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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 March 31, 1998
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)
One SeaGate, Toledo, Ohio 43666
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(Address of principal executive offices) (Zip Code)
419-247-5000
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(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 - 140,781,303
shares at April 30, 1998.
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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 unaudited condensed consolidated 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
appearing in the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997.
2
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OWENS-ILLINOIS, INC.
CONDENSED CONSOLIDATED RESULTS OF OPERATIONS
Three months ended March 31, 1998 and 1997
(Millions of dollars, except share and per share amounts)
1998 1997
Revenues: -------- --------
Net sales $1,098.5 $1,056.3
Royalties and net technical assistance 6.1 6.4
Equity earnings 4.7 8.8
Interest 5.9 7.8
Other 43.0 36.9
-------- --------
1,158.2 1,116.2
Costs and expenses:
Manufacturing, shipping, and delivery 861.1 844.9
Research and development 7.7 7.8
Engineering 8.0 7.4
Selling and administrative 62.4 51.0
Interest 65.2 85.9
Other 36.7 34.8
-------- --------
1,041.1 1,031.8
-------- --------
Earnings before items below 117.1 84.4
Provision for income taxes 28.8 23.4
Minority share owners' interests in earnings
of subsidiaries 7.9 6.4
-------- --------
Net earnings $ 80.4 $ 54.6
======== ========
Basic net earnings per share of common stock $ 0.57 $ 0.44
======== ========
Weighted average shares outstanding (thousands) 140,620 121,813
======= =======
Diluted net earnings per share of common stock $ 0.56 $ 0.44
======== ========
Weighted diluted average shares (thousands) 142,405 124,469
======= =======
See accompanying notes.
3
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OWENS-ILLINOIS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
March 31, 1998, December 31, 1997, and March 31, 1997
(Millions of dollars)
March 31, Dec. 31, March 31,
1998 1997 1997
--------- -------- ---------
Assets
Current assets:
Cash, including time deposits $ 230.0 $ 218.2 $ 211.3
Short-term investments, at cost which
approximates market 23.1 16.1 78.5
Receivables, less allowances for losses
and discounts ($46.5 at March 31, 1998,
$52.9 at December 31, 1997, and $37.7 at
March 31, 1997) 708.0 681.6 659.0
Inventories 618.6 592.4 626.8
Prepaid expenses 140.2 140.0 125.5
-------- -------- --------
Total current assets 1,719.9 1,648.3 1,701.1
Investments and other assets:
Investments and advances 90.9 87.7 126.5
Repair parts inventories 213.5 227.2 209.3
Prepaid pension 659.5 635.3 639.1
Insurance for asbestos-related costs 223.2 239.3 255.3
Deposits, receivables, and other assets 297.8 307.0 266.7
Excess of purchase cost over net assets
acquired, net of accumulated
amortization ($338.2 at March 31,
1998, $328.3 at December 31, 1997,
and $302.6 at March 31, 1997) 1,269.9 1,294.9 1,313.2
-------- -------- --------
Total investments and other assets 2,754.8 2,791.4 2,810.1
Property, plant, and equipment, at cost 4,175.7 4,105.1 3,732.3
Less accumulated depreciation 1,755.2 1,699.7 1,548.4
-------- -------- --------
Net property, plant, and equipment 2,420.5 2,405.4 2,183.9
-------- -------- --------
Total assets $6,895.2 $6,845.1 $6,695.1
======== ======== ========
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CONDENSED CONSOLIDATED BALANCE SHEETS -- continued
March 31, Dec. 31, March 31,
1998 1997 1997
--------- -------- ---------
Liabilities and Share Owners' Equity
Current liabilities:
Short-term loans and long-term debt
due within one year $ 180.2 $ 176.9 $ 161.9
Current portion of asbestos-related
liabilities 85.0 85.0 110.0
Accounts payable and other liabilities 737.8 781.9 779.7
-------- -------- --------
Total current liabilities 1,003.0 1,043.8 1,051.6
Long-term debt 3,207.7 3,146.7 3,407.7
Deferred taxes 249.1 229.2 231.4
Nonpension postretirement benefits 349.3 354.8 366.2
Other liabilities 461.0 482.2 646.5
Commitments and contingencies
Minority share owners' interests 239.8 246.5 234.4
Share owners' equity:
Preferred stock 20.1 20.4 21.4
Common stock, par value $.01 per share
(140,766,753 shares outstanding at
March 31, 1998; 140,526,195 at
December 31, 1997; and
122,673,393 at March 31, 1997) 1.4 1.4 1.2
Capital in excess of par value 1,568.9 1,558.4 1,074.4
Deficit (9.9) (90.3) (203.6)
Accumulated other comprehensive income (195.2) (148.0) (136.1)
-------- -------- --------
Total share owners' equity 1,385.3 1,341.9 757.3
-------- -------- --------
Total liabilities and share owners' equity $6,895.2 $6,845.1 $6,695.1
======== ======== ========
See accompanying notes.
5
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OWENS-ILLINOIS, INC.
CONDENSED CONSOLIDATED CASH FLOWS
Three months ended March 31, 1998 and 1997
(Millions of dollars)
1998 1997
-------- --------
Cash flows from operating activities:
Net earnings $ 80.4 $ 54.6
Non-cash charges (credits):
Depreciation 74.9 67.7
Amortization of deferred costs 15.1 14.3
Other (23.0) 1.1
Change in non-current operating assets 11.1 (12.4)
Asbestos-related payments (23.1) (19.8)
Asbestos-related insurance proceeds 16.1 16.1
Reduction of non-current liabilities (.8) (.1)
Change in components of working capital (108.5) (69.5)
-------- --------
Cash provided by operating activities 42.2 52.0
Cash flows from investing activities:
Additions to property, plant, and equipment (103.6) (76.6)
Acquisitions, net of cash acquired (27.5) (104.7)
Net cash proceeds from divestitures 30.1 46.4
-------- --------
Cash utilized in investing activities (101.0) (134.9)
Cash flows from financing activities:
Additions to long-term debt 110.8 117.3
Repayments of long-term debt (58.5) (5.5)
Increase in short-term loans 22.0 1.3
Issuance of common stock 4.3 26.8
-------- --------
Cash provided by financing activities 78.6 139.9
Effect of exchange rate fluctuations on cash (8.0) (6.6)
-------- --------
Increase in cash 11.8 50.4
Cash at beginning of period 218.2 160.9
-------- --------
Cash at end of period $ 230.0 $ 211.3
======== ========
See accompanying notes.
6
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OWENS-ILLINOIS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Tabular data in millions of dollars,
except share and per share amounts
1. Earnings Per Share
The following table sets forth the computation of basic and diluted earnings
per share:
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Three months ended
March 31,
-------------------------
1998 1997
----------- -----------
Numerator:
Net earnings $80.4 $54.6
Preferred stock dividends (.4) (.4)
- ----------------------------------------------------------------------------
Numerator for basic earnings per
share - income available to common
share owners 80.0 54.2
Effect of dilutive securities -
preferred stock dividends .4 .4
- ----------------------------------------------------------------------------
Numerator for diluted earnings per
share - income available to common
share owners after assumed
exchanges of preferred stock
for common stock $80.4 $54.6
============================================================================
Denominator:
Denominator for basic earnings per
share - weighted average
shares 140,620,116 121,812,815
Effect of dilutive securities:
Stock options 1,081,849 1,508,066
Exchangeable preferred stock 702,950 1,148,337
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Dilutive potential common shares 1,784,799 2,656,403
- ----------------------------------------------------------------------------
Denominator for diluted earnings
per share - adjusted weighted
average shares and assumed
exchanges of preferred stock for
common stock 142,404,915 124,469,218
============================================================================
Basic earnings per share $0.57 $0.44
============================================================================
Diluted earnings per share $0.56 $0.44
============================================================================
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See Note 4 regarding the Company's intentions to issue additional equity
securities.
2. Inventories
Major classes of inventory are as follows:
March 31, Dec. 31, March 31,
1998 1997 1997
--------- -------- ---------
Finished goods $487.9 $447.3 $500.0
Work in process 10.2 9.4 7.2
Raw materials 79.0 92.5 83.7
Operating supplies 41.5 43.2 35.9
------ ------ ------
$618.6 $592.4 $626.8
====== ====== ======
3. Long-Term Debt
The following table summarizes the long-term debt of the Company:
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March 31, Dec. 31, March 31,
1998 1997 1997
Bank Credit Agreement: --------- -------- ---------
Revolving Loans $2,065.0 $2,125.0 $1,110.0
Bid Rate Loans 178.0 50.0 90.0
Senior Notes:
7.85% due 2004 300.0 300.0
8.10%, due 2007 300.0 300.0
Senior Debentures, 11%,
due 1999 to 2003 42.6 42.6 1,000.0
Senior Subordinated Notes:
10-1/4%, due 1999 250.0
10-1/2%, due 2002 150.0
10%, due 2002 250.0
9-3/4%, due 2004 200.0
9.95%, due 2004 100.0
Other 375.0 399.2 308.4
- -----------------------------------------------------------------------------
3,260.6 3,216.8 3,458.4
Less amounts due within one year 52.9 70.1 50.7
- -----------------------------------------------------------------------------
Long-term debt $3,207.7 $3,146.7 $3,407.7
=============================================================================
In May 1997, the Company entered into an agreement with a group of banks
("Bank Credit Agreement" or "Agreement") which provided Revolving Loan
Commitments under which the Company could borrow up to $3.0 billion through
December 31, 2001. The Agreement included an Overdraft Account facility
providing for aggregate borrowings up to $50 million which reduced the amount
available for borrowing under the Revolving Loan Commitments. In addition,
the terms of the Bank Credit Agreement permitted the Company to request Bid
Rate Loans from banks participating in the Agreement. Borrowings outstanding
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under Bid Rate Loans were limited to $750 million and reduced the amount
available for borrowing under the Revolving Loan Commitments. The Revolving
Loan Commitments also provided for the issuance of letters of credit totaling
up to $300 million.
At March 31, 1998, the Company had unused credit available under the Bank
Credit Agreement of $679.7 million. The weighted average interest rate on
borrowings outstanding under the Bank Credit Agreement at March 31, 1998, was
6.06%.
The Company's Senior Notes due 2004 and the Senior Notes due 2007 rank pari
passu with the obligations of the Company under the Bank Credit Agreement and
the 11% Senior Debentures. The Bank Credit Agreement, Senior Notes, and 11%
Senior Debentures are senior in right of payment to all existing and future
subordinated debt of the Company.
On April 30, 1998, the Company amended its current Agreement by entering into
a Second Amended and Restated Credit Agreement (the "Amended Bank Credit
Agreement") with a group of banks. The Amended Bank Credit Agreement provides
up to $7.0 billion in credit facilities and consists of (i) a $2.5 billion
term loan to the Company (the "Term Loan") due October 30, 1999 and (ii) a
$4.5 billion revolving credit facility (the "Revolving Credit Facility")
available to the Company, including a $1.75 billion fronted offshore loan
revolving facility (the "Offshore Facility" and together with the Term Loan
and the Revolving Credit Facility, the "Credit Facilities") available, subject
to certain sublimits, to certain of the Company's foreign subsidiaries and
denominated in certain foreign currencies. The Revolving Credit Facility,
including the Offshore Facility, will terminate on December 31, 2001. All of
the obligations of the Company's foreign subsidiaries under the Offshore
Facility are guaranteed by the Company. The Company intends to repay the Term
Loan with the proceeds from the Offerings (see Note 4) and the Rockware Sale
(see Note 8).
Loans under the Term Loan and the Revolving Credit Facility bear interest, at
the Company's option, at the prime rate or a reserve adjusted eurodollar rate
plus a margin linked to the Company's leverage ratio. Loans under the
Offshore Facility bear interest, at the applicable borrower's option, at the
applicable Offshore Base Rate (as defined in the Amended Bank Credit Agree-
ment) or the applicable reserve Adjusted Offshore Periodic Rate (as defined in
the Amended Bank Credit Agreement) plus a margin linked to the Company's
leverage ratio. The Company will pay the lenders a facility fee, initially
established at 1/2% per annum on the outstanding principal amount of the Term
Loan and the total Revolving Credit Facility commitments, subject to reduction
(or increase, but not above 1/2%) based on attaining (or failing to attain)
certain leverage ratios.
The Credit Facilities are unsecured. However, in the event the Company's
leverage ratio exceeds a specified level as of June 30, 1999, the Company will
be required to (i) cause its direct wholly owned subsidiary, Owens-Illinois
Group, Inc. ("Group") and the first- and second-tier subsidiaries of Group to
guaranty the Credit Facilities and (ii) cause the Credit Facilities, the
Company guaranty and the subsidiary guarantees to be secured by pledges of the
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stock and intercompany debt obligations of Group and the other subsidiary
guarantors. The Amended Bank Credit Agreement requires, among other things,
the maintenance of certain financial ratios, restricts the creation of liens
and incurrence of indebtedness, and restricts certain types of business
activities and investments.
4. Proposed Repayment of a Portion of the Term Loan
The Company intends to use the proceeds from the offering of an estimated
12,600,000 shares (14,490,000 shares if the underwriters' overallotment option
is exercised in full) of the Company's common stock (the "Common Stock
Offering"); the offering of an estimated 7,000,000 shares of Convertible
Preferred Stock, liquidation preference $50.00 per share (the "Preferred Stock
Offering" and together with the Common Stock Offering, the "Equity Offer-
ings"); the offering of $250 million aggregate principal amount of Senior
Notes due 2005, $300 million aggregate principal amount of Senior Notes due
2008, $300 million aggregate principal amount of Senior Debentures due 2010,
and $250 million aggregate principal amount of Senior Debentures due 2018
(collectively, the "Debt Offerings" and, together with the Equity Offerings,
the "Offerings") to repay a portion of the Term Loan incurred in connection
with the BTR Transaction (see Note 8). Consummation of the Debt Offerings is
conditioned upon the consummation of the Equity Offerings. Consummation of
the Equity Offerings is not subject to consummation of the Debt Offerings.
