referred to herein; provided that no Lender shall
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent's gross negligence or willful misconduct. If any
indemnity furnished to an Agent for any purpose shall, in the opinion of such
Agent, be insufficient or become impaired, such Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished.
8.5 Registered Persons Treated as Owners
Administrative Agent may deem and treat the Persons listed as
Lenders in the Register as the owners of the corresponding Loans listed
therein for all purposes hereof unless and until an Assignment and Acceptance
effecting the assignment or transfer thereof shall have been accepted by
Administrative Agent and recorded in the Register as provided in subsection
9.2 (ii). Any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is listed in the
Register as a Lender shall be conclusive and binding on any subsequent holder,
transferee or assignee of the corresponding Loan.
8.6 Successor Administrative Agent and Overdraft Account Provider
Administrative Agent may resign at any time by giving 30 days
prior written notice thereof to Lenders and Company, and Administrative Agent
may be removed at any time with or without cause by an instrument or
concurrent instruments in writing delivered to Company and Administrative
Agent and signed by Requisite Lenders. Upon any such notice of resignation or
any such removal, Requisite Lenders shall have the right, upon five days
notice to Company, to appoint a successor Administrative Agent; provided that
such appointment shall be subject to the consent of Company, which consent
shall not be unreasonably withheld. Upon the acceptance of any appointment as
an Administrative Agent hereunder by a successor Administrative Agent, that
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring or removed
Administrative Agent, and the retiring or removed Administrative Agent shall
be discharged from its duties and obligations as Administrative Agent under
this Agreement. After any retiring or removed Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of
this Section 8 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement.
Any resignation or removal of Administrative Agent pursuant to
this subsection 8.6 shall also constitute the resignation or removal of
Administrative Agent as the provider of the Overdraft Account, and any
successor Administrative Agent appointed pursuant to this subsection 8.6
shall, upon its acceptance of, and as a condition to, such appointment, become
the successor provider of the Overdraft Account for all purposes hereunder.
In such event (i) Company shall repay in full the Overdraft Amount and all
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other amounts owing to the retiring or removed Administrative Agent under the
Overdraft Agreement, and (ii) Company and the retiring or removed
Administrative Agent shall terminate the Overdraft Agreement to which they are
a party and Company and the successor Administrative Agent shall enter into a
successor Overdraft Agreement.
SECTION 9
MISCELLANEOUS
9.1 Representation of Lenders
Each Lender hereby represents that it is a commercial lender or
financial institution which makes loans in the ordinary course of its business
and that it will make each Loan hereunder for its own account in the ordinary
course of such business; provided, however, that, subject to subsection 9.2,
the disposition of the Notes or other evidences of Indebtedness held by that
Lender shall at all times be within its exclusive control.
9.2 Assignments and Participations in Loans, Notes and Letters of
Credit
A. General. Each Lender shall, subject to the provisions of this
subsection 9.2, have the right at any time to (i) sell, assign, transfer or
negotiate to any Eligible Assignee, or (ii) sell participations to any Person
in, all or any part of any Loan or Loans made by it or its Revolving Loan
Commitment or its Letters of Credit or participations therein or any other
interest herein or in any other Obligations owed to it; provided that no such
assignment or participation shall, without the consent of Company, require
Company to file a registration statement with the Securities and Exchange
Commission or apply to qualify such assignment or participation of the Loans,
Letters of Credit or participations therein or the other Obligations under the
securities laws of any state. Except as otherwise provided in this subsection
9.2, no Lender shall, as between Company and such Lender, be relieved of any
of its obligations hereunder as a result of any sale, assignment, transfer or
negotiation of, or any granting of participations in, all or any part of the
Loans, Revolving Loan Commitment, Letters of Credit or participations therein
or the other Obligations owed to such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Loan, Revolving Loan
Commitment, Letter of Credit or participation therein or other
Obligation may (a) be assigned in any amount (of a constant and not a
varying percentage) to another Lender, or to an Affiliate of the
assigning Lender or another Lender, with the giving of notice to
Company and Administrative Agent or (b) be assigned in an amount (of a
constant and not a varying percentage) of not less than $10,000,000 (or
such lesser amount (X) as shall constitute the aggregate amount of all
Loans, Revolving Loan Commitment, Letters of Credit or participations
therein and other Obligations of the assigning Lender or (Y) so long
as, after giving effect to such assignment and any other assignments
concurrently being made to the assignee, such assignee receives not less
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than $10,000,000 of the Loans, Revolving Loan Commitment or other
Obligations assigned to it) to any other Eligible Assignee with the
giving of notice to Company and Administrative Agent and with the
consent of Company and Administrative Agent, in the case of an
assignment made by a Lender other than Administrative Agent, or with the
consent of Company, in the case of an assignment made by Administrative
Agent (which consent of Company and Administrative Agent shall not be
unreasonably withheld; provided that the inability of an Eligible
Assignee to satisfy the requirements set forth in subsection 2.7C(iv) of
this Agreement, if applicable, shall constitute reasonable grounds for
withholding such consent). To the extent of any such assignment in
accordance with either clause (a) or (b) above, the assigning Lender
shall be relieved of its obligations with respect to its Loans,
Revolving Loan Commitment, Letters of Credit or participations therein
or other Obligations or the portion thereof so assigned. The parties to
each such assignment shall execute and deliver to Administrative
Agent, for its acceptance and recording in the Register, an Assignment
and Acceptance, together with, with respect to assignments which occur
following the Effective Date, a processing and recordation fee of
$3,500, and such certificates, documents or other evidence, if any, with
respect to United States federal income tax withholding matters as
the assignee under such Assignment and Acceptance may be required to
deliver to Administrative Agent pursuant to subsection 2.7C(iv). Upon
such execution, delivery and acceptance, from and after the effective
date specified in such Assignment and Acceptance, (y) the assignee
thereunder shall be a party hereto and a "Lender" hereunder and, to the
extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, shall have the rights and
obligations of a Lender hereunder, including, without limitation, the
obligation in subsection 9.20 to maintain the confidentiality of all
non-public information received by it pursuant to this Agreement and
(z) the assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and 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 assigning
Lender shall cease to be a party hereto); provided that, if the assignee
of the assigning Lender is an Affiliate of such Lender, such assignee
shall not be entitled to receive any greater amount pursuant to
subsections 2.6E or 2.7 than the assigning Lender would have been
entitled to receive in respect of the amount of the assignment effected
by such assigning Lender to such Affiliate had no such assignment
occurred. The Revolving Loan Commitments hereunder shall be modified to
reflect the Revolving Loan Commitment of such assignee and any remaining
Revolving Loan Commitment of such assigning Lender and, if any such
assignment occurs after the issuance of a Note to the assigning Lender
hereunder, if requested pursuant to subsection 2.1E(iv), new Notes
shall, upon surrender of the assigning Lender's Note, be issued upon
request to the assignee and to the assigning Lender, substantially in
the form of Exhibit VII or Exhibit VIII annexed hereto, as the case may
be, with appropriate insertions, to reflect the new Revolving Loan
Commitments and/or outstanding Loans, as the case may be, of the
assignee and the assigning Lender. In the event that a Lender assigns
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the full amount of its Revolving Loans, Revolving Loan Commitments and
other Obligations and such Lender has any outstanding Bid Rate Loans at
the time of such assignment, such Lender must also assign the full
amount of such Bid Rate Loans to an Eligible Assignee. Notwithstanding
the foregoing provisions of this subsection 9.2B(i), any Lender may
pledge or assign all or any portion of its rights under this Agreement
to a Federal Reserve Bank as security for borrowings therefrom; provided
that no such pledge or assignment shall release any such Lender from its
obligations hereunder.
(ii) Acceptance by Administrative Agent; Recordation in Register.
Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible
Assignee, together with the processing and recordation fee referred to
in subsection 9.2B(i) and any certificates, documents or other evidence
with respect to United States federal income tax withholding matters
that such assignee may be required to deliver to Administrative Agent
pursuant to subsection 2.7C(iv), Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially
the form of Exhibit XI hereto and if Administrative Agent and Company
have consented to the assignment evidenced thereby (in each case to the
extent such consent is required pursuant to subsection 9.2B(i)), (a)
accept such Assignment and Acceptance by executing a counterpart thereof
as provided therein (which acceptance shall evidence any required
consent of Administrative Agent to such assignment), (b) record the
information contained therein in the Register, and (c) give prompt
notice thereof to Company. Administrative Agent shall maintain a copy
of each Assignment and Acceptance delivered to and accepted by it as
provided in this subsection 9.2B(ii).
C. Participations. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the regularly scheduled maturity of
any portion of the principal amount of or interest on any Loan allocated to
such participation or (ii) a reduction of the principal amount of or the rate
of interest payable on any Loan or payments due in repayment of draws under
Letters of Credit allocated to such participation, and all amounts payable by
Company hereunder shall be determined as if such Lender had not sold such
participation. A Lender which has sold a participation in its Loans or
Revolving Loan Commitment shall require the holder of such participation to
agree in writing to comply with the provisions of subsection 9.20 and if a
Lender desires to give any prospective participant a copy of any non-public
information obtained by Lenders pursuant to the requirements of this Agreement
which has been identified as such by Company, such Lender shall require such
prospective participant to agree in writing to hold such information in
accordance with such prospective participant's customary procedures for
handling confidential information of this nature and in accordance with safe
and sound banking practices prior to its delivery of such material to such
prospective participant. Company hereby acknowledges and agrees that, only
for purposes of subsections 2.6E, 2.7, 9.5 and 9.6, any participation will
give rise to a direct obligation of Company to the participant and the
participant shall be considered to be a "Lender"; provided that no participant
shall be entitled to receive any greater amount pursuant to subsections 2.6E
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or 2.7 than the transferor Lender would have been entitled to receive in
respect of the amount of the participation effected by such transferor Lender
to such participant had no such participation occurred.
D. Assignments to Federal Reserve Banks. In addition to the
assignments and participations permitted under the foregoing provisions of
this subsection 9.2, any Lender may assign and pledge all or any portion of
its Loans, the other Obligations owed to such Lender, and its Notes to any
Federal Reserve Bank as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and any operating circular
issued by such Federal Reserve Bank; provided that (i) no Lender shall, as
between Company and such Lender, be relieved of any of its obligations
hereunder as a result of any such assignment and pledge and (ii) in
no event shall such Federal Reserve Bank be considered to be a "Lender" or be
entitled to require the assigning Lender to take or omit to take any action
hereunder.
E. Information. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of that Lender from
time to time to assignees and participants (including prospective assignees
and participants), subject to subsection 9.20.
9.3 Expenses
Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to promptly pay (i) all the actual and reasonable
costs and expenses of preparation of this Agreement and the other Loan
Documents and all the costs of furnishing all opinions by counsel for Company
(including without limitation any opinions requested by Lenders as to any
legal matters arising hereunder), and of Company's performance of and
compliance with all agreements and conditions contained herein on their part
to be performed or complied with; (ii) the reasonable fees, expenses and
disbursements of counsel to Agents (including allocated costs of internal
counsel) in connection with the negotiation, preparation, execution and
administration of this Agreement, the other Loan Documents, the Letters of
Credit and the Loans hereunder, and any amendments and waivers hereto or
thereto; and (iii) after the occurrence of an Event of Default, all costs and
expenses (including reasonable attorneys' fees, including allocated costs of
internal counsel, and costs of settlement) incurred by Lenders in enforcing
any Obligations of or in collecting any payments due from Company hereunder or
under the Notes or any of the other Loan Documents by reason of such Event of
Default or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or of
any insolvency or bankruptcy proceedings.
9.4 Indemnity
In addition to the payment of expenses pursuant to subsection 9.3,
whether or not the transactions contemplated hereby shall be consummated,
directors, employees, agents, and affiliates of Agents and Lenders
(collectively called the "Indemnitees") harmless from and against, any and all
other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements of any kind or
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nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not such Indemnitee shall be designated a party thereto), which may
be imposed on, incurred by, or asserted against that Indemnitee, in any manner
relating to or arising out of this Agreement or the other Loan Documents,
Lenders' agreement to make the Loans or the use or intended use of the
proceeds of the Loans or the issuance of Letters of Credit hereunder and
Lenders' agreement to purchase participations therein as provided for herein
or the use or intended use of the Letters of Credit or the honoring of
overdrafts under the Overdraft Agreement or the purchase of participations by
Lenders in the Overdraft Amount (the "indemnified liabilities"); provided that
Company shall have no obligation to an Indemnitee hereunder with respect to
indemnified liabilities arising from the gross negligence or willful
misconduct of that Indemnitee. Company also agrees to indemnify and hold
harmless the Indemnitees from any claim, demand or liability for broker's or
finder's fees alleged to have been incurred in connection with any
transactions contemplated by this Agreement and any expenses, including
reasonable legal fees, arising in connection with any such claim, demand or
liability. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it
is violative of any law or public policy, Company shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all indemnified liabilities incurred by the
Indemnitees or any of them.
9.5 Set Off
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default, each Lender is hereby authorized by
Company at any time or from time to time, without notice to Company, or to any
other Person, any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, Indebtedness evidenced by certificates of deposit, whether
matured or unmatured but not including trust accounts) and any other
Indebtedness at any time held or owing by that Lender to or for the credit
or the account of Company against and on account of the obligations and
liabilities of Company to that Lender under this Agreement, the Notes, the
Overdraft Agreement and the Letters of Credit, including, but not limited to,
all claims of any nature or description arising out of or connected with this
Agreement, the Letters of Credit or the Notes or the other Loan Documents,
irrespective of whether or not (a) that Lender shall have made any demand
hereunder or (b) that Lender shall have declared the principal of and the
interest on the Loans and Notes, any obligations of Company in respect of the
Letters of Credit and other amounts due hereunder to be due and payable as
permitted by Section 7 and although said obligations and liabilities, or any
of them, may be contingent or unmatured.
9.6 Ratable Sharing
Lenders hereby agree among themselves that if any of them shall,
through the exercise of any right of counterclaim, setoff, banker's lien or
otherwise or as adequate protection of a deposit treated as cash collateral
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under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal and interest then due with respect to the Loans
owed to that Lender, the amount then due to that Lender with respect to the
Overdraft Amount or any Letter of Credit or any participation therein, or any
fees or commissions payable hereunder or under the other Loan Documents
(collectively, the "Aggregate Amounts Due" to such Lender) which is greater
than the proportion received by any other Lender in respect to the Aggregate
Amounts Due to such other Lender, then the Lender receiving such
proportionately greater payment shall (y) notify each other Lender and
Administrative Agent of such receipt and (z) purchase participations (which it
shall be deemed to have done simultaneously upon the receipt of such payment)
in the Aggregate Amounts Due to the other Lenders so that all such recoveries
of Aggregate Amounts Due shall be shared by the Lenders in proportion to the
Aggregate Amounts Due them; provided that if all or part of such
proportionately greater payment received by such purchasing Lender is
thereafter recovered from such Lender, those purchases shall be rescinded and
the purchase prices paid for such participations shall be returned to that
Lender to the extent of such recovery, but without interest. Company
expressly consents to the foregoing arrangement and agrees that any holder of
a participation so purchased and any other subsequent holder of a
participation in any Loan or Letter of Credit or the Overdraft Amount
otherwise acquired may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all monies owing by Company to that
holder as fully as if that holder were a holder of such a Loan or Letter of
Credit or the Overdraft Amount in the amount of the participation held by that
holder.
9.7 Amendments and Waivers
A. No amendment, modification, termination or waiver of any provision
of this Agreement or of the Notes, and no consent to any departure by Company
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; provided that no such amendment, modification, termination,
waiver or consent shall, without the consent of each Lender (with Obligations
directly affected in the case of the following clause (i)): (i) extend the
scheduled final maturity of any Loan or Note, or extend the stated expiration
date of any Letter of Credit or the date for reimbursement of any amount drawn
thereunder, beyond the Revolving Loan Commitment Termination Date, or reduce
the rate of interest (other than any waiver of any increase in the interest
rate applicable to any of the Loans pursuant to subsection 2.2E) or fees in
respect of the Revolving Loan Commitments, the Loans or the Letters of Credit,
or extend the time of payment of interest or fees in respect thereof, or
reduce the principal amount of any of the Obligations (including any
Obligation to reimburse the amount of any drawing honored under any Letter of
Credit), (ii) amend, modify, terminate or waive any provision of this
subsection 9.7 or any other provision of this Agreement expressly requiring
the approval or concurrence of all Lenders, (iii) reduce the percentage
specified in the definition of Requisite Lenders or change the definition of
"Pro Rata Share" (it being understood that, with the consent of Requisite
Lenders, additional extensions of credit pursuant to this Agreement may be
included in determining what constitutes Requisite Lenders and in determining
the Pro Rata Shares of Lenders, in each case on substantially the same basis
as the Revolving Loan Commitments and the Revolving Loans are included in such
determinations on the Effective Date), or (iv) consent to the assignment or
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transfer by Company of any of its rights and obligations under this Agreement
and the other Loan Documents; provided, further that no such amendment,
modification, termination or waiver shall (1) increase the Revolving Loan
Commitment of any Lender over the amount thereof then in effect without the
consent of such Lender (it being understood that (A) amendments, modifications
or waivers of conditions precedent, covenants, Potential Events of Default or
Events of Default or of mandatory reductions in the Revolving Loan Commitments
shall not constitute an increase of the Revolving Loan Commitment of any
Lender and (B) an increase in the available portion of the Revolving Loan
Commitment of any Lender shall not constitute an increase in the Revolving
Loan Commitment of such Lender); (2) amend, modify, terminate or waive any
provision of subsection 2.1B or any other provision of this Agreement relating
to the Overdraft Account or the Overdraft Amount (including any provision
relating to the repayment of the Overdraft Amount with the proceeds of
Revolving Loans or relating to the obligations of Lenders to purchase
participations in the Overdraft Amount) without the consent of Administrative
Agent; (3) amend, modify, terminate or waive any provision of this Agreement
relating to the obligations of Lenders to purchase participations in Letters
of Credit without the written concurrence of BofA, Administrative Agent and
each other Issuing Lender which has a Letter of Credit then outstanding or
which has not been reimbursed for a drawing under a Letter of Credit issued by
it; or (4) amend, modify, terminate or waive any provision of Section 8
applicable to any Agent without the consent of such Agent.
B. If, in connection with any proposed amendment, modification,
termination, waiver or consent relating to any of the provisions of this
Agreement or the Notes as described in any of clauses (i) through (v) of the
first proviso to subsection 9.7A, the consent of Requisite Lenders is obtained
but the consent of one or more of the other Lenders whose consent is also
required is not obtained, then Company shall have the right, so long as all
such non-consenting Lenders whose individual consent is required are treated
as described in either clause (i) or (ii) below, to (i) replace each such
non-consenting Lender with one or more Replacement Lenders (as defined in
subsection 9.7C) pursuant to subsection 9.7C so long as at the time of such
replacement each such Replacement Lender consents to the proposed amendment,
modification, termination, waiver or consent and/or (ii) terminate each such
non-consenting Lender's Revolving Loan Commitment and repay in full its
outstanding Loans in accordance with subsection 2.4A(i); provided that unless
the Revolving Loan Commitments that are terminated and the Loans that are
repaid pursuant to the preceding clause (ii) are immediately replaced in full
at such time through the addition of new Lenders or the increase of the
Revolving Loan Commitments and/or outstanding Loans of existing Lenders (who
in each case must specifically consent thereto), then in the case of any
action pursuant to the preceding clause (ii), Requisite Lenders (determined
before giving effect to the proposed action) shall specifically consent
thereto; provided further that Company shall not have the right to terminate
any such non-consenting Lender's Revolving Loan Commitment and repay
in full its outstanding Loans pursuant to clause (ii) of this subsection 9.7B
if, immediately after the termination of such Lender's Revolving Loan
Commitment, the Total Utilization of Revolving Loan Commitments would exceed
the Revolving Loan Commitments; provided still further that Company shall not
have the right to replace a Lender solely as a result of the exercise of such
Lender's rights (and the withholding of any required consent by such Lender)
pursuant to the second proviso to subsection 9.7A.
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C. (i) In the event of certain refusals by any Lender, as
provided in subsection 9.7B, to consent to certain proposed amendments,
modifications, terminations, waivers or consents with respect to this
Agreement which have been approved by Requisite Lenders, Company may,
upon five Business Days' written notice to Administrative Agent (which
notice Administrative Agent shall promptly transmit to each Lender)
repay all Loans, together with accrued and unpaid interest, fees and
other amounts owing to such Lender (a "Replaced Lender") in accordance
with, and subject to the requirements of, subsection 9.7B so long as (i)
in the case of the repayment of Loans of any Lender pursuant to this
subsection 9.7C the Revolving Loan Commitment of such Lender is
terminated concurrently with such repayment (at which time Schedule A
shall be deemed modified to reflect the changed Revolving Loan
Commitments) and (ii) in the case of the repayment of Loans of any
Lender the consents required by Section 9.7B in connection with the
repayment pursuant to this subsection 9.7C have been obtained.
(ii) At the time of any replacement pursuant to this
subsection 9.7C, the lender replacing such Replaced Lender (the
"Replacement Lender") shall enter into one or more assignment
agreements, in form and substance satisfactory to Administrative Agent,
pursuant to which the Replacement Lender shall acquire the Revolving
Loan Commitment and outstanding Loans of, and participations in the
Overdraft Amount and Letters of Credit by, the Replaced Lender and, in
connection therewith, shall pay to (x) the Replaced Lender in respect
thereof an amount equal to the sum of (A) an amount equal to the
principal of, and all accrued interest on, all outstanding Loans of the
Replaced Lender, (B) an amount equal to all unpaid drawings with respect
to Letters of Credit that have been funded by (and not reimbursed to)
such Replaced Lender, together with all then unpaid interest with
respect thereto at such time, and (C) an amount equal to all accrued,
but theretofore unpaid, fees owing to the Replaced Lender and (y) the
appropriate Issuing Lender an amount equal to such Replaced Lender's Pro
Rata Share of any unpaid drawing with respect to Letters of Credit
(which at such time remains an unpaid drawing), to the extent such
amount was not theretofore funded by such Replaced Lender;
(iii) All obligations of Company owing to the Replaced Lender
(excluding those specifically described in clause (ii) above in respect
of which the assignment purchase price has been, or is concurrently
being, paid, but including, however, any amounts that would have been
payable by Company pursuant to subsection 2.6E if Company had directly
prepaid the Loans of such Replaced Lender) shall be paid in full by
Company to such Replaced Lender concurrently with such replacement; and
(iv) Upon the execution of the respective assignment
documentation, the payment of amounts referred to in clauses (ii) and
(iii) above and, if so requested by the Replacement Lender, delivery to
the Replacement Lender of the appropriate Note or Notes executed by
Company, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder, except
with respect to Company's obligations regarding indemnification
provisions under this Agreement, which shall survive for the benefit of
such Replaced Lender. Notwithstanding anything to the contrary
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contained above, no Issuing Lender may be replaced hereunder at any time
while it has Letters of Credit outstanding hereunder unless arrangements
satisfactory to such Issuing Lender (including the furnishing of a
standby letter of credit in form and substance, and issued by an issuer,
satisfactory to such Issuing Lender or the furnishing of cash collateral
in amounts and pursuant to arrangements satisfactory to such Issuing
Lender) have been made with respect to such outstanding Letters of
Credit.
D. Administrative Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. Any waiver or consent shall be effective
only in the specific instance and for the specific purpose for which it was
given. No notice to or demand on Company in any case shall entitle Company
to any other or further notice or demand in similar or other circumstances.
Any amendment, modification, termination, waiver or consent effected in
accordance with this subsection 9.7 shall be binding upon each Lender at the
time outstanding, each future Lender and, if signed by Company, on Company.
9.8 Independence of Covenants
All covenants hereunder shall be given independent effect so that
if a particular action or condition is not permitted by any of such covenants,
the fact that it would be permitted by an exception to, or be otherwise within
the limitations of, another covenant shall not avoid the occurrence of an
Event of Default or Potential Event of Default if such action is taken or
condition exists.
9.9 Change in Accounting Principles, Fiscal Year or Tax Laws
If (i) any changes in accounting principles and policies from
those used in the preparation of the financial statements referred to in
subsection 4.3 hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) would result in a
change in the method of calculation of financial covenants, standards or terms
found in Sections 1, 5 and 6 hereof, (ii) there is any change in Company's
Fiscal Quarter or Fiscal Year, or (iii) there is a material change in federal
tax laws which materially affects Company's ability to comply with the
financial covenants, standards or terms found in Sections 1, 5 or 6 hereof,
the parties hereto agree to enter into negotiations in order to amend such
provisions (in accordance with subsection 9.7) so as to equitably reflect such
changes with the desired result that the criteria for evaluating Company's
financial condition shall be the same after such changes as if such changes
had not been made.
9.10 Notices
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telecopied, telexed or sent by United States mail or
by courier service and shall be deemed to have been given when delivered in
person or by courier service, by receipt of telecopy or telex or four Business
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Days after depositing it in the United States mail, registered or certified,
with postage prepaid and properly addressed; provided that notices to
Administrative Agent or Company shall not be effective until received. For
the purposes hereof, the addresses of the parties hereto (until notice of a
change thereof is delivered as provided in this subsection 9.10) shall be as
set forth under each party's name on the signature pages hereof or in the
applicable Assignment and Acceptance.
9.11 Survival of Warranties and Certain Agreements
A. All agreements, representations and warranties made herein
shall survive the execution and delivery of this Agreement, the making of the
Loans hereunder, the execution and delivery of the Notes and the issuance of
the Letters of Credit.
B. Notwithstanding anything in this Agreement or implied by law
to the contrary, the agreements of Company set forth in subsections 2.6E, 2.7,
9.3 and 9.4 and the agreements of Lenders set forth in subsections 8.2C, 8.4,
9.5 and 9.6 shall survive the payment of the Loans, the Notes and the
Overdraft Amount, the cancellation or expiration of the Letters of Credit and
the termination of this Agreement.
9.12 Failure or Indulgence Not Waiver; Remedies Cumulative
No failure or delay on the part of Administrative Agent or any
Lender in the exercise of any power, right or privilege hereunder or under the
other Loan Documents shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence therein, nor shall any
single or partial exercise of any such power, right or privilege preclude
other or further exercise thereof or of any other right, power or privilege.
All rights and remedies existing under this Agreement or the other Loan
Documents are cumulative to and not exclusive of, any rights or remedies
otherwise available.
9.13 Severability
In case any provision in or obligation under this Agreement or the
Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
9.14 Obligations Several; Independent Nature of Lenders' Rights
The obligation of each Lender hereunder is several, and no Lender
shall be responsible for the obligation or commitment of any other Lender
hereunder. Nothing contained in this Agreement and no action taken by Lenders
pursuant hereto shall be deemed to constitute Lenders to be a partnership, an
association, a joint venture or any other kind of entity. The amounts payable
at any time hereunder to each Lender shall be a separate and independent debt,
and each Lender shall, subject to Section 7, be entitled to protect and
enforce its rights arising out of this Agreement and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
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9.15 Headings
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose or be given any substantive effect.
9.16 Applicable Law
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN
SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM
CUSTOMS AND PRACTICES FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL
CHAMBER OF COMMERCE, PUBLICATION NO. 500 OR ANY SUCCESSOR PUBLICATIONS (THE
"UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE
LAWS OF THE STATE OF NEW YORK.
9.17 Successors and Assigns
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of Lenders. Neither Company's
rights or obligations under the Loan Documents or any interest therein may be
assigned without the written consent of all Lenders. Lenders' rights of
assignment are subject to subsection 9.2.
9.18 Consent to Jurisdiction and Service of Process
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
DELIVERING THIS AGREEMENT, COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING
IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 9.10;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
90
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OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN
THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 9.18 RELATING
TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE
FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1402 OR OTHERWISE.
9.19 Waiver of Jury Trial
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION
OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of
this waiver is intended to be all-encompassing of any and all disputes that
may be filed in any court and that relate to the subject matter of this
transaction, including without limitation contract claims, tort claims, breach
of duty claims and all other common law and statutory claims. Each party
hereto acknowledges that this waiver is a material inducement to enter into a
business relationship, that each has already relied on this waiver in entering
into this Agreement, and that each will continue to rely on this waiver in
their related future dealings. Each party hereto further warrants and
represents that it has reviewed this waiver with its legal counsel and that it
knowingly and voluntarily waives its jury trial rights following consultation
with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event of litigation,
this Agreement may be filed as a written consent to a trial by the court.
9.20 Confidentiality
Lenders shall hold all non-public information obtained pursuant to
the requirements of this Agreement which has been identified as such by
Company in accordance with their customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices and in any event (i) subject to subsection 9.2, may make
disclosure reasonably required by any bona fide transferee or participant in
connection with the contemplated transfer of any Revolving Loan Commitment,
any Loan, any Letter of Credit or any participation therein and (ii) may make
disclosure as required or requested by any governmental agency or
representative thereof or pursuant to legal process; provided that, unless
specifically prohibited by applicable law or court order, each Lender shall
notify Company of any request by any governmental agency or representative
thereof (other than any such request in connection with an examination of the
financial condition of such Lender by such governmental agency) for disclosure
of any such non-public information prior to disclosure of such information;
and further provided that in no event shall any Lender be obligated or
required to return any materials furnished by Company.
9.21 Counterparts; Effectiveness
91
<PAGE>
This Agreement and any amendments, waivers, consents, or
supplements may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts, together
shall constitute but one and the same instrument. This Agreement shall become
effective upon the execution of a counterpart hereof by Company, by Existing
Lenders constituting "Requisite Lenders" under the Existing Credit Agreement,
and by all Lenders that are not Existing Lenders and upon receipt by Company
and Administrative Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
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<PAGE>
WITNESS the due execution hereof by the respective duly
authorized officers of the undersigned as of the date first written above.
COMPANY:
OWENS-ILLINOIS, INC.,
By: David G. Van Hooser
Name: David G. Van Hooser
Title: Senior Vice President
Notice Address:
Owens-Illinois, Inc.
One Seagate
Toledo, Ohio 43666
Attention: Treasurer
with a copy to:
c/o Kohlberg Kravis
Roberts & Co.
2800 Sand Hill Road
Suite 200
Menlo Park, California 94025
Attention: Edward A. Gilhuly
S-1
<PAGE>
LENDERS:
BANKERS TRUST COMPANY,
individually and as Administrative Agent
By: Mary Jo Jolly
Name: Mary Jo Jolly
Title: Assistant Vice President
Notice Address:
Bankers Trust Company
130 Liberty Street, 14th Floor
New York, New York 10006
Attention: Mary Jo Jolly
Telex: 126642
with a copy to:
Bankers Trust Company
300 South Grand Avenue, 41st Floor
Los Angeles, California 90071
Attention: Robert G. Kolb
Telex: 4720048
S-2
<PAGE>
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
individually and as Syndication Agent
By: Paul B. Higdon
Name: Paul B. Higdon
Title: Managing Director
Notice Address:
Bank of America National Trust
and Savings Association
231 South LaSalle Street
Chicago, IL 60697
Attention: Kenneth Humpf
Telephone: (312) 828-7902
Fax: (312) 974-9626
with a copy to:
Bank of America National Trust
and Savings Association
231 South LaSalle Street
Chicago, IL 60697
Attention: Paul Higdon
Telephone: (312) 828-7952
Fax: (312) 987-0303
S-3
<PAGE>
THE BANK OF NOVA SCOTIA,
individually and as Co-Documentation
Agent
By: F.C.H. Ashby
Name: F.C.H. Ashby
Title: Senior Manager Loan Operations
Notice Address:
The Bank of Nova Scotia
Atlanta Agency
600 Peachtree Street, N.E.
Suite 2700
Atlanta, Georgia 30308
Attention: Claude Ashby
with a copy to:
The Bank of Nova Scotia
Chicago Representative Office
181 W. Madison Street
Suite 3700
Chicago, IL 60602
Attn: David Vishny
S-4
<PAGE>
NATIONSBANK, N.A.,
individually and as Co-Documentation
Agent
By: Alissa Woodworth
Name: Alissa Woodworth
Title: Vice President
Notice Address:
NationsBank
101 N. Tryon
NC-001-15-03
Charlotte, North Carolina 28255
Attention: Ms. Renita Hines
Fax: (704) 386-8694
With a copy to:
NationsBank
233 S. Wacker Drive
Suite 2800
Chicago, Illinois 60606
Attention: Ms. Valerie C. Mills
Telephone: (312) 234-5649
Fax: (312) 234-5619
S-5
<PAGE>
ABN AMRO BANK N.V.,
individually and as Co-Agent
By: J.M. Janovsky
Name: J.M. Janovsky
Title: Group V.P.
By: Kathryn C. Toth
Name: Kathryn C. Toth
Title: Group V.P. and Operational Manager
Notice Address:
ABN Amro Bank N.V.
One PPG Place
Suite 2950
Pittsburgh, PA 15222-5401
Attention: Mr. James Janovsky
Fax: (412) 566-2266
Telex: 6734601
Answerback: BANCOLANDO
with a copy to:
ABN Amro Bank N.V.
One PPG Place
Suite 2950
Pittsburgh, PA 15222
Attention: Monica Meis
Fax: (412) 471-2326
Letter of Credit Contact:
ABN Amro Bank N.V.
One PPG Place
Suite 2950
Pittsburgh, PA 15222
Attention: Monica Meis
Fax: (412) 471-2326
S-6
<PAGE>
THE BANK OF NEW YORK,
individually and as Co-Agent
By: Edward J. Dougherty
Name: Edward J. Dougherty
Title: Vice President
Notice Address:
The Bank of New York
One Wall Street 22nd Floor
New York, New York 10286
Attention: Edward J. Dougherty
with a copy to:
The Bank of New York
One Wall Street 22nd Floor
New York, New York 10286
Attention: Susan Baratta
Letter of Credit Contact:
The Bank of New York
One Wall Street 22nd Floor
New York, New York 10286
Attention: Susan Baratta
S-7
<PAGE>
CIBC, INC.,
individually and as Co-Agent
By: Justin S. Sndak
Name: Justin S. Sndak
Title: Director
Notice Address:
Base Rate and Eurodollar Rate Loans
Canadian Imperial Bank of Commerce
2727 Paces Ferry Road, Suite 1200
Atlanta, Georgia 30339
Attention: Ava Cool
Telephone: (770) 319-4816
Fax: (770) 319-4950
Telex: 54-2413
Answerback: CANBANK ATL
Bid Rate Loans
Canadian Imperial Bank of Commerce
425 Lexington Avenue
New York, New York 10017
Attention: Carol Kizzia
Tel: (212) 856-3693
Fax: (212) 856-3533
Telex: 426-504
Answerback: CIMM
S-8
<PAGE>
CREDIT LYONNAIS CHICAGO BRANCH,
individually and as Co-Agent
By: Mary Ann Klemm
Name: Mary Ann Klemm
Title: Vice President and Group Head
Notice Address:
Credit Lyonnais
227 West Monroe
Suite 3800
Chicago, Illinois
Attention: Eric Tobin
Telephone: (312) 220-7314
Fax: (312) 641-0527
with a copy to:
Credit Lyonnais
227 West Monroe
Suite 3800
Chicago, Illinois
Attention: Cory Billups
Telephone: (312) 220-7309
Fax: (312) 641-0527
S-9
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Co-Agent
By: Gary C. Wilson
Name: Gary C. Wilson
Title: First Vice President
Notice Address:
The First National Bank of Chicago
611 Woodward Avenue
2nd Floor
Detroit, Michigan 48226
Attention: Robert L. Jackson
Telephone: (313) 225-1241
Fax: (313) 225-1212
with a copy to:
The First National Bank of Chicago
611 Woodward Avenue
2nd Floor
Detroit, Michigan 48226
Attention: Philip Medsger
Telephone: (313) 225-1671
Fax: (313) 225-2406
S-10
<PAGE>
THE FUJI BANK, LIMITED,
individually and as Co-Agent
By: Peter L. Chinnici
Name: Peter L Chinnici
Title: Joint General Manager
Notice Address:
The Fuji Bank, Limited
225 West Wacker Drive, Suite 2000
Chicago, Illinois 60606
Attention: James R. Fayen
Telex: 253114
Answerback: FUJI CGO
Letter of Credit Contact:
The Fuji Bank, Limited
225 West Wacker Drive, Suite 2000
Chicago, Illinois 60606
Attention: Cely Navarro
Telex: 253114
Answerback: FUJI CGO
S-11
<PAGE>
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
individually and as Co-Agent
By: Hiroaki Nakamura
Name: Hiroaki Nakamura
Title: Joint General Manager
Notice Address:
The Industrial Bank of Japan, Limited
227 West Monroe Street
Chicago, IL 60606
Attention: Steve Ryan
Fax: (312) 855-8200
Telephone: (312) 855-6251
Letter of Credit Contact:
The Industrial Bank of Japan, Limited
Ms. Stephanie Ciaramitaro
Credit Administration
Tel: (312) 855-8447
Fax: (312) 855-8200
S-12
<PAGE>
KEYBANK NATIONAL ASSOCIATION,
individually and as Co-Agent
By: Tom Purcell
Name: Tom Purcell
Title: Vice President
Notice Address:
KeyBank National Association
127 Public Square
Mail Stop OH-01-27-0606
Cleveland, OH 44114-1306
Attention: Tom Purcell
Telephone: (216) 689-4439
Fax: (216) 689-4981
S-13
<PAGE>
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
CHICAGO BRANCH,
individually and as Co-Agent
By: Brady S. Sadek
Name: Brady S. Sadek
Title: Vice President and Deputy General Manager
Notice Address:
The Long-Term Credit Bank of Japan, Ltd.
Chicago Branch
190 South LaSalle Street, Suite 800
Chicago, Illinois 60603
Attention: Brady S. Sadek
Tel: (312) 704-5455
Fax: (312) 704-8505
with a copy to:
The Long-Term Credit Bank of Japan, Ltd.
Chicago Branch
190 South LaSalle Street, Suite 800
Chicago, Illinois 60603
Attention: Loan Administration
Tel: (312) 704-5494
Fax: (312) 704-8717
Letter of Credit Contact:
The Long-Term Credit Bank of Japan, Ltd.
Chicago Branch
190 South LaSalle Street, Suite 800
Chicago, Illinois 60603
Attention: Loan Administration
Tel: (312) 704-5494
Fax: (312) 704-8717
S-14
<PAGE>
ROYAL BANK OF CANADA,
individually and as Co-Agent
By: Molly Drennan
Name: Molly Drennan
Title: Senior Manager Corporate Banking
Notice Address:
Royal Bank of Canada
One North Franklin Street
Chicago, Illinois 60606
Attention: Molly Drennan
Fax: (312) 551-0805
with a copy to:
Royal Bank of Canada
Financial Square
New York, New York 10005
Attention: Susan Muir
S-15
<PAGE>
THE SAKURA BANK, LIMITED
individually and as Co-Agent
By: Shunji Sakurai
Name: Shunji Sakurai
Title: Joint General Manager
Notice Address:
The Sakura Bank, Limited
227 West Monroe Street
Suite 4700
Chicago, Illinois 60606
Attention: David J. Wuertz
Telephone: (312) 580-3268
Fax: (312) 332-5345
S-16
<PAGE>
SOCIETE GENERALE,
individually and as Co-Agent
By: Eric Bellaiche
Name: Eric Bellaiche
Title: Vice President
Notice Address:
Societe Generale
181 W. Madison St., Suite 3400
Chicago, Illinois 60602
Attention: Mr. Eric Bellaiche
Telephone: (312) 578-5015
Telex: 190130
Answerback: SGCHI UT
S-17
<PAGE>
THE SUMITOMO BANK, LIMITED,
individually and as Co-Agent
By: Hiroyuki Iwami
Name: Hiroyuki Iwami
Title: Joint General Manager
Notice Address:
The Sumitomo Bank, Ltd.
Chicago Branch
Sears Tower, Suite 4800
233 South Wacker Drive
Chicago, Illinois 60606-6448
Attention: John Dilegge
Telex: 25-3734
Answerback: SUMIT CGO
With a copy to:
The Sumitomo Bank, Ltd.
Chicago Branch
Sears Tower, Suite 4800
233 South Wacker Drive
Chicago, Illinois 60606-6448
Attention: Tom Hanzel
Telex: 25-3734
Answerback: SUMIT CGO
Letter of Credit contact:
The Sumitomo Bank, Ltd.
Chicago Branch
Sears Tower, Suite 4800
233 South Wacker Drive
Chicago, Illinois 60606-6448
Attention: John Byrd
Tel: (312) 879-7695
Fax: (312) 876-1490
S-18
<PAGE>
TORONTO DOMINION (TEXAS), INC.,
individually and as Co-Agent
By: Neva Nesbitt
Name: Neva Nesbitt
Title: Vice President
Notice Address:
The Toronto-Dominion Bank,
Houston Branch
909 Fannin
Houston, TX 77010
Attention: Neva Nesbitt
Tel: (713) 653-8261
Fax: (713) 951-9921
with a copy to:
The Toronto-Dominion Bank,
31 West 52nd Street, 18th Floor
New York, New York 10019
Attention: Cecile Martin
Senior Associate
Corporate Finance
Fax: (212) 262-1926
S-19
<PAGE>
BANQUE NATIONALE DE PARIS,
individually and as Lead Manager
By: Arnaud Collin du Bocage
Name: Arnaud Collin du Bocage
Title: Executive Vice President & General Manager
Notice Address:
Banque Nationale de Paris
209 South LaSalle Street
5th Floor
Chicago, IL 60604
Attention: Rosalie C. Hawley
Telephone: (312) 977-2203
Fax: (312) 977-1380
S-20
<PAGE>
BANQUE PARIBAS,
individually and as Lead Manager
By: Karen E. Coons Nicholas C. Mast
Name: Karen E. Coons Nicholas C. Mast
Title: Vice President Vice President
Notice Address:
Banque Paribas
227 West Monroe
Suite 3300
Chicago, Illinois 60606
Attention: Karen Coons
Fax: (312) 853-6020
S-21
<PAGE>
CAISSE NATIONALE DE CREDIT AGRICOLE,
individually and as Lead Manager
By: David Bouhl, F.V.P.
Name: David Bouhl, F.V.P.
Title: Head of Corporate Banking Chicago
Notice Address:
Caisse Nationale de Credit Agricole
55 East Monroe Street, Suite 4700
Chicago, Illinois 60603-5702
Attention: William Jeffers
Vice President
Telex: 283594
Fax: (312) 372-3724
S-22
<PAGE>
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE,
individually and as Lead Manager
By: Brian O'Leary
Name: Brian O'Leary
Title: Vice President
By: Sean Mounier
Name: Sean Mounier
Title: First Vice President
Notice Address:
CIC
520 Madison Avenue
37th Floor
New York, New York 10022
Attention: Brian O'Leary
Fax: (212) 715-4535
Telephone: (212) 715-4422
S-23
<PAGE>
DAI-ICHI KANGYO BANK, LIMITED,
individually and as Lead Manager
By: Seiichiro Ino
Name: Seiichiro Ino
Title: Vice President
Notice Address:
Dai-Ichi Kangyo Bank, Limited
10 South Wacker Drive
26th Floor
Chicago, Illinois 60606
Attention: Norman Fedder
Manager
Fax: (312) 876-2011
S-24
<PAGE>
FLEET NATIONAL BANK,
individually and as Lead Manager
By: Steve Kalin
Name: Steve Kalin
Title: AVP
Notice Address:
Fleet National Bank
One Landmark Square
Stamford, Connecticut 06904
Attention: Steve Kalin
Fax: (203) 358-6111
S-25
<PAGE>
MELLON BANK, N.A.,
individually and as Lead Manager
By: Mark F. Johnston
Name: Mark F. Johnston
Title: AVP
Notice Address:
Mellon Bank, N.A.
One Mellon Bank Center
45th Floor
Pittsburgh, PA 15258
Attention: Mark Johnston
Letter of Credit Contact:
Mellon Bank, N.A.
Three Mellon Bank Center
Room 2329
Pittsburgh, PA 15259
Attention: Sue Stahl
S-26
<PAGE>
NATIONAL CITY BANK,
individually and as Lead Manager
By: Robert C. Rowe
Name: Robert C. Rowe
Title: Vice President
Notice Address:
National City Bank
Locator #2102
1900 East Ninth Street
Cleveland, OH 44114-3484
Attention: Jeff Douglas
Telex: 212637 NCBUR
Answerback: NCBUR
S-27
<PAGE>
THE SANWA BANK, LIMITED,
CHICAGO BRANCH,
individually and as Lead Manager
By: James P. Byrnes
Name: James P. Byrnes
Title: First Vice President
Notice Address:
The Sanwa Bank, Limited
10 South Wacker Drive
31st Floor
Chicago, IL 60606
Attention: Lisa Dean Jeszke
Fax: (312) 346-6677
Tel: (312) 993-4339
with a copy to:
The Sanwa Bank, Limited
200 Public Square
BP America Building, 29th Floor
Suite 3400
Cleveland, OH 44114
Attention: James Byrnes
Fax: (216) 736-3381
Tel: (216) 736-3377
Letter of Credit Contact:
The Sanwa Bank, Limited
10 South Wacker Drive
31st Floor
Chicago, IL 60606
Attention: Lisa Dean Jeszke
Fax: (312) 346-6677
Tel: (312) 993-4339
S-28
<PAGE>
ARAB BANKING CORPORATION,
By: Sheldon Tilney
Name: Sheldon Tilney
Title: Deputy General Manager
Notice Address:
Arab Banking Corporation
277 Park Avenue, 32nd Floor
New York, New York 10172-3299
Attention: Grant E. McDonald
Fax: (212) 583-0921/0922
Letter of Credit Contact:
Arab Banking Corporation
277 Park Avenue, 32nd Floor
New York, New York 10172-3299
Attention: Supervisor
Loan Administration
Fax: (212) 583-0921/0922
S-29
<PAGE>
BANCA COMMERCIALE ITALIANA,
CHICAGO BRANCH,
By: Julian M. Teodori
Name: Julian M. Teodori
Title: Senior Vice President and Branch Manager
By: Mark D. Mooney
Name: Mark D. Mooney
Title: Vice President
Notice Address:
Banca Commerciale Italiana
150 North Michigan Avenue
Suite 1500
Chicago, Illinois 60601
Attention: Mark Mooney
Telephone: (312) 346-1112
Fax: (312) 346-5758
S-30
<PAGE>
BANCA DI ROMA,
By: Joyce Montgomery Romeo Collina
Name: Joyce Montgomery Romeo Collina
Title: Assistant Vice President Senior Vice
President and
Branch Manager
Notice Address:
Banca di Roma
225 West Washington Street
Suite 1200
Chicago, Illinois 60606
Attention: Steven Paley
Telephone: (312) 704-2629
Fax: (312) 726-3058
S-31
<PAGE>
BANCA POPOLARE DI MILANO,
By: Anthony Franco
Name: Anthony Franco
Title: Executive Vice President & General Manager
By: Esperanza Quintero
Name: Esperanza Quintero
Title: Vice President
Notice Address:
Banca Popolare di Milano
375 Park Avenue
New York, New York 10152
Attention: Esperanza Quintero
Telephone: (312) 758-5040
S-32
<PAGE>
BANK OF HAWAII,
By: Donna R. Parker
Name: Donna R. Parker
Title: Vice President
Notice Address:
Bank of Hawaii
1850 North Central Avenue
Suite 400
Phoenix, Arizona 85004
Attention: Donna Parker
Telephone: (602) 257-2436
Fax: (602) 257-2235
Letter of Credit Contact:
Bank of Hawaii
1850 North Central Avenue
Suite 400
Phoenix, Arizona 85004
Attention: Donna Parker
Telephone: (602) 257-2436
Fax: (602) 257-2235
S-33
<PAGE>
BANK OF MONTREAL,
By: Leon H. Sinclair
Name: Leon H. Sinclair
Title: Director
Notice Address:
Bank of Montreal
115 South LaSalle Street
12th Floor
Chicago, Illinois 60603
Attention: Mary Roney
Fax: (312) 750-3888
S-34
<PAGE>
CARIPLO CASSA DI RISPARMIO DELLE
PROVINCIE LOMBARDE, S.p.A.,
By: B. Eppolito C. Kennedy
Name: B. Eppolito C. Kennedy
Title: AVP First Vice
President
Notice Address:
Cariplo Bank
10 East 53rd Street
36th Floor
New York, New York 10022
Attention: Barbara Eppolito
Fax: (212) 527-8777
S-35
<PAGE>
CITIBANK, N.A.,
By: Marjorie Futornick
Name: Marjorie Futornick
Title: Vice President
Notice Address:
Citibank, N.A.
200 South Wacker Drive
Chicago, Illinois 60606
Attention: Ms. Emily Rosenstock
Telephone: (312) 993-3233
Fax: (312) 993-6840
S-36
<PAGE>
COMERICA BANK,
By: Lee J. Santioni
Name: Lee J. Santioni
Title: First Vice President
Notice Address:
Comerica
One Detroit Center
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Anthony Davis
Fax: (313) 222-9514
S-37
<PAGE>
COMMERZBANK AKTIENGESELLSCHAFT,
By: Mark D. Monson
Name: Mark D. Monson
Title: Vice President
By: J. Timothy Shortly
Name: J. Timothy Shortly
Title: Senior Vice President
Notice Address:
Commerzbank Aktiengesellschaft
311 South Wacker Drive
Chicago, Illinois 60606
Attention: Mr. Bill Binder
Telephone: (312) 408-6920
Fax: (312) 435-1485
S-38
<PAGE>
CREDITO ITALIANO S.p.A.,
By: Harmon P. Butler
Name: Harmon P. Butler
Title: First Vice President and Deputy Manager
By: Umberto Seretti
Name: Umberto Seretti
Title: Vice President
Notice Address:
Credito Italiano S.p.A.
375 Park Avenue, 2nd Floor
New York, New York 10152
Attention: Harmon P. Butler
Fax: (212) 826-8623
S-39
<PAGE>
ISTITUTO BANCARIO SAN PAOLO
DI TORINO, S.p.A.,
By: Carlo Persico
Name: Carlo Persico
Title: Deputy General Manager
By: William De Angelo
Name: William De Angelo
Title: First Vice President
Notice Address:
Istituto Bancario San Paolo
Di Torino, S.p.A.
245 Park Avenue
New York, New York 10167
Attention: Davide Scarselli
Fax: (212) 599-5303
S-40
<PAGE>
KREDIETBANK, N.V.
By: John E. Thierfelder Robert Snauffer
Name: John E. Thierfelder Robert Snauffer
Title: Vice President Vice President
Notice Address:
Kredietbank N.V.
125 West 55th Street
10th Floor
New York, New York 10019
Attention: John E. Thierfelder
Telephone: (212) 541-0727
Fax: (212) 956-5580
S-41
<PAGE>
THE MITSUBISHI TRUST AND BANKING
CORP.,
By: Patricia Loret de Mola
Name: Patricia Loret de Mola
Title: Senior Vice President
Notice Address:
The Mitsubishi Trust and Banking Corp.
520 Madison Ave., 25th Floor
New York, NY 10022
Attention: Manager of Loan
Administration
Tel: (212) 891-8256
Fax: (212) 755-2349 or 846-0970
Letter of Credit Contact:
The Mitsubishi Trust and Banking Corp.