On March 6, 1998, the Company filed a Registration Statement on Form S-3 (the
"Registration Statement") with the Securities and Exchange Commission
registering an aggregate of $4.0 billion of debt and equity securities. The
Registration Statement was declared effective by the Securities and Exchange
Commission on April 20, 1998. On April 30, 1998, the Company filed with the
Securities and Exchange Commission preliminary Prospectus Supplements with
respect to the Offerings along with a Prospectus dated April 20, 1998. The
amounts offered and the terms of each offering will be determined based on a
number of factors and, therefore, the Offerings as described above may not be
completed as presently proposed.
5. Cash Flow Information
Interest paid in cash aggregated $51.9 million for the first quarter of 1998
and $49.5 million for the first quarter of 1997. Income taxes paid in cash
totaled $10.0 million for the first quarter of 1998 and $5.3 million for the
first quarter of 1997.
6. 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
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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 March 31, 1998, the Company estimates that it is
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. The precise impact on the Company of these
Co-Defendant Bankruptcies 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.
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"), (iii)
defendants' claims for contribution ("Contribution Claims") and (iv) 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, Contribution 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.
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In April 1986, the Company and Aetna Life & Casualty Company ("Aetna") agreed
to a final settlement fully resolving asbestos bodily injury and property
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 was a
good faith and non-collusive settlement and that it was 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
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reinsurers of the terms of the OIL Settlement and demanding timely payment
from such reinsurers pursuant to such terms.
Since the date of the OIL settlement, 17 previously nonsettling reinsurers
have 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, have
not, however, made the payments called for under the OIL Settlement.
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.
In January 1998, this same court granted OIL partial summary judgment barring
the nonsettling OIL reinsurers' fraud claims. The nonsettling OIL reinsurers
have petitioned for interlocutory appeal of this grant of partial summary
judgment, but this petition has been rejected by the Appellate Division.
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 $308.9 million. Of the total amount confirmed to date, $286.8
million had been received through March 31, 1998; and the balance of
approximately $22.1 million will be received throughout 1998 and the next
several years. The remainder of the insurance asset of approximately $201.1
million relates principally to the reinsurers who have not yet paid, and
continue to contest, their reinsurance obligations under the OIL Settlement.
This $201.1 million asset valuation at March 31, 1998 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 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
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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
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.
7. New Accounting Standards
As of January 1, 1998, the Company adopted Statement of Financial Accounting
Standards No. 130, "Reporting Comprehensive Income" ("FAS No. 130"). FAS No.
130 establishes new rules for the reporting and display of comprehensive
income and its components. The Company's components of comprehensive income
are net earnings and foreign currency translation adjustments. Total compre-
hensive income for the three month periods ended March 31, 1998 and 1997
amounted to $33.2 million and $0.8 million, respectively.
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 131, "Disclosures about Segments of an
Enterprise and Related Information" ("FAS No. 131"), which is effective for
financial statements for periods beginning after December 15, 1997. FAS No.
131 need not, however, be applied to interim financial statements in the
initial year of its application. FAS No. 131 establishes revised standards
for determining an entity's operating segments and the type and level of
financial information to be presented related to such operating segments. The
impact of FAS No. 131 on the Company's disclosures of operating segment
information has not been determined.
In February 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 132, "Employers' Disclosures about Pensions
and Other Postretirement Benefits" ("FAS No. 132"), which is effective for
financial statements for fiscal years beginning after December 15, 1997. FAS
No. 132 establishes revised standards for disclosures about pensions and other
14
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postretirement benefits. The impact of FAS No. 132 on the Company's
disclosures of pension and other postretirement benefits has not been
determined.
8. Subsequent Event - Acquisition of Worldwide Packaging
Businesses of BTR plc
On April 30, 1998, the Company completed the acquisition of the worldwide
glass and plastics packaging businesses of BTR plc in an all cash transaction
valued at approximately $3.6 billion (the "BTR Transaction"). In the BTR
Transaction, the Company acquired BTR's glass container operations in the
Asia-Pacific region (i.e. Australia, New Zealand, China and Indonesia) and its
plastics packaging operations in the United States, South America, Australia,
Europe, and Asia ("BTR Packaging"), as well as BTR's United Kingdom glass
container manufacturer ("Rockware Glass"). Pursuant to an agreement with the
Commission of the European Communities, the Company has committed to sell
Rockware Glass (the "Rockware Sale"). The BTR Transaction was financed
through additional borrowings under the Company's Second Amended and Restated
Credit Agreement (see Note 3), which was amended on April 30, 1998 to provide,
among other things, additional borrowing capacity for the BTR Transaction.
The acquisition will be accounted for under the purchase method of accounting.
The total purchase cost of approximately $3.6 billion will be allocated to the
tangible and identifiable intangible assets and liabilities based upon their
respective fair values. BTR Packaging had 1997 net sales of approximately
$1.2 billion.
15
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Results of Operations - First Quarter 1998 compared with First Quarter 1997
The Company recorded net earnings of $80.4 million for the first quarter of
1998 compared to $54.6 million for the first quarter of 1997. Excluding the
effects of the unusual items for both 1998 and 1997 discussed below, the
Company's first quarter 1998 net earnings of $64.0 million increased $17.0
million over first quarter 1997 net earnings of $47.0 million. Consolidated
segment operating profit, excluding the 1998 and 1997 unusual items, was
$169.5 million for the first quarter of 1998 compared to $151.5 million for
the first quarter of 1997, an increase of $18.0 million, or 11.9%. The
increase is attributable to higher operating profit for the Glass Containers
segment along with lower other retained costs. Interest expense, net of
interest income, for the first quarter of 1998 decreased $18.8 million from
that of the first quarter of 1997 as a result of the refinancing initiated in
the second quarter of 1997. The Company's estimated effective tax rate for
the first quarter of 1998, excluding the effects of the adjustment to Italy's
net deferred tax liabilities discussed below, was 37.5%. This compares with
34.4% estimated in the first quarter of 1997 and the actual rate of 34.1% for
the full year 1997, excluding the effect of the gain on the 1997 sale of the
remaining 49% interest in Kimble Glass discussed below. The increase in the
1998 estimated rate is primarily the result of the non-recurrence of certain
foreign tax credits which benefited 1997 results.
Capsule segment results (in millions of dollars) for the first quarter of 1998
and 1997 were as follows:
- ----------------------------------------------------------------------------
Net sales
(Unaffiliated customers) Operating Profit
- ----------------------------------------------------------------------------
1998 1997 1998 (a) 1997
-------- -------- -------- --------
Glass Containers $ 812.4 $ 775.6 $ 111.5 $ 101.1
Plastics Packaging 285.7 280.4 67.3 51.7
Eliminations and other
retained costs (b) .4 .3 (7.1) .9
- ----------------------------------------------------------------------------
Consolidated total $1,098.5 $1,056.3 $ 171.7 $ 153.7
============================================================================
(a) Operating profit for 1998 includes: (1) a net gain of $18.5 million
related to the termination of a licensing agreement, including charges for
related equipment writeoffs and capacity adjustments, and (2) charges totaling
$16.3 million for the settlement of certain environmental litigation and
severance costs at certain international affiliates. These items increased
(decreased) operating profit as follows: Glass Containers, $(7.8) million;
Plastics Packaging, $18.5 million; and other retained costs, $(8.5) million.
16
<PAGE>
(b) 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.
Consolidated net sales for the first quarter of 1998 increased $42.2 million,
or 4.0%, over the prior year. Net sales of the Glass Containers segment
increased $36.8 million, or 4.7%, over 1997. The combined U.S. dollar sales
of the segment's foreign affiliates increased over the prior year, reflecting
the February 1997 acquisition of AVIR S.p.A., the largest manufacturer of
glass containers in Italy. Also, increased unit shipments at several of the
Company's affiliates, including those in Venezuela, Ecuador, Finland and China
more than offset lower unit shipments in Colombia. Domestically, glass
container unit shipments of containers for the beer, tea and juice, and liquor
and wine industries increased over the prior year. Net sales of the Plastics
Packaging segment increased $5.3 million, or 1.9%, over the prior year.
Higher shipments of plastic containers were partially offset by lower
shipments of prescription containers, reflecting strong unit shipments in the
first quarter of 1997 in advance of a price increase, and of child resistant
closures.
Consolidated operating profit for the first quarter of 1998, excluding the
1998 and 1997 unusual items, increased $18.0 million, or 11.9%, to $169.5
million from first quarter of 1997 operating profit of $151.5 million. The
operating profit of the Glass Containers segment, excluding the 1998 unusual
items, increased $18.2 million to $119.3 million, compared to $101.1 million
in the first quarter of 1997. The combined U.S. dollar operating profit of
the segment's foreign affiliates increased from the first quarter of 1997.
The February 1997 acquisition of AVIR S.p.A. and improved results at several
of the segment's affiliates, including those in Venezuela, Ecuador, Finland
and China contributed to the increase. Domestically, operating profit
increased from the first quarter of 1997 as a result of higher unit shipments
for most end uses. The operating profit of the Plastics Packaging segment,
excluding the 1998 unusual items, decreased $2.9 million, or 5.6%, compared to
the first quarter of 1997. Higher shipments of plastic containers were more
than offset by lower shipments of prescription containers, reflecting strong
sales in the first quarter of 1997 in advance of a price increase. Lower
shipments of child resistant closures also contributed to lower operating
profit. Other retained costs, excluding the 1998 and 1997 unusual items
discussed below, were $1.4 million income for the first quarter of 1998
compared to $1.3 million expense for the first quarter of 1997, reflecting
higher net financial services income.
The first quarter 1998 results include the following unusual items: (1) a tax
benefit of $15.1 million to adjust net deferred income tax liabilities as a
result of changes in Italy's tax laws; (2) a net gain of $18.5 million ($11.4
million aftertax) related to the termination of a license agreement, including
charges for related equipment writeoffs and capacity adjustments, under which
the Company had produced plastic multipack carriers for beverage cans; and (3)
charges of $16.3 million ($10.1 million aftertax) for the settlement of
certain environmental litigation and for severance costs at certain
international affiliates. The first quarter 1997 results include the
17
<PAGE>
following unusual items: (1) a gain of $16.3 million ($16.3 million aftertax)
on the sale of the Company's remaining 49% interest in Kimble Glass, and (2)
charges of $14.1 million ($8.7 million aftertax) principally for guarantees of
certain lease obligations of a previously divested business.
Capital Resources and Liquidity
The Company's total debt at March 31, 1998 was $3.39 billion, compared to
$3.32 billion at December 31, 1997 and $3.57 billion at March 31, 1997.
At March 31, 1998, the Company had available credit totaling $3.0 billion
under the Bank Credit Agreement expiring in December 2001, of which $679.7
million had not been utilized. At December 31, 1997, the Company had $741.0
million of credit which had not been utilized under the Agreement. The
increased utilization and corresponding higher debt balances at March 31, 1998
resulted in large part from borrowings for capital expenditures, partially
offset by cash provided by operations. Cash provided by operating activities
was $42.2 million for the first three months of 1998 compared to $52.0 million
for the first three months of 1997.
On April 30, 1998, the Company amended it current Bank Credit Agreement by
entering into a Second Amended and Restated Credit Agreement with a group of
banks (see Note 3). The Company anticipates that cash flow from its opera-
tions and from utilization of credit available through December 2001 under the
Revolving Credit Facility portion of the Amended Bank Credit Agreement will be
sufficient to fund its operating and seasonal working capital needs, debt
service 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.
If the Offerings (see Note 4) are not consummated as currently contemplated,
capacity under the Revolving Credit Facility portion of the Amended Bank
Credit Agreement, proceeds from the Rockware Sale (see Note 8) and cash flows
from operations may not be sufficient to repay the Company's Term Loan portion
of the Amended Bank Credit Agreement due October 30, 1999. There can be no
assurance that the Company will be able to raise funds in a timely manner or
that the proceeds therefrom will be sufficient to repay the Term Loan.
Interest rate, guarantee and pledge provisions under the Term Loan and
Revolving Credit Facility are linked to the Company's leverage ratio. If the
Offerings and/or the Rockware Sale are not consummated as currently
contemplated, interest rates applicable to the Amended Bank Credit Agreement
could increase and/or the Company could be required to execute the guarantees
and pledges.
18
<PAGE>
PART II -- OTHER INFORMATION
Item 1. Legal Proceedings.
(a) Contingencies. Note 6 to the Condensed Consolidated Financial
Statements, "Contingencies," that is included in Part I of this Report, is
incorporated herein by reference.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits:
Exhibit 4.1 Second Amended and Restated Credit Agreement,
dated as of April 30, 1998, among Owens-Illinois,
Inc. and certain of its subsidiaries and the
lenders listed therein, including those named as
managing agents, co-agents, lead managers,
arrangers, offshore administrative agents, The
Bank of Nova Scotia, NationsBank, N.A., Bank of
America National Trust and Savings Association,
and Bankers Trust Company including exhibits and
schedules thereto.
Exhibit 12 Computation of Ratio of Earnings to Fixed Charges
and Earnings to Combined Fixed Charges and
Preferred Stock Dividends.
Exhibit 23 Consent of McCarter & English.
Exhibit 27 Financial Data Schedule.
(b) Reports on Form 8-K:
(1) On March 2, 1998, the Registrant filed a Form 8-K which
included a press release dated March 1, 1998, announcing
the signing of a definitive agreement to acquire the
worldwide glass and plastics packaging businesses of BTR
plc in an all-cash transaction valued at $3.6 billion.
(2) On March 4, 1998, the Registrant filed a Form 8-K/A,
Amendment No. 1, amending the Current Report on Form 8-K
dated March 1, 1998 (filed on March 2, 1998). Such
Amendment included additional information regarding the
acquisition of the worldwide glass and plastics packaging
businesses of BTR plc.
No other reports on Form 8-K were filed by the Registrant
during the first quarter of 1998.
19
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
OWENS-ILLINOIS, INC.