520 Madison Ave., 25th Floor
New York, NY 10022
Attention: Manager of Loan
Administration
Tel: (212) 891-8256
Fax: (212) 755-2349 or (212) 846-0970
S-42
<PAGE>
THE MITSUI TRUST AND
BANKING COMPANY, LIMITED,
By: Margaret Holloway
Name: Margaret Holloway
Title: Vice President and Manager
Notice Address:
Mitsui Trust
190 South LaSalle Street, Suite 1000
Chicago, Illinois 60603
Attention: Tim Devane
Tel: (312) 201-4739
Fax: (312) 201-0593
with a copy to:
Mitsui Trust
1251 Avenue of the Americas
39th Floor
New York, New York 10020-1104
Attention: Edward Simnor
Tel: (212) 790-5352
Fax: (212) 768-9044
S-43
<PAGE>
THE NORTHERN TRUST COMPANY,
By: S. Biff Bowman
Name: S. Biff Bowman
Title: Vice President
Notice Address:
The Northern Trust Company
50 S. LaSalle St., #B-11
Chicago, Illinois 60675
Attention: Biff Bowman
Vice President
Telex: 433-0397
Answerback: NT CI CGO
Fax: (312) 630-6062
with a copy to:
The Northern Trust Company
50 S. LaSalle St., #B-11
Chicago, Illinois 60675
Attention: Nicole Kidder
S-44
<PAGE>
REPUBLIC NATIONAL BANK OF NEW YORK,
By: Jean-Pierre Diels
Name: Jean-Pierre Diels
Title: Executive Vice President
By: Patrick Hildreth
Name: Patrick Hildreth
Title: First Vice President
Notice Address:
Republic National Bank of New York
450 5th Avenue
New York, New York 10018
Attention: Nissim Husni
S-45
<PAGE>
THE TOKAI BANK, LTD., CHICAGO BRANCH
By: Tatsuo Ito
Name: Tatsuo Ito
Title: Joint General Manager
Notice Address:
The Tokai Bank, Ltd., Chicago Branch
181 West Madison Street
Suite 3600
Chicago, Illinois 60602
Attention: Mr. Michael Zoretich
Telephone: (312) 456-3442
Fax: (312) 977-0003
S-46
<PAGE>
THE TOYO TRUST & BANKING CO., LTD.
By: Takashi Mikumo
Name: Takashi Mikumo
Title: Vice President
Notice Address:
The Toyo Trust & Banking Co., Ltd.
666 Fifth Avenue
33rd Floor
New York, New York 10103
Attention: Barry Wadler
Telephone: (212) 307-3400
Fax: (212) 307-3498
S-47
<PAGE>
UNION BANK OF CALIFORNIA, N.A.,
By: Gail L. Fletcher
Name: Gail L. Fletcher
Title: Vice President
Notice Address:
Union Bank of California, N.A.
400 California Street
17th Floor
San Francisco, California 94104
Attention: Gail Fletcher
Telephone: (415) 765-3753
Fax: (415) 765-3146
S-48
<PAGE>
UNITED STATES NATIONAL BANK OF
OREGON,
By: Chris Karlin
Name: Chris Karlin
Title: Vice President
Notice Address:
United States National Bank of Oregon
National Corporate Banking
555 SW Oak, PL-4
Portland, Oregon 97204
Attention: Chris J. Karlin,
Vice President
Telex: 360549
Answerback: USNATLBANK
PTL
Fax: (503) 275-4267
with a copy to:
United States National Bank of Oregon
National Corporate Banking
555 SW Oak, Pl-4
Portland, Oregon 97204
Attention: Chris J. Karlin
Vice President
S-49
<PAGE>
WACHOVIA BANK,
By: Henry H. Hagan
Name: Henry H. Hagan
Title: S.V.P.
Notice Address:
Wachovia Bank
191 Peachtree Street NE - 28th Floor
Mail Code: 370
Atlanta, Georgia 30303
Attention: Eero Maki
Telephone: (404) 332-5275
Fax: (404) 332-6898
S-50
<PAGE>
WESTDEUTSCHE LANDESBANK
GIROZENTRALE NEW YORK BRANCH
By: Cynthia M. Niesen
Name: Cynthia M. Niesen
Title: Managing Director
By: Karen E. Hoplock
Name: Karen E. Hoplock
Title: Vice President
Notice Address:
Westdeutsche Landesbank
1211 Avenue of the Americas
New York, New York 10036
Attention: Ms. Cynthia Niesen
Telephone: (212) 852-6168
Fax: (212) 852-6307
S-51
<PAGE>
YASUDA TRUST & BANKING CO. LTD.,
By: Joseph C. Meek
Name: Joseph C. Meek
Title: Deputy General Manager
Notice Address:
Yasuda Trust and Banking Co., Ltd.
181 W. Madison Street, Ste. 4500
Chicago, IL 60602
Attention: Nick Walz
Tel: (312) 683-3836
Fax: (312) 683-3899
S-52
<PAGE>
EXHIBIT I
[FORM OF]
NOTICE OF BORROWING
Pursuant to that certain Amended and Restated Credit Agreement dated
as of May 15, 1997 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"; capitalized
terms used herein without definition having the meanings set forth in the
Credit Agreement) among Owens-Illinois, Inc., a Delaware corporation
("Company"), the Lenders named therein, the Lenders named as Lead Managers and
Co-Agents, The Bank of Nova Scotia and NationsBank, N.A., as Co-Documentation
Agents, Bank of America National Trust and Savings Association, as Syndication
Agent, and Bankers Trust Company, as Administrative Agent, this represents
Company's request to borrow on __________, ____ from Lenders on a pro rata
basis $________ as [Base Rate/Eurodollar Rate] Revolving Loans. [The Interest
Period for such Loans is requested to be a ________-month period.] The
proceeds of such Loans are to be deposited in Company's account at
Administrative Agent.
The undersigned officer, to the best of his/her knowledge as an
officer of Company, and Company do hereby certify that (i) the undersigned is
the [insert title of undersigned officer] of Company; (ii) the undersigned has
read the conditions precedent to the making of any Loans set forth in
subsection 3.2B of the Credit Agreement, and any definitions or other
provisions in the Credit Agreement relating thereto with respect to the
statements contained herein, and the undersigned has made or caused to be made
such examination or investigation as is necessary to enable him/her to express
an informed opinion as to whether or not such conditions have been complied
with; and (iii) each of the conditions set forth in subsection 3.2B of the
Credit Agreement has been satisfied on and as of the date hereof and will be
satisfied on and as of the date of the proposed borrowing.
DATED: ___________________
OWENS-ILLINOIS, INC.
By____________________________
Title_________________________
I-1
<PAGE>
EXHIBIT II
[FORM OF]
NOTICE OF ISSUANCE OF LETTER OF CREDIT
Pursuant to that certain Amended and Restated Credit Agreement
dated as of May 15, 1997 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"; capitalized
terms used herein without definition having the meanings set forth in the
Credit Agreement) among Owens-Illinois, Inc., a Delaware corporation
("Company"), the Lenders named therein, the Lenders named as Lead Managers and
Co-Agents, The Bank of Nova Scotia and NationsBank, N.A., as Co-Documentation
Agents, Bank of America National Trust and Savings Association, as Syndication
Agent, and Bankers Trust Company, as Administrative Agent, this represents
Company's request to have __________ issue a [Commercial/Standby] Letter of
Credit on __________, ____ in the face amount of [$___________]
[_____________](1) [_____________] with an expiration date of __________,
____ for the benefit of (2) .
The undersigned officer, to the best of his/her knowledge as an
officer of Company, and Company certify that (i) the undersigned has read the
conditions precedent to the issuance of any Letter of Credit set forth in
subsections 3.2B and 3.3B of the Credit Agreement and any definitions or other
provisions in the Credit Agreement relating thereto with respect to the
statements contained herein, and the undersigned has made or caused to be made
such examination or investigation as is necessary to enable him/her to express
an informed opinion as to whether or not such conditions have been complied
with and (ii) each of the conditions set forth in subsection 3.2B of the
Credit Agreement has been satisfied on and as of the date hereof and will be
satisfied on and as of the date of the proposed issuance of such Letter of
Credit, in each case to the same extent as though the issuance of such Letter
of Credit were the making of a Loan and the date of issuance of such Letter of
Credit were a Funding Date.
DATED: ___________________
______________________________
OWENS-ILLINOIS, INC.
By____________________________
Title_________________________
_____________________________
(1) Insert foreign currency ifapplicable.
(2) Insert name and address of the beneficiary of the Letter of Credit.
II-2
<PAGE>
EXHIBIT III
[FORM OF]
NOTICE OF CONVERSION/CONTINUATION
Pursuant to that certain Amended and Restated Credit Agreement
dated as of May 15, 1997 (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"; capitalized
terms used herein without definition having the meanings set forth in the
Credit Agreement) among Owens-Illinois, Inc., a Delaware corporation
("Company"), the Lenders named therein, the Lenders named as Lead Managers and
Co-Agents, The Bank of Nova Scotia and NationsBank, N.A., as Co-Documentation
Agents, Bank of America National Trust and Savings Association, as Syndication
Agent, and Bankers Trust Company, as Administrative Agent, this represents
Company's request (1) [A: to convert $_______ in principal amount of presently
outstanding [Base Rate/Eurodollar Rate] Revolving Loans [with a final Interest
Payment Date of _________, ____] to [Base Rate/Eurodollar Rate] Loans on
_________, ____. [The Interest Period for such Eurodollar Rate Loans is
requested to be a _______-month period.]] [B: to continue as Eurodollar Rate
Loans $_______ in principal amount of presently outstanding Eurodollar Rate
Loans with a final Interest Payment Date of _________, ____. The Interest
Period for such Eurodollar Rate Loans commencing on such Interest Payment Date
is requested to be a _______-month period.]
The undersigned officer, to the best of his/her knowledge as an
officer of Company, and Company certify that no Event of Default has occurred
and is continuing under the Credit Agreement.
DATED:_____________________
OWENS-ILLINOIS, INC.
By____________________________
Title_________________________
- ---------------------------
(1) Insert A or B with appropriate insertions and deletions.
III-1
<PAGE>
EXHIBIT IV
[FORM OF]
BID RATE LOAN QUOTE REQUEST
To: Bankers Trust Company ("Administrative Agent")
From: Owens-Illinois, Inc. ("Company")
Re: Amended and Restated Credit Agreement dated as
of May 15, 1997 (as amended, amended and
restated, supplemented or otherwise modified from
time to time, the "Credit Agreement") among
Company, the Lenders listed therein, the Lenders
named as Lead Managers and Co-Agents, The Bank
of Nova Scotia and NationsBank, N.A., as Co-
Documentation Agents, Bank of America National
Trust and Savings Association, as Syndication Agent,
and Administrative Agent
Company hereby gives notice pursuant to subsection 2.9B of the
Credit Agreement that it requests Bid Rate Loan Quotes for the following
proposed Bid Rate Loan(s):
Proposed Funding Date of Bid Rate Loan: ________________
Duration of Bid Rate
Principal Amount (1) Loan Interest Period (2)
$ _______________
The undersigned officer, to the best of his/her knowledge as an
officer of Company, and Company hereby certify that (i) the undersigned is the
[insert title of undersigned officer] of Company; (ii) the undersigned has
read the conditions precedent to the making of any Loans set forth in
subsection 3.2B of the Credit Agreement, and any definitions or other
provisions in the Credit Agreement relating thereto with respect to the
___________________
(1) Amount must be $5,000,000 or a larger integral multiple of 41,000,000.
(2) 30, 60, 90 or 180d ays, subject to the provisions of the definitionof Bid
Rate Loan Interest Period.
IV-4
<PAGE>
statements contained herein, and the undersigned has made or caused to be made
such examination or investigation as is necessary to enable him/her to express
an informed opinion as to whether or not such conditions have been complied
with; and (iii) each of the conditions set forth in subsection 3.2B of the
Credit Agreement has been satisfied on and as of the date hereof and will be
satisfied on and as of the date of the proposed borrowing.
Capitalized terms used herein without definition have the
meanings assigned to such terms in the Credit Agreement.
OWENS-ILLINOIS, INC.
By __________________________
Title _______________________
IV-2
<PAGE>
EXHIBIT V
[FORM OF]
INVITATION FOR BID RATE LOAN QUOTES
To: [Name of Lender]
From: Bankers Trust Company ("Administrative Agent")
Re: Invitation for Bid Rate Loan Quotes to
Owens-Illinois, Inc. ("Company")
Pursuant to subsection 2.9C of that certain Amended and Restated
Credit Agreement dated as of May 15, 1997 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Credit Agreement";
capitalized terms used herein without definition having the meanings assigned
to such terms in the Credit Agreement) among Company, the Lenders listed
therein, the Lenders named as Lead Managers and Co-Agents, The Bank of Nova
Scotia and NationsBank, N.A., as Co-Documentation Agents, Bank of America
National Trust and Savings Association, as Syndication Agent, and
Administrative Agent, we are pleased on behalf of Company to invite you to
submit Bid Rate Loan Quotes to Company for the following proposed Bid Rate
Loan(s):
Proposed Funding Date of Bid Rate Loan: _________________
Duration of Bid Rate
Principal Amount Loan Interest Period
$ ______________
Please respond to this invitation by no later than 10:00 a.m.
(New York time) on the proposed Funding Date.
BANKERS TRUST COMPANY,
as Administrative Agent
By: _________________________
Title: ______________________
V-1
<PAGE>
EXHIBIT VI
[FORM OF]
BID RATE LOAN QUOTE
Bankers Trust Company
P.O. Box 318
Church Street Station
New York, New York 10015]
Telecopy No.: _______________
Attention: _____________
Re: Bid Rate Loan Quote to Owens-Illinois, Inc. ("Company")
In response to your invitation on behalf of Company dated
_______________, ____, we hereby make the following Bid Rate Loan Quote on
the following terms:
1. Quoting Lender:
______________________________________________________
2. Person to contact at Quoting Lender:
______________________________________________________
3. Funding Date of proposed Bid Rate Loan(s):
_____________________________________________________ (1)
4. We hereby offer to make Bid Rate Loan(s) in the following principal
amounts, for the following Bid Rate Loan Interest Periods and at the
following rates:
- -------------------------
(1) As specified in the related Invitation for Bid Rate Loan Quotes.
VI-1
<PAGE>
Duration
of Bid-
Rate Loan
Principal Interest
Amount (2) Period (3) Interest Rate (4)
$_____________
$_____________
Provided that the aggregate principal amount of Bid Rate Loans for
which this offer may be accepted shall not exceed $_______________.2
We understand and agree that the offer(s) set forth above, subject
to the satisfaction of the applicable conditions set forth in the Amended and
Restated Credit Agreement dated as of May 15, 1997 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"; capitalized terms used herein without definition having the
meanings assigned to such terms in the Credit Agreement) among Company, the
Lenders listed therein, the Lenders named as Lead Managers and Co-Agents, The
Bank of Nova Scotia and NationsBank, N.A., as Co-Documentation Agents, Bank of
America National Trust and Savings Association, as Syndication Agent, and
Bankers Trust Company, as Administrative Agent, irrevocably obligate us to
make the Bid Rate Loan(s) for which any offer(s) are accepted, in whole or
in part.
Very truly yours,
[NAME OF LENDER]
Date: ____________________ By:_________________________
Title: ______________________
- --------------------------
(2) principal amount offered for each Bid Rate Loan Interest Period may not
exceed principal amount requested; specify aggregate limitaton if the sum of
the individual offers exceeds the aggregate amount the quoting Lender is
willing to lend. Offers must be made in minimum amounts of $5,000,000 and
integral multiples of $1,000,000 in excess thereof.
(3) 30, 60, 90 or 180 days, as specified in the related Invitation for Bid
Rate Loan Quotes.
(4) Specify rate of interest per annum (expressed as an absolute number and
not in terms of a specified margin over the quoting Lender's cost of funds and
rounded to the nearest 1/100th of 1%).
VI-2
<PAGE>
EXHIBIT VII
[FORM OF REVOLVING NOTE]
OWENS-ILLINOIS, INC.
PROMISSORY NOTE DUE DECEMBER 31, 2001
(REVOLVING LOANS)
May __, 1997
$ (1)
FOR VALUE RECEIVED, OWENS-ILLINOIS, INC., a Delaware
corporation ("Company"), promises to pay to the order of ("Payee"), on or
before the Revolving Loan Commitment Termination Date, the lesser of (x) ($1)
and (y) the unpaid principal amount of all advances made by Payee to Company
as Revolving Loans under the Credit Agreement referred to below.
Company also promises to pay interest on the unpaid principal
amount hereof from the date hereof until paid in full, at the rates and at the
times which shall be determined in accordance with the provisions of the
Amended and Restated Credit Agreement dated as of May 15, 1997 among Company,
the Lenders named therein, the Lenders named as Lead Managers and Co-Agents,
The Bank of Nova Scotia and NationsBank, N.A., as Co-Documentation Agents,
Bank of America National Trust and Savings Association, as Syndication Agent,
and Bankers Trust Company, as Administrative Agent, as amended, amended and
restated, supplemented or otherwise modified from time to time (said Amended
and Restated Credit Agreement, as so amended, amended and restated,
supplemented or otherwise modified from time to time, being the "Credit
Agreement"). Capitalized terms used herein without definition shall have the
meanings set forth in the Credit Agreement.
This Note is one of Company's "Revolving Notes" in the aggregate
principal amount of $3,000,000,000 and is issued pursuant to and entitled to
the benefits of the Credit Agreement to which reference is hereby made for a
more complete statement of the terms and conditions under which the Revolving
Loans evidenced hereby were made and are to be repaid.
- -------------------------------------
(1) Insert amount of Lender's Revolving Loan commitment in numbers.
(2) Insert name of Lender in capital letters.
(3) Insert amount of Lender's Revolving Loan Commitment in words.
VII-1
<PAGE>
All payments of principal and interest in respect of this Note
shall be made in lawful money of the United States of America in same day
funds at the Funding and Payment Office, or at such other place as shall be
designated in writing for such purpose in accordance with the terms of the
Credit Agreement. Until notified in writing of the transfer of this Note,
Company and Administrative Agent shall be entitled to deem Payee or such
person who has been so identified by the transferor in writing to Company and
Administrative Agent as the holder of this Note, as the owner and holder of
this Note. Each of Payee and any subsequent holder of this Note agrees, by
its acceptance hereof, that before disposing of this Note or any part hereof
it will make a notation hereon of all principal payments previously made
hereunder and of the date to which interest hereon has been paid; provided,
however, that the failure to make a notation of any payment made on this Note
shall not limit or otherwise affect the obligation of Company hereunder with
respect to payments of principal or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in
subsection 2.4A(ii) and prepayment at the option of Company as provided in
subsection 2.4A(i) of the Credit Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of
the principal amount of this Note, together with all accrued but unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of
this Note or the Credit Agreement shall alter or impair the obligation of
Company, which is absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the
currency herein prescribed.
Company promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in subsection 9.3 of the Credit
Agreement, incurred in the collection and enforcement of this Note. Company
and endorsers of this Note hereb waive diligence, presentment, protest, demand
and notice of every kind and, to the full extent permitted by law, the right
to plead any statute of limitations as a defense to any demand hereunder.
VII-2
<PAGE>
IN WITNESS WHEREOF, Company has caused this Note to be executed
and delivered by its duly authorized officer, as of the day and year first
above written.
OWENS-ILLINOIS, INC.
By____________________________
Title_________________________
VII-3
<PAGE>
TRANSACTIONS ON REVOLVING NOTE
Amount of
Principal Outstanding
Type of Amount of or Interest Principal
Loan Made Loan Made Paid Balance Notation
Date This Date This Date This Date This Date Made By
VII-4
<PAGE>
EXHIBIT VIII
[FORM OF BID RATE LOAN NOTE]
OWENS-ILLINOIS, INC.
PROMISSORY NOTE DUE DECEMBER 31, 2001
(BID RATE LOANS)
May __, 1997
FOR VALUE RECEIVED, OWENS-ILLINOIS, INC., a Delaware
corporation ("Company"), hereby promises to pay to the order of (1)
("Payee") the unpaid principal amount of each advance made by Payee to Company
as a Bid Rate Loan under the Credit Agreement referred to below on the last
day of the Bid Rate Loan Interest Period relating to such Bid Rate Loan.
Company also promises to pay interest on the unpaid principal
amount of each Bid Rate Loan from the date such Bid Rate Loan is made until
paid in full, at the rates and at the times which shall be determined in
accordance with the provisions of the Amended and Restated Credit Agreement
dated as of May 15, 1997 among Company, the Lenders named therein, the Lenders
named as Lead Managers and Co-Agents, The Bank of Nova Scotia and NationsBank,
N.A., as Co-Documentation Agents, Bank of America National Trust and Savings
Association, as Syndication Agent, and Bankers Trust Company, as
Administrative Agent, as amended, amended and restated, supplemented or
otherwise modified from time to time (said Amended and Restated Credit
Agreement, as so amended, amended and restated, supplemented or otherwise
modified from time to time, being the "Credit Agreement"). Capitalized terms
used herein without definition shall have the meanings set forth in the Credit
Agreement.
This Note is one of Company's Bid Rate Loan Notes and is issued
pursuant to and entitled to the benefits of the Credit Agreement to which
reference is hereby made for a more complete statement of the terms and
conditions under which the Bid Rate Loans evidenced hereby were made and are
to be repaid.
All payments of principal and interest in respect of this Note
shall be made in lawful money of the United States of America in same day
funds at the Funding and Payment Office, or at such other place as shall be
designated in writing for such purpose in accordance with the terms of the
Credit Agreement. Until notified in writing of the transfer of this Note,
Company and Administrative Agent shall be entitled to deem Payee or such
person who has been so identified by the transferor in writing to Company and
- --------------------
(1) Insert name of Lender in capital letters.
VIII-1
<PAGE>
Administrative Agent as the holder of this Note, as the owner and holder of
this Note. Each of Payee and any subsequent holder of this Note agrees, by
its acceptance hereof, that before disposing of this Note or any part hereof
it will make a notation hereon of all principal payments previously made
hereunder and of the date to which interest hereon has been paid; provided,
however, that the failure to make a notation of any payment made on this Note
shall not limit or otherwise affect the obligation of Company hereunder with
respect to payments of principal or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in
subsection 2.4A(ii) of the Credit Agreement and to prepayment at the option of
Company with the consent of Payee as provided in subsection 2.4A(i) of the
Credit Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of
the principal amount of this Note, together with all accrued but unpaid
interest thereon, may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of
this Note or the Credit Agreement shall alter or impair the obligation of
Company, which is absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the
currency herein prescribed.
Company promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in subsection 9.3 of the Credit
Agreement, incurred in the collection and enforcement of this Note. Company
and endorsers of this Note hereby consent to renewals and extensions of time
at or after the maturity hereof, without notice, and hereby waive diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense
to any demand hereunder.
VIII-2
<PAGE>
IN WITNESS WHEREOF, Company has caused this Note to be executed
and delivered by its duly authorized officer, as of the day and year first
above written.
OWENS-ILLINOIS, INC.
By___________________________
Title________________________
VIII-3
<PAGE>
TRANSACTIONS ON BID RATE LOAN NOTE
Amount of
Principal Outstanding
Amount of or Interest Principal
Loan Made Paid Balance Notation
Date This Date This Date This Date Made By
VIII-4
<PAGE>
EXHIBIT IX
[FORM OF]
OVERDRAFT AGREEMENT
This OVERDRAFT AGREEMENT is dated as of May 15, 1997 and entered
into by and between OWENS-ILLINOIS, INC., a Delaware corporation ("Company"),
and BANKERS TRUST COMPANY ("Bank").
RECITALS
WHEREAS, Company and Bank are parties to that certain Amended and
Restated Credit Agreement dated as of May 15, 1997 among Company, the Lenders
listed therein, the Lead Managers and Co-Agents listed therein, The Bank of
Nova Scotia and NationsBank, N.A., as Co-Documentation Agents, Bank of America
National Trust and Savings Association, as Syndication Agent, and Bank, as
Administrative Agent (as it may be amended, amended and restated, supplemented
or otherwise modified from time to time, the "Credit Agreement"; capitalized
terms used herein without definition having the meanings assigned to such
terms in the Credit Agreement); and
WHEREAS, pursuant to and subject to the limitations set forth in
subsection 2.1B of the Credit Agreement, Company and Bank are permitted to
establish and maintain an overdraft facility to facilitate Company's cash
management practices.
NOW, THEREFORE, in consideration of the premises and the terms and
conditions stated herein, the parties hereby agree as follows:
1. Upon presentment to Bank for payment of an item drawn by
Company on Company's account ________ (the "Account") with Bank in an amount
that, when charged against the Account, creates an overdraft in the Account,
Bank shall pay such item; provided that Bank elects to do so as provided
herein; and provided, further that after giving effect to such overdraft (i)
the Overdraft Amount shall not exceed $50,000,000, and (ii) the Overdraft
Amount shall not at any time exceed the amount of the Revolving Loan
Commitments minus the sum of (y) the aggregate principal amount of all
outstanding Revolving Loans and Bid Rate Loans plus (z) the Letter of Credit
Usage at such time.
2. Bank may elect not to pay any item that would create an
overdraft, with or without notice to Company, if Bank, in its sole discretion,
believes that it will not be able, pursuant to subsection 2.1B of the Credit
Agreement, to require each other Lender to make a Revolving Loan or to
purchase a participation, in each case for the purpose of refunding Bank in
the amount of such overdraft.
3. Company shall pay to Bank on demand, and in any event not more
than three Business Days from the date of creation of any overdraft in the
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Account, an amount equal to the Overdraft Amount then outstanding in respect
of such overdraft. In addition, Company shall pay, on demand or, if no demand
is made, on the last Business Day of each month, interest on the Overdraft
Amount from time to time outstanding at a fluctuating rate per annum
(calculated on the basis of a 360-day year and the actual number of days
elapsed) equal to the Base Rate minus the Applicable Facility Fee Percentage;
provided that if the Overdraft Amount or interest thereon is not paid when
due, the Overdraft Amount and, to the extent permitted by applicable law, any
interest thereon not paid when due shall thereafter bear interest payable on
demand at a rate per annum equal to the Prime Rate plus 2.00% per annum; and
provided, further that, unless demand is otherwise made, the interest payable
on the last Business Day of any month shall be that which is accrued and
unpaid through such Business Day. Bank may, at its option, request Lenders to
make Revolving Loans as provided in subsection 2.1B of the Credit Agreement
and apply the proceeds of such Revolving Loans to effect payment of the
Overdraft Amount as set forth above.