Date May 13, 1998 By /s/ Lee A. Wesselmann
------------ --------------------------------------------
Lee A. Wesselmann, Senior Vice President and
Chief Financial Officer (Principal Financial
Officer)
20
<PAGE>
INDEX TO EXHIBITS
Exhibits
- --------
4.1 Second Amended and Restated Credit Agreement, dated as of April
30, 1998, among Owens-Illinois, Inc. and certain of its
subsidiaries and the lenders listed therein, including those
named as managing agents, co-agents, lead managers, arrangers,
offshore administrative agents, The Bank of Nova Scotia,
NationsBank, N.A., Bank of America National Trust and Savings
Association, and Bankers Trust Company including exhibits and
schedules thereto
12 Computation of Ratio of Earnings to Fixed Charges and Earnings to
Combined Fixed Charges and Preferred Stock Dividends
23 Consent of McCarter & English
27 Financial Data Schedule
21
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of April 30, 1998
among
OWENS-ILLINOIS, INC., UNITED GLASS LIMITED, UNITED GLASS GROUP
LIMITED, OWENS-ILLINOIS (AUSTRALIA) PTY LIMITED, and OI ITALIA S.R.L.,
THE LENDERS LISTED HEREIN,
ABN AMRO BANK N.V., CIBC, INC., CREDIT LYONNAIS CHICAGO BRANCH, THE
FIRST NATIONAL BANK OF CHICAGO, INDUSTRIAL BANK OF JAPAN, LIMITED,
KEYBANK NATIONAL ASSOCIATION, SOCIETE GENERALE - CHICAGO BRANCH
and SUMITOMO BANK, LTD., CHICAGO BRANCH,
as Managing Agents,
BARCLAYS BANK PLC and TORONTO DOMINION (TEXAS), INC.,
as Co-Agents,
BANQUE NATIONALE DE PARIS and COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE,
as Lead Managers,
THE BANK OF NOVA SCOTIA, NATIONSBANC MONTGOMERY SECURITIES LLC,
BANCAMERICA ROBERTSON STEPHENS and
BT ALEX. BROWN INCORPORATED,
as Arrangers,
THE BANK OF NOVA SCOTIA and NATIONSBANK, N.A.,
as Documentation Agents,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Syndication Agent,
THE FIRST NATIONAL BANK OF CHICAGO, BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION and SOCIETE GENERALE, MILAN BRANCH,
as Offshore Administrative Agents,
and
BANKERS TRUST COMPANY,
as Administrative Agent
<PAGE>
OWENS-ILLINOIS, INC.
UNITED GLASS LIMITED
UNITED GLASS GROUP LIMITED
OWENS-ILLINOIS (AUSTRALIA) PTY LIMITED
OI ITALIA S.R.L.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 30, 1998
TABLE OF CONTENTS
Section Heading Page
SECTION 1 DEFINITIONS
1.1 Certain Defined Terms. . . . . . . . . . . . . . . . . . . . . 3
1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement; Change in Accounting
Principles . . . . . . . . . . . . . . . . . . . . . . . . . . 39
1.3 Other Definitional Provisions; Anniversaries . . . . . . . . . 40
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS AND LOANS; NOTES
2.1 Commitments; Making of Loans; Domestic Overdraft Account . . . 40
2.2 Interest on the Loans. . . . . . . . . . . . . . . . . . . . . 62
2.3 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
2.4 Prepayments and Payments; Reductions in Commitments. . . . . . 67
2.5 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 74
2.6 Special Provisions Governing Eurodollar Rate Loans . . . . . . 74
2.7 Capital Adequacy Adjustment; Increased Costs; Taxes. . . . . . 80
2.8 Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . 85
2.9 Bid Rate Loans . . . . . . . . . . . . . . . . . . . . . . . . 94
2.10 Eurocurrency Provisions. . . . . . . . . . . . . . . . . . . . 98
SECTION 3 CONDITIONS TO LOANS AND LETTERS OF CREDIT
3.1 Conditions to Effectiveness. . . . . . . . . . . . . . . . . . 99
3.2 Conditions to All Loans. . . . . . . . . . . . . . . . . . . . 102
3.3 Conditions to All Letters of Credit. . . . . . . . . . . . . . 104
SECTION 4 BORROWERS' REPRESENTATIONS AND WARRANTIES
4.1 Organization, Powers, Good Standing, Business and
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 104
4.2 Authorization of Borrowing, Etc. . . . . . . . . . . . . . . . 105
4.3 Financial Condition. . . . . . . . . . . . . . . . . . . . . . 106
4.4 No Adverse Material Change; No Stock Payments. . . . . . . . . 106
4.5 Litigation; Adverse Facts. . . . . . . . . . . . . . . . . . . 106
4.6 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . 107
4.7 Governmental Regulation. . . . . . . . . . . . . . . . . . . . 107
i
<PAGE>
Section Heading Page
4.8 Securities Activities. . . . . . . . . . . . . . . . . . . . . 107
4.9 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . 107
4.10 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . 108
4.11 Environmental Protection . . . . . . . . . . . . . . . . . . . 108
4.12 Applegate Acquisition Agreement. . . . . . . . . . . . . . . . 109
SECTION 5 COMPANY'S AFFIRMATIVE COVENANTS
5.1 Financial Statements and Other Reports . . . . . . . . . . . . 109
5.2 Corporate Existence, Etc.. . . . . . . . . . . . . . . . . . . 113
5.3 Payment of Taxes and Claims; Tax Consolidation . . . . . . . . 113
5.4 Maintenance of Properties; Insurance . . . . . . . . . . . . . 113
5.5 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . 113
5.6 Compliance with Laws, Etc. . . . . . . . . . . . . . . . . . . 114
5.7 Securities Activities. . . . . . . . . . . . . . . . . . . . . 114
5.8 Execution of Intercreditor Agreement, Company Pledge
Agreement, Subsidiary Guaranty and Subsidiary Pledge
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . 114
SECTION 6 COMPANY'S NEGATIVE COVENANTS
6.1 Liens and Related Matters. . . . . . . . . . . . . . . . . . . 115
6.2 Investments; Joint Ventures. . . . . . . . . . . . . . . . . . 117
6.3 Letters of Credit. . . . . . . . . . . . . . . . . . . . . . . 118
6.4 Restricted Junior Payments . . . . . . . . . . . . . . . . . . 118
6.5 Financial Covenants. . . . . . . . . . . . . . . . . . . . . . 119
6.6 Restriction on Fundamental Changes . . . . . . . . . . . . . . 119
6.7 Transactions with Shareholders and Affiliates. . . . . . . . . 120
6.8 Conduct of Business. . . . . . . . . . . . . . . . . . . . . . 121
SECTION 7 EVENTS OF DEFAULT
7.1 Failure to Make Payments When Due. . . . . . . . . . . . . . . 121
7.2 Default in Other Agreements. . . . . . . . . . . . . . . . . . 121
7.3 Breach of Certain Covenants. . . . . . . . . . . . . . . . . . 122
7.4 Breach of Warranty . . . . . . . . . . . . . . . . . . . . . . 122
7.5 Other Defaults under Agreement or Loan Documents . . . . . . . 122
7.6 Involuntary Bankruptcy; Appointment of Receiver, Etc.. . . . . 122
7.7 Voluntary Bankruptcy; Appointment of Receiver, Etc.. . . . . . 123
7.8 Judgments and Attachments. . . . . . . . . . . . . . . . . . . 123
7.9 Dissolution. . . . . . . . . . . . . . . . . . . . . . . . . . 123
7.10 Change of Control. . . . . . . . . . . . . . . . . . . . . . . 123
7.11 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . 124
7.12 Invalidity of Company Guaranty or Subsidiary Guaranty;
Failure of Security. . . . . . . . . . . . . . . . . . . . . . 124
ii
<PAGE>
Section Heading Page
SECTION 8 AGENTS
8.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . 126
8.2 Powers; General Immunity . . . . . . . . . . . . . . . . . . . 127
8.3 Representations and Warranties; No Responsibility for
Appraisal of Creditworthiness. . . . . . . . . . . . . . . . . 128
8.4 Right to Indemnity . . . . . . . . . . . . . . . . . . . . . . 129
8.5 Registered Persons Treated as Owners . . . . . . . . . . . . . 129
8.6 Successor Agents and Domestic Overdraft Account Provider . . . 129
8.7 Intercreditor Agreement, Company Guaranty, Subsidiary
Guaranty and Pledge Agreements; Release of Subsidiary
Guaranty and Pledged Collateral. . . . . . . . . . . . . . . . 131
SECTION 9 MISCELLANEOUS
9.1 Representation of Lenders. . . . . . . . . . . . . . . . . . . 132
9.2 Assignments and Participations in Loans, Notes and Letters
of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . 132
9.3 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
9.4 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . 138
9.5 Set Off. . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
9.6 Ratable Sharing. . . . . . . . . . . . . . . . . . . . . . . . 139
9.7 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . 139
9.8 Independence of Covenants. . . . . . . . . . . . . . . . . . . 142
9.9 Change in Accounting Principles, Fiscal Year or Tax Laws . . . 143
9.10 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
9.11 Survival of Warranties and Certain Agreements. . . . . . . . . 143
9.12 Failure or Indulgence Not Waiver; Remedies Cumulative. . . . . 144
9.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 144
9.14 Obligations Several; Independent Nature of Lenders' Rights . . 144
9.15 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
9.16 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . 144
9.17 Successors and Assigns . . . . . . . . . . . . . . . . . . . . 145
9.18 Consent to Jurisdiction and Service of Process . . . . . . . . 145
9.19 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . 146
9.20 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . 146
9.21 Judgment Currency. . . . . . . . . . . . . . . . . . . . . . . 147
9.22 Additional Subsidiary Borrowers. . . . . . . . . . . . . . . . 147
9.23 Limitation on Subsidiary Borrower Obligations. . . . . . . . . 148
9.24 Counterparts; Effectiveness. . . . . . . . . . . . . . . . . . 148
iii
<PAGE>
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF REQUEST FOR 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 TERM NOTE
VIII FORM OF REVOLVING NOTE
IX FORM OF BID RATE LOAN NOTE
X FORM OF OFFSHORE LOAN NOTE
XI FORM OF DOMESTIC OVERDRAFT AGREEMENT
XII FORM OF OFFSHORE OVERDRAFT AGREEMENT
XIII FORM OF COMPLIANCE CERTIFICATE
XIV FORM OF ASSIGNMENT AND ACCEPTANCE
XV FORM OF OPINION OF LATHAM & WATKINS
XVI FORM OF OPINION OF ASSOCIATE GENERAL COUNSEL FOR
COMPANY
XVII FORM OF OPINION OF O'MELVENY & MYERS LLP
XVIII FORM OF COMPANY GUARANTY
XIX FORM OF SUBSIDIARY GUARANTY
XX FORM OF COMPANY PLEDGE AGREEMENT
XXI FORM OF SUBSIDIARY PLEDGE AGREEMENT
XXII FORM OF INTERCREDITOR AGREEMENT
XXIII FORM OF INCREASED COMMITMENT ACCEPTANCE
XXIV FORM OF NEW COMMITMENT ACCEPTANCE
XXV FORM OF BORROWING SUBSIDIARY AGREEMENT
iv
<PAGE>
Schedules
A COMMITMENTS; PRO RATA SHARES
B EXISTING LIENS
C EXISTING INVESTMENTS
D REPORTING UNITS
E EXISTING LETTERS OF CREDIT
F RESERVE ASSET RATIO CALCULATIONS
G FOREIGN SUBSIDIARIES
v
<PAGE>
OWENS-ILLINOIS, INC.
UNITED GLASS LIMITED
UNITED GLASS GROUP LIMITED
OWENS-ILLINOIS (AUSTRALIA) PTY LIMITED
OI ITALIA S.R.L.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 30, 1998
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is dated as of
April 30, 1998 (this "Agreement"), and entered into by and among OWENS-
ILLINOIS, INC., a Delaware corporation ("Company"), UNITED GLASS LIMITED, a
corporation organized under the laws of England and Wales ("United Glass"),
UNITED GLASS GROUP LIMITED, a corporation organized under the laws of England
and Wales ("United Glass Group"), OWENS-ILLINOIS (AUSTRALIA) PTY LIMITED, a
limited liability company organized under the laws of Australia ("O-I
Australia"), OI ITALIA S.R.L., a corporation organized under the laws of Italy
("O-I Italy"), THE LENDERS LISTED ON THE SIGNATURE PAGES HEREOF (each
individually a "Lender" and collectively, "Lenders"), ABN AMRO BANK N.V.,
CIBC, INC., CREDIT LYONNAIS CHICAGO BRANCH, THE FIRST NATIONAL BANK OF
CHICAGO, INDUSTRIAL BANK OF JAPAN, LIMITED, KEYBANK NATIONAL ASSOCIATION,
SOCIETE GENERALE - CHICAGO BRANCH and SUMITOMO BANK, LTD., CHICAGO BRANCH, as
Managing Agents for Lenders (each individually referred to herein as a
"Managing Agent" and collectively as "Managing Agents"), BARCLAYS BANK PLC and
TORONTO DOMINION (TEXAS), INC., as Co-Agents for Lenders (each individually
referred to herein as a "Co-Agent" and collectively as "Co-Agents"), BANQUE
NATIONALE DE PARIS and COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE,
as Lead Managers for Lenders (each individually referred to herein as a "Lead
Manager" and collectively as "Lead Managers"), THE BANK OF NOVA SCOTIA
("ScotiaBank"), NATIONSBANC MONTGOMERY SECURITIES LLC, BANCAMERICA ROBERTSON
STEPHENS and BT ALEX. BROWN INCORPORATED, as Arrangers (each individually an
"Arranger" and collectively, "Arrangers"), ScotiaBank and NATIONSBANK, N.A.
("NationsBank"), as Documentation Agents for Lenders (each individually a
"Documentation Agent" and collectively, "Documentation Agents"), THE FIRST
NATIONAL BANK OF CHICAGO, as an Offshore Administrative Agent ("UK
Administrative Agent") for UK Lenders (as such term is hereinafter defined),
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as an Offshore
Administrative Agent ("Australian Administrative Agent") for Australian
Lenders (as such term is hereinafter defined), SOCIETE GENERALE, MILAN BRANCH,
as an Offshore Administrative Agent ("Italian Administrative Agent") for
Italian Lenders (as such term is hereinafter defined), BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"), as Syndication Agent for
Lenders ("Syndication Agent"), and BANKERS TRUST COMPANY ("Bankers"), as
1
<PAGE>
Administrative Agent for Lenders ("Administrative Agent"; together with UK
Administrative Agent, Australian Administrative Agent, Italian Administrative
Agent, Documentation Agents and Syndication Agent (and for purposes of Section
8 only, Collateral Agent), "Agents").
RECITALS
WHEREAS, pursuant to the Existing Credit Agreement, Existing
Lenders have made $3,000,000,000 of credit facilities available to Company in
accordance with the terms thereof; and
WHEREAS, Company desires that Lenders make an additional
$4,000,000,000 of credit facilities available to Company and certain
Subsidiaries of Company;
WHEREAS, the proceeds of such credit facilities will be used by
Company and such Subsidiaries (i) to finance the acquisition of the Acquired
Applegate Subsidiaries and to purchase in connection therewith certain
outstanding convertible notes issued by an Acquired Applegate Subsidiary, (ii)
to pay certain fees and expenses associated with the Loans and the related
transactions described herein, (iii) to repay the Existing Revolving Loans,
(iv) to provide working capital for Company and its Subsidiaries, (v) to
provide for Company's commercial and standby letter of credit requirements,
and (vi) to provide funds for other general corporate purposes of Company and
its Subsidiaries; and
WHEREAS, Lenders have agreed to amend and restate the Existing
Credit Agreement in its entirety for the purposes of (i) providing such
additional credit facilities to Company and to United Glass, United Glass
Group, O-I Australia, O-I Italy and any Additional Subsidiary Borrowers, as
new borrowers, (ii) providing to Borrowers multicurrency revolving credit
facilities under which loans may be made in Offshore Currencies up to the
sublimits set forth herein, and (iii) making certain other changes to the
provisions of the Existing Credit Agreement on the terms and conditions set
forth herein, which amendment and restatement shall become effective upon
satisfaction of the conditions precedent set forth herein; and
WHEREAS, Company has agreed to guaranty the Obligations of
Subsidiary Borrowers under and in respect of such multicurrency credit
facilities:
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Borrowers, Lenders,
Arrangers and Agents hereby agree that on the Effective Date the Existing
Credit Agreement shall be amended and restated in its entirety as follows:
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SECTION 1
DEFINITIONS
1.1 Certain Defined Terms
The following terms used in this Agreement shall have the following
meanings:
"Acquired Applegate Subsidiaries" has the meaning assigned to the
term "Packaging Companies" in the Applegate Acquisition Agreement.
"Additional Subsidiary Borrower" has the meaning assigned to that
term in subsection 9.22.
"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 11:00 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).
"Adjusted Offshore Periodic Rate" means (i) for any Interest Rate
Determination Date with respect to an Interest Period for an Offshore Loan
denominated in Sterling or Lire, the rate per annum equal to the sum of (a)
LIBOR plus (b) the additional cost (expressed as a percentage per annum and
rounded upwards, if necessary, to the nearest five decimal places) to the
relevant Offshore Lenders of complying with (x) the relative reserve asset
ratio required by the Bank of England from time to time, if any, expressed as
a percentage per annum and calculated in the manner set forth in Schedule F
annexed hereto, or (y) any analogous requirement of any central banking or
financial regulatory authority imposed in respect of the funding or
maintenance of Offshore Loan Commitments or Offshore Loans of the type
contemplated hereby and applicable to the Applicable Currency, and (ii) for
any Interest Rate Determination Date with respect to an Interest Period for an
Australian Loan, the rate per annum equal to the sum of (a) the Bank Bill Rate
plus (b) the additional cost (expressed as a percentage per annum and rounded
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upwards, if necessary, to the nearest five decimal places) to Australian
Lenders of complying with any reserve asset ratio requirement or analogous
requirement of any central banking or financial regulatory authority imposed
in respect of the funding or maintenance of the Australian Loan Commitments or
the Australian Loans.
"Administrative Agent" has the meaning assigned to that term in the
introduction to this Agreement.
"ADollars" and the sign "A$" mean the lawful money of Australia.
"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
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.
"Agreement" means this Second Amended and Restated Credit Agreement
dated as of April 30, 1998, as it may be amended, supplemented or otherwise
modified from time to time.
"Aggregate Amounts Due" has the meaning assigned to that term in
subsection 9.6.
"Aggregate Offshore Currency Sublimit" means the lesser of (i)
$1,750,000,000 and (ii) the Revolving Loan Commitments then in effect.
"Applegate Acquisition" means the transactions contemplated by the
Applegate Acquisition Agreement.
"Applegate Acquisition Agreement" means that certain Share
Disposition Agreement dated as of March 1, 1998 by and among Company, Seller
and certain of their respective Subsidiaries, as in effect on March 1, 1998
and as such agreement may have been amended, supplemented or otherwise
modified from time to time on or prior to the Effective Date as permitted
hereunder.
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"Applegate Acquisition Consideration" means the aggregate purchase
price set forth in the Applegate Acquisition Agreement, subject to adjustment
as provided therein.
"Applicable Currency" means, with respect to any particular Loan or
Letter of Credit or Domestic Overdraft Amount or Offshore Overdraft Amount,
Dollars or the applicable Offshore Currency in which such Loan or Letter of
Credit or Domestic Overdraft Amount or Offshore Overdraft Amount is
denominated or payable.
"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
4.50:1.00 or greater 1.000%
4.00:1.00 or greater, but
less than 4.50:1.00 0.750%
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 0.300%
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
4.50:1.00 or greater 0.500%
4.00:1.00 or greater, but
less than 4.50:1.00 0.375%
3.50:1.00 or greater, but
less than 4.00:1.00 0.250%
3.00:1.00 or greater, but
less than 3.50:1.00 0.200%
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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 0.150%
less than 2.00:1.00 0.125%
"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 4.50:1.00. 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 (commencing with the Fiscal Quarter ending
June 30, 1998) of any Fiscal Year, within 45 days after the end of such Fiscal
Quarter, (b) in the case of the fourth Fiscal Quarter of any Fiscal Year,
within 90 days after the end of such Fiscal Quarter, or (c) following the date
of consummation of a sale of equity Securities of Company in an offering, in
each case certifying as to the Consolidated Leverage Ratio as of the last day
of such Fiscal Quarter or as of the date of consummation of such sale of
equity Securities after giving effect to the application of the proceeds
thereof, as the case may be, and setting forth the calculation of such
Consolidated Leverage Ratio in reasonable detail, which Officers' Certificate,
in the case of the immediately preceding clauses (a) and (b), may be delivered
to Administrative Agent at any time on or after the date of delivery by
Company of the Compliance Certificate with respect to the period ending on the
last day of the applicable Fiscal Quarter pursuant to subsection 5.1(iii), 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 4.50:1.00. Promptly after receipt
of any Pricing Certificate, Administrative Agent shall deliver a copy of such
Pricing Certificate to each Offshore Administrative Agent.
"Applicable Offshore 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 Offshore Margin to be effective on
the date of any corresponding change in the Applicable Leverage Ratio:
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Applicable
Applicable Leverage Ratio Offshore Margin
4.50:1.00 or greater 1.000%
4.00:1.00 or greater, but
less than 4.50:1.00 0.750%
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 0.300%
less than 2.00:1.00 0.275%
"Arranger" and "Arrangers" have the meanings assigned to those
terms in the introduction to this Agreement.
"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
Foreign Subsidiary as previously conducted.
"Assignment and Acceptance" means an Assignment and Acceptance, in
substantially the form of Exhibit XIV annexed hereto.
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"Australian Administrative Agent" has the meaning assigned to that
term in the introduction to this Agreement.
"Australian Lender" and "Australian Lenders" means a Lender or
Lenders that have Australian Loan Commitments or that have Australian Loans
outstanding, together with their successors and permitted assigns pursuant to
subsection 9.2, and the term "Australian Lender" shall include Australian
Overdraft Account Provider unless the context otherwise requires.
"Australian Loan Commitment" means the commitment of an Australian
Lender to make Australian Loans to Australian Subsidiary Borrowers pursuant to
subsection 2.1C(i), and "Australian Loan Commitments" means such commitments
of all Australian Lenders in the aggregate.
"Australian Loan Exposure" means, with respect to any Australian
Lender as of any date of determination (i) prior to the termination of the
Revolving Loan Commitments, that Lender's Australian Loan Commitment, and
(ii) after the termination of the Revolving Loan Commitments, the sum of (a)
the aggregate outstanding principal amount of the Australian Loans of that
Lender plus (b) in the case of Australian Overdraft Account Provider, the
Australian Overdraft Amount (net of any participations therein purchased by
other Australian Lenders) plus (c) the aggregate amount of all participations
purchased by that Australian Lender in the Australian Overdraft Amount.
"Australian Loans" means the Loans made by Australian Lenders to
Australian Subsidiary Borrowers pursuant to subsection 2.1C(i).
"Australian Overdraft Account" means an account established by any
Australian Subsidiary Borrower with Australian Overdraft Account Provider and
referenced in an Australian Overdraft Agreement.
"Australian Overdraft Account Provider" means such Australian
Lender as Australian Subsidiary Borrowers may specify in writing to
Administrative Agent and Australian Administrative Agent on or after the
Effective Date or any successor Australian Overdraft Account Provider pursuant
to subsection 9.2E; provided, however, that no such Australian Lender shall be
Australian Overdraft Account Provider until any Australian Subsidiary Borrower
and such Australian Lender have executed and delivered an Australian Overdraft
Agreement to Administrative Agent and Australian Administrative Agent.
"Australian Overdraft Agreement" means any Offshore Overdraft
Agreement executed and delivered by any Australian Subsidiary Borrower and
Australian Overdraft Account Provider on or after the Effective Date, in
substantially the form of Exhibit XII annexed hereto, with such modifications
thereto as may be approved by Administrative Agent, and any successor Offshore
Overdraft Agreement executed and delivered by such Australian Subsidiary
Borrower and any successor Australian Overdraft Account Provider pursuant to
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subsection 9.2E, as any such Offshore Overdraft Agreement may hereafter be
amended, amended and restated, supplemented or otherwise modified from time to
time.
"Australian Overdraft Amount" means, as at any date of
determination, the aggregate principal amount of outstanding overdrafts
charged to all Australian Overdraft Accounts.
"Australian Subsidiary" means any Subsidiary of Company organized
under the laws of the Commonwealth of Australia or any state or territory
thereof.
"Australian Subsidiary Borrowers" means O-I Australia and any
Australian Subsidiary that becomes an Additional Subsidiary Borrower to which
Australian Loans will be made under this Agreement.
"Bank Bill Rate" means (i) for any Interest Rate Determination Date
with respect to any Interest Period, (a) the rate (expressed as a percentage
yield per annum to maturity) determined by Australian Administrative Agent to
be the rate (rounded upwards if necessary, to the nearest 0.01%) quoted as the
average bid rate on the Reuters monitor system page "BBSY" at or about 10:30
a.m. (Sydney time) on the first day of such Interest Period for Bank Bills
having a term equal to (or no more than two Offshore Banking Days shorter or
longer than) such Interest Period, or (b) if (x) for any reason there is no
average bid rate displayed on the Reuters screen BBSY page for Bank Bills of
that term or (y) the basis on which such rates are displayed on the Reuters
screen BBSY page is changed and in the reasonable opinion of Australian
Administrative Agent those rates cease to reflect the Australian Lenders' cost
of funding to the same extent as at the date of this Agreement, then the Bank
Bill Rate will be the rate (expressed as a percentage yield per annum to
maturity) determined by Australian Administrative Agent to be the average of
the bid rates quoted to Australian Administrative Agent by three Australian
banks selected by Australian Administrative Agent at or about that time on
that day for Bank Bills having a term as described in clause (i)(a) of this
definition; provided that such bid rates must be for bills of exchange which
are accepted by an Australian bank selected by Australian Administrative Agent
and which have a term equivalent to the relevant Interest Period, or (ii) for
any date of determination for purposes of determining the Offshore Base Rate,
or in the event the Bank Bill Rate cannot be determined as described in clause
(i) of this definition, the rate determined by Australian Administrative Agent
to be the arithmetic mean (rounded upwards to the nearest 0.01%) of the rates,
as supplied to Australian Administrative Agent at its request, quoted by the
Australian Lenders to leading banks in the Australian interbank market at
about 11:00 A.M. (Sydney time) on such date for the offering of overnight
deposits in ADollars.
"Bankers" has the meaning assigned to that term in the introduction
to this Agreement.
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"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 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 any promissory notes of Company,
substantially in the form of Exhibit IX 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.
"Bid Rate Loan Quote Request" means a request by Company to each
Lender having a Revolving Loan Commitment to submit Bid Rate Loan Quotes, sub-
stantially in the form of Exhibit IV annexed hereto, delivered by Company to
Administrative Agent pursuant to subsection 2.9B.
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"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.
"Bid Rate Loans" means Loans made by Lenders to Company pursuant to
subsection 2.9.
"Blocked Availability Amount" means, at any time, that portion of
the Excess Foreign Indebtedness Amount which Company shall have designated to
be offset against availability under the Revolving Loan Commitments pursuant
to clause (1) of subsection 6.1A(vi); provided that Company may reduce the
Blocked Availability Amount (up to the full extent thereof) from time to time
by electing to reduce the Blocked Availability Amount in a written notice to
Administrative Agent (x) setting forth the amount of such reduction and (y)
pursuant to subsection 2.4F, designating a reduction in the Revolving Loan
Commitments in an equal or greater amount. Any reduction in the Blocked
Availability Amount shall become effective upon the effectiveness of such
reduction in the Revolving Loan Commitments. For purposes of this definition,
"Excess Foreign Indebtedness Amount" means the excess of (i) the aggregate
outstanding principal amount of Indebtedness secured by Liens of the type
described in subsection 6.1A(vi) over (ii) $150,000,000.