4. Company shall make each payment hereunder to Bank in lawful
money of the United States of America and in same day funds at the office of
Bank located at One Bankers Trust Plaza, New York, New York 10006.
5. Promptly after the last day of each month, Bank will prepare
and send to Company copies of statements of the Account showing the charges
made thereto and the Overdraft Amount and interest accrued thereon as of the
last day of such month. Such statements, and any photocopies of items and
other records held by Bank relating to the Account, shall (absent manifest or
demonstrable error) constitute evidence of the Indebtedness owed by Company
hereunder.
6. Without prejudice to Bank's other rights, Company hereby
authorizes Bank to charge against any balance in the Account and/or in any of
Company's other accounts with Bank and/or against any other debt owing by Bank
to Company any amount owing by Company to Bank hereunder; provided that Bank
shall give Company notice of any such charge prior thereto or as soon as
reasonably practicable thereafter.
7. Notwithstanding anything to the contrary contained herein,
Bank shall not be obligated to pay any item which would create an overdraft in
the Account if such payment would be an extension of credit to Company in
violation of any limitation or prohibition provided by any applicable statute
or regulation.
8. This Agreement shall terminate upon the termination of the
Revolving Loan Commitments. In addition, at any time prior to the
termination of the Revolving Loan Commitments, Bank or Company may, upon at
least five Business Day's written notice to the other party, terminate this
Agreement; provided that no such termination shall affect Company's
obligations with respect to overdrafts created on or prior to such
termination or Bank's rights with respect to such overdrafts. This Agreement
is not for the benefit of any party other than Company and Bank.
9. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
IX-2
<PAGE>
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
10. This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
11. Company hereby submits to the jurisdiction of any state or
federal court in the State of New York with respect to any action or
proceeding in connection with this Agreement to the full extent provided in
subsection 9.18 of the Credit Agreement and such subsection 9.18 of the Credit
Agreement is hereby incorporated herein by this reference.
12. The parties hereto agree to waive their respective rights to
a jury trial with respect to any action or proceeding in connection with this
Agreement to the full extent provided in subsection 9.19 of the Credit
Agreement and such subsection 9.19 of the Credit Agreement is hereby
incorporated herein by this reference.
[Remainder of page intentionally left blank]
IX-3
<PAGE>
WITNESS the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
BANKERS TRUST COMPANY
By: ___________________________
Title: _________________________
OWENS-ILLINOIS, INC.
By: ___________________________
Title: _________________________
IX-S-1
<PAGE>
EXHIBIT X
[FORM OF]
COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFY THAT:
(1) We are the duly elected [Title] and [Title] of
Owens-Illinois, Inc., a Delaware corporation ("Company");
(2) We have reviewed the terms of the Amended and Restated Credit
Agreement dated as of May 15, 1997 among Company, the Lenders named therein,
the Lenders named as Lead Managers and Co-Agents, The Bank of Nova Scotia and
NationsBank, N.A., as Co-Documentation Agents, Bank of America National Trust
and Savings Association, as Syndication Agent, and Bankers Trust Company, as
Administrative Agent (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"; capitalized
terms used herein and in Attachment No. 1 annexed hereto and not otherwise
defined herein or in such Attachment No. 1 having the meanings assigned to
such terms in the Credit Agreement), and we have made, or have caused to be
made under our supervision, a review in reasonable detail of the transactions
and condition of Company and its Subsidiaries during the accounting period
covered by the attached financial statements; and
(3) The examination described in paragraph (2) did not disclose
and we have no knowledge of the existence of any condition or event which
constitutes an Event of Default or Potential Event of Default during or at the
end of the accounting period covered by the attached financial statements or
as of the date of this Certificate, except as set forth below.
Describe below (or in a separate attachment to this Certificate)
the exceptions, if any, to paragraph (3) by listing, in detail, the nature of
the condition or event, the period during which it has existed and the action
which Company has taken, is taking, or proposes to take with respect to each
such condition or event:
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
- ----------------------------------------------------------------------------
X-1
<PAGE>
The foregoing certifications, together with the computations set
forth in Attachment No. 1 annexed hereto and the financial statements
delivered with this Certificate in support hereof, are made and delivered this
_____ day of __________, ____ pursuant to subsection 5.1(iii) of the Credit
Agreement.
OWENS-ILLINOIS, INC.
By____________________________
Title_________________________
By____________________________
Title_________________________
X-2
<PAGE>
ATTACHMENT NO. 1
TO COMPLIANCE CERTIFICATE
(The certificate attached hereto is dated as of ______________ and
pertains to the period from __________ to __________.) Subsection references
herein relate to the subsections of the Credit Agreement.
A. Investments
1. Aggregate fair market value of all Investments
permitted under subsection 6.2(viii) . . . . . . . $__________
2. Maximum permitted under subsection 6.2(viii). . . $500,000,000
B. Letters of Credit
1. Reimbursement obligations in respect of letters of
credit . . . . . . . . . . . . . . . . . . $__________
2. Maximum permitted under subsection 6.3 . . . . . . . $500,000,000
C. Restricted Junior Payments
1. Consolidated Net Income for period from December
31, 1996 until __________, ____. . . . . . $__________
2. Aggregate amount of Restricted Junior Payments
(other than Restricted Junior Payments in respect of
Common Stock purchases in connection with
Company's employee benefits program) made from
and after the Effective Date to the determination date
set forth in C.1 . . . . . . . . . . . . . . . . . . $__________
3. Maximum permitted under subsection 6.4 (sum of
$200,000,000 plus 50% of C.1). . . . . . . . . . .$__________
D. Interest Coverage Ratio for the Period Ended
__________, ____
1. Consolidated Net Income. . . . . . . . . . . . . . . . . $__________
2. Consolidated Interest Expense. . . . . . . . . . . . $__________
3. Provisions for taxes based on income . . . . . . . . . . $__________
4. Total depreciation expense . . . . . . . . . . . . . . . $__________
X-3
<PAGE>
5. Total amortization expense . . . . . . . . . . . . . . . $__________
6. Material non-recurring gains and losses. . . . . . . . . $__________
7. Consolidated Adjusted EBITDA (1+2+3+4+5+6) . . . . . . . $__________
8. Interest Coverage Ratio (7):(2). . . . . . . . . . . . . ______:1.00
9. Minimum ratio permitted under subsection 6.5A. . . . . . ______:1.00
E. Maximum Consolidated Leverage Ratio as of
__________, ____
1. Consolidated Total Debt. . . . . . . . . . . . . . . . . $__________
2. Consolidated Adjusted EBITDA (D.7) . . . . . . . . . . . $__________
3. Consolidated Adjusted EBITDA attributable to
acquisitions . . . . . . . . . . . . . . . . . . . . . . $__________
4. Pro forma 12-month Consolidated Adjusted EBITDA
attributable to acquisitions . . . . . . . . . . . . . . $__________
5. Consolidated Pro Forma EBITDA (2-3+4). . . . . . . . . . $__________
6. Consolidated Leverage Ratio (1):(5). . . . . . . . . . . _____:1.00
7. Maximum Leverage Ratio permitted under
subsection 6.5B . . . . . . . . . . . . . . . . . . . . _____:1.00
F. Fundamental Changes
1. Aggregate fair market value of stock or other assets
sold in any one or more Asset Sales during
consecutive 12-month period in one or more
transactions permitted under subsection
6.6(iii)(b)(i) . . . . . . . . . . . . . . . . . . . . . $__________
2. Maximum permitted during consecutive 12-month
period under subsection 6.6(iii)(b)(i) before
consent of Requisite Lenders required . . . . . . . . . $300,000,000
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<PAGE>
3. Aggregate fair market value of stock or other assets
sold in any one or more Asset Sales after Closing
Date in one or more transactions permitted under
subsection 6.6(iii)(b)(ii) . . . . . . . . . . . . . . . $__________
4. Maximum permitted under subsection 6.6(iii)(b)(ii)
before consent of Requisite Lenders required . . . . . . $600,000,000
X-5
<PAGE>
EXHIBIT XI
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE (this "Agreement") is entered
into by and between the parties designated as Assignor ("Assignor") and
Assignee ("Assignee") above the signatures of such parties on the Schedule of
Terms attached hereto and hereby made an integral part hereof (the "Schedule
of Terms") and relates to that certain Credit Agreement described in the
Schedule of Terms (said Credit Agreement, as amended, supplemented or
otherwise modified to the date hereof and as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined herein being
used herein as therein defined).
IN CONSIDERATION of the agreements, provisions and covenants
herein contained, the parties hereto hereby agree as follows:
SECTION 1. Assignment and Assumption.
(a) Effective upon the Settlement Date specified in Item 4 of the
Schedule of Terms (the "Settlement Date"), Assignor hereby sells and assigns
to Assignee, without recourse, representation or warranty (except as expressly
set forth herein), and Assignee hereby purchases and assumes from Assignor,
that percentage interest in all of Assignor's rights and obligations as a
Lender arising under the Credit Agreement and the other Loan Documents with
respect to Assignor's Revolving Loan Commitment and outstanding Loans, if any,
which represents, as of the Settlement Date, the percentage interest specified
in Item 3 of the Schedule of Terms of all rights and obligations of Lenders
arising under the Credit Agreement and the other Loan Documents with respect
to the Revolving Loan Commitments and any outstanding Loans (the "Assigned
Share"). Without limiting the generality of the foregoing, the parties hereto
hereby expressly acknowledge and agree that any assignment of all or any
portion of Assignor's rights and obligations relating to Assignor's Revolving
Loan Commitment shall include (i) in the event Assignor is an Issuing Lender
with respect to any outstanding Letters of Credit (any such Letters of Credit
being "Assignor Letters of Credit"), the sale to Assignee of a participation
in the Assignor Letters of Credit and any drawings thereunder as contemplated
by subsection 2.8A of the Credit Agreement and (ii) the sale to Assignee of a
ratable portion of any participations previously purchased by Assignor
pursuant to said subsection 2.8A with respect to any Letters of Credit other
than the Assignor Letters of Credit.
(b) In consideration of the assignment described above, Assignee
hereby agrees to pay to Assignor, on the Settlement Date, the principal amount
of any outstanding Loans included within the Assigned Share, such payment to
be made by wire transfer of immediately available funds in accordance with the
applicable payment instructions set forth in Item 5 of the Schedule of Terms.
(c) Assignor hereby represents and warrants that Item 3 of the
Schedule of Terms correctly sets forth the amount of the Revolving Loan
XI-1
<PAGE>
Commitment and the Pro Rata Share corresponding to the Assigned Share.
(d) Assignor and Assignee hereby agree that, upon giving effect
to the assignment and assumption described above, (i) Assignee shall be a
party to, and a "Lender" under, the Credit Agreement and shall have all of the
rights and obligations under the Loan Documents, and shall be deemed to have
made all of the covenants and agreements contained in the Loan Documents,
arising out of or otherwise related to the Assigned Share, and (ii) Assignor
shall be absolutely released from any of such obligations, covenants and
agreements assumed or made by Assignee in respect of the Assigned Share.
Assignee hereby acknowledges and agrees that the agreement set forth in this
Section 1(d) is expressly made for the benefit of Company, Administrative
Agent, Assignor and the other Lenders and their respective successors and
permitted assigns.
(e) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent that (i) this Agreement shall effect the assignment
by Assignor and the assumption by Assignee of Assignor's rights and
obligations with respect to the Assigned Share, (ii) any other assignments by
Assignor of a portion of its rights and obligations with respect to the
Revolving Loan Commitments and any outstanding Loans shall have no effect on
the Revolving Loan Commitment and the Pro Rata Share corresponding to the
Assigned Share as set forth in Item 3 of the Schedule of Terms or on the
interest of Assignee in any outstanding Loans corresponding thereto, and (iii)
from and after the Settlement Date, Administrative Agent shall make all
payments under the Credit Agreement in respect of the Assigned Share
(including without limitation all payments of principal and accrued but unpaid
interest, commitment fees and letter of credit fees with respect thereto) (A)
in the case of any such interest and fees that shall have accrued prior to
the Settlement Date, to Assignor, and (B) in all other cases, to Assignee;
provided that Assignor and Assignee shall make payments directly to each other
to the extent necessary to effect any appropriate adjustments in any amounts
distributed to Assignor and/or Assignee by Administrative Agent under the Loan
Documents in respect of the Assigned Share in the event that, for any reason
whatsoever, the payment of consideration contemplated by Section 1(b) occurs
on a date other than the Settlement Date.
SECTION 2. Certain Representations, Warranties and Agreements.
(a) Assignor represents and warrants that it is the legal and
beneficial owner of the Assigned Share, free and clear of any adverse claim.
(b) Assignor shall not be responsible to Assignee for the
execution, effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of any of the Loan Documents or for any
representations, warranties, recitals or statements made therein or made in
any written or oral statements or in any financial or other statements,
instruments, reports or certificates or any other documents furnished or made
by Assignor to Assignee or by or on behalf of Company or any of its
Subsidiaries to Assignor or Assignee in connection with the Loan Documents and
the transactions contemplated thereby or for the financial condition or
business affairs of Company or any other Person liable for the payment of any
Obligations, nor shall Assignor be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions,
XI-2
<PAGE>
covenants or agreements contained in any of the Loan Documents or as to the
use of the proceeds of the Loans or the use of the Letters of Credit or as to
the existence or possible existence of any Event of Default or Potential Event
of Default.
(c) Assignee represents and warrants that it is an Eligible
Assignee; that it has experience and expertise in the making of loans such as
the Loans; that it has acquired the Assigned Share for its own account in the
ordinary course of its business and without a view to distribution of the
Loans within the meaning of the Securities Act or the Exchange Act or other
federal securities laws (it being understood that, subject to the provisions
of subsection 9.2 of the Credit Agreement, the disposition of the Assigned
Share or any interests therein shall at all times remain within its exclusive
control); and that it has received, reviewed and approved a copy of the Credit
Agreement and the other Loan Documents (including all Exhibits and Schedules
thereto).
(d) Assignee represents and warrants that it has received from
Assignor such financial information regarding Company and its Subsidiaries as
is available to Assignor and as Assignee has requested, that it has made its
own independent investigation of the financial condition and affairs of
Company and its Subsidiaries in connection with the assignment evidenced by
this Agreement, and that it has made and shall continue to make its own
appraisal of the creditworthiness of Company and its Subsidiaries. Assignor
shall have no duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of
Assignee or to provide Assignee with any other credit or other information
with respect thereto, whether coming into its possession before the making of
the initial Loans or at any time or times thereafter, and Assignor shall not
have any responsibility with respect to the accuracy of or the completeness of
any information provided to Assignee.
(e) Each party to this Agreement represents and warrants to the
other party hereto that it has full power and authority to enter into this
Agreement and to perform its obligations hereunder in accordance with the
provisions hereof, that this Agreement has been duly authorized, executed and
delivered by such party and that this Agreement constitutes a legal, valid and
binding obligation of such party, enforceable against such party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity.
SECTION 3. Miscellaneous.
(a) Each of Assignor and Assignee hereby agrees from time to
time, upon request of the other such party hereto, to take such additional
actions and to execute and deliver such additional documents and instruments
as such other party may reasonably request to effect the transactions
contemplated by, and to carry out the intent of, this Agreement.
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party (including, if applicable, any party required to evidence its
consent to or acceptance of this Agreement) against whom enforcement of such
XI-3
<PAGE>
change, waiver, discharge or termination is sought.
(c) Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in
writing and may be personally served, telexed or sent by telefacsimile or
United States mail or courier service and shall be deemed to have been given
when delivered in person or by courier service, upon receipt of telefacsimile
or telex, or three Business Days after depositing it in the United States mail
with postage prepaid and properly addressed. For the purposes hereof, the
notice address of each of Assignor and Assignee shall be as set forth on the
Schedule of Terms or, as to either such party, such other address as shall be
designated by such party in a written notice delivered to the other such
party. In addition, the notice address of Assignee set forth on the Schedule
of Terms shall serve as the initial notice address of Assignee for purposes of
subsection 9.10 of the Credit Agreement.
(d) In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way
be affected or impaired thereby.
(e) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
(f) This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
(g) This Agreement may be executed in one or more counterparts
and by different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are physically
attached to the same document.
(h) This Agreement shall become effective upon the date (the
"Effective Date") upon which all of the following conditions are satisfied:
(i) the execution of a counterpart hereof by each of Assignor and Assignee,
(ii) the execution of a counterpart hereof by Company as evidence of its
consent hereto to the extent required under subsection 9.2B(i) of the Credit
Agreement, (iii) the receipt by Administrative Agent of the processing and
recordation fee referred to in subsection 9.2B(i) of the Credit Agreement,
(iv) the delivery by Assignee to Administrative Agent of such forms,
certificates or other evidence with respect to United States federal income
tax withholding matters as Assignee may be required to deliver to
Administrative Agent pursuant to subsection 2.7C(iv), (v) the execution of a
counterpart hereof by Administrative Agent as evidence of its acceptance
hereof in accordance with subsection 9.2B(ii) of the Credit Agreement, (vi)
the receipt by Administrative Agent of originals or telefacsimiles of the
counterparts described above and authorization of delivery thereof, and (vii)
XI-4
<PAGE>
the recordation by Administrative Agent in the Register of the pertinent
information regarding the assignment effected hereby in accordance with
subsection 9.2B(ii) of the Credit Agreement.
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XI-5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized, such execution being made as of the Effective Date in the
applicable spaces provided on the Schedule of Terms.
XI-6
<PAGE>
SCHEDULE OF TERMS
1. Borrower: Owens-Illinois, Inc.
2. Name and Date of Credit Agreement: Amended and Restated Credit Agreement
dated as of May 15, 1997 by and among Owens-Illinois, Inc., the financial
institutions listed therein as Lenders, the Lenders named therein as Lead
Managers and Co-Agents for Lenders, The Bank of Nova Scotia and
NationsBank, N.A., as Co-Documentation Agents, Bank of America National
Trust and Savings Association, as Syndication Agent, and Bankers Trust
Company, as Administrative Agent.
3. Amounts:
(a) Aggregate Revolving Loan Commitments of all Lenders:$________
(b) Assigned Share/Pro Rata Share: ______%
(c) Amount of Assigned Share of Revolving Loan Commitments:$________
4. Settlement Date: ____________, 199_
5. Payment Instructions:
ASSIGNOR: ASSIGNEE:
____________________________ ____________________________
____________________________ ____________________________
____________________________ ____________________________
Attention: __________________ Attention: __________________
Reference: _________________ Reference: _________________
6. Notice Addresses:
ASSIGNOR: ASSIGNEE:
____________________________ ____________________________
____________________________ ____________________________
____________________________ ____________________________
____________________________ ____________________________
7. Signatures:
[NAME OF ASSIGNOR], [NAME OF ASSIGNEE],
as Assignor as Assignee
By: By:
Title: Title:
[Consented to in accordance with subsection Accepted in accordance with
subsection 9.2B(i) of the Credit Agreement 9.2B(ii) of the Credit Agreement
[COMPANY] [NAME OF ADMINISTRATIVE AGENT],
as Administrative Agent
By: By:
Title: ] Title:
XI-7
<PAGE>
EXHIBIT XII
[FORM OF OPINION OF LATHAM & WATKINS]
May 16, 1997
Bankers Trust Company,
as Administrative Agent
130 Liberty Street, 14th Floor
New York, New York 10017
Bank of America National Trust
and Savings Association, as
Syndication Agent
1850 Gateway Boulevard
Concord, California 94520
The Bank of Nova Scotia,
as Co-Documentation Agent
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
NationsBank, N.A.,
as Co-Documentation Agent
101 N. Tryon
NC-001-15-03
Charlotte, North Carolina 28255
and
The Lead Managers, Co-Agents and Lenders
identified on Exhibit A hereto
Re: Amended and Restated Credit Agreement, dated as of May 15, 1997 among
Owens-Illinois, Inc., the Lenders, Lead Managers and Co-Agents listed
therein, The Bank of Nova Scotia and NationsBank, N.A., as Co-
Documentation Agents, Bank of America National Trust & Savings
Association, as Syndication Agent and Bankers Trust Company, as
Administrative Agent
Ladies and Gentlemen:
We have acted as special counsel to Owens-Illinois, Inc., a
Delaware corporation (the "Company"), in connection with that certain Amended
and Restated Credit Agreement, dated as of May 15, 1997 (the "Credit
Agreement") among the Company, the Lenders, Lead Managers and Co-Agents listed
therein (collectively, the "Lenders"), The Bank of Nova Scotia and
NationsBank, N.A., as Co-Documentation Agents (each, in such capacity, a
"Co-Documentation Agent"), Bank of America National Trust and Savings
Association, as Syndication Agent (in such capacity, the "Syndication Agent")
XII-1
<PAGE>
and Bankers Trust Company, as Administrative Agent (in such capacity, the
"Administrative Agent").
This opinion is rendered to you, at the request of the Company,
pursuant to Section 3.1F of the Credit Agreement. Capitalized terms defined
in the Credit Agreement, used herein and not otherwise defined herein, shall
have the meanings given them in the Credit Agreement.
As such counsel, we have examined such matters of fact and
questions of law as we have considered appropriate for purposes of rendering
the opinions expressed below. We have examined, among other things, the
following:
(a) the Credit Agreement;
(b) the Revolving Notes and Bid Rate Loan Notes,
in each case issued by the Company on the Effective Date (collectively, the
"Notes");
(c) the Overdraft Agreement; and
(d) the Existing Senior Debenture Indenture and
the Existing Subordinated Note Indenture
(collectively, the "Indentures").
The documents described in subsections (a) through (c) above are
referred herein collectively as the "Loan Documents."
In our examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons executing documents, the
authenticity of all documents submitted to us as originals, and the conformity
to authentic original documents of all documents submitted to us as copies.
We have been furnished with, and with your consent have relied upon,
certificates of officer(s) of the Company with respect to certain factual
matters. In addition, we have obtained and relied upon such certificates and
assurances from public officials as we have deemed necessary.
We are opining herein as to the effect on the subject transactions
only of the federal laws of the United States, the internal laws of the State
of New York and the General Corporation Law of the State of Delaware (the
"DGCL"), and we express no opinion with respect to the applicability thereto,
or the effect thereon, of the laws of any other jurisdiction or, in the case
of Delaware, any other laws or as to any matters of municipal law or the laws
of any other local agencies within any state. Various issues are addressed in
the opinion of James W. Baehren, Associate General Counsel of the Company,
separately provided to you, and we express no opinion with respect to those
matters.
Our opinions set forth in paragraph 2 below are based upon our
consideration of only those statutes, rules and regulations which, in our
experience, are normally applicable to borrowers and guarantors in loan
transactions.
XII-2
<PAGE>
For purposes of our opinion, we have assumed, with your permission,
that (i) the Company is duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, with corporate
power and authority to conduct its business as now conducted and to own, or
hold under lease, its assets and to enter into the Loan Documents and perform
its obligations thereunder, (ii) the Company has duly authorized, executed and
delivered each Loan Document, and (iii) none of the execution, delivery and
performance by the Company of any Loan Document will result in the violation
of the Certificate of Incorporation or Bylaws of the Company.
Subject to the foregoing and the other matters set forth herein, and
in reliance thereon, it is our opinion that, as of the date hereof:
1. Each of the Loan Documents constitutes a legally valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms.
2. The execution and delivery by the Company of the Loan Documents
and the borrowing and repayment of the Loans by the Company pursuant to the
Credit Agreement do not: (i) violate any federal or New York statute, rule or
regulation applicable to the Company (including, without limitation,
Regulations G. T. U or X of the Board of Governors of the Federal Reserve
System) or any provision of the DGCL applicable to the Company, (ii) result in
the breach of or a default under any of the Indentures, or (iii) require any
consents (other than that contemplated by the Consent Solicitation),
approvals, authorizations, registrations, declarations or filings by the
Company under any federal or New York statute, rule or regulation applicable
to the Company or under any provision of the DGCL applicable to the Company.
No opinion is expressed in this paragraph 2 as to the application of Section
548 of the federal Bankruptcy Code and comparable provisions of state law or
of any antifraud laws, antitrust or trade regulation laws.
3. The Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
4. It is not necessary in connection with the execution and
delivery by the Company of the Notes to the recipients thereof (the "Note
Recipients") on the Effective Date to register the Notes under the Securities
Act of 1933, as amended, or to qualify any indenture in respect thereof under
the Trust Indenture Act of 1939, as amended.
5. All monetary obligations of the Company under the Credit
Agreement and the Company Guaranty are within the definition of "Senior
Indebtedness" as defined in the Senior Subordinated Debt Indenture.
The opinions expressed in paragraph 1 are subject to the following
limitations, qualifications and exceptions:
(a) the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights or remedies of creditors generally;
(a) the effect of general principles of equity, whether enforcement
considered in a proceeding in equity or at law, and the discretion of the
XII-3
<PAGE>
court before which any proceeding therefor may be brought;
(b) the unenforceability under certain circumstances under law or
court decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such indemnification
or contribution is contrary to public policy; and
(c) the unenforceability of any provision requiring the payment of
attorneys' fees, except to the extent that a court determines such fees to be
reasonable.
We call to your attention that the provisions of the Loan Documents
which permit the Administrative Agent, the Syndication Agent, either
Co-Documentation Agent, any Lead Manager, any Co-Agent or any Lender to take
action or make determinations may be subject to a requirement that such action
be taken or such determinations be made in a commercially reasonable manner
and in good faith.
For purposes of our opinions expressed in paragraph 2, we have
assumed, with your permission, that, as of the Effective Date, the entire
amount of the Revolving Loan Commitments is outstanding.
For purposes of our opinions expressed in paragraph 4, we have
assumed with your permission that each Note Recipient is a commercial lender
or a financial institution which makes loans in the ordinary course of its
business and that it is receiving the Notes to be received by it and will make
each Loan under the Credit Agreement to be made by it for its own account in
the ordinary course of its commercial banking or lending business and not with
a view to or for sale in connection with any distribution of such Notes.
To the extent that the obligations of the Company may be dependent
upon such matters, we assume for purposes of this opinion that: all parties to
the Loan Documents are duly incorporated, validly existing and in good
standing under the laws of their respective jurisdictions of incorporation;
all parties to the Loan Documents have the requisite corporate power and
authority to execute and deliver the Loan Documents and to perform their
respective obligations under the Loan Documents to which they are a party; and
the Loan Documents to which such parties are a party have been duly
authorized, executed and delivered by such parties and (with respect to such
parties other than the Company) constitute their legally valid and binding
obligations, enforceable against them in accordance with their terms. Except
as expressly covered by this opinion, we express no opinion as to compliance
by any parties to the Loan Documents with any state or federal laws or
regulations applicable to the subject transactions because of the nature of
their business.
This opinion is rendered only to you and is solely for your benefit
in connection with the transactions covered hereby. This opinion may not be
relied upon by yu for any other purpose, or furnished to, quoted to or relied
upon by any other person, firm or corporation for any purpose, without our
prior written consent. At your request, we hereby consent to reliance hereon
by any future assignees of your interest in the Credit Agreement which are
Eligible Assignees as expressly permitted by subsection 9.2 of the Credit
Agreement; provided that you have notified such assignee that this opinion
XII-4
<PAGE>
speaks only as of the date hereof and to its addressees and that we have no
responsibility or obligation to update this opinion, to consider its
applicability or correctness to other than its addressees, or to take into
account changes in law, facts or any other development of which we may later
become aware.
Very truly yours,
XII-5
<PAGE>
Exhibit A
to
Opinion of Latham & Watkins
Dated May 16, 1997
Rendered In Connection With
Owens-Illinois, Inc. Amended and Restated Credit Agreement
Lead Managers:
Banque Nationale de Paris
Banque Paribas
Caisse Nationale de Credit Agricole
Compagnie Financiere De CIC Et De L'Union Europeenne
Dai-Ichi Kangyo Bank, Limited
Fleet National Bank
Mellon Bank, N.A.
National City Bank
The Sanwa Bank, Limited, Chicago Branch
Co-Agents:
ABN Amro Bank N.V.
The Bank of New York
CIBC, Inc.
Credit Lyonnais
The First National Bank of Chicago
The Fuji Bank, Limited
The Industrial Bank of Japan, Limited
Keybank National Association
The Long-Term Credit Bank of Japan, Ltd.
Royal Bank of Canada
The Sakura Bank, Limited
Societe Generale
The Sumitomo Bank, Limited
Toronto-Dominion (Texas), Inc.
Lenders:
Arab Banking Corporation
Banca Commerciale Italiana, Chicago Branch
Banca Di Roma
Banca Popolare Di Milano
Bank of Hawaii
Bank of Montreal
Cariplo Cassa Di Risparmio Delle Provincie Lombarde, S.p.A.
Citibank, N.A.
Comerica Bank
Commerzbank Aktiengesellschaft
Credito Italiano S.p.A.,
Istituto Bancario San Paolo Di Torino, S.p.A.
Kredietbank
The Mitsubishi Trust and Banking Corp.
XII-6
<PAGE>
The Mitsui Trust and Banking Company, Limited
The Northern Trust Company
Republic National Bank of New York
The Tokai Bank, Ltd., Chicago Branch
Toyo Trust & Banking Co.
Union Bank of California, N.A.
United States National Bank of Oregon
Wachovia Bank
Westdeutsche Landesbank Girozentrale New York Branch
Yasuda Trust & Banking Co. Ltd.
XII-7
<PAGE>
EXHIBIT XIII
[FORM OF OPINION OF GENERAL COUNSEL FOR OWENS-ILLINOIS]
May 16, 1997
Bankers Trust Company,
as Administrative Agent
130 Liberty Street, 14th Floor
New York, New York 10017
Bank of America National Trust
and Savings Association, as
Syndication Agent
1850 Gateway Boulevard
Concord, California 94520
The Bank of Nova Scotia,
as Co-Documentation Agent
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
NationsBank, N.A.,
as Co-Documentation Agent
101 N. Tryon
NC-001-15-03
Charlotte, North Carolina 28255
and
The Lead Managers, Co-Agents and Lenders
identified on Exhibit A hereto
Re: Amended and Restated Credit Agreement, dated as of May 15, 1997 among
Owens-Illinois, Inc., the Lenders, Lead Managers and Co-Agents listed
therein, The Bank of Nova Scotia and NationsBank, N.A., as Co-
Documentation Agents, Bank of America National Trust & Savings
Association, as Syndication Agent and Bankers Trust Company, as
Administrative Agent
Ladies and Gentlemen:
I am associate general counsel to Owens-Illinois, Inc., a Delaware
corporation (the "Company"), and render this opinion to you in such capacity
pursuant to Section 3.1F of that certain Amended and Restated Credit
Agreement, dated as of May 15, 1997 (the "Credit Agreement") among the
Company, the Lenders, Lead Managers and Co-Agents listed therein
(collectively, the "Lenders"), The Bank of Nova Scotia and NationsBank, N.A.,
as Co-Documentation Agents (each, in such capacity, a "Co-Documentation
Agent"), Bank of America National Trust and Savings Association, as
Syndication Agent (in such capacity, the "Syndication Agent"), and Bankers
XIII-1
<PAGE>
Trust Company, as Administrative Agent (in such capacity, the "Administrative
Agent"). Capitalized terms defined in the Credit Agreement, used herein
and not otherwise defined herein, shall have the meanings given them in the
Credit Agreement.
As such counsel, I have examined such matters of fact and questions
of law as I have considered appropriate for purposes of rendering the opinions
expressed below. I have examined, among other things, the following:
(a) the Credit Agreement;
(b) the Revolving Notes and Bid Rate Loan Notes, in each
case issued by the Company on the Effective Date
(collectively, the "Notes");
(c) the Overdraft Agreement;
(d) the Certificate of Incorporation and Bylaws (the
"Governing Documents") of the Company;
(e) the indenture(s) (but not including the Existing
Senior Debenture Indenture or the Existing
Subordinated Note Indenture), note(s), loan
agreement(s), mortgage(s), deed(s) of trust, security
agreement(s) and other written agreement(s) and
instrument(s) creating, evidencing or securing
indebtedness of the Company or its Subsidiaries and
which are material to the Company and its Subsidiaries
taken as a whole (the "Material Agreements); and
(f) court and administrative orders, writs, judgments and
decrees specifically directed to the Company or its
Subsidiaries which are material to the Company and its
Subsidiaries taken as a whole (the "Court Orders").
The documents described in subsections (a) through (c) above are
referred herein collectively as the "Loan Documents."
In my examination, I have assumed the genuineness of all
signatures, the legal capacity of all natural persons executing documents, the
authenticity of all documents submitted to me as originals, and the conformity
to authentic original documents of all documents submitted to me as copies.
I have been furnished with, and with your consent have relied
upon, certificates of officer(s) of the Company with respect to certain
factual matters. In addition, I have obtained and relied upon such
certificates and assurances from public officials as I have deemed necessary.
I am opining herein as to the effect on the subject transactions
only of the federal laws of the United States, the internal laws of the State
of Ohio and the General Corporation Law of the State of Delaware (the "DGCL"),
and I express no opinion with respect to the applicability thereto, or the
effect thereon, of the laws of any other jurisdiction or, in the case of
Delaware, any other laws or as to any matters of municipal law or the laws of
XIII-2
<PAGE>
any other local agencies within any state. I express no opinion herein with
respect to the applicability to the subject transactions, or the effect
thereon, of any federal or state securities laws. Various issues are
addressed in the opinion of Latham & Watkins, separately provided to you in
connection with the Credit Agreement, and I express no opinion with respect to
those matters.
Whenever a statement herein is qualified by "to the best of my
knowledge" or a similar phrase, it is intended to indicate that I do not have
current actual knowledge of the inaccuracy of such statement.
For purposes of this opinion, I have assumed, with your
permission, that none of the execution, delivery and performance by the
Company of the Loan Documents will result in the violation of any federal
statute, rule or regulation applicable to the Company (including, without
limitation, Regulations G, T, U or X of the Board of Governors of the Federal
Reserve System) or the DGCL.
Subject to the foregoing and the other matters set forth herein,
and in reliance thereon, it is my opinion that, as of the date hereof:
1. The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of Delaware with corporate
power and authority to conduct its business as now conducted and to own, or
hold under lease, its assets and to enter into the Loan Documents and perform
its obligations thereunder.
2. The execution, delivery and performance by the Company of the
Loan Documents have been duly authorized by all necessary corporate action of
the Company. Each Loan Document has been duly executed and delivered by the
Company.
3. None of the execution and delivery by the Company of the Loan
Documents or the borrowing and repayment of the Loans by the Company pursuant
to the Credit Agreement: (i) violate the provisions of the Company's Governing
Documents, (ii) violate any Ohio statute, rule or regulation applicable to the
Company, (iii) result in the breach of or a default under any of the Material
Agreements or Court Orders, or (iv) require any consents [(other than that
contemplated by the Consent Solicitation)], approvals, authorizations,
registrations, declarations or filings by the Company under any Ohio statute,
rule or regulation applicable to the Company. No opinion is expressed in this
paragraph 3 as to the application of Section 548 of the federal Bankruptcy
Code and comparable provisions of state law or of any antifraud laws,
antitrust or trade regulation laws.
4. To the best of my knowledge after due inquiry, there are no
legal or governmental proceedings pending or threatened to which the Company
or any Subsidiary of the Company is a party or to which any of the properties
of the Company or any Subsidiary of the Company is subject (except for those
legal or governmental proceedings previously disclosed in writing to Lenders
including, without limitation, those disclosed in the Company's annual report
on Form 10-K for the fiscal year ended December 31, 1996) that has a
significant likelihood of resulting in a Material Adverse Effect.
XIII-3
<PAGE>
In rendering the opinions expressed in paragraph 3 insofar as they
require interpretation of the Material Agreements (i) I have assumed with your
permission that all courts of competent jurisdiction would enforce such
agreements as written and would apply the internal laws of the State of Ohio
without giving effect to any choice of law provisions contained therein or any
choice of law principles which would result in application of the internal
laws of any other state, (ii) to the extent that any questions of legality or
legal construction have arisen in connection with my review, I have applied
the laws of the State of Ohio in resolving such questions and (iii) except as
expressly set forth in paragraph 3, I express no opinion with respect to the
effect of any action or inaction by the Company under the Loan Documents or by
the Company or any Subsidiary of the Company under the Material Agreements
which may result in a breach or default under any Material Agreement. I
advise you that Material Agreements may be governed by other laws, that such
laws may vary substantially from the law assumed to govern for purposes of
this opinion, and that this opinion may not be relied upon as to whether or
not a breach or default would occur under the law actually governing such
Material Agreements.
This opinion is rendered only to you and is solely for your
benefit in connection with the transactions covered hereby. This opinion may
nor be relied upon by you for any other purpose, or furnished to, quoted to or
relied upon by any other person, firm or corporation for any purpose, without
my prior written consent. At your request, I hereby consent to reliance
hereon by any future assignees of your interest in the Credit Agreement which
are Eligible Assignees as expressly permitted by subsection 9.2 of the Credit
Agreement; provided that you have notified such assignee that this opinion
speaks only as of the date hereof and to its addressees and that I have no
responsibility or obligation to update this opinion, to consider its
applicability or correctness to other than its addressees, or to take into
account changes in law, facts or any other development of which I may later
become aware.
Very truly yours,
XIII-4
<PAGE>
Exhibit A
to
Opinion of James W. Baehren
Dated May 16, 1997
Rendered In Connection With
Owens-Illinois, Inc. Amended and Restated Credit Agreement
Lead Managers:
Banque Nationale de Paris
Banque Paribas
Caisse Nationale de Credit Agricole
Compagnie Financiere De CIC Et De L'Union Europeenne
Dai-Ichi Kangyo Bank, Limited
Fleet National Bank
Mellon Bank, N.A.
National City Bank
The Sanwa Bank, Limited, Chicago Branch
Co-Agents:
ABN Amro Bank N.V.
The Bank of New York
CIBC, Inc.
Credit Lyonnais
The First National Bank of Chicago
The Fuji Bank, Limited
The Industrial Bank of Japan, Limited
Keybank National Association
The Long-Term Credit Bank of Japan, Ltd.
Royal Bank of Canada
The Sakura Bank, Limited
Societe Generale
The Sumitomo Bank, Limited
Toronto-Dominion (Texas), Inc.
Lenders:
Arab Banking Corporation
Banca Commerciale Italiana, Chicago Branch
Banca Di Roma
Banca Popolare Di Milano
Bank of Hawaii
Bank of Montreal
Cariplo Cassa Di Risparmio Delle Provincie Lombarde, S.p.A.
Citibank, N.A.
Comerica Bank
Commerzbank Aktiengesellschaft
Credito Italiano S.p.A.,
Istituto Bancario San Paolo Di Torino, S.p.A.
Kredietbank
The Mitsubishi Trust and Banking Corp.
XIII-5
<PAGE>
The Mitsui Trust and Banking Company, Limited
The Northern Trust Company
Republic National Bank of New York
The Tokai Bank, Ltd., Chicago Branch
Toyo Trust & Banking Co.
Union Bank of California, N.A.
United States National Bank of Oregon
Wachovia Bank
Westdeutsche Landesbank Girozentrale New York Branch
Yasuda Trust & Banking Co. Ltd.
XIII-6
<PAGE>
EXHIBIT XIV
[FORM OF OPINION OF O'MELVENY & MYERS LLP]
May 16, 1997
Bankers Trust Company,
as Administrative Agent
One Bankers Trust Plaza
New York, New York 10006
Bank of America National Trust
and Savings Association,
as Syndication Agent
231 South LaSalle Street
Chicago, IL 60697
The Bank of Nova Scotia,
as Co-Documentation Agent
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
NationsBank, N.A.,
as Co-Documentation Agent
101 N. Tryon
NC-001-15-03
Charlotte, North Carolina 28255
and
The Lead Managers, Co-Agents and Lenders
Party to the Amended and Restated
Credit Agreement Referenced Below
Re: Loans to Owens-Illinois, Inc.
Ladies and Gentlemen:
We have acted as counsel to Bankers Trust Company, as Administrative
Agent (in such capacity, "Administrative Agent") and Bank of America National
Trust and Savings Association, as Syndication Agent (in such capacity,
"Syndication Agent"), in connection with the preparation and delivery of an
Amended and Restated Credit Agreement dated as of May 15, 1997 (the "Credit
Agreement") among Owens-Illinois, Inc., a Delaware corporation ("Company"),
the Lenders named therein, the Lenders named as Lead Managers, Co-Agents
and Co-Documentation Agents for Lenders, Syndication Agent and Administrative
Agent and in connection with the preparation and delivery of certain related
documents.
We have participated in various conferences with representatives
of Company and Agents and conferences and telephone calls with Latham &
Watkins, counsel to Company, and with your representatives, during which the
XIV-1
<PAGE>
Credit Agreement and related matters have been discussed, and we have also
participated in the meeting held on the date hereof (the "Closing") incident
to the funding of the initial loans made under the Credit Agreement. We
have reviewed the forms of the Credit Agreement and the exhibits thereto,
including the forms of the promissory notes annexed thereto (the "Notes"), and
the opinions of Latham & Watkins and James W. Baehren, Associate General
Counsel to the Company (collectively, the "Opinions"), and the officers'
certificates and other documents delivered at the Closing. We have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals or copies and the due authority of all persons executing
the same, and we have relied as to factual matters on the documents that we
have reviewed.
Although we have not independently considered all of the matters
covered by the Opinions to the extent necessary to enable us to express the
conclusions therein stated, we believe that the Credit Agreement and the
exhibits thereto are in substantially acceptable legal form and that the
Opinions and the officers' certificates and other documents delivered in
connection with the execution and delivery of, and as conditions to the making
of the initial loans under, the Credit Agreement and the Notes are
substantially responsive to the requirements of the Credit Agreement.
Respectfully submitted,
XIV-2
<PAGE>
SCHEDULE A
REVOLVING LOAN COMMITMENTS; PRO RATA SHARES
Revolving
Loan Pro Rata
Lender Commitment Share
Agents:
Bankers Trust Company $125,000,000 4.17%
Bank of America National Trust
and Savings Assoc. 125,000,000 4.17
The Bank of Nova Scotia 125,000,000 4.17
NationsBank, N.A. 125,000,000 4.17
Co-Agents:
ABN Amro Bank N.V. 80,000,000 2.67
The Bank of New York 80,000,000 2.67
CIBC, Inc. 80,000,000 2.67
Credit Lyonnais 80,000,000 2.67
The First National Bank of Chicago 80,000,000 2.67
The Fuji Bank, Limited 80,000,000 2.67
The Industrial Bank of Japan, Limited
Chicago Branch 80,000,000 2.67
KeyBank National Association 80,000,000 2.67
The Long-Term Credit Bank of Japan, Ltd.,
Chicago Branch 80,000,000 2.67
Royal Bank of Canada 80,000,000 2.67
The Sakura Bank, Limited 80,000,000 2.67
Societe Generale 80,000,000 2.67
The Sumitomo Bank, Limited 80,000,000 2.67
A-1
<PAGE>
Toronto Dominion (Texas), Inc. 80,000,000 2.67
Lead Managers:
Banque Nationale De Paris $70,000,000 2.33%
Banque Paribas 70,000,000 2.33
Caisse Nationale De Credit Agricole 70,000,000 2.33
Dai-Ichi Kangyo Bank, Limited 70,000,000 2.33
Mellon Bank, N.A. 70,000,000 2.33
National City Bank 70,000,000 2.33
The Sanwa Bank, Limited,
Chicago Branch 70,000,000 2.33
Compagnie Financiere De CIC Et
De L'Union Europeenne 67,500,000 2.25
Fleet National Bank 67,500,000 2.25
Lenders:
Bank of Montreal 65,000,000 2.17
Citibank, N.A. 50,000,000 1.67
The Mitsubishi Trust and Banking Corp. 50,000,000 1.67
Union Bank of California, N.A. 50,000,000 1.67
Wachovia Bank 50,000,000 1.67
Westdeutsche Landesbank Girozentrale
New York Branch 50,000,000 1.67
United States National Bank of Oregon 40,000,000 1.33
Yasuda Trust & Banking Co. Ltd. 40,000,000 1.33
The Northern Trust Company 35,000,000 1.17
Republic National Bank of New York 35,000,000 1.17
The Tokai Bank, Ltd., Chicago Branch 30,000,000 1.00
Arab Banking Corporation 25,000,000 0.83
A-2
<PAGE>
Banca Di Roma $25,000,000 0.83%
Cariplo Cassa Di Riparmio Delle
Provincie Lombarde, S.p.A. 25,000,000 0.83
Comerica Bank 25,000,000 0.83
Commerzbank Aktiengesellschaft 25,000,000 0.83
Credito Italiano, S.p.A. 25,000,000 0.83
Istituto Bancario San Paolo
Di Torino, S.p.A. 25,000,000 0.83
Kredietbank 25,000,000 0.83
Bank of Hawaii 15,000,000 0.50
Toyo Trust & Banking Co. 15,000,000 0.50
Banca Commerciale Italiana,
Chicago Branch 10,000,000 0.33
Banca Popolare Di Milano 10,000,000 0.33
The Mitsui Trust and Banking Company,
Limited 10,000,000 0.33
------------------- ----------------
$3,000,000,000 100.000%
A-3
<PAGE>
SCHEDULE B
EXISTING LEINS
OF
OWENS-ILLINOIS AND
CONSOLIDATED SUBSIDIARIES
Amount of
Encumbrance
Location Property encumbered ($M)
- ----------------------- ------------------------------- -----------
Danville, VA and Tracy,
CA Real estate, plant & equipment 10,313
Commonwealth of PA Real estate, plant & equipment 433
Various capital leases Real estate, plant & equipment 1,356
------
Total Existing Liens 12,102
======
B-1
<PAGE>
SCHEDULE C
INVESTMENTS
OF
OWENS-ILLINOIS AND
CONSOLIDATED SUBSIDIARIES
Amount
Investment ($M)
---------- ------
Foreign investments and advances
Consol, Ltd. 3,400
Huta Szkla Jaroslaw, S.A. 9,200
Regioplast, S.A. 19,700
------
Total investments and advances 32,300
Other investments
BriGam Ventures Inc. 1,260
Cross City 1,334
Industrial Development Board of the City of Montgomery 1,550
Norman Hartzel/Don McCone (Castalia) 777
------
Total Other Investments 4,921
Total Investments 37,221
======
C-1
<PAGE>
SCHEDULE D
REPORTING UNITS
OF
OWENS-ILLINOIS
Glass Container
International Glass
Plastic Containers
Labels & Carriers
Closure & Specialty
Prescription Products
D-1
<PAGE>
SCHEDULE E
LETTERS OF CREDIT OUTSTANDING UNDER EXISTING CREDIT AGREEMENT
Amount
Refer # Memo Outstanding T-O Date Mat Date Iss Loc # Code Div
- -------- ---- ----------- -------- -------- --- ------ ---- ---
LOC00001 State of 17,768,571.00 05/01/89 06/16/97 BOA 133809 1/3 090
California
-------------
17,768,571.00 = Bank of America
LOC00014 Aetna Life 1,457,530.00 07/01/87 06/30/97 BTC S-01760 2/3 090
Insurance
LOC00015 NJDEP- 3,149,459.00 03/13/87 03/12/98 BTC S-01120 1/3 090
Bridgeton
LOC00016 NJDEP- 213,285.00 05/24/90 05/24/97 BTC S-07039 1/3 090
OI/Schott
LOC00017 Old Republic 500,000.00 01/31/92 01/31/98 BTC S-08285 1/3 090
Insurance
LOC00018 Ohio Dept. 55,000.00 07/01/94 06/30/97 BTC S-09998 1/3 090
Commerce
LOC00019 OK Workers 2,500,000.00 01/31/91 01/31/98 BTC S-07585 1/3 090
Comp
LOC00020 National 3,659,000.00 11/08/89 09/01/97 BTC S-06176 1/3 090
Union Fire
LOC00021 Peoples Gas 100,000.00 11/18/89 11/18/97 BTC S-05933 1/3 090
LOC00022 Pitney Bowes 750,000.00 05/22/91 04/30/98 BTC S-07811 1/3 090
LOC00023 State of 240,590.00 02/18/92 12/31/97 BTC S-08333 2/3 090
CA/Amador
LOC00024 CIT Group/ 4,611,589.04 08/14/91 07/31/97 BTC S-07930 1/3 090
Equip
LOC00025 NHW/ 6,000,000.00 11/09/90 11/09/97 BTC S-07378 1/3 090
Hibernia
Bank
LOC00026 NJDEP- 3,124,250.00 03/13/87 03/12/98 BTC S-01121 1/3 090
Glassboro
LOC00027 Industrial 2,975,000.00 08/11/87 06/30/97 BTC S-02026 1/3 090
Comm OH
LOC00028 Liberty 176,462.00 10/06/93 10/06/97 BTC S-09537 1/3/ 090
Mutual SAC 4
LOC00029 Connell 107,161.00 08/06/91 09/30/97 BTC S-07951 1/3/ 090
Finance 4
LOC00030 Continental 9,712,000.00 06/18/92 06/18/97 BTC S-08571 1/3 090
Casualty
LOC00031 Banc- 14,473,891.00 08/14/91 07/31/97 BTC S-70929 1/3 090
Ireland/
First
LOC00032 NY Workers 2,269,000.00 10/06/89 10/06/97 BTC S-05934 1/3 090
Comp
LOC00033 Liberty 137,689.00 10/30/92 03/31/98 BTC S-08831 1/3/ 090
Mutual SPPI 4
LOC00052 NY Gas Wells 60,000.00 09/09/96 09/09/97 BTC S-11510 1/3 090
LOC00055 Banker 125,080,711.00 03/05/97 03/05/98 BTC S-11789 1/3 090
Trust Co.
LOC00036 Texas 50,000.00 12/31/87 12/31/97 BTC S-02899 1/3 301
Employer's
E-1
<PAGE>
Amount
Refer # Memo Outstanding T-O Date Mat Date Iss Loc # Code Div
LOC00037 Republic 78,655.00 12/31/89 12/31/97 BTC S-06578 1/3 301
Insurance
LOC00038 Allstate 534.00 12/31/89 12/31/97 BTC S-06557 1/3 301
Insurance
LOC00039 Paladin, 3,422.37 12/31/89 12/31/97 BTC S-06571 1/3 301
Heartland
LOC00040 Liberty 310.00 12/31/89 12/31/97 BTC S-06555 1/3 301
National
LOC00041 Farmers 1,300.00 12/31/89 12/31/97 BTC S-06563 1/3 301
Alliance
LOC00042 Fremont 2,585.26 12/31/89 12/31/97 BTC S-06556 1/3 301
Reinsurance
LOC00043 Lancer 10,000.00 12/31/89 12/31/97 BTC S-06577 1/3 301
Insurance
LOC00044 Mutual 186,271.39 12/31/89 12/31/97 BTC S-06551 1/3 301
Marine
LOC00045 American 40,390.00 12/31/89 12/31/97 BTC S-06574 1/3 301
Eagle
--------------
181,726,085.06 = Bankers Trust
LOC00007 Self- 6,000,000.00 10/19/94 09/01/97 MBB S836096 1/3 090
Insurance ------------
PA 6,000,000.00 = Mellon Bank
LOC00008 Self- 1,500,000.00 04/07/92 04/07/98 NNC SA9 1/3 090
Insurance ------------ 2052092
GA 1,500,000.00 = Nationsbank of North
--------------
206,994,656.06
==============
<PAGE>
Exhibit 4.2
SUPPLEMENTAL INDENTURE
OWENS-ILLINOIS, INC.,
as Issuer
AND
THE GUARANTORS NAMED HEREIN,
as Guarantors
AND
THE BANK OF NEW YORK,
as Trustee
Dated as of May 9, 1997
Supplemental to the Indenture, dated as of
December 15, 1991, relating to the Issuer's
11% Senior Debentures due 2003
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of May 9, 1997, by and among
OWENS-ILLINOIS, INC., a Delaware corporation (hereinafter called the
"Company"), as issuer, the guarantors listed as acknowledging the terms hereof
(hereinafter called the "Guarantors"), and THE BANK OF NEW YORK, as trustee
(hereinafter called the "Trustee"), under the Indenture, dated as of December
15, 1991 (the "Indenture"), by and among the Company, the Guarantor and the
Trustee relating to the Company's 11% Senior Debentures due 2003 (the
"Securities").