"Borrower" means (i) with respect to Term Loans, Revolving Loans,
Letters of Credit and the Domestic Overdraft Account, Company, (ii) with
respect to UK Loans and the UK Overdraft Account, either of the UK Subsidiary
Borrowers, as applicable, (iii) with respect to Australian Loans and the
Australian Overdraft Account, any of the Australian Subsidiary Borrowers, as
applicable, and (iv) with respect to Italian Loans and the Italian Overdraft
Account, O-I Italy, and "Borrowers" means any combination thereof,
collectively.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary
Agreement, in substantially the form of Exhibit XXV annexed hereto.
"Business Day" means (i) for all purposes other than as covered by
clause (ii) or (iii) 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, (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, and (iii) with respect
to all notices, determinations, fundings and payments in connection with any
Offshore Loans or any Offshore Overdraft Account, any day which is a Business
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Day described in clause (i) and (ii) above and which is also an Offshore
Banking Day.
"Calculation Date" means (i) the date hereof and the last day of
each calendar month (or, if such day is not a Business Day, the next
succeeding Business Day), (ii) at any time after and so long as (a) the Dollar
Equivalent of the Total Utilization of UK Loan Commitments or of the Total
Utilization of Australian Loan Commitments or of the Total Utilization of
Italian Loan Commitments exceeds 90% of the Offshore Currency Sublimit for the
Applicable Currency or (b) the sum of such Dollar Equivalents exceeds 90% of
the Aggregate Offshore Currency Sublimit, the fifteenth and last day of each
calendar month (or, if such day is not a Business Day, the next succeeding
Business Day), (iii) with respect to any Offshore Currency, each date on which
notice is given to Administrative Agent by the relevant Offshore
Administrative Agent pursuant to subsection 2.1C(ii) or 2.1C(iii) with respect
to Offshore Loans denominated in such Offshore Currency, and (iv) such other
dates as Administrative Agent, any Offshore Administrative Agent or any
Borrower may reasonably require from time to time.
"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 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
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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.
"Collateral Agent" means Bankers acting in the capacity of
collateral agent on behalf of the holders from time to time of any outstanding
Existing Senior Notes, Lenders and the other Persons (other than Company or
its Subsidiaries) who have executed counterparts to the Intercreditor
Agreement or are otherwise entitled to the benefit thereof, including Lenders
party to Interest Rate Agreements and Currency Agreements, in each case under
the Company Pledge Agreement, the Subsidiary Pledge Agreement, the
Intercreditor Agreement, the Company Guaranty and the Subsidiary Guaranty.
"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.
"Commitment Increase Date" has the meaning assigned to that term in
subsection 2.1D(i).
"Commitments" means the Term Loan Commitments, the Revolving Loan
Commitments, the UK Loan Commitments, the Australian Loan Commitments, the
Italian Loan Commitments or any combination thereof.
"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.
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"Company" has the meaning assigned to that term in the introduction
to this Agreement.
"Company Guaranty" means the Company Guaranty executed and
delivered by Company on the Effective Date, substantially in the form of
Exhibit XVIII annexed hereto, as such Company Guaranty may thereafter be
amended, supplemented or otherwise modified from time to time.
"Company Pledge Agreement" means the Company Pledge Agreement to be
executed and delivered by Company under certain circumstances pursuant to
subsection 5.8, substantially in the form of Exhibit XX annexed hereto, as
such Company Pledge Agreement may thereafter be amended, supplemented or
otherwise modified from time to time.
"Compliance Certificate" means a certificate substantially in the
form annexed hereto as Exhibit XIII delivered to Lenders by Company pursuant
to subsection 5.1(iii).
"Consolidated Adjusted EBITDA" means, for any period, Consolidated
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 (giving effect, for purposes of clause (i)(c)
of the definition of "Applicable Leverage Ratio", to the related sale of
equity Securities and the application of the proceeds thereof) 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 specified 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.
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"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.
"Defaulting Participating Lender" means, with respect to any Type
of Offshore Loan, any Lender which (i) has Revolving Loan Exposure at the time
a notice is given to fund Revolving Loans to repay such Type of Offshore Loans
or to convert such Type of Offshore Loans into Dollars pursuant to subsection
2.1C(ii) or 2.1C(iii), and (ii) fails to make all Revolving Loans required
pursuant to subsection 2.1C(ii) to repay such Offshore Loans or fails to fully
fund the purchase of its relevant Offshore Loan Participations pursuant to
subsection 2.1C(iii), as the case may be.
"Deposit Account" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"Documentation Agent" and "Documentation Agents" have the meanings
assigned to those terms in the introduction to this Agreement.
"Dollar Equivalent" means, at any time as to any amount denominated
in an Offshore Currency, the equivalent amount in Dollars as determined by the
relevant Offshore Administrative Agent at such time on the basis of the Spot
Rate for the purchase of Dollars with such Offshore Currency on the most
recent Calculation Date with respect to such Offshore Currency.
"Dollars" or the sign "$" means the lawful money of the United
States of America.
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"Domestic Funding and Payment Office" means (i) with respect to
Administrative Agent, the office of Administrative Agent located at One
Bankers Trust Plaza, New York, New York, and (ii) with respect to any Offshore
Administrative Agent, such office of such Offshore Administrative Agent in the
United States as it may designate as such from time to time in a written
notice delivered to Administrative Agent, Lenders having Revolving Loan
Exposure and each Borrower.
"Domestic Overdraft Account" means the account established by
Company with Administrative Agent and referenced in the Domestic Overdraft
Agreement.
"Domestic Overdraft Agreement" means the Overdraft Agreement
executed and delivered by Company and Administrative Agent on the Effective
Date, in substantially the form of Exhibit XI 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.
"Domestic Overdraft Amount" means, as at any date of determination,
the aggregate principal amount of outstanding overdrafts charged to the
Domestic Overdraft Account.
"Effective Date" means the date on or before July 31, 1998, on
which all of the conditions set forth in subsection 3.1 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. In the case of
an assignment by any Offshore Lender of its Offshore Loans and Offshore Loan
Commitments, "Eligible Assignee" shall also include any special purpose
vehicle organized by such assigning Offshore Lender for the purpose of
acquiring loans and issuing debt secured by such loans; provided that such
assigning Offshore Lender or an Affiliate of such assigning Offshore Lender
shall have, immediately before and after giving efffect to such assignment,
Revolving Loan Exposure; and provided further that, any assignment by an
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Offshore Lender to an Eligible Assignee described in this sentence shall
require the consent of Company and Administrative Agent (which consent shall
not be unreasonably withheld; it being understood that the consent of Company
may be withheld if Company reasonably believes any assignment to an Eligible
Assignee described in this sentence would result in any additional cost,
expense or credit risk of any nature to any Borrower).
"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").
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, 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
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
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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.
"Euro" means the single currency of participating member states of
the European Monetary Union.
"Eurodollar Rate Loans" means Loans bearing interest at rates
determined by reference to the Adjusted Eurodollar Rate as provided in
subsection 2.2A.
"European Monetary Union" means the European Economic and Monetary
Union as contemplated in the Treaty of Rome of March 25, 1957, as amended by
the Single European Act 1986 and the Maastricht Treaty (which was signed at
Maastricht on February 7, 1992 and became effective on November 1, 1993), as
amended from time to time.
"Euro Unit" means the currency unit of the Euro.
"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 provided by the foreign exchange trader
of the Issuing Lender) in the New York foreign exchange market for the
purchase of such currency in exchange for Dollars on such date, expressed as a
number of units of such currency per one Dollar.
"Excluded Tax" means any of the following Taxes 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,
Arranger, Agent or Tax Transferee and franchise taxes imposed in lieu thereof
(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, Arranger, Agent or Tax
Transferee is organized or resident for tax purposes or any political
subdivision thereof or (B) the jurisdiction of such Lender's, Tax
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Transferee's, Arranger's or Agent's applicable lending office or any political
subdivision thereof or (C) other than with respect to Taxes imposed on
payments to Offshore Loan Participants made pursuant to subsection 2.1C(iii),
any jurisdiction in which the Lender, Arranger, Agent or Tax Transferee is
doing business (other than solely by virtue of being a Lender under this
Agreement), (ii) other than with respect to Taxes imposed on payments to
Offshore Loan Participants made pursuant to subsection 2.1C(iii), any Taxes to
the extent that they are in effect and would apply to a payment to such
Lender, Arranger 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) other than with respect to Taxes imposed on payments to
Offshore Loan Participants made pursuant to subsection 2.1C(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, Arranger or Agent, as the case
may be, is available to such Lender, Tax Transferee, Arranger 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 or
delay by such Agent, Arranger, Lender or Tax Transferee, as applicable, to
complete, provide or file and keep current any certification or other
documentation required to qualify for an exemption from or reduced rate of any
Tax (unless such failure or delay 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, Arranger, 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,
Arranger, Lender or Tax Transferee; provided, however that, notwithstanding
anything herein to the contrary, "Excluded Taxes" shall not include any
substitute tax imposed on account of the Italian Loans or Italian Loan
Commitments.
"Existing Bid Rate Loans" means any "Bid Rate Loans" (as defined in
the Existing Credit Agreement) of Existing Lenders outstanding on the
Effective Date.
"Existing Credit Agreement" means that certain Amended and Restated
Credit Agreement dated as of May 15, 1997 by and among Company, the financial
institutions party thereto as lenders, the lead managers and co-agents listed
therein, ScotiaBank and NationsBank, as co-documentation agents, BofA, as
syndication agent, and Bankers, as administrative agent, as such Amended and
Restated Credit Agreement may be amended, supplemented or otherwise modified
from time to time prior to the Effective Date.
"Existing Lenders" means the "Lenders" (as defined in the Existing
Credit Agreement).
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"Existing Letters of Credit" has the meaning assigned to that term
in subsection 2.8A.
"Existing Revolving Loans" means any "Revolving Loans" (as defined
in the Existing Credit Agreement) of Existing Lenders outstanding on the
Effective Date.
"Existing 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 Existing Senior
Note Indenture, as such Senior Notes may have been and may hereafter be
amended, supplemented or otherwise modified from time to time.
"Existing 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 have been and may hereafter be amended,
supplemented or otherwise modified from time to time.
"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.
"Fee Payment Date" means each March 15, June 15, September 15 and
December 15 of each year.
"First-Tier Subsidiary" means, at any time of determination, a
domestic Subsidiary of Group more than 50% of the voting stock of which is
directly owned by Group, but excluding, however, any such Subsidiary which was
a party to the Subsidiary Guaranty but has been released therefrom in
accordance with its terms.
"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 (i) any Subsidiary or Joint Venture of
Company identified as such on Schedule G annexed hereto, (ii) any Subsidiary
of any Subsidiary or Joint Venture described in clause (i) and (iii) in
addition, any Subsidiary or Joint Venture acquired, incorporated or otherwise
established by Company on or after the Effective Date 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 Date" means the date of the funding of a Loan.
"FX Trading Office" means, with respect to any Offshore
Administrative Agent, such office of such Offshore Administrative Agent as it
may designate as such from time to time in a written notice delivered to
Administrative Agent and each Borrower.
"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.
"Group" means Owens-Illinois Group, Inc., a Delaware corporation
and a direct wholly-owned Subsidiary of Company.
"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.
"Increased Commitment Acceptance" means an Increased Commitment
Acceptance, in substantially the form of Exhibit XXIII annexed hereto.
"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
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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
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.
"Intercreditor Agreement" means the Intercreditor Agreement to be
entered into under certain circumstances pursuant to subsection 5.8 hereof
among Collateral Agent, Bankers, as Administrative Agent hereunder, the
trustee under the Existing Senior Note Indenture (if so required) and, upon
execution of counterparts to the Intercreditor Agreement by any Lenders or
Affiliates of Lenders party to Interest Rate Agreements or Currency Agree-
ments, such Lenders and such Affiliates, and, upon execution of counterparts
to the Intercreditor Agreement by any other Persons who may become parties to
the Intercreditor Agreement in accordance with the terms thereof, such other
Persons, in substantially the form of Exhibit XXII annexed hereto, as such
Intercreditor Agreement may thereafter be amended, supplemented or modified
from time to time.
"Interest Payment Date" means, with respect to any Eurodollar Rate
Loan or Offshore Periodic 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 or Offshore Periodic 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 or Adjusted Offshore Periodic Rate for purposes
of determining the interest rate in respect of an Interest Period to which
such Adjusted Eurodollar Rate or Adjusted Offshore Periodic Rate applies. The
Interest Rate Determination Date shall be (i) with respect to UK Loans and
Australian Loans which are Offshore Periodic Rate Loans, the first day of the
related Interest Period, (ii) with respect to Italian Loans which are Offshore
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Periodic Rate Loans, the second Business Day prior to the first day of the
related Interest Period, and (iii) with respect to Eurodollar Rate Loans, 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 having a Revolving Loan Commitment 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,
determined as provided in subsection 2.8C.
"Italian Administrative Agent" has the meaning assigned to that
term in the introduction to this Agreement.
"Italian Lender" and "Italian Lenders" means a Lender or Lenders
that have Italian Loan Commitments or that have Italian Loans outstanding,
together with their successors and permitted assigns pursuant to subsection
9.2, and the term "Italian Lender" shall include Italian Overdraft Account
Provider unless the context otherwise requires.
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"Italian Loan Commitment" means the commitment of an Italian Lender
to make Italian Loans to O-I Italy pursuant to subsection 2.1C(i), and
"Italian Loan Commitments" means such commitments of all Italian Lenders in
the aggregate.
"Italian Loan Exposure" means, with respect to any Italian Lender
as of any date of determination (i) prior to the termination of the Revolving
Loan Commitments, that Lender's Italian Loan Commitment, and (ii) after the
termination of the Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Italian Loans of that Lender plus (b) in
the case of Italian Overdraft Account Provider, the Italian Overdraft Amount
(net of any participations therein purchased by other Italian Lenders) plus
(c) the aggregate amount of all participations purchased by that Italian
Lender in the Italian Overdraft Amount.
"Italian Loans" means the Loans made by Italian Lenders to O-I
Italy pursuant to subsection 2.1C(i).
"Italian Overdraft Account" means the account established by O-I
Italy with Italian Overdraft Account Provider and referenced in the Italian
Overdraft Agreement.
"Italian Overdraft Account Provider" means such Italian Lender as
O-I Italy may specify in writing to Administrative Agent and Italian
Administrative Agent on or after the Effective Date or any successor Italian
Overdraft Account Provider pursuant to subsection 9.2E; provided, however,
that no such Italian Lender shall be an Italian Overdraft Account Provider
until O-I Italy and such Italian Lender have executed and delivered an Italian
Overdraft Agreement to Administrative Agent and Italian Administrative Agent.
"Italian Overdraft Agreement" means the Offshore Overdraft
Agreement executed and delivered by O-I Italy and Italian Overdraft Account
Provider on or after the Effective Date, in substantially the form of
Exhibit XII annexed hereto, with such modifications thereto as may be approved
by Administrative Agent, and any successor Offshore Overdraft Agreement
executed and delivered by O-I Italy and any successor Italian Overdraft
Account Provider pursuant to subsection 9.2E, as any such Offshore Overdraft
Agreement may hereafter be amended, amended and restated, supplemented or
otherwise modified from time to time.
"Italian Overdraft Amount" means, as at any date of determination,
the aggregate principal amount of outstanding overdrafts charged to the
Italian Overdraft Account.
"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.
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"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 Offshore Lender and
each Agent in its individual capacity; provided that "Lender" and "Lenders"
shall also include the successors and permitted assigns of Lenders pursuant to
subsection 9.2B; and provided, further that the term "Lenders", when used in
the context of a particular Commitment, shall mean Lenders having that
Commitment.
"Letter of Credit" or "Letters of Credit" means Commercial Letters
of Credit and 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.
"LIBOR" means, for any date of determination with respect to any
period for an Offshore Loan denominated in Sterling or Lire, (i) the rate per
annum (rounded upward, if necessary, to the nearest five decimal places) equal
to the rate determined by the relevant Offshore Administrative Agent to be the
offered rate which appears on the page of the Telerate Screen which displays
an average British Bankers Association Interest Settlement Rate (such page
currently being page number 3740 or 3750) for deposits (for delivery on the
first day of such period) with a term equivalent to such period in the
Applicable Currency, determined as of approximately 11:00 A.M. (London time)
on such date of determination, or (ii) in the event the rate referenced in the
preceding clause (i) does not appear on such page or service or if such page
or service shall cease to be available, the rate per annum (rounded upward, if
necessary, to the nearest five decimal places) equal to the rate determined by
the relevant Offshore Administrative Agent to be the offered rate on such
other page or other service which displays an average British Bankers
Association Interest Settlement Rate for deposits (for delivery on the first
day of such period) with a term equivalent to such period in the Applicable
Currency, determined as of approximately 11:00 A.M. (London time) on such date
of determination, or (iii) in the event the rates referenced in the preceding
clauses (i) and (ii) are not available, the rate per annum equal to the
offered quotation rate (rounded upward, if necessary, to the nearest five
decimal places) to first class banks in the London interbank market by such
Offshore Administrative Agent for deposits (for delivery on the first day of
the relevant period) in the Applicable Currency of amounts in Same Day Funds
comparable to the principal amount of the Offshore Loan of such Offshore
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Administrative Agent for which LIBOR is then being determined with maturities
comparable to such period as of approximately 11:00 A.M. (London time) on such
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.
"Lira" or "Lire" means the lawful money of Italy; provided,
however, that in the event the Lira is replaced by the Euro, it is hereby
acknowledged and agreed that (i) "Lira" and "Lire" shall, from and after the
date on which the Lira is replaced by the Euro, include the Euro, and (ii)
conversion of any outstanding Loans denominated in Lira into the Euro shall
take effect; provided that the Lira shall be retained as an Offshore Currency
for so long as legally permissible; provided, further that any such conversion
shall be based on the rate of conversion officially fixed by the European
Monetary Union on the date the Euro replaces the Lira for purposes of this
Agreement.
"Loan" or "Loans" means one or more of the Term Loans or the
Revolving Loans or the Offshore Loans or the Bid Rate Loans or any combination
thereof.
"Loan Documents" means this Agreement, the Company Guaranty, the
Notes, the Domestic Overdraft Agreement, any Offshore Overdraft Agreements,
the Letters of Credit and any Borrowing Subsidiary Agreements and, if and when
executed and delivered pursuant to subsection 5.8, the Company Pledge
Agreement, the Subsidiary Guaranty and the Subsidiary Pledge Agreement.
"Loan Limitation Notice" has the meaning assigned to that term in
subsection 2.1F(v).
"Loan Party" means each of Borrowers and, upon execution of a Loan
Document thereby, any of Company's Subsidiaries from time to time executing
such Loan Document, and "Loan Parties" means all such Persons, collectively.
"Local Time" means, with respect to a time of day for notices,
determinations, fundings and payments in connection with any Offshore Loans or
any Offshore Overdraft Account, such time of day in the city in which the
relevant Offshore Administrative Agent's or the relevant Offshore Overdraft
Account Provider's Offshore Funding and Payment Office is located, as
applicable.
"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.
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"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, Arranger or Lender to enforce, the
Obligations.
"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.
"Net Rockware Asset Sale Proceeds" means, with respect to any
Rockware Asset Sale, cash payments received (including any cash payments
received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise, but only as and when received, but
excluding any other consideration received in the form of assumption by the
acquiring Person of Indebtedness or other obligations relating to the assets
such Person acquired or received in any other noncash form), in each case net
of all legal, title and recording tax expenses, commissions and other fees and
expenses incurred, and all federal, state, provincial, foreign and local taxes
payable as a consequence of such Rockware Asset Sale, and in each case net of
a reasonable reserve for the after-tax costs of any indemnification payments
(fixed and contingent) attributable to seller's indemnities to the purchaser
undertaken by Company or any of its Subsidiaries in connection with such
Rockware Asset Sale and net of all payments made on any Indebtedness which is
secured by the assets that are being sold, in accordance with the terms of any
Lien upon or with respect to the assets that are being sold or which must by
its terms or by the terms of the contract pursuant to which such assets are
being sold or by applicable law be repaid out of the proceeds from such
Rockware Asset Sale, and net of all distributions and other payments made to
minority interest holders in Subsidiaries as a result of such Rockware Asset
Sale.
"New Commitment Acceptance" means a New Commitment Acceptance, in
substantially the form of Exhibit XXIV annexed hereto.
"Non-Australian Lender" has the meaning assigned to that term in
subsection 2.7C(iv).
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"Non-Increasing Lender" has the meaning assigned to that term in
subsection 2.1D(ii).
"Non-Italian Lender" has the meaning assigned to that term in
subsection 2.7C(iv).
"Notes" means one or more of the Term Notes or the Revolving Notes
or the Offshore Loan 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 Request for 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.
"O-I Australia" has the meaning assigned to that term in the
introduction to this Agreement.
"O-I Italy" has the meaning assigned to that term in the
introduction to this Agreement.
"Obligations" means all obligations of every nature of any Loan
Party from time to time owed to Agents or Lenders or any of them under or in
respect of this Agreement, the Notes, the Letters of Credit, the Offshore
Overdraft Agreements, the Domestic Overdraft Agreement or any of the other
Loan Documents.
"Offered Increase Amount" has the meaning assigned to that term in
subsection 2.1D(iii).
"Officers' Certificate" means, as applied to any corporation, a
certificate executed on behalf of such corporation by (i) its Chairman of the
Board (if an officer) or its President or one of its Vice Presidents or, in
the case of any Subsidiary Borrower, any director or any attorney appointed by
power of attorney, and (ii) by its Chief Financial Officer, its Treasurer, any
of its Assistant Treasurers, its Controller or any of its Assistant
Controllers or, in the case of Subsidiary Borrower, any other director or
attorney appointed by power of attorney; 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,
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further, that every Officers' Certificate with respect to the compliance with
a condition precedent to the making of any Loans hereunder shall include (a) 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, (b) a statement that, in the
opinion of the signers, they have made or have caused to be made such exami-
nation 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 (c) a
statement as to whether, in the opinion of the signers, such condition has
been complied with.
"Offshore Administrative Agent" means UK Administrative Agent or
Australian Administrative Agent or Italian Administrative Agent, and "Offshore
Administrative Agents" means UK Administrative Agent, Australian
Administrative Agent and Italian Administrative Agent, collectively.
"Offshore Banking Day" means (i) with respect to any borrowings,
disbursements, payments, calculations, interest rates and Interest Periods
pertaining to any Offshore Loan or any Offshore Overdraft Account, any
Business Day which is also a day on which commercial banks are open for
business in, and on which dealings in the Applicable Currency are carried on
in, the location of the Offshore Funding and Payment Office of the Offshore
Administrative Agent or Offshore Overdraft Account Provider, as applicable,
with respect to such Offshore Currency, and (ii) with respect to any
borrowings, disbursements, payments, calculations, interest rates and Interest
Periods pertaining to any Australian Loan or the Australian Overdraft Account,
any day which is a Business Day described in clause (i) which is also a day on
which commercial banks are open for business in, and on which dealings in
ADollars are carried on in, Hong Kong.
"Offshore Base Rate" means, as of any date of determination (i)
with respect to Loans denominated in Sterling, the sum of (a) the per annum
rate of interest quoted and commonly known as the "base rate" of UK
Administrative Agent which UK Administrative Agent establishes in the UK from
time to time as the reference rate of interest in order to determine the
interest rates applicable to loans in Sterling to commercial borrowers in the
UK plus (b) 2.5% (it being understood that the "base rate" is a rate set by UK
Administrative Agent based on various factors and does not necessarily
represent the lowest or best rates actually charged to any customer, and that
UK Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below such rate), (ii) with respect to Loans denominated
in ADollars, the sum of (a) the Bank Bill Rate in effect on such day for one-
day borrowings in ADollars plus (b) the Applicable Offshore Margin, and (iii)
with respect to Loans denominated in Lire, the sum of (a) the rate determined
by Italian Administrative Agent as of approximately 11:00 A.M. (Milan Time) on
such date of determination as the "ITL Spot/Next Rate" in effect for one-day
borrowings in Lire as quoted on the Reuters monitor system page ATIA plus (b)
the Applicable Offshore Margin.
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"Offshore Base Rate Loans" means Loans bearing interest at rates
determined by reference to the Offshore Base Rate as provided in subsection
2.2A.
"Offshore Currency" means Sterling, ADollars or Lire.
"Offshore Currency Equivalent" means, at any time as to any amount
denominated in Dollars, the equivalent amount in the applicable Offshore
Currency as determined by the relevant Offshore Administrative Agent at such
time on the basis of the Spot Rate for the purchase of such Offshore Currency
with Dollars on the most recent Calculation Date.
"Offshore Currency Sublimit" means, at any time, (i) as to
Sterling, the lesser of (a) $600,000,000 and (b) the Revolving Loan
Commitments then in effect, (ii) as to ADollars, the lesser of (a)
$1,000,000,000 and (b) the Revolving Loan Commitments then in effect, and
(iii) as to Lire, the lesser of (a) $150,000,000 and (b) the Revolving Loan
Commitments then in effect; provided that such Offshore Currency Sublimits may
be increased from time to time pursuant to subsection 2.1D or decreased from
time to time pursuant to subsection 2.4F.
"Offshore Funding and Payment Office" means, with respect to any
Offshore Administrative Agent or Offshore Overdraft Account Provider, such
office of such Offshore Administrative Agent or such Offshore Overdraft
Account Provider as it may designate as such from time to time in a written
notice delivered to Administrative Agent, the relevant Offshore Lenders, the
relevant Offshore Administrative Agent (in the case of an Offshore Overdraft
Account Provider) and each Borrower.
"Offshore Lender" means a UK Lender or an Australian Lender or an
Italian Lender, and "Offshore Lenders" means any combination of UK Lenders,
Australian Lenders and Italian Lenders, collectively.
"Offshore Loan" means a UK Loan or an Australian Loan or an Italian
Loan, and "Offshore Loans" means such loans of all UK Lenders, Australian
Lenders and Italian Lenders in the aggregate.
"Offshore Loan Commitment" means a UK Loan Commitment or an
Australian Loan Commitment or an Italian Loan Commitment, and "Offshore Loan
Commitments" means such commitments of all UK Lenders, Australian Lenders and
Italian Lenders in the aggregate.
"Offshore Loan Dollar Amount" has the meaning assigned to that term
in subsection 2.1C(iii).
"Offshore Loan Exposure" means UK Loan Exposure or Australian Loan
Exposure or Italian Loan Exposure, as applicable.
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"Offshore Loan Note" means any promissory note of O-I Italy,
substantially in the form of Exhibit X annexed hereto, issued in favor of an
Italian Lender pursuant to subsection 2.1H(iv) to evidence the Italian Loans
of such Italian Lender, as such promissory note may be amended, supplemented
or otherwise modified from time to time.
"Offshore Loan Participant" has the meaning assigned to that term
in subsection 2.1C(iii).
"Offshore Loan Participation" has the meaning assigned to that term
in subsection 2.1C(iii).
"Offshore Loan Refunding Date" has the meaning assigned to that
term in subsection 2.1C(ii).
"Offshore Overdraft Account" means any UK Overdraft Account, any
Australian Overdraft Account, or the Italian Overdraft Account, and "Offshore
Overdraft Accounts" means the UK Overdraft Accounts, the Australian Overdraft
Accounts and the Italian Overdraft Account, collectively.
"Offshore Overdraft Account Provider" means UK Overdraft Account
Provider, Australian Overdraft Account Provider, or Italian Overdraft Account
Provider, and "Offshore Overdraft Account Providers" means UK Overdraft
Account Provider, Australian Overdraft Account Provider and Italian Overdraft
Account Provider, collectively.