RECITALS OF THE COMPANY
The Company has implemented a refinancing plan designed to reduce
interest expense, reduce the amount and extend the maturities of the Company's
outstanding long-term debt, improve financial flexibility and increase share
owners' equity.
As part of the refinancing plan, the Company is making a cash tender
offer (the "Offer") to purchase the Securities and is soliciting consents (the
"Solicitation") to the amendments to the Indenture (the "Amendments") (all as
described in the Offer to Purchase and Consent Solicitation, dated April 25,
1997 (the "Offer to Purchase and Consent Solicitation")).
In accordance with Section 9.02 of the Indenture, the Holders of at
least a majority in principal amount of the outstanding Securities have
consented to such Amendments.
The Board of Directors of the Company has duly authorized the execution
and delivery of this Supplemental Indenture. In addition, the Company has
delivered an Opinion of Counsel to the Trustee pursuant to Section 9.05 of the
Indenture and has done all other things necessary to make this Supplemental
Indenture a valid agreement of the Company in accordance with the terms hereof
and of the Indenture.
This Supplemental Indenture is effective as of the date upon which the
conditions set forth in Section 1.09 hereof are satisfied and the Amendments
effected by this Supplemental Indenture will become operative on the date the
Securities are accepted for payment by the Company pursuant to the Offer.
WHEREFORE, each party agrees as follows for the benefit of the other
party and for the equal or ratable benefit of the Holders of the Securities,
as follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
For all purposes of the Indenture and this Supplemental Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to the Indenture and this Supplemental Indenture as a
whole and not to any particular Article, Section or subdivision; and
1
<PAGE>
(b) certain capitalized terms used but not defined herein shall have
the meanings assigned to them in the Indenture.
Section 1.02. Governing Law.
This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
Section 1.03. Successors.
All agreements of the Company in this Supplemental Indenture shall bind
its successors. All agreements of the Trustee in this Supplemental Indenture
shall bind its successors.
Section 1.04. Duplicate Originals.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 1.05. Separability.
In case any provision in this Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 1.06. Table of Contents, Headings, Etc.
The Article and Section headings and the Table of Contents of this
Supplemental Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms and provisions hereof. Except as expressly provided herein
and notwithstanding the elimination of certain Sections of the Indenture as
set forth in Article Two hereof, all references to Sections in the Indenture
shall remain unchanged.
Section 1.07. Benefits of Supplemental Indenture.
Nothing in this Supplemental Indenture, express or implied, shall give
to any person, other than the parties hereto and their successors hereunder,
any Paying Agent and the Holders, any benefit or any legal or equitable right,
remedy or claim under this Supplemental Indenture.
Section 1.08. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or accuracy of
this Supplemental Indenture.
Section 1.09. Effectiveness.
This Supplemental Indenture shall take effect on the date (the
Effective Date") that each of the following conditions shall have been
satisfied or waived:
2
<PAGE>
(a) each of the parties hereto shall have executed and delivered this
Supplemental Indenture; and
(b) the Trustee shall have received an opinion of Latham & Watkins,
Counsel to the Company, dated the Effective Date, pursuant to Section 9.05 of
the Indenture;
provided, however, that the Amendments set forth in Article Two hereof shall
take effect only upon and simultaneously with, and shall have no force and
effect prior to, the acceptance for purchase and payment of the Securities
tendered pursuant to the Offer.
ARTICLE 2.
THE AMENDMENTS
Section 2.01. Amendments.
The Indenture is hereby amended as follows:
(a) The definitions of the following terms are hereby eliminated in
their entirety from Section 1.01 of the Indenture:
(1) "Accelerated Indebtedness";
(2) "Acquired Indebtedness";
(3) "Adjusted Consolidated Net Worth";
(4) "Consolidated Cash Flow Available for Fixed Charges";
(5) "Consolidated Fixed Charge Ratio";
(6) "Consolidated Fixed Charges";
(7) "Consolidated Interest Expense";
(8) "Consolidated Net Income";
(9) "Consolidated Net Operating Income";
(10) "Debenture Indenture";
(11) "Debentures";
(12) "Debt Securities";
(13) "Debt Securities Indentures";
(14) "Domestic Subsidiary";
(15) "Effective Time";
(16) "Foreign Subsidiary";
(17) "Indenture Trustees";
(18) "Interest Expense";
(19) "Junior Debenture Indenture";
(20) "Junior Debentures";
(21) "Junior Discount Debenture Indenture";
(22) "Junior Discount Debentures";
(23) "Management Investors";
(24) "Material Subsidiary";
(25) "Merger";
(26) "Merger Agreement";
(27) "Old Owens-Illinois";
(28) "Permitted Liens";
(29) "Public Debentures"; and
(30) "Tender Offer."
3
<PAGE>
(b) Section 4.03 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.03. [Intentionally omitted]."
(c) Section 4.04 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.04. [Intentionally omitted]."
(d) Section 4.05 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.05. [Intentionally omitted]."
(e) Section 4.06 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.06. [Intentionally omitted]."
(f) Section 4.08 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.08. [Intentionally omitted]."
(g) Section 4.13 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.13. [Intentionally omitted]."
(h) Section 4.14 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.14. [Intentionally omitted]."
(i) Section 4.16 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.16. [Intentionally omitted]."
(j) Section 5.01 of the Indenture is hereby amended to state, in its
entirety, the following:
"SECTION 5.01 When Company May Merge, Etc.
The Company may not consolidate with, merge with or into, or
transfer all or substantially all of its assets (as an entirety or
substantially an entirety in one transaction or a series of related
transactions), to any person (except a wholly owned Subsidiary of the
Company with a positive Consolidated Net Worth, provided that in
connection with any merger of the Company with a wholly owned
Subsidiary of the Company, no consideration (other than common stock in
the surviving corporation or the Company) shall be issued or distributed
to the stockholders of the Company) or permit any party to merge with or
into it, unless:
(1) the Company shall be the continuing person, or the person (if
other than the Company) formed by such consolidation or into which the
Company is merged or to which the properties and assets of the Company
are transferred shall be a corporation organized and existing under the
laws of the United States or any State thereof or the District of
Columbia and shall expressly assume, by a supplemental indenture,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of the Company under the Securities and
this Indenture and shall further expressly assume the obligations of the
Company under the Company Pledge Agreement, and the obligations of the
Guarantor under this Indenture shall remain in full force and effect;
4
<PAGE>
(2) immediately before and immediately after giving effect to
such transaction, no Event of Default and no Default shall have occurred
and be continuing; and
(3) [Intentionally omitted].
(4) [Intentionally omitted].
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture comply
with this Section 5.01 and that all conditions precedent herein provided
for relating to such transaction have been complied with."
(k) Section 6.01 of the Indenture is hereby amended to state, in its
entirety, the following:
"SECTION 6.01. Events of Default.
An "Event of Default" occurs with respect to the Securities if:
(1) the Company defaults in the payment of interest on the Securities
when the same becomes due and payable and the default continues for a period
of 30 days;
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Securities when the same becomes due and
payable at maturity, upon acceleration, redemption or otherwise;
(3) the Company fails to comply in any respect with any of its other
agreements contained in the Securities, the Company Pledge Agreement, for so
long as the Securities are secured thereunder, or this Indenture, Group fails
to comply in any respect with any of its agreements contained in its initial
Guaranty or this Indenture, or, after the date on which the Additional
Guaranties and Pledges are granted and for so long as the Securities are
secured or guaranteed thereunder, as applicable, Group fails to comply in any
respect with any of its agreements contained in the Group Exchange Guaranty or
any Subsidiary fails to comply in any respect with any of its agreements
contained in a Subsidiary Pledge Agreement or any Subsidiary Guaranty to which
it is a party and, in any case, the default continues for the period and after
the notice specified below;
(4) [Intentionally omitted].
(5) [Intentionally omitted].
(6) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it in
an involuntary case or proceeding,
5
<PAGE>
(C) consents to the appointment of a Custodian of it for all
or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is unable to pay its debts as the same become
due; or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case
or proceeding,
(B) appoints a Custodian of the Company for all or substantially
all of its properties, or
(C) orders the liquidation of the Company,
and in each case the order or decree remains unstayed and in effect for 60
days.
The term "Bankruptcy Law" means Title 11 of the United States Code or
any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator or
similar official under Bankruptcy Law.
In the case of any Event of Default pursuant to the provisions of this
Section 6.01 occurring by reason of any willful action (or inaction) taken (or
not taken) by or on behalf of the Company with the intention of avoiding
payment of the premium which the Company would have had to pay if the Company
then had elected to redeem the Securities pursuant to paragraph 5 of the
Securities, an equivalent premium shall also become and be immediately due and
payable to the extent permitted by law, anything contained in this Indenture
or in the Securities to the contrary notwithstanding.
A Default under clause (3) is not an Event of Default until the Trustee
notifies the Company in writing, or the Holders of at least 50% of the
principal amount of the Securities outstanding notify the Company and the
Trustee in writing, of the Default and the Company does not cure the Default
within 30 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default." Such notice shall be given by the Trustee if so requested in
writing by the Holders of 50% of the principal amount of the Securities then
outstanding."
(l) Section 6.02 of the Indenture is hereby amended to state, in its
entirety, the following:
"SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.01(6) or (7)) occurs and is continuing, the Trustee or the Holders
6
<PAGE>
of at least 50% of the principal amount of the Securities then outstanding, by
written notice to the Company (and to the Trustee if such notice is given by
the Holders), may, and the Trustee at the request of such Holders shall,
declare all unpaid principal of, premium, if any, and accrued interest on the
Securities to be due and payable, as specified below. Upon a declaration of
acceleration, such principal, premium, if any, and accrued interest shall be
due and payable. If an Event of Default specified in Section 6.01(6) or (7)
occurs, all unpaid principal of, premium, if any, and accrued interest on the
Securities then outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder. The Holders of at least a majority in principal amount of the
Securities by notice to the Trustee may rescind an acceleration and its
consequences if (i) all existing Events of Default, other than the nonpayment
of the principal of, premium, if any, and interest on the Securities which
have become due solely by such declaration of acceleration, have been cured or
waived, and (ii) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction."
(m) Section 8.01 of the Indenture is hereby amended to state, in its
entirety, the following:
"SECTION 8.01. Termination of Company's Obligations.
Except as otherwise provided in this Section 8.01 the Company may
terminate its obligations under the Securities and this Indenture, and the
obligations of each Guarantor shall terminate, if:
(a) all Securities previously authenticated and delivered (other than
destroyed, lost or stolen Securities which have been replaced or Securities
which are paid pursuant to Section 4.01 or Securities for whose payment money
or securities has theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.03) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder; or
(b) (1) the Securities mature within one year or all of them are to
be called for redemption within one year under arrangements satisfactory
to the Trustee for giving the notice of redemption; and
(2) the Company irrevocably deposits in trust with the Trustee
during such one-year period, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust
funds solely for the benefit of the Holders for that purpose, money or
Government Securities (as defined in clause (c)(1) below) sufficient (in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee), without consideration of any reinvestment of such
interest, to pay principal and interest on the Securities to maturity or
redemption, as the case may be, and to pay all other sums payable by
it hereunder; or
(c) (1) the Company has irrevocably deposited or caused to be
deposited with the Trustee or Paying Agent and conveyed all right,
title and interest for the benefit of the Holders, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the
7
<PAGE>
Trustee, as trust funds in trust solely for the benefit of the Holders
for that purpose, money or direct non-callable obligations of, or
non-callable obligations guarantied by, the United States of America for
the payment of which guaranty or obligation the full faith and credit of
the United States is pledged ("Government Securities") maturing as to
principal and interest in such amounts and at such times as are
sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee), without consideration of any
reinvestment of such interest, to pay principal of, premium, if any, and
interest on the outstanding Securities to redemption or maturity,
provided that the Trustee or Paying Agent shall have been irrevocably
instructed to apply such money or the proceeds of such Government
Securities to the payment of said principal, premium, if any, and
interest with respect to the Securities;
(2) no Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit;
(3) the Company shall have delivered to the Trustee either (A) a
ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Securities will not
recognize income, gains or loss for Federal income tax purposes as a
result of the Company's exercise of its option under this Section
8.01(c) and will be subject to Federal income tax on the same amount and
in the same manner and at the same times as would have been the case if
such option had not been exercised or (B) an Opinion of Counsel to
the same effect as the ruling described in clause (A) accompanied by a
ruling to that effect published by the Internal Revenue Service, unless
there has been a change in the applicable Federal income tax law since
the date of this Indenture such that a ruling from the Internal Revenue
Service is no longer required;
(4) the Company has paid or caused to be paid all sums then
payable by the Company hereunder and under the Securities; and
(5) the Company has delivered to the Trustee an Officers '
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the foregoing clause (c), prior to the end of the
passage of 90 days following the deposit of trust funds, none of the Company's
obligations under this Indenture shall be discharged. With respect to the
foregoing clause (b), and subsequent to the end of such 90-day period with
respect to the foregoing clause (c), the Company's obligations and, to the
extent applicable, each Guarantor's obligations, in Sections 2.02, 2.03, 2.04,
2.05, 2.06, 2.11, 4.01, 4.02,7.06, 7.07, 8.03 and 8.04, the initial Guaranty
by Group, the Company Pledge Agreement, and, after the date on which the
Additional Guaranties and Pledges are granted and for so long as the
Securities are guarantied and secured thereunder, any Subsidiary Pledge
Agreement, the Group Exchange Guaranty, and any Subsidiary Guaranty shall
survive until the Securities are no longer outstanding. Thereafter, only the
8
<PAGE>
Company's obligations and, to the extent applicable, Group's obligations, in
Sections 7.06, 8.03 and 8.04 shall survive. If and when a ruling from the
Internal Revenue Service or Opinion of Counsel referred to in clause (3) above
is able to be provided specifically without regard to, and not in reliance
upon, the continuance of the Company's obligations under Section 4.01, then
the Company's and each Guarantor's (to the extent applicable) obligations
under such Section 4.01 and Section 10.01, the Company Pledge Agreement and,
after the date on which the Additional Guaranties and Pledges are granted and
not previously released, any Subsidiary Pledge Agreement, the Group Exchange
Guaranty, and any Subsidiary Guaranty shall cease upon delivery to the Trustee
of such ruling or Opinion of Counsel and compliance with the other conditions
precedent provided for herein relating to the satisfaction and discharge of
this Indenture.
After any such irrevocable deposit the Trustee upon request shall
acknowledge in writing the discharge of the Company's and each Guarantor's
obligations under the Securities, the Company Pledge Agreement, any Subsidiary
Pledge Agreement, if applicable, each Guaranty and this Indenture except for
those surviving obligations specified above."
ARTICLE 3.
ENDORSEMENT AND CHANGE OF FORM OF SECURITIES
Section 3.01. Notice to Securityholders.
After the Amendments become effective, the Company shall mail to Holders
a notice briefly describing such Amendments.
Section 3.02. Notation on Securities.
(a) Securities authenticated and delivered after the effectiveness of
this Supplemental Indenture shall bear the following notation:
"The Company and the Trustee have entered into a Supplemental
Indenture, dated as of May 9, 1997, which (i) amended and/or
eliminated certain restrictive covenants contained in Articles IV
and V of the Indenture; (ii) amended certain provisions with
respect to defaults and remedies contained in Article VI of the
Indenture and (iii) amended certain provisions contained in
Article VIII of the Indenture. Reference is hereby made to such
Supplemental Indenture, copies of which are on file with The Bank
of New York, Trustee."
The Trustee may require holders of Securities authenticated and
delivered prior to the effectiveness of this Supplemental Indenture to deliver
such Securities to the Trustee so that the Trustee may place the
aforementioned notation on such Securities.
(b) If the Company or the Trustee so determines, the Company, in
exchange for the Securities, shall issue and the Trustee shall authenticate
new securities that reflect the changed terms.
[signature page follows]
9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
OWENS-ILLINOIS, INC.,
Issuer
BY: /s/David G. Van Hooser
-----------------------------
Name: David G. Van Hooser
Title: Senior Vice President and
Director of Corporate
Strategy and Treasurer
THE BANK OF NEW YORK,
Trustee
BY: /s/Lucille Firrincieli
----------------------------
Name: Lucille Firrincieli
Title: Assistant Vice President
10
<PAGE>
EACH GUARANTOR hereby acknowledges and consents to the terms and
provisions of this Supplemental Indenture.
OWENS-ILLINOIS GROUP, INC.
Owens-Brockway Packaging, Inc.
OI Closure FTS Inc.
OI Plastic Products FTS Inc.
O-I Health Care Holding Corp.
OI General FTS Inc.
OI General Finance Inc.
Owens-Brockway Glass Container Inc.
OI IONE STS Inc.
Owens-Illinois Closure Inc.
Specialty Packaging Licensing Company
Owens-Brockway Plastic Products Inc.
Owens-Illinois Prescription Products Inc.
Owens-Illinois Labels Inc.
Owens-Illinois General Inc.
OI Castalia STS Inc.
OI Levis Park STS Inc.
OI AID STS Inc.
BY: /s/David G. Van Hooser
--------------------------------
Name: David G. Van Hooser
Title: Vice President and Treasurer
of each of the foregoing
Guarantors
11
<PAGE>
Exhibit 10.1
SECOND AMENDMENT
TO
SECOND AMENDED AND RESTATED STOCK OPTION PLAN
FOR KEY EMPLOYEES OF OWENS-ILLINOIS, INC.
Pursuant to the authority reserved to the Compensation Committee (the
"Committee") of the Board of Directors of Owens-Illinois, Inc. (the "Company")
under Section 7.2 of the Second Amended and Restated Stock Option Plan for Key
Employees of Owens-Illinois, Inc. (the "Plan"), the Committee hereby amends
the Plan as follows:
1. Article I of the Plan is amended by the addition thereto of a new
Section 1.1, to read, in its entirety, as follows:
Section 1.1 - Additional Option
"Additional Option" means an Option granted to an
Optionee to purchase a number of shares of Common Stock equal to
the number of shares of Common Stock tendered or relinquished by
the Optionee in payment of the exercise price upon exercise of an
Option and/or the number of shares of Common Stock tendered or
relinquished in payment of the amount to be withheld under
applicable federal, state and local income tax laws in connection
with the exercise of an option as described in Article VIII.
2. Article I of the Plan is amended by the addition thereto of a new
Section 1.2, to read, in its entirety, as follows:
Section 1.2 - Additional Option Feature
"Additional Option Feature" means a feature of an
Option that provides for the automatic grant of an Additional
Option in accordance with the provisions described in Article
VIII.
3. Existing Sections 1.1 through 1.24, inclusive, of the Plan are
amended by redesignating such Sections as Sections 1.3 through 1.26.
4. Section 2.1 of the Plan is amended by the addition at the end of the
second sentence the following:
For purposes of determining the number of shares that may be
sold under the Plan, such number shall increase by the number of shares
of Common Stock tendered or relinquished to the Corporation (a) in
connection with the exercise of an Option or (b) in payment of federal,
state and local income tax withholding liabilities upon exercise of an
Option.
1
<PAGE>
5. Section 5.3(b)(ii) of the Plan is amended to read, in its entirety,
as follows:
(ii) With the consent of the Committee, (A) shares of the
Company's Common Stock owned by the Optionee duly endorsed for transfer
to the Company, or, (B) shares of the Company's Common Stock issuable to
the Optionee upon exercise of the Option, with a Fair Market Value on
the date of Option exercise equal to the aggregate Option price of the
shares with respect to which such Option or portion is thereby
exercised; or
6. Section 5.3(c) of the Plan is amended to read, in its entirety, as
follows:
(c) The payment to the Company (or other employer
corporation) of all amounts which it is required to withhold under
federal, state or local law in connection with the exercise of the
Option; with the consent of the Committee, (i) shares of the Company's
Common Stock owned by the Optionee duly endorsed for transfer, or, (ii)
shares of the Company's Common Stock issuable to the Optionee upon
exercise of the Option, valued at Fair Market Value as of the date of
Option exercise, may be used to make all or part of such payment;
7. Section 5.4 of the Plan is amended by deleting it in its entirety.
8. Sections 5.5 through 5.7, inclusive, of the Plan are amended by
redesignating such Sections as Sections 5.4 through 5.6.
9. The first sentence of Section 5.6, as redesignated, of the Plan is
amended by deleting it in its entirety.
10. The first sentence of Section 6.1 of the Plan is amended to read,
in its entirety, as follows:
The Compensation Committee shall consist of two or more Directors,
appointed by and holding office at the pleasure of the Board.
11. The last sentence of Section 6.2 of the Plan is amended to read, in
its entirety, as follows:
In its absolute discretion, the Board may at any time and
from time to time exercise any and all rights and duties of the
Committee under this Plan except with respect to matters which under
Rule 16b-3 or Section 162(m) of the Code, or any regulations or rules
issued thereunder, are required to be determined in the sole discretion
of the Committee.
12. The Plan is amended by the addition thereto after the end of
Article VII of the following:
2
<PAGE>
ARTICLE VIII
ADDITIONAL OPTIONS
Section 8.1 - Additional Options
(a) The Committee may, at or after the date of grant of an
Option, grant Additional Options. Additional Options may be granted
with respect to any outstanding Option.
(b) If, with the consent of the Committee pursuant to
Section 5.3(b)(ii), an Optionee exercises an Option that has an
Additional Option Feature by tendering or relinquishing shares of Common
Stock and/or when shares of Common Stock are tendered or relinquished in
payment for the amount to be withheld under applicable federal, state
and local income tax laws (at withholding rates not to exceed the
Optionee's applicable marginal tax rates) in connection with the
exercise of an option, the Optionee shall automatically be granted an
Additional Option. The Additional Option shall be subject to the
following provisions:
(i) The Additional Option shall cover the number of
shares of Common Stock equal to the sum of (A) the number of
shares of Common Stock tendered or relinquished as consideration
upon the exercise of the Option to which such Additional Option
Feature relates and (B) the number of shares of Common Stock
tendered or relinquished in payment of the amount to be withheld
under applicable federal, state and local income tax laws in
connection with the exercise of the option to which such
Additional Option Feature relates;
(ii) The Additional Option will not have an
Additional Option Feature unless the Committee directs otherwise;
(iii) The Additional Option exercise price shall be
100% of the Fair Market Value per share on the date the employee
tenders or relinquishes shares of Common Stock to exercise the
Option that has the Additional Option Feature and/or tenders or
relinquishes shares of Common Stock in payment of income tax
withholding on the exercise of an Option that has the Additional
Option Feature; and
(iv) The Additional Option shall have the same
termination date and other termination provisions as the
underlying Option that had the Additional Option Feature.
13. This Second Amendment shall be effective on or as of the date of
its approval by the stockholders of the Company. In all other respects the
Plan shall remain in full force and effect as originally adopted.
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* * * *
I hereby certify that the foregoing Second Amendment to Second
Amended and Restated Stock Option Plan for Key Employees of Owens-Illinois,
Inc. was duly adopted by the Compensation Committee of the Board of Directors
of Owens-Illinois, Inc. on March 18, 1997.
Executed as of the 15th day of May, 1997.
/s/ Thomas L. Young
---------------
Secretary
Corporate Seal
* * * *
I hereby certify that the foregoing Plan was duly adopted by the
Board of Directors of Owens-Illinois, Inc. on March 27, 1997.
Executed as of the 15th day of May, 1997.
/s/ Thomas L. Young
---------------
Secretary
* * * *
I hereby certify that the foregoing Plan was duly approved by the
stockholders of Owens-Illinois, Inc. on May 14, 1997.
Executed as of the 15th day of May, 1997.
/s/ Thomas L. Young
---------------
Secretary
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Exhibit 10.2
SECOND AMENDMENT TO AMENDED AND RESTATED
OWENS-ILLINOIS, INC. SENIOR MANAGEMENT INCENTIVE PLAN
Pursuant to authority reserved and duly delegated to the Compensation
Committee (the "Committee") of the Board of Directors of Owens-Illinois, Inc.
(the "Company") under the Amended and Restated Owens-Illinois, Inc. Senior
Management Incentive Plan (the "Plan"), the Committee hereby amends the Plan
as follows:
1. Paragraph 2 of the Plan is amended by the addition thereto, in
appropriate alphabetical order, of the following new definitions:
"Equity Participation Plan" means the 1997 Equity
Participation Plan of Owens-Illinois, Inc. executed May 15,
1997, as amended from time to time.
"Fair Market Value" shall have the meaning set forth in the
Equity Participation Plan.
"Restricted Stock" shall have the meaning set forth in the
Equity Participation Plan.
2. Paragraph 9.1 of the Plan is amended to read as follows:
9.1 Except to the extent deferred at the option of an
Executive in accordance with a Deferred Compensation Plan,
and/or except to the extent distributable in the form of
Restricted Stock at the option of an Executive in accordance
with paragraph 9.4 hereof, each Executive's Annual Bonuses
for each year, determined in accordance with paragraph 8
hereof, shall be paid to him in cash no later than March 15
of the following year.
3. Paragraph 9 of the Plan is amended by the addition thereto, at the
end thereof, of the following new paragraph 9.4:
9.4 From time to time the Committee may grant to any
Executive eligible for an Annual Bonus under the Plan the
option to receive all or any specified part of such Annual
Bonus in Restricted Stock. On or before October 1 (or such
subsequent date not later than December 31, as determined by
the Committee) of any year for which the Committee has
granted such an option, any Executive to whom such an option
has been granted may elect, by written notice to the
Committee, to receive distribution of all or any specified
part of his Annual Bonus for such year in the form of Re-
stricted Stock with a Fair Market Value at the date of dis-
tribution equal to 100 percent (or such higher percent as
determined by the Committee) of the dollar amount of such
Annual Bonus or part thereof if payable in cash. If so
elected, such distribution shall be made no later than March
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15 of the following year, in accordance with applicable
provisions of the Equity Participation Plan. The terms of
the Restricted Stock shall be set forth in a Restricted
Stock Agreement, the form and content of which shall be
approved by the Committee.
4. This Second Amendment shall be effective as of January 1, 1997. In
all other respects the Plan shall remain in full force and effect as
originally adopted and heretofore amended.
IN WITNESS WHEREOF, the Committee has caused this Second Amendment to be
executed by a duly authorized officer of the Company this 23rd day of May,
1997.
Owens-Illinois, Inc.
By /s/ Thomas L. Young
------------------------
Executive Vice President
Attest:
/s/ James W. Baehren
----------------
Assistant Secretary
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Exhibit 10.3
THIRD AMENDMENT TO AMENDED AND RESTATED
OWENS-ILLINOIS, INC. SENIOR MANAGEMENT INCENTIVE PLAN
Pursuant to authority reserved and duly delegated to the Compensation
Committee (the "Committee") of the Board of Directors of Owens-Illinois, Inc.
(the "Company") under the Amended and Restated Owens-Illinois, Inc. Senior
Management Incentive Plan (the "Plan"), the Committee hereby amends the Plan
as follows:
1. Paragraph 6 of the Plan is amended to read as follows:
6. Performance Objectives. The Board, on recommendation
of the CEO, shall establish one or more Performance Objec-
tives for the Company for each year, each of which shall be
expressed as the attainment by the Company, at the end of
such year, of a specified measurable operating, financial,
or other objective, such as (but not limited to) a specified
rate of Return on Net Assets or shareholders equity or a
specified rate of earnings per share. The Board may, in its
discretion on recommendation of the CEO, establish separate
Performance Objectives for one or more Units for any year,
expressed as the attainment by such Unit, at the end of such
year, of a specified measurable operating, financial, or
other objective, such as (but not limited to) a specified
rate of Return on Net Assets or shareholders equity or a
specified rate of earnings per share. Each year's Perfor-
mance Objective(s) shall be established before or as soon as
practicable after the beginning of such year, and each
Executive shall thereupon be notified thereof.
2. Paragraph 7 of the Plan is amended to read as follows:
7. Operating Results. As soon as practicable after the
end of each year, the specific objective or objectives
used as the Performance Objective(s) for such year for
the Company and for each Unit shall be determined and
reported to the Board and the CEO. The Company's
Operating Results for each year, for purposes of the
Plan, shall be the percentage which the specific
objective or objectives used as the Performance Objec-
tive(s) for such year, as so reported, is of the
Company's Performance Objective(s) for such year.
Each Unit's Operating Results for each year, for
purposes of the Plan, shall be the percentage which
the Unit's specific objective or objectives used as
the Performance Objective(s) for such year, as so
reported, is of the Company's or, if established, the
Unit's Performance Objective(s) for such year.
3. Paragraph 8.4 of the Plan is amended to read as follows:
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8.4 To the extent payable in accordance with paragraph 8.2
hereof, the Discretionary component of the Bonus Pool
shall be paid to Executives as Annual Bonuses in the
discretion of the CEO or, in the case of the CEO's
Annual Bonus, in the discretion of the Board, taking
into consideration, in addition to the Company's or a
Unit's Operating Results as defined for purposes of
this Plan, an Executive's contributions to the Compa-
ny's other financial and non-financial objectives,
such as quality of service and products, customer
satisfaction, adherence to or furtherance of the
Company's legal and ethical policies, product develop-
ment, market share, improvement in financial indica-
tors of the Company's success other than the specific
objective or objectives used as the Performance Objec-
tive(s) for such year, and effective response to
adverse economic conditions or to unforeseen adverse
events beyond the control of the Company or a Unit.
4. This Third Amendment shall be effective as of January 1, 1997. In
all other respects the Plan shall remain in full force and effect as original-
ly adopted and heretofore amended.
IN WITNESS WHEREOF, the Committee has caused this Third Amendment to be
executed by a duly authorized officer of the Company as of the 18th day of
July, 1997.
Owens-Illinois, Inc.
By /s/ Thomas L. Young
--------------------------
Executive Vice President
Attest:
/s/ James W. Baehren
--------------------
Assistant Secretary
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Exhibit 10.4
FIRST AMENDMENT TO AMENDED AND RESTATED
OWENS-ILLINOIS, INC. PERFORMANCE AWARD PLAN
Pursuant to authority reserved and duly delegated to the Compensation
Committee (the "Committee") of the Board of Directors of Owens-Illinois, Inc.
(the "Company") under the Amended and Restated Owens-Illinois, Inc.
Performance Award Plan (the "Plan"), the Committee hereby amends the Plan as
follows:
1. Paragraph 2 of the Plan is amended by the addition thereto, in
appropriate alphabetical order, of the following new definitions:
"Equity Participation Plan" means the 1997 Equity
Participation Plan of Owens-Illinois, Inc. Executed as of
May 15, 1997, as amended from time to time.
"Fair Market Value" shall have the meaning set forth in the
Equity Participation Plan.
"Restricted Stock" shall have the meaning set forth in the
Equity Participation Plan.
2. Paragraph 9.1 of the Plan is amended to read as follows:
9.1 Except to the extent deferred at the option of a
Participant in accordance with a Deferred Compensation Plan,
and/or except to the extent distributable in the form of
Restricted Stock at the option of a Participant in
accordance with paragraph 9.4 hereof, each Participant's
Performance Award for each Award Period, to the extent
earned and payable as determined in accordance with
paragraph 8 hereof, shall be paid to him in cash no later
than March 15 of the year following the end of such Award
Period.
3. Paragraph 9 of the Plan is amended by the addition thereto, at the
end thereof, of the following new paragraph 9.4:
9.4 From time to time the Committee may grant to any
Participant eligible for a Performance Award under the Plan
the option to receive all or any specified part of such
Award in Restricted Stock. On or before October 1 (or such
subsequent date not later than December 31, as determined by
the Committee) of the final year within an Award Period for
which the Committee has granted such an option, any
Participant to whom such an option has been granted may
elect, by written notice to the Committee, to receive
distribution of all or any specified part of his Performance
Award for such Award Period in the form of Restricted Stock
with a Fair Market Value at the date of distribution equal
to 100 percent (or such higher percent as determined by the
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Committee) of the dollar amount of such Award or part there-
of if payable in cash. If so elected, such distribution
shall be made no later than March 15 of the year following
the end of such Award Period, in accordance with applicable
provisions of the Equity Participation Plan. The terms of
the Restricted Stock shall be set forth in a Restricted
Stock Agreement, the form and content of which shall be
approved by the Committee.
4. This First Amendment shall be effective as of January 1, 1997. In
all other respects the Plan shall remain in full force and effect as
originally adopted.
IN WITNESS WHEREOF, the Committee has caused this First Amendment to be
executed by a duly authorized officer of the Company this 23rd day of May,
1997.
Owens-Illinois, Inc.
By /s/ Thomas L. Young
------------------------
Executive Vice President
Attest:
/s/ James W. Baehren
--------------------
Assistant Secretary
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Exhibit 10.5
1997 EQUITY PARTICIPATION PLAN
OF
OWENS-ILLINOIS, INC.
OWENS-ILLINOIS, INC., a Delaware corporation, has adopted the 1997
Equity Participation Plan of Owens Illinois, Inc. (the "Plan"), effective May
14, 1997, for the benefit of its eligible employees. The purposes of this
Plan are as follows:
(1) To further the growth, development and financial success of
the Company by providing additional incentives to certain of its key Employees
(as defined hereunder) who have been or will be given responsibility for the
management or administration of the Company's business affairs, by assisting
them to become owners of capital stock of the Company and thus to benefit
directly from its growth, development and financial success.
(2) To enable the Company to obtain and retain the services of
the type of professional, technical and managerial employees considered
essential to the long-range success of the Company by providing and offering
them an opportunity to become owners of capital stock of the Company under
options, including options that are intended to qualify as "incentive stock
options" under Section 422 of the Code (as defined hereunder).
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Plan, they shall
have the meaning specified below unless the context clearly indicates to the
contrary. The masculine pronoun shall include the feminine and neuter and the
singular shall include the plural, where the context so indicates.
Section 1.1 - Additional Option
"Additional Option" means an Option granted to an Optionee to
purchase a number of shares of Common Stock equal to the number of shares of
Common Stock tendered or relinquished by the Optionee in payment of the
exercise price upon exercise of an Option and/or the number of shares of
Common Stock tendered or relinquished in payment of the amount to be withheld
under applicable federal, state and local income tax laws in connection with
the exercise of an option as described in Article VI.
Section 1.2 - Additional Option Feature
"Additional Option Feature" means a feature of an Option that
provides for the automatic grant of an Additional Option in accordance with
the provisions described in Article VI.
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Section 1.3 - Award
"Award" shall mean an Option or Restricted Stock granted under
this Plan.
Section 1.4 - Award Limit
"Award Limit" shall mean 500,000 shares of Common Stock or, as the
context may require, Options to acquire 500,000 shares of Common Stock.
Section 1.5 - Board
"Board" shall mean the Board of Directors of the Company.
Section 1.6 - Code
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.7 - Committee
"Committee" shall mean the Compensation Committee of the Board,
appointed as provided in Section 8.1
Section 1.8 - Common Stock
"Common Stock" shall mean the Company's common stock, $.01 par
value.
Section 1.9 - Company
"Company" shall mean Owens-Illinois, Inc. In addition, "Company"
shall mean any corporation assuming, or issuing new employee stock options in
substitution for, Incentive Stock Options, outstanding under the Plan, in a
transaction to which Section 424(a) of the Code applies.
Section 1.10 - Director
"Director" shall mean a member of the Board.
Section 1.11 - Employee
"Employee" shall mean any employee (as defined in accordance with
the regulations and revenue rulings then applicable under Section 3401(c) of
the Code) of the Company, or of any corporation which is then a Parent
Corporation or a Subsidiary, whether such employee is so employed at the time
this Plan is adopted or becomes so employed subsequent to the adoption of this
Plan.
Section 1.12 - Exchange Act
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
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Section 1.13 - Fair Market Value
"Fair Market Value" of a share of the Company's stock as of a
given date shall be: (i) the closing price of a share of the Company's stock
on the principal exchange on which shares of the Company's stock are then
trading, if any, on the day previous to such date, or, if shares were not
traded on the day previous to such date, then on the next preceding trading
day during which a sale occurred; or (ii) if such stock is not traded on an
exchange but is quoted on NASDAQ or a successor quotation system, (1) the last
sales price (if the stock is then listed as a National Market Issue under the
NASD National Market System) or (2) the mean between the closing
representative bid and asked prices (in all other cases) for the stock on the
day previous to such date as reported by NASDAQ or such successor quotation
system; or (iii) if such stock is not publicly traded on an exchange and not
quoted on NASDAQ or a successor quotation system, the mean between the closing
bid and asked prices for the stock, on the day previous to such date, as
determined in good faith by the Committee; or (iv) if the Company's stock is
not publicly traded, the fair market value established by the Committee acting
in good faith.
Section 1.14 - Incentive Stock Option
"Incentive Stock Option" shall mean an Option which qualifies
under Section 422 of the Code and which is designated as an Incentive Stock
Option by the Committee.
Section 1.15 - Non-Qualified Option
"Non-Qualified Option" shall mean an Option which is not an
Incentive Stock Option and which is designated as a Non-Qualified Option by
the Committee.
Section 1.16 - Officer
"Officer" shall mean an officer of the Company, as defined in
Rule 16a-1(f) under the Securities Exchange Act of 1934, as such Rule may be
amended in the future.
Section 1.17 - Option
"Option" shall mean an option to purchase capital stock of the
Company, granted under the Plan. "Options" includes both Incentive Stock
Options and Non-Qualified Options.
Section 1.18 - Optionee
"Optionee" shall mean an Employee to whom an Option or Restricted
Stock, as the case may be, is granted under the Plan.
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Section 1.19 - Parent Corporation
"Parent Corporation" shall mean any corporation in an unbroken
chain of corporations ending with the Company if each of the corporations
other than the Company then owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
Section 1.20 - Plan
"Plan" shall mean this 1997 Equity Participation Plan of Owens-
Illinois, Inc.
Section 1.21 - Restricted Stock
"Restricted Stock" shall mean Common Stock awarded under Article
VII of this Plan.
Section 1.22 - Restricted Stock Agreement
"Restricted Stock Agreement" shall mean Restricted Stock Agreement
as provided in Section 7.2.
Section 1.23 - Rule 16b-3
"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange
Act, as such Rule may be amended in the future.
Section 1.24 - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.25 - Section 162(m) Participant
"Section 162(m) Participant" shall mean any key Employee
designated by the Committee as a key Employee whose compensation for the
fiscal year in which the key Employee is so designated or a future fiscal year
may be subject to the limit on deductible compensation imposed by Section
162(m) of the Code.
Section 1.26 - Securities Act
"Securities Act" shall mean the Securities Act of 1933, as
amended.
Section 1.27 - Subsidiary
"Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than
the last corporation in the unbroken chain then owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain. "Subsidiary" shall also mean any
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partnership in which the Company and/or any Subsidiary owns more than 50% of
the capital or profits interests.
Section 1.28 - Termination of Employment
"Termination of Employment" shall mean the time when the
employee-employer relationship between the Optionee or holder of Restricted
Stock and the Company, a Parent Corporation or a Subsidiary is terminated for
any reason, with or without cause, including, but not by way of limitation, a
termination by resignation, discharge, death, total disability or retirement,
but excluding (i) terminations where there is a simultaneous reemployment by
the Company, a Parent Corporation or a Subsidiary or (ii) except with respect
to an Incentive Stock Option, terminations where the Optionee or holder of
Restricted Stock continues a relationship (e.g., as a director or as a
consultant) with the Company, a Parent Corporation or a Subsidiary. The
Committee, in its absolute discretion, shall determine the effect of all other
matters and questions relating to Termination of Employment, including, but
not by way of limitation, the question of whether a Termination of Employment
resulted from a discharge for good cause, and all questions of whether
particular leaves of absence constitute Terminations of Employment; provided,
however, that, with respect to Incentive Stock Options, a leave of absence
shall constitute a Termination of Employment if, and to the extent that, such
leave of absence interrupts employment for the purposes of Section 422(a)(2)
of the Code and the then applicable regulations and revenue rulings under said
Section. Notwithstanding any other provision of this Plan, the Company or any
of its subsidiaries has an absolute and unrestricted right to terminate the
Optionee's or holder of Restricted Stock's employment at any time for any
reason whatsoever, with or without cause.
Section 1.29 - Transferable Option
"Transferable Option" means a Non-Qualified Option which by its
terms, as determined by the Committee and set forth in the applicable Option
Agreement (or an amendment thereto), may be transferred by the Optionee, in
writing and with written notice thereof to the Committee, by gift, without the
receipt of any consideration, (i) to such Optionee's spouse; (ii) to any child
or more remote lineal descendant of such Optionee or to the spouse of any such
child or more remote lineal descendant; or (iii) to any trust, custodianship,
or other similar fiduciary relationship maintained for the benefit of any one
or more of such persons, but is otherwise nontransferable except by will or
the applicable laws of descent and distribution.
Section 1.30 - Transferee
"Transferee" shall mean any person or entity to whom or to which
an Optionee has transferred a Transferable Option.
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ARTICLE II
SHARES SUBJECT TO PLAN
Section 2.1 - Shares Subject to Plan
(a) The shares of stock subject to Options and awards of
Restricted Stock shall be shares of the Company's $.01 par value Common Stock.
The aggregate number of such shares which may be issued upon exercise of such
Options or upon any such awards of Restricted Stock shall not exceed
10,000,000. For purposes of determining the number of shares of Common Stock
that may be sold under the Plan, such number shall increase by the number of
shares tendered or relinquished to the Corporation (a) in connection with the
exercise of an Option or (b) in payment of federal, state and local income tax
withholding liabilities upon exercise of an Option or award or vesting of
Restricted Stock.
(b) The maximum number of shares which may be subject to Awards
granted under the Plan to any Employee in any calendar year shall not exceed
the Award Limit.
Section 2.2 - Unexercised Options
If any Option expires or is cancelled without having been fully
exercised, the number of shares subject to such Option but as to which such
Option was not exercised prior to its expiration or cancellation may again be
granted hereunder, subject to the limitations of Section 2.1. If any
Restricted Stock is repurchased by the Company or forfeited in connection with
a Termination of Employment or otherwise, the number of shares repurchased or
forfeited may again be granted hereunder, subject to the limitations of
Section 2.1.
Section 2.3 - Changes in Company's Shares
In the event that the outstanding shares of Common Stock of the
Company are hereafter changed into or exchanged for a different number or kind
of shares or other securities of the Company, or of another corporation, by
reason of reorganization, merger, consolidation, recapitalization,
reclassification, or the number of shares is increased or decreased by reason
of a stock split-up, stock dividend, combination of shares or any other
increase or decrease in the number of such shares of Common Stock effected
without receipt of consideration by the Company (provided, however, that
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration"), the Committee shall
make appropriate adjustments in the number and kind of shares for the purchase
of which Options may be granted or which may be granted as Restricted Stock,
including adjustments of the limitations in Section 2.1 on the maximum number
and kind of shares which may be issued on exercise of Options and for the
grants of Restricted Stock, and of the Award Limit set forth in Section 1.4.
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ARTICLE III
GRANTING OF OPTIONS
Section 3.1 - Eligibility
Any key Employee of the Company or of any corporation which is
then a Parent Corporation or a Subsidiary shall be eligible to be granted
Options, except as provided in Section 3.2.
Section 3.2 - Qualification of Incentive Stock Options
No Incentive Stock Option shall be granted unless such Option,
when granted, qualifies as an "incentive stock option" under Section 422 of
the Code.
3.3 - Granting of Options
(a) The Committee shall from time to time, in its absolute
discretion:
(i) Determine which Employees are key Employees and select
from among the key Employees (including those to whom Options have been
previously granted under the Plan) such of them as in its opinion should
be granted Options; and
(ii) Determine the number of shares to be subject to such
Options granted to such selected key Employees, and determine whether
such Options are to be Incentive Stock Options or Non-Qualified Options;
and
(iii) Determine the terms and conditions of such
Options, consistent with the Plan, including, but not limited to:
(A) such terms and conditions as may be required
in order for such Options to qualify as performance-
based compensation as described in Section 162(m)-
(4)(C) of the Code if the Committee determines that
such Options should so qualify; and/or
(B) such terms and conditions as may be required
in order to make a Non-Qualified Option a Transferable
Option.
(b) Upon the selection of a key Employee to be granted an Option,
the Committee shall instruct the Secretary to issue such Option and may impose
such conditions on the grant of such Option as it deems appropriate. Without
limiting the generality of the preceding sentence, the Committee may, in its
discretion and on such terms as it deems appropriate, require as a condition
on the grant of an Option to an Employee that the Employee surrender for
cancellation some or all of the unexercised Options which have been previously
granted to him. An Option the grant of which is conditioned upon such
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surrender may have an Option price lower (or higher) than the Option price of
the surrendered Option, may cover the same (or a lesser or greater) number of
shares as the surrendered Option, may contain such other terms as the
Committee deems appropriate and shall be exercisable in accordance with its
terms, without regard to the number of shares, price, Option period or any
other term or condition of the surrendered Option.
ARTICLE IV
TERMS OF OPTIONS
Section 4.1 - Option Agreement
Each Option shall be evidenced by a written Stock Option
Agreement, which shall be executed by the Optionee and an authorized Officer
of the Company and which shall contain such terms and conditions as the
Committee shall determine, consistent with the Plan, including, but not
limited to such terms and conditions as may be required in order for such
Option to qualify as performance-based compensation as described in Section
162(m)(4)(C) of the Code if the Committee determines that such Option should
so qualify. Stock Option Agreements evidencing Incentive Stock Options shall
contain such terms and conditions as may be necessary to qualify such Options
as "incentive stock options" under Section 422 of the Code. Stock Option
Agreements evidencing Transferable Options shall contain (or may be amended to
contain) such terms and conditions as may be necessary to meet the definition
of a Transferable Option under Section 1.29 hereof.
Section 4.2 - Option Price
The price of the shares subject to each Option shall be set by the
Committee; provided, however, that the price per share shall be not less than
100% of the Fair Market Value of such shares on the date such Option is
granted; provided, further, that, in the case of an Incentive Stock Option,
the price per share shall not be less than 110% of the Fair Market Value of
such shares on the date such Option is granted in the case of an individual
then owning (within the meaning of Section 424(d) of the Code) more than 10%
of the total combined voting power of all classes of stock of the Company, any
Subsidiary or any Parent Corporation.
Section 4.3 - Commencement of Exercisability
(a) No Option may be exercised in whole or in part during the
first year after such Option is granted, except as may be provided in Sections
4.3(c) and 4.6.
(b) Subject to the provisions of Sections 4.3(a), 4.3(c), 4.3(d),
4.6 and 9.4, Options shall become exercisable at such times and in such
installments (which may be cumulative) as the Committee shall provide in the
terms of each individual Option; provided, however, that by a resolution
adopted after an Option is granted the Committee may, on such terms and
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conditions as it may determine to be appropriate and subject to Sections
4.3(a), 4.3(c), 4.3(d), 4.6 and 9.4, accelerate the time at which such Option
or any portion thereof may be exercised.
(c) No portion of an Option which is unexercisable at Termination
of Employment shall thereafter become exercisable; provided, however, that
provision may be made that such Option shall become exercisable in the event
of a Termination of Employment because of the Optionee's retirement or total
disability (each as determined by the Committee in accordance with Company
policies) or death; and provided further, that in the event the Committee
extends the right of an Optionee to exercise his or her Option pursuant to
Section 4.4(a)(vii) below, the Committee may also provide that such Option
shall become exercisable immediately, or in accordance with the schedule of
exercisability which would be applicable to such Option but for the Optionee's
Termination of Employment, or in accordance with any other schedule determined
in the Committee's discretion.
(d) To the extent that the aggregate Fair Market Value of stock
with respect to which "incentive stock options" (within the meaning of Section
422 of the Code, but without regard to Section 422(d) of the Code) are
exercisable for the first time by an Optionee during any calendar year (under
the Plan and all other incentive stock option plans of the Company, any
Subsidiary and any Parent Corporation) exceeds $100,000, such options shall be
taxed as Non-Qualified Options. The rule set forth in the preceding sentence
shall be applied by taking options into account in the order in which they
were granted. For purposes of this Section 4.3(d), the Fair Market Value of
stock shall be determined as of the time the option with respect to such stock
is granted.
Section 4.4 - Expiration of Options
(a) No Option may be exercised to any extent by anyone after the
first to occur of the following events:
(i) In the case of an Incentive Stock Option, (A) the
expiration of ten years from the date the Option was granted, or (B) in
the case of an Optionee owning (within the meaning of Section 424(d) of
the Code), at the time the Option was granted, more than 10% of the
total combined voting power of all classes of stock of the Company, any
Subsidiary or any Parent Corporation, the expiration of five years from
the date the Option was granted; or
(ii) In the case of a Non-Qualified Option, the expiration
of ten years and one day from the date the Option was granted; or
(iii) Except as provided in clauses (iv) through (viii)
below, the date of the Optionee's Termination of Employment; or
(iv) In the case of an Optionee who is totally disabled
(within the meaning of Section 22(e)(3) of the Code for purposes of an
Incentive Stock Option, or otherwise as determined by the Committee in
accordance with Company policies), the expiration of one year from the
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date of the Optionee's Termination of Employment by reason of his or her
disability unless the Optionee dies within said one-year period; or
(v) In the case of an Optionee who retires after reaching
the Company's normal retirement age or who takes early retirement, the
expiration of three months from the date of Optionee's Termination of
Employment by reason of such retirement, or in the case of any such
retiring Optionee whose right to exercise his or her Option is extended
by the Committee, which extension shall not exceed three years from the
date of Optionee's Termination of Employment, the date upon which such
extension expires; or
(vi) The expiration of one year from the date of the
Optionee's death; or
(vii) In the case of an Optionee who is discharged not for
good cause, the expiration of three months from the Optionee's
Termination of Employment unless the Optionee dies within said three-
month period; or
(viii) In the case of any Optionee whose right to exercise
his or her Option is extended by the Committee, which extension shall
not exceed three years from the date of Optionee's Termination of
Employment, the date upon which such extension expires.
(b) Subject to the provisions of Section 4.4(a), the Committee
shall provide, in the terms of each individual Option, when such Option
expires and becomes unexercisable; and (without limiting the generality of the
foregoing) the Committee may provide in the terms of individual Options that
said Options expire immediately upon a Termination of Employment; provided,
however, that provision may be made that such Option shall become exercisable
in the event of a Termination of Employment because of the Optionee's
retirement (as determined by the Committee in accordance with Company
policies), total disability (within the meaning of Section 22(e)(3) of the
Code for purposes of an Incentive Stock Option, or otherwise as determined by
the Committee in accordance with Company policies) or death; and provided
further, that in the event the Committee extends the right of an Optionee to
exercise his or her Option pursuant to Section 4.4(a)(vii) above, the
Committee may also provide that such Option shall become exercisable
immediately, or in accordance with the schedule of exercisability which would
be applicable to such Option but for the Optionee's Termination of Employment,
or in accordance with any other schedule determined in the Committee's
discretion.