"Offshore Overdraft Agreement" means the UK Overdraft Agreement,
any Australian Overdraft Agreement, or the Italian Overdraft Agreement, and
"Offshore Overdraft Agreement" means the UK Overdraft Agreements, the
Australian Overdraft Agreements and the Italian Overdraft Agreement,
collectively.
"Offshore Overdraft Amount" means the UK Overdraft Amount, the
Australian Overdraft Amount or the Italian Overdraft Amount, and "Offshore
Overdraft Amounts" means the UK Overdraft Amount, the Australian Overdraft
Amount and the Italian Overdraft Amount, collectively.
"Offshore Periodic Rate Loans" means Loans bearing interest at
rates determined by reference to the Adjusted Offshore Periodic Rate as
provided in subsection 2.2A.
"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.
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"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, suppliers, mechanics, materialmen and other liens
imposed by law incurred in the ordinary course of business
(including title retention agreements arising 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;
(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;
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(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, limited liability companies, 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.
"Pledged Collateral" means, collectively, the "Pledged Collateral"
as defined in the Company Pledge Agreement and the Subsidiary Pledge
Agreement.
"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.
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"Pro Rata Share" means (i) with respect to all payments,
computations and other matters relating to the Term Loan Commitment or the
Term Loan of any Lender, the percentage obtained by dividing (x) the Term Loan
Exposure of that Lender by (y) the aggregate Term Loan Exposure of all
Lenders, (ii) with respect to all payments, computations and other matters
relating to the Revolving Loan Commitment or the Revolving Loans of any Lender
or any Letters of Credit issued or participations therein purchased by any
Lender or any participations in the Domestic Overdraft Amount or any Offshore
Loans purchased by any Lender, the percentage obtained by dividing (x) the
Revolving Loan Exposure of that Lender by (y) the aggregate Revolving Loan
Exposure of all Lenders, (iii) with respect to all payments, computations and
other matters relating to the UK Loan Commitments or the UK Loans of any UK
Lender or any participations in the UK Overdraft Amount purchased by any UK
Lender, the percentage obtained by dividing (x) the UK Loan Exposure of that
UK Lender by (y) the aggregate UK Loan Exposure of all UK Lenders, (iv) with
respect to all payments, computations and other matters relating to the
Australian Loan Commitments or the Australian Loans of any Australian Lender
or any participations in the Australian Overdraft Amount purchased by any
Australian Lender, the percentage obtained by dividing (x) the Australian Loan
Exposure of that Australian Lender by (y) the aggregate Australian Loan
Exposure of all Australian Lenders, (v) with respect to all payments,
computations and other matters relating to the Italian Loan Commitments or the
Italian Loans of any Italian Lender or any participations in the Italian
Overdraft Amount purchased by any Italian Lender, the percentage obtained by
dividing (x) the Italian Loan Exposure of that Italian Lender by (y) the
aggregate Italian Loan Exposure of all Italian Lenders, and (vi) for all other
purposes with respect to each Lender, the percentage obtained by dividing
(x) the sum of the Term Loan Exposure of that Lender plus the Revolving Loan
Exposure of that Lender by (y) the sum of the aggregate Term Loan Exposure of
all Lenders plus the aggregate Revolving Loan Exposure of all Lenders, in any
such case as the applicable percentage may be adjusted by assignments
permitted pursuant to subsection 9.2. The initial Pro Rata Share of each
Lender for purposes of each of clauses (i), (ii), (iii), (iv), (v) and (vi) of
the preceding sentence is set forth opposite the name of that Lender in
Schedule A annexed hereto.
"Prospective Offshore Lender" has the meaning assigned to that term
in subsection 2.1D(ii).
"Purchasing Companies" has the meaning assigned to that term in the
Applegate Acquisition Agreement.
"Rabbi Trust" means the trust created pursuant to that certain
Owens-Illinois, Inc. Supplemental Retirement Benefit Trust Agreement dated
December 11, 1991 between Company and Bankers, as trustee, as such agreement
may have heretofore been and as it may hereafter be amended, supplemented or
otherwise modified from time to time.
"Reference Lenders" means Bankers and BofA.
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"Refunded Offshore Loans" has the meaning assigned to that term in
subsection 2.1C(ii).
"Register" has the meaning assigned to that term in subsection
2.1H.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Relevant Date" has the meaning assigned to that term in subsection
2.7C(iv).
"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.
"Request for Commitment Increase" has the meaning assigned to that
term in subsection 2.1D(i).
"Requested Increase Amount" has the meaning assigned to that term
in subsection 2.1D(i).
"Requisite Offshore Lenders" means Lenders having or holding more
than 50% of the sum of (i) the aggregate UK Loan Exposure of all UK Lenders
plus (ii) the aggregate Australian Loan Exposure of all Australian Lenders
plus (iii) the aggregate Italian Loan Exposure of all Italian Lenders.
"Requisite Lenders" means Lenders having or holding more than 50%
of the sum of the aggregate Term Loan Exposure of all Lenders plus the
aggregate Revolving Loan Exposure of all Lenders.
"Responsible Officer" means any of the chief executive officer, the
president, any vice president, the chief financial officer, the comptroller,
the treasurer, any assistant treasurer, the controller or any assistant
controller 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,
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.
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"Revolving Loan Commitment" means the commitment of a Lender to
make Revolving Loans to Company pursuant to subsection 2.1A(ii), and
"Revolving Loan Commitments" means such commitments of all Lenders in the
aggregate.
"Revolving Loan Commitment Termination Date" means December 31,
2001.
"Revolving Loan Exposure" means, with respect to any Lender as of
any date of determination (i) prior to the termination of the Revolving Loan
Commitments, that Lender's Revolving Loan Commitment and (ii) after the
termination of the Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Revolving Loans of that Lender plus (b) in
the event that Lender is an Issuing Lender, the aggregate Letter of Credit
Usage in respect of all Letters of Credit issued by that Lender (in each case
net of any participations purchased by other Lenders in such Letters of Credit
or any unreimbursed drawings thereunder) plus (c) the aggregate amount of all
participations purchased by that Lender in any outstanding Letters of Credit
or any unreimbursed drawings under any Letters of Credit plus (d) in the case
of Administrative Agent (in its capacity as a Lender), the Domestic Overdraft
Amount (net of any participations therein purchased by other Lenders) plus
(e) the aggregate amount of all participations purchased by that Lender in the
Domestic Overdraft Amount plus (f) in the case of an Offshore Lender, the
Dollar Equivalent of the aggregate outstanding principal amount of any
Offshore Loans of such Offshore Lender (net of any participations therein
purchased by other Lenders) plus (g) the Dollar Equivalent of the aggregate
amount of all participations purchased by that Lender in any outstanding
Offshore Loans plus (h) in the case of any Offshore Overdraft Account Provider
with respect to a particular Offshore Currency, the Dollar Equivalent of the
relevant Offshore Overdraft Amount (net of any participations therein
purchased by other Offshore Lenders) plus (i) in the case of an Offshore
Lender with respect to a particular Offshore Currency, the Dollar Equivalent
of the aggregate amount of all participations purchased by that Offshore
Lender in the relevant Offshore Overdraft Amount plus (j) solely for purposes
of the definition of "Requisite Lenders" (but not for purposes of the
definition of "Pro Rata Share"), the aggregate outstanding principal amount of
the Bid Rate Loans of that Lender.
"Revolving Loans" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(ii).
"Revolving Notes" means any promissory notes of Company
substantially in the form of Exhibit VIII annexed hereto, issued in favor of
Lenders pursuant to subsection 2.1H(iv) to evidence the Revolving Loans, as
they may be amended, supplemented or otherwise modified from time to time.
"Rockware" means Rockware Group Limited and its Subsidiaries.
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"Rockware 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 any stock or assets of Rockware.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, Inc.
"Same Day Funds" means (i) with respect to disbursements and
payments in Dollars, immediately available funds, and (ii) with respect to
disbursements and payments in an Offshore Currency, same day or other funds as
may reasonably be determined by the applicable Offshore Administrative Agent
to be customary in the place of disbursement or payment for the settlement of
international banking transactions in such Offshore Currency.
"Second-Tier Subsidiary" means, at any time of determination, a
domestic Subsidiary of Group more than 50% of the voting stock of which is
directly owned by a First-Tier Subsidiary, but excluding, however, any such
Subsidiary which was a party to the Subsidiary Guaranty but has been released
therefrom in accordance with its terms.
"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.
"Seller" means BTR plc, a company organized under the laws of
England and Wales.
"Selling Companies" has the meaning assigned to that term in the
Applegate Acquisition Agreement.
"Spot Rate" means, with respect to any foreign exchange computation
in respect of any Offshore Currency, the rate quoted by the relevant Offshore
Administrative Agent in accordance with its customary procedures as the spot
rate for the purchase by such Offshore Administrative Agent of Dollars with
such Offshore Currency or the purchase by such Offshore Administrative Agent
of such Offshore Currency with Dollars, as the case may be, through its FX
Trading Office at (i) 10:30 A.M. (London time) with respect to quotations by
UK Administrative Agent, (ii) 10:30 A.M. (Sydney Time) with respect to
quotations by Australian Administrative Agent, and (iii) 10:30 A.M. (Local
Time) with respect to quotations by Italian Administrative Agent, in each case
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on such date as of which the applicable foreign exchange computation is made
for delivery two Offshore Banking Days later.
"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 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 or any of its Consolidated
Subsidiaries for which letter of credit support would be used in the ordinary
course of Company's or such Consolidated Subsidiary's business consistent with
its past practices or otherwise consistent with custom and practice in the
industry.
"Sterling" and the sign "L" mean the lawful money of the UK;
provided, however, that in the event Sterling is replaced by the Euro, it is
hereby acknowledged and agreed that (i) "Sterling" and "L" shall, on the date
on which Sterling is replaced by the Euro, include the Euro and (ii)
conversion of any outstanding Loans denominated in Sterling into the Euro
shall take effect; provided that Sterling shall be retained as an Offshore
Currency for so long as legally permissible; provided, further that any such
conversion shall be based on the rate of conversion officially fixed by the
European Monetary Union on the date the Euro replaces Sterling for purposes of
this Agreement.
"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.
"Subsidiary Borrower" means (i) with respect to Australian Loans
and the Australian Overdraft Account, any of the Australian Subsidiary
Borrowers, as applicable, (ii) with respect to UK Loans and the UK Overdraft
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Account, either of the UK Subsidiary Borrowers, and (iii) with respect to
Italian Loans and the Italian Overdraft Account, O-I Italy, and "Subsidiary
Borrowers" means UK Subsidiary Borrowers, Australian Subsidiary Borrowers and
O-I Italy, collectively.
"Subsidiary Guarantor" means any Subsidiary of Company that
executes and delivers a counterpart of the Subsidiary Guaranty pursuant to
subsection 5.8.
"Subsidiary Guaranty" means the Subsidiary Guaranty to be executed
and delivered under certain circumstances by certain Subsidiaries of Company
in accordance with subsection 5.8, substantially in the form of Exhibit XIX
annexed hereto, as such Subsidiary Guaranty may thereafter be amended,
supplemented or otherwise modified from time to time.
"Subsidiary Pledge Agreement" means the Subsidiary Pledge Agreement
to be executed and delivered under certain circumstances by certain Subsidiary
Guarantors in accordance with subsection 5.8, substantially in the form of
Exhibit XXI annexed hereto, as such Subsidiary Pledge Agreement may thereafter
be amended, supplemented or otherwise modified from time to time.
"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.
"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,
Arranger or Agent has transferred its Loans for purposes of determining where
the Loans are made, accounted for or booked.
"Term Loan Commitment" means the commitment of a Lender to make a
Term Loan to Company pursuant to subsection 2.1A(i), and "Term Loan
Commitments" means such commitments of all Lenders in the aggregate.
"Term Loan Exposure" means, with respect to any Lender as of any
date of determination (i) prior to the funding of the Term Loans, that
Lender's Term Loan Commitment and (ii) after the funding of the Term Loans,
the outstanding principal amount of the Term Loan of that Lender.
"Term Loan Maturity Date" means the eighteen-month anniversary of
the Effective Date.
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"Term Loans" means the Loans made by Lenders to Company pursuant to
subsection 2.1A(i).
"Term Notes" means any promissory notes of Company substantially in
the form of Exhibit VII annexed hereto, issued in favor of Lenders pursuant to
subsection 2.1H(iv) to evidence the Term Loans, as they may be amended,
supplemented or otherwise modified from time to time.
"Total Utilization of Australian Loan Commitments" means, as at any
date of determination, the sum of (i) the aggregate principal amount of all
outstanding Australian Loans (other than Australian Loans made for the purpose
of repaying the Australian Overdraft Amount but not yet so applied) plus (ii)
the Australian Overdraft Amount.
"Total Utilization of Italian Loan Commitments" means, as at any
date of determination, the sum of (i) the aggregate principal amount of all
outstanding Italian Loans (other than Italian Loans made for the purpose of
repaying the Italian Overdraft Amount but not yet so applied) plus (ii) the
Italian Overdraft Amount.
"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 (other than Revolving Loans made for the purpose
of (a) repaying the principal amount of any Bid Rate Loans, (b) reimbursing
the applicable Issuing Lender for any drawing honored under any Letter of
Credit, (c) repaying the Domestic Overdraft Amount, or (d) repaying any
Refunded Offshore Loans, in each case to the extent not yet so applied), plus
(ii) the aggregate principal amount of all outstanding Bid Rate Loans plus
(iii) the Letter of Credit Usage plus (iv) the Domestic Overdraft Amount plus
(v) the Dollar Equivalent of the aggregate principal amount of all outstanding
Offshore Loans (other than Offshore Loans made for the purpose of repaying any
Offshore Overdraft Amount but not yet so applied) plus (vi) the Dollar
Equivalent of the Offshore Overdraft Amounts.
"Total Utilization of UK Loan Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all
outstanding UK Loans (other than UK Loans made for the purpose of repaying the
UK Overdraft Amount but not yet so applied) plus (ii) the UK Overdraft Amount.