Section 4.5 - Consideration
In consideration of the granting of an Option, the Optionee shall
agree, in the written Stock Option Agreement, to remain in the employ of the
Company, a Parent Corporation or a Subsidiary for a period of at least one
year after the Option is granted. Nothing in this Plan or in any Stock Option
Agreement hereunder shall confer upon any Optionee any right to continue in
the employ of the Company, any Parent Corporation or any Subsidiary or shall
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interfere with or restrict in any way the rights of the Company, its Parent
Corporations and its Subsidiaries, which are hereby expressly reserved, to
discharge any Optionee at any time for any reason whatsoever, with or without
cause.
Section 4.6 - Merger, Consolidation, Acquisition, Liquidation or Dissolution
Notwithstanding the provisions of Section 9.3, in its absolute
discretion, and on such terms and conditions as it deems appropriate, the
Committee may provide by the terms of any Option that such Option cannot be
exercised after the merger or consolidation of the Company with or into
another corporation, the acquisition by another corporation or person
(excluding any employee benefit plan of the Company or any trustee or other
fiduciary holding securities under an employee benefit plan of the Company) of
all or substantially all of the Company's assets or 51% or more of the
Company's then outstanding voting stock, or the liquidation or dissolution of
the Company; and if the Committee so provides, it may, in its absolute
discretion and on such terms and conditions as it deems appropriate, also
provide, either by the terms of such Option or by a resolution adopted prior
to the occurrence of such merger, consolidation, acquisition, liquidation or
dissolution, that, for some period of time prior to such event, such Option
shall be exercisable as to all shares covered thereby, notwithstanding
anything to the contrary in Section 4.3(a), Section 4.3(b) and/or any
installment provisions of such Option.
Section 4.7 - No Right to Continued Employment
Nothing in this Plan or in any Non-Qualified Stock Option
Agreement hereunder shall confer upon any Optionee any right to continue in
the employ of the Company, any Parent Corporation or any Subsidiary or shall
interfere with or restrict in any way the rights of the Company, its Parent
Corporations and its Subsidiaries, which are hereby expressly reserved, to
terminate or discharge any Optionee at any time for any reason whatsoever,
with or without cause.
ARTICLE V
EXERCISE OF OPTIONS
Section 5.1 - Persons Eligible to Exercise
During the lifetime of the Optionee, only he or his Transferee, if
any, may exercise an Option (or any portion thereof) granted to him. After
the death of the Optionee, any exercisable portion of an Option may, prior to
the time when such portion becomes unexercisable under the Plan or the
applicable Stock Option Agreement, be exercised by his Transferee, if any, or
by his personal representative or any other person empowered to do so under
the deceased Optionee's will or under the then applicable laws of descent and
distribution. All of the terms and conditions of any Option in the hands of
the Optionee during his lifetime shall be and remain fully applicable and
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binding on his Transferee, if any, and on any other person who may become
eligible to exercise such Option.
Section 5.2 - Partial Exercise
At any time and from time to time prior to the time when any
exercisable Option or exercisable portion thereof becomes unexercisable under
the Plan or the applicable Stock Option Agreement, such Option or portion
thereof may be exercised in whole or in part; provided, however, that the
Company shall not be required to issue fractional shares and the Committee
may, by the terms of the Option, require any partial exercise to be with
respect to a specified minimum number of shares.
Section 5.3 - Manner of Exercise
An exercisable Option, or any exercisable portion thereof, may be
exercised solely by delivery to the Secretary or his office of all of the
following prior to the time when such Option or such portion becomes
unexercisable under the Plan or the applicable Stock Option Agreement:
(a) Notice in writing signed by the Optionee or other
person then entitled to exercise such Option or portion, stating that
such Option or portion is exercised, such notice complying with all
applicable rules established by the Committee; and
(b) (i) Full payment (in cash or by check) for the shares
with respect to which such Option or portion is thereby exercised; or
(ii) With the consent of the Committee, (A) shares of
the Company's Common Stock owned by the Optionee duly endorsed for
transfer to the Company, or, (B) shares of the Company's Common Stock
issuable to the Optionee upon exercise of the Option, with a Fair Market
Value on the date of Option exercise equal to the aggregate Option price
of the shares with respect to which such Option or portion is thereby
exercised; or
(iii) With the consent of the Committee, a full
recourse promissory note bearing interest (at least such rate as shall
then preclude the imputation of interest under the Code or any successor
provision) and payable upon such terms as may be prescribed by the
Committee. The Committee may also prescribe the form of such note and
the security to be given for such note. No Option may, however, be
exercised by delivery of a promissory note or by a loan from the Company
when or where such loan or other extension of credit is prohibited by
law; or
(iv) With the consent of the Committee, any
combination of the consideration provided in the foregoing
subsections (i), (ii) and (iii); and
(c) The payment to the Company (or other employer
corporation) of all amounts which it is required to withhold under
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federal, state or local law in connection with the exercise of the
Option; with the consent of the Committee, (i) shares of the Company's
Common Stock owned by the Optionee duly endorsed for transfer, or, (ii)
shares of the Company's Common Stock issuable to the Optionee upon
exercise of the Option, valued at Fair Market Value as of the date of
Option exercise, may be used to make all or part of such payment;
(d) Such representations and documents as the Committee, in
its absolute discretion, deems necessary or advisable to effect
compliance with all applicable provisions of the Securities Act and any
other federal or state securities laws or regulations. The Committee
may, in its absolute discretion, also take whatever additional actions
it deems appropriate to effect such compliance including, without
limitation, placing legends on share certificates and issuing
stop-transfer orders to transfer agents and registrars; and
(e) In the event that the Option or portion thereof shall
be exercised pursuant to Section 5.1 by any person or persons other than
the Optionee, appropriate proof of the right of such person or persons
to exercise the Option or portion thereof.
Section 5.4 - Conditions to Issuance of Stock Certificates
The shares of stock issuable and deliverable upon the exercise of
an Option, or any portion thereof, may be either previously authorized but
unissued shares or issued shares which have then been reacquired by the
Company. The Company shall not be required to issue or deliver any
certificate or certificates for shares of stock purchased upon the exercise of
any Option or portion thereof prior to fulfillment of all of the following
conditions:
(a) The admission of such shares to listing on all stock
exchanges on which such class of stock is then listed; and
(b) The completion of any registration or other
qualification of such shares under any state or federal law or under the
rulings or regulations of the Securities and Exchange Commission or any
other governmental regulatory body, which the Committee shall, in its
absolute discretion, deem necessary or advisable; and
(c) The obtaining of any approval or other clearance from
any state or federal governmental agency which the Committee shall, in
its absolute discretion, determine to be necessary or advisable; and
(d) The payment to the Company (or other employer
corporation) of all amounts which it is required to withhold under
federal, state or local law in connection with the exercise of the
Option; and
(e) The lapse of such reasonable period of time following
the exercise of the Option as the Committee may establish from time to
time for reasons of administrative convenience.
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Section 5.5 - Rights as Stockholders
The holders of Options shall not be, nor have any of the rights or
privileges of, stockholders of the Company in respect to any shares
purchasable upon the exercise of any part of an Option unless and until
certificates representing such shares have been issued by the Company to such
holders.
Section 5.6 - Transfer Restrictions
The Committee, in its absolute discretion, may impose such
restrictions on the transferability of the shares purchasable upon the
exercise of an Option as it deems appropriate. Any such other restriction
shall be set forth in the respective Stock Option Agreement and may be
referred to on the certificates evidencing such shares. The Committee may
require the Employee to give the Company prompt notice of any disposition of
shares of stock, acquired by exercise of an Incentive Stock Option, within two
years from the date of granting such Option or one year after the transfer of
such shares to such Employee. The Committee may direct that the certificates
evidencing shares acquired by exercise of an Option refer to such requirement
to give prompt notice of disposition.
ARTICLE VI
ADDITIONAL OPTIONS
Section 6.1 - Additional Options
(a) The Committee may, at or after the date of grant of an
Option, grant Additional Options. Additional Options may be granted with
respect to any outstanding Option.
(b) If, with consent of the Committee pursuant to Section
5.3(b)(ii), an Optionee exercises an Option that has an Additional Option
Feature by tendering or relinquishing shares of Common Stock and/or when
shares of Common Stock are tendered or relinquished in payment for the amount
to be withheld under applicable federal, state and local income tax laws in
connection with the exercise of an option, the Optionee shall automatically be
granted an Additional Option. The Additional Option shall be subject to the
following provisions:
(i) The Additional Option shall cover the number of shares
of Common Stock equal to the sum of (A) the number of shares of Common
Stock tendered or relinquished as consideration upon the exercise of the
Option to which such Additional Option Feature relates and (B) the
number of shares of Common Stock tendered or relinquished in payment of
the amount to be withheld under applicable federal, state and local
income tax laws in connection with the exercise of the option to which
such Additional Option Feature relates;
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(ii) The Additional Option will not have an Additional
Option Feature unless the Committee directs otherwise;
(iii) The Additional Option exercise price shall be 100% of
the Fair Market Value per share on the date the employee tenders or
relinquishes shares of Common Stock to exercise the Option that has the
Additional Option Feature and/or tenders or relinquishes shares of
Common Stock in payment of income tax withholding on the exercise of an
Option that has the Additional Option Feature; and
(iv) The Additional Option shall have the same termination
date and other termination provisions as the underlying Option that had
the Additional Option Feature.
ARTICLE VII
AWARDS OF RESTRICTED STOCK
Section 7.1 - Award of Restricted Stock
1. The Committee may from time to time, in its absolute
discretion:
a. Select from among the key Employees (including
Employees who have previously received Options under this Plan) such of
them as in its opinion should be awarded Restricted Stock; and
b. Determine the purchase price, if any, and other
terms and conditions applicable to such Restricted Stock, consistent
with this Plan.
2. The Committee shall establish the purchase price, if any,
and form of payment for Restricted Stock; provided, however, that such
purchase price shall be no less than the par value of the Common Stock to be
purchased, unless otherwise permitted by applicable state law. In all cases,
legal consideration shall be required for each issuance of Restricted Stock.
3. Upon the selection of a key Employee to be awarded
Restricted Stock, the Committee shall instruct the Secretary of the Company to
issue such Restricted Stock and may impose such conditions on the issuance of
such Restricted Stock as it deems appropriate.
Section 7.2 - Restricted Stock Agreement
Restricted Stock shall be issued only pursuant to a written
Restricted Stock Agreement, which shall be executed by the selected key
Employee and an authorized officer of the Company and which shall contain such
terms and conditions as the Committee shall determine, consistent with this
Plan.
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Section 7.3 - Rights as Stockholders
Upon delivery of the shares of Restricted Stock to the escrow
holder pursuant to Section 7.8, the holder of Restricted Stock shall have,
unless otherwise provided by the Committee, all the rights of a stockholder
with respect to said shares, subject to the restrictions in his Restricted
Stock Agreement, including voting rights and the right to receive all
dividends and other distributions paid or made with respect to the shares;
provided, however, that in the discretion of the Committee, any extraordinary
distributions with respect to the Common Stock shall be subject to the
restrictions set forth in Section 7.4.
Section 7.4 - Restrictions
All shares of Restricted Stock issued under this Plan (including
any shares received by holders thereof with respect to shares of Restricted
Stock as a result of stock dividends, stock splits or any other form of
recapitalization) shall, in the terms of each individual Restricted Stock
Agreement, be subject to such restrictions as the Committee shall provide,
which restrictions may include, without limitation, restrictions concerning
voting rights and transferability and restrictions based on duration of
employment with the Company, Company performance and individual performance;
provided, however, that by action taken after the Restricted Stock is issued,
the Committee may, on such terms and conditions as it may determine to be
appropriate, remove any or all of the restrictions imposed by the terms of the
Restricted Stock Agreement. Restricted Stock may not be sold or encumbered
until all restrictions are terminated or expire. Unless provided otherwise by
the Committee, if no consideration was paid by the holder of Restricted Stock
upon issuance, a holder of Restricted Stock's rights in unvested Restricted
Stock shall lapse upon Termination of Employment.
Section 7.5 - Provisions Applicable to Section 162(m) Participants
4. Notwithstanding anything in the Plan to the contrary, the
Committee may grant any performance or incentive awards of Restricted Stock
described in this Article VII to a Section 162(m) Participant that vest or
become exercisable upon the attainment of performance targets for the Company
which are related to one or more of the following performance goals: (i) pre-
tax income, (ii) operating income, (iii) cash flow, (iv) earnings per share,
(v) earnings before any one or more of the following items: interest, taxes,
depreciation or amortization, (vi) return on equity, (vii) return on invested
capital or assets and (viii) cost reductions or savings.
5. To the extent necessary to comply with the performance-
based compensation requirements of Section 162(m)(4)(C) of the Code, with
respect to performance or incentive awards described in this Article VII which
may be granted to one or more Section 162(m) Participants, no later than
ninety (90) days following the commencement of any fiscal year in question or
any other designated fiscal period (or such other time as may be required or
permitted by Section 162(m) of the Code), the Committee shall, in writing, (i)
designate one or more Section 162(m) Participants, (ii) select the performance
goal or goals applicable to the fiscal year or other designated fiscal period,
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(iii) establish the various targets and bonus amounts which may be earned for
such fiscal year or other designated fiscal period and (iv) specify the
relationship between performance goals and targets and the amounts to be
earned by each Section 162(m) Participant for such fiscal year or other
designated fiscal period. Following the completion of each fiscal year or
other designated fiscal period, the Committee shall certify in writing whether
the applicable performance targets have been achieved for such fiscal year or
other designated fiscal period. In determining the amount earned by a Section
162(m) Participant, the Committee shall have the right to reduce (but not to
increase) the amount payable at a given level of performance to take into
account additional factors that the Committee may deem relevant to the
assessment of individual or corporate performance for the fiscal year or other
designated fiscal period.
Section 7.6 - Repurchase of Restricted Stock
The Committee may provide in the terms of each individual
Restricted Stock Agreement that the Company shall have the right to repurchase
from the holder of Restricted Stock the Restricted Stock then subject to
restrictions under the Restricted Stock Agreement immediately upon a
Termination of Employment between the holder of Restricted Stock and the
Company, at a cash price per share equal to the price paid by the holder of
Restricted Stock for such Restricted Stock; provided, however, that provision
may be made that no such right of repurchase shall exist in the event of a
Termination of Employment without cause, or following a change in control of
the Company or because of the holder of the Restricted Stock's retirement,
death or disability, or otherwise.
Section 7.7 - Tax Withholding
The Company shall be entitled to require payment in cash or deduction
from other compensation payable to each holder of Restricted Stock of any sums
required by federal, state or local tax law to be withheld with respect to the
issuance, vesting or exercise of any Restricted Stock. The Committee may in
its discretion and in satisfaction of the foregoing requirement allow such
holder of Restricted Stock to elect to have the Company withhold shares of
Common Stock otherwise issuable under such award (or allow the return of
shares of Common Stock) having a Fair Market Value equal to the sums required
to be withheld.
Section 7.8 - Escrow
The Secretary of the Company or such other escrow holder as the
Committee may appoint shall retain physical custody of each certificate
representing Restricted Stock until all of the restrictions imposed under the
Restricted Stock Agreement with respect to the shares evidenced by such
certificate expire or shall have been removed.
Section 7.9 - Legend
In order to enforce the restrictions imposed upon shares of
Restricted Stock hereunder, the Committee shall cause a legend or legends to
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be placed on certificates representing all shares of Restricted Stock that are
still subject to restrictions under Restricted Stock Agreements, which legend
or legends shall make appropriate reference to the conditions imposed thereby.
ARTICLE VIII
ADMINISTRATION
Section 8.1 - Compensation Committee
The Compensation Committee shall consist of two or more Directors,
appointed by and holding office at the pleasure of the Board. Appointment of
Committee members shall be effective upon acceptance of appointment.
Committee members may resign at any time by delivering written notice to the
Board. Vacancies in the Committee shall be filled by the Board.
Section 8.2- Duties and Powers of Committee
It shall be the duty of the Committee to conduct the general
administration of the Plan in accordance with its provisions. The Committee
shall have the power to interpret the Plan and the Options and to adopt such
rules for the administration, interpretation and application of the Plan as
are consistent therewith and to interpret, amend or revoke any such rules.
Any such interpretations and rules in regard to Incentive Stock Options shall
be consistent with the basic purpose of the Plan to grant "incentive stock
options" within the meaning of Section 422 of the Code. In its absolute
discretion, the Board may at any time and from time to time exercise any and
all rights and duties of the Committee under this Plan except with respect to
matters which under Rule 16b-3 or Section 162(m) of the Code, or any
regulations or rules issued thereunder, are required to be determined in the
sole discretion of the Committee.
Section 8.3 - Majority Rule
The Committee shall act by a majority of its members in office.
The Committee may act either by vote at a meeting or by a memorandum or other
written instrument signed by a majority of the Committee.
Section 8.4 - Compensation; Professional Assistance; Good Faith Actions
Members of the Committee shall receive such compensation for their
services as members as may be determined by the Board. All expenses and
liabilities incurred by members of the Committee in connection with the
administration of the Plan shall be borne by the Company. The Committee may
employ attorneys, consultants, accountants, appraisers, brokers or other
persons. The Committee, the Company and its Officers and Directors shall be
entitled to rely upon the advice, opinions or valuations of any such persons.
All actions taken and all interpretations and determinations made by the
Committee in good faith shall be final and binding upon all Optionees, the
Company and all other interested persons. No member of the Committee shall be
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personally liable for any action, determination or interpretation made in good
faith with respect to the Plan or the Options, and all members of the
Committee shall be fully protected by the Company in respect to any such
action, determination or interpretation.
ARTICLE IX
OTHER PROVISIONS
Section 9.1- Options Not Transferable
No Award or interest or right therein or part thereof shall be
liable for the debts, contracts or engagements of the Optionee or his
successors in interest or shall be subject to disposition by transfer, alien-
ation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof
shall be null and void and of no effect; provided, however, that nothing in
this Section 9.1 shall prevent any transfer of a Transferable Option in
accordance with its terms or any transfer by will or by the applicable laws of
descent and distribution.
Section 9.2 - Amendment, Suspension or Termination of the Plan
The Plan may be wholly or partially amended or otherwise modified,
suspended or terminated at any time or from time to time by the Committee.
However, without approval of the Company's stockholders given within twelve
months before or after the action by the Committee, no action of the Committee
may, except as provided in Section 2.3, increase any limit imposed in Section
2.1 on the maximum number of shares which may be issued on exercise of Options
or awarded as Restricted Stock, modify the Award Limit, materially modify the
eligibility requirements of Section 3.1, reduce the minimum Option price
requirements of Section 4.2, extend the limit imposed in this Section 9.2 on
the period during which Awards may be granted or amend or modify the Plan in a
manner requiring stockholder approval under Rule 16b-3 or Section 162(m) of
the Code. Neither the amendment, suspension nor termination of the Plan
shall, without the consent of the holder of an Award alter or impair any
rights or obligations under any Award theretofore granted. No Award may be
granted during any period of suspension nor after termination of the Plan, and
in no event may any Award be granted under this Plan after the first to occur
of the following events:
(a) The expiration of ten years from the date the Plan is
adopted by the Board; or
(b) The expiration of ten years from the date the Plan is
approved by the Company's stockholders under Section 9.3.
Section 9.3 - Adjustments in Outstanding Awards
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In the event that the outstanding shares of Common Stock subject
to Awards are changed into or exchanged for a different number or kind of
shares of the Company or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, or the number of shares is
increased or decreased by reason of a stock split-up, stock dividend,
combination of shares or any other increase or decrease in the number of such
shares of Common Stock effected without receipt of consideration by the
Company (provided, however, that conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt of
consideration"), the Committee shall make appropriate adjustments in the
number and kind of shares as to which all outstanding Awards, or portions
thereof then unexercised or unvested, shall be exercisable or granted upon any
Awards, to the end that after such event the Award holder's proportionate
interest shall be maintained as before the occurrence of such event. Such
adjustment in an outstanding Award shall be made without change in the total
price applicable to the Award or the unexercised portion of an Option (except
for any change in the aggregate price resulting from rounding-off of share
quantities or prices) and with any necessary corresponding adjustment in Award
price per share; provided, however, that, in the case of Incentive Stock
Options, each such adjustment shall be made in such manner as not to
constitute a "modification" within the meaning of Section 424(h)(3) of the
Code. Any such adjustment made by the Committee shall be final and binding
upon all holders of Awards, the Company and all other interested persons.
Section 9.4 - Approval of Plan by Stockholders
This Plan will be submitted for the approval of the Company's
stockholders within twelve months after the date of the Board's initial
adoption of the Plan. Awards may be granted prior to such stockholder
approval; provided, however, that such Awards shall not be exercisable prior
to the time when the Plan is approved by the stockholders; provided, further,
that if such approval has not been obtained at the end of said twelve-month
period, all Awards previously granted under the Plan shall thereupon be
cancelled and become null and void, provided that the Company will return to
the holder of the cancelled Award any purchase price previously paid therefor.
The Company shall take such actions with respect to the Plan as may be
necessary to satisfy the requirements of Rule 16b-3(b).
Section 9.5 - Effect of Plan Upon Other Option and Compensation Plans
The adoption of this Plan shall not affect any other compensation
or incentive plans in effect for the Company, any Parent Corporation or any
Subsidiary. Nothing in this Plan shall be construed to limit the right of the
Company, any Parent Corporation or any Subsidiary (a) to establish any other
forms of incentives or compensation for employees of the Company, any Parent
Corporation or any Subsidiary or (b) to grant or assume options or restricted
stock otherwise than under this Plan in connection with any proper corporate
purpose, including, but not by way of limitation, the grant or assumption of
options or restricted stock in connection with the acquisition by purchase,
lease, merger, consolidation or otherwise, of the business, stock or assets of
any corporation, firm or association.
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Section 9.6 - Titles
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of the Plan.
Section 9.7 - Conformity to Securities Laws
The Plan is intended to conform to the extent necessary with all
provisions of the Securities Act and the Exchange Act and any and all
regulations and rules promulgated by the Securities and Exchange Commission
thereunder, including without limitation Rule 16b-3. Notwithstanding anything
herein to the contrary, the Plan shall be administered, and Awards shall be
granted and may be exercised, only in such a manner as to conform to such
laws, rules and regulations. To the extent permitted by applicable law, the
Plan and Awards granted hereunder shall be deemed amended to the extent
necessary to conform to such laws, rules and regulations.
* * * *
I hereby certify that the foregoing 1997 Equity Participation Plan
was duly adopted by the Board of Directors of Owens-Illinois, Inc. on March
27, 1997.
Executed as of the 15th day of May, 1997.
/s/ Thomas L. Young
---------------
Secretary
Corporate Seal
* * * *
I hereby certify that the foregoing Plan was duly approved by the
stockholders of Owens-Illinois, Inc. on May 14, 1997.
Executed as of the 15th day of May, 1997.
/s/ Thomas L. Young
---------------
Secretary
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Exhibit 12
OWENS-ILLINOIS, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Millions of dollars, except ratios)
Six Months ended June 30,
----------------------------------------------
Pro Forma
Pro Forma As Adjusted
As Adjusted for Avir
For Acquisition
Refinancing and
Actual Plan Actual Refinancing
1997 1997 1996 Plan 1996
Earnings from continuing ------ ----------- ------ -----------
operations before income
taxes, minority share
owners' interests, extra-
ordinary items and
cumulative effect of
accounting changes $233.0 $266.9 $187.3 $274.9
Less: Equity earnings (9.3) (9.3) (8.4) (10.6)
Add: Total fixed charges
deducted from earnings 178.5 144.6 159.0 142.6
Proportional share of
pretax loss of 50%
owned associates (1.3) (1.3)
------ ------ ------ ------
Earnings available for
payment of fixed
charges $400.9 $400.9 $337.9 $406.9
====== ====== ====== ======
Fixed charges (including the
Company's proportional
share of 50% owned
associates):
Interest expense $164.8 $131.9 $145.8 $130.0
Portion of operating
lease rental deemed
to be interest 11.2 11.2 10.7 11.1
Amortization of
deferred financing
costs and debt
discount expense 2.5 1.5 2.5 1.5
Total fixed charges ------ ------ ------ ------
deducted from
earnings and total
fixed charges $178.5 $144.6 $159.0 $142.6
====== ====== ====== ======
Ratio of earnings to
fixed charges 2.2 2.8 2.1 2.9
<PAGE>
EXHIBIT 23
CONSENT OF MCCARTER & ENGLISH
August 12, 1997
Ladies and Gentlemen:
We consent to the incorporation by reference in this Quarterly Report on
Form 10-Q of Owens-Illinois, Inc. and Owens-Illinois Group, Inc. for the quarter
ended June 30, 1997, of the reference to our firm under the caption "Legal
Proceedings."
Very truly yours,
/s/McCarter & English
---------------------
McCarter & English
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
June 30, 1997 condensed consolidated balance sheet, and the condensed
consolidated results of operations for the six-month period then ended
and is qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> JUN-30-1997
<CASH> 305,800,000
<SECURITIES> 0
<RECEIVABLES> 727,800,000
<ALLOWANCES> 36,600,000
<INVENTORY> 621,600,000
<CURRENT-ASSETS> 1,781,200,000
<PP&E> 3,797,600,000
<DEPRECIATION> 1,603,500,000
<TOTAL-ASSETS> 6,825,700,000
<CURRENT-LIABILITIES> 1,081,900,000
<BONDS> 3,161,000,000
0
21,400,000
<COMMON> 1,400,000
<OTHER-SE> 1,207,000,000
<TOTAL-LIABILITY-AND-EQUITY> 6,825,700,000
<SALES> 2,280,800,000
<TOTAL-REVENUES> 2,373,900,000
<CGS> 1,774,600,000
<TOTAL-COSTS> 1,774,600,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 167,300,000
<INCOME-PRETAX> 233,000,000
<INCOME-TAX> 74,200,000
<INCOME-CONTINUING> 141,500,000
<DISCONTINUED> 0
<EXTRAORDINARY> (84,500,000)
<CHANGES> 0
<NET-INCOME> 57,000,000
<EPS-PRIMARY> 0.44
<EPS-DILUTED> 0.44
</TABLE>