"Type" means (i) with respect to a Commitment other than an
Offshore Loan Commitment, (a) a Term Loan Commitment or (b) a Revolving Loan
Commitment, (ii) with respect to an Offshore Loan Commitment, (a) a UK Loan
Commitment, (b) an Australian Loan Commitment or (c) an Italian Loan
Commitment, (iii) with respect to a Loan other than an Offshore Loan, (a) a
Term Loan or (b) a Revolving Loan, and (iv) with respect to an Offshore Loan,
(a) a UK Loan, (b) an Australian Loan or (c) an Italian Loan.
"UK" means the United Kingdom of Great Britain and Northern
Ireland.
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"UK Administrative Agent" has the meaning assigned to that term in
the introduction to this Agreement.
"UK Lender" and "UK Lenders" means a Lender or Lenders that have UK
Loan Commitments or that have UK Loans outstanding, together with their
successors and permitted assigns pursuant to subsection 9.2, and the term "UK
Lender" shall include UK Overdraft Account Provider unless the context
otherwise requires.
"UK Loan Commitment" means the commitment of a UK Lender to make UK
Loans to either of the UK Subsidiary Borrowers pursuant to subsection 2.1C(i),
and "UK Loan Commitments" means such commitments of all UK Lenders in the
aggregate.
"UK Loan Exposure" means, with respect to any UK Lender as of any
date of determination (i) prior to the termination of the Revolving Loan
Commitments, that Lender's UK Loan Commitment, and (ii) after the termination
of the Revolving Loan Commitments, the sum of (a) the aggregate outstanding
principal amount of the UK Loans of that Lender plus (b) in the case of UK
Overdraft Account Provider, the UK Overdraft Amount (net of any participations
therein purchased by other UK Lenders) plus (c) the aggregate amount of all
participations purchased by that UK Lender in the UK Overdraft Amount.
"UK Loans" means the Loans made by UK Lenders to either of the UK
Subsidiary Borrowers pursuant to subsection 2.1C(i).
"UK Overdraft Account" means an account established by United Glass
with UK Overdraft Account Provider and referenced in a UK Overdraft Agreement.
"UK Overdraft Account Provider" means such UK Lender as United
Glass may specify in writing to Administrative Agent and UK Administrative
Agent on or after the Effective Date or any successor UK Overdraft Account
Provider pursuant to subsection 9.2E; provided, however, that no such UK
Lender shall be UK Overdraft Account Provider until United Glass and such UK
Lender have executed and delivered a UK Overdraft Agreement to Administrative
Agent and UK Administrative Agent.
"UK Overdraft Agreement" means any Offshore Overdraft Agreement
executed and delivered by United Glass and UK Overdraft Account Provider on or
after the Effective Date, in substantially the form of Exhibit XII annexed
hereto, with such modifications thereto as may be approved by Administrative
Agent, and any successor Offshore Overdraft Agreement executed and delivered
by United Glass and any successor UK Overdraft Account Provider pursuant to
subsection 9.2E, as any such Offshore Overdraft Agreement may hereafter be
amended, amended and restated, supplemented or otherwise modified from time to
time.
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"UK Overdraft Amount" means, as at any date of determination, the
aggregate principal amount of outstanding overdrafts charged to the UK
Overdraft Account.
"UK Qualifying Lender" means a Person entitled to receive payments
of interest in respect of each UK Loan under this Agreement free of
withholding or deduction for or on account of UK income tax under Section
349(3)(a) of the Income and Corporation Taxes Act 1988 of the UK.
"UK Subsidiary" means any Subsidiary of Company organized under the
laws of England and Wales or the laws of Scotland.
"UK Subsidiary Borrowers" means United Glass and United Glass
Group.
"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.
"United Glass" has the meaning assigned to that term in the
introduction to this Agreement.
"United Glass Group" has the meaning assigned to that term in the
introduction to this Agreement.
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 (viii) 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)).
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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 COMMITMENTS AND LOANS; NOTES
2.1 Commitments; Making of Loans; Domestic Overdraft Account;
Offshore Overdraft Accounts
A. Term Loan and Revolving Loan Commitments. Subject to the terms
and conditions of this Agreement and in reliance upon the representations and
warranties of Borrowers herein set forth, each Lender hereby severally agrees
to make the Loans described in subsections 2.1A(i) and 2.1A(ii).
(i) Term Loans. Each Lender severally agrees to lend to Company on
the Effective Date an amount in Dollars not exceeding its Pro Rata
Share of the aggregate amount of the Term Loan Commitments to be
used for the purposes identified in subsection 2.5A. The amount of
each Lender's Term Loan Commitment is set forth opposite its name
on Schedule A annexed hereto and the aggregate amount of the Term
Loan Commitments is $2,500,000,000; provided that the Term Loan
Commitments of Lenders shall be adjusted to give effect to any
assignments of the Term Loan Commitments pursuant to subsection
9.2; and provided, further that the amount of the Term Loan
Commitments shall be reduced from time to time by the amount of any
reductions thereto made pursuant to subsection 2.4F. Company may
make only one borrowing under the Term Loan Commitments, and
amounts borrowed under this subsection 2.1A(i) and subsequently
repaid or prepaid may not be reborrowed. The Term Loans shall
mature on the Term Loan Maturity Date, and all Term Loans and all
other amounts owed hereunder with respect to the Term Loans shall
be paid in full no later than that date.
(ii) Revolving Loans. 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 Revolving Loans to Company from time to time during
the period from and including the Effective Date to but excluding
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the Revolving Loan Commitment Termination Date in an aggregate
amount in Dollars at any one time outstanding not exceeding its Pro
Rata Share of the aggregate amount of the Revolving Loan
Commitments to be used for the purposes identified in subsections
2.5A and 2.5B. The original amount of each Lender's Revolving Loan
Commitment is set forth opposite its name on Schedule A annexed
hereto and the aggregate original amount of the Revolving Loan
Commitments is $4,500,000,000; provided that the Revolving Loan
Commitments of Lenders shall be adjusted to give effect to any
assignments of the Revolving Loan Commitments pursuant to
subsection 9.2; and provided, further that the amount of the
Revolving Loan Commitments shall be reduced from time to time by
the amount of any reductions thereto made pursuant to subsection
2.4F. In no event shall the aggregate principal amount of the
Revolving Loans from any Lender outstanding at any time exceed its
Revolving Loan Commitment then in effect. 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 and the Revolving
Loan Commitments shall be paid in full no later than that date.
Amounts borrowed under this subsection 2.1A(ii) may be repaid and
reborrowed to but excluding the Revolving Loan Commitment
Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving Loan
Commitments shall be subject to the limitation that in no event
shall (A) the Total Utilization of Revolving Loan Commitments at
any time exceed (B) the Revolving Loan Commitments then in effect
minus any Blocked Availability Amount.
Revolving Loans (other than (w) Revolving Loans made pursuant to a
request by any Offshore Administrative Agent pursuant to subsection
2.1C(ii) for the purpose of repaying any Refunded Offshore Loans,
which shall be in the amount of such Refunded Offshore Loans, (x)
Revolving Loans in respect of a Bid Rate Loan Shortfall Amount,
which shall be in the amount of such Bid Rate Loan Shortfall
Amount, (y) Revolving Loans made for the purpose of reimbursing any
Issuing Lender for the amount of a drawing honored under a Letter
of Credit issued by it, which shall be in the amount of such
drawing so honored, or (z) Revolving Loans made for the purpose of
repaying the Domestic Overdraft Amount, which shall be in an amount
equal to the Domestic Overdraft 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. Domestic Overdraft Account. Lenders agree that Company and
Administrative Agent may establish and maintain the Domestic Overdraft Account
to be established pursuant to the Domestic Overdraft Agreement; provided that
(i) the Domestic Overdraft Amount shall not exceed at any time $50,000,000 and
(ii) in no event shall (A) the Total Utilization of Revolving Loan Commitments
at any time exceed (B) the Revolving Loan Commitments then in effect minus any
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Blocked Availability Amount. Notwithstanding anything contained in this
Agreement to the contrary (but subject, however, to the limitations set forth
in subsection 2.1A(ii) 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 having a Revolving Loan Commitment (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 Domestic Overdraft Amount 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 Domestic Overdraft
Account in an amount equal to that Lender's Pro Rata Share of the Domestic
Overdraft Amount; provided, however, that the obligation of each Lender to
make each such Revolving Loan or to purchase each such participation in the
Domestic Overdraft Amount is subject to the condition that at the time such
extension of credit under the Domestic Overdraft Agreement was made the duly
authorized officer of Administrative Agent responsible for the administration
of Administrative Agent's credit relationship with Company believed in good
faith that (x) no Event of Default had occurred and was continuing or (y) 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 Domestic Overdraft Agreement was made.
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 Domestic 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 Domestic
Overdraft Amount. On the day such Revolving Loans are made, Administrative
Agent's Pro Rata Share of the Domestic 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 Domestic 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 Domestic 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 Domestic 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. In the event that Administrative Agent requires the other Lenders to
purchase participations in the Domestic Overdraft Amount, payment for such
participations shall be made directly to Administrative Agent at the Domestic
Funding and Payment Office not later than 1:00 P.M. (New York time) on the
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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 the Domestic Overdraft Amount 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 having a Revolving Loan
Commitment shall thereafter only be obligated to purchase participations in
the Domestic Overdraft Amount 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 the Domestic
Overdraft Amount 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 Domestic Overdraft
Agreement in the event that it is determined by a court of competent juris-
diction 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. Offshore Loan Commitments.
(i) Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Borrowers herein set
forth, (a) each UK Lender hereby severally agrees, subject to the limitations
set forth below with respect to the maximum amount of Offshore Loans and UK
Loans permitted to be outstanding from time to time, to make UK Loans to each
of the UK Subsidiary Borrowers from time to time during the period from and
including the Effective Date to but excluding the Revolving Loan Commitment
Termination Date in an aggregate amount at any time outstanding with respect
to both UK Subsidiary Borrowers not exceeding its Pro Rata Share of the aggre-
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gate amount of the UK Loan Commitments, (b) each Australian Lender hereby
severally agrees, subject to the limitations set forth below with respect to
the maximum amount of Offshore Loans and Australian Loans permitted to be
outstanding from time to time, to make Australian Loans to any of the
Australian Subsidiary Borrowers from time to time during the period from and
including the Effective Date to but excluding the Revolving Loan Commitment
Termination Date, in an aggregate amount at any time outstanding with respect
to all Australian Subsidiary Borrowers not exceeding its Pro Rata Share of the
aggregate amount of the Australian Loan Commitments, and (c) each Italian
Lender hereby severally agrees, subject to the limitations set forth below
with respect to the maximum amount of Offshore Loans and Italian Loans
permitted to be outstanding from time to time, to make Italian Loans to O-I
Italy from time to time during the period from and including the Effective
Date to but excluding the Revolving Loan Commitment Termination Date in an
aggregate amount at any time outstanding not exceeding its Pro Rata Share of
the aggregate amount of the Italian Loan Commitments, in each case to be used
for the purposes identified in subsections 2.5A and 2.5B. The original amount
of each UK Lender's UK Loan Commitment, each Australian Lender's Australian
Loan Commitment and each Italian Lender's Italian Loan Commitment is set forth
opposite its name on Schedule A annexed hereto and the aggregate original
amounts of the UK Loan Commitments, the Australian Loan Commitments and the
Italian Loan Commitments (in each case set forth on such Schedule A) are the
Offshore Currency Equivalents as of the Business Day prior to the Effective
Date of $600,000,000, $1,000,000,000 and $150,000,000, respectively; provided
that the Offshore Loan Commitments of Offshore Lenders shall be adjusted to
give effect to any assignments thereof pursuant to subsection 9.2; provided,
further that the amount of any Offshore Loan Commitment shall be reduced from
time to time by the amount of any reductions thereto made pursuant to
subsection 2.4F; and provided, further that the amount of any Offshore Loan
Commitment may be increased from time to time pursuant to subsection 2.1D. In
no event shall the aggregate principal amount of the UK Loans of any UK Lender
outstanding at any time exceed its UK Loan Commitment then in effect, in no
event shall the aggregate principal amount of the Australian Loans of any
Australian Lender outstanding at any time exceed its Australian Loan
Commitment then in effect, and in no event shall the aggregate principal
amount of the Italian Loans of any Italian Lender outstanding at any time
exceed its Italian Loan Commitment then in effect. Each Offshore Lender's
Offshore Loan Commitment with respect to each Applicable Currency shall expire
on the Revolving Loan Commitment Termination Date and all Offshore Loans and
all other amounts owed hereunder with respect to the Offshore Loans and the
Offshore Loan Commitments shall be paid in full no later than that date.
Amounts borrowed under this subsection 2.1C(i) may be repaid and reborrowed to
but excluding the Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, no Subsidiary Borrower shall request Offshore Lenders to make
any Offshore Loans (and no Offshore Lender shall be obligated to make Offshore
Loans) if, immediately after giving effect to the making of such Offshore
Loans:
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(1) (A) the Total Utilization of Revolving Loan Commitments would
exceed (B) the Revolving Loan Commitments then in effect minus any
Blocked Availability Amount;
(2) the Dollar Equivalent of the sum of the Total Utilization of UK
Loan Commitments plus the Total Utilization of Australian Loan
Commitments plus the Total Utilization of Italian Loan Commitments
would exceed the Aggregate Offshore Currency Sublimit;
(3) the Dollar Equivalent of the Total Utilization of UK Loan
Commitments, the Total Utilization of Australian Loan Commitments
or the Total Utilization of Italian Loan Commitments, as
applicable, would exceed the Offshore Currency Sublimit with
respect to the Applicable Currency;
(4) the Total Utilization of UK Loan Commitments would exceed the UK
Loan Commitments then in effect;
(5) the Total Utilization of Australian Loan Commitments would
exceed the Australian Loan Commitments then in effect; or
(6) the Total Utilization of Italian Loan Commitments would exceed
the Italian Loan Commitments then in effect.
UK Loans made on any Funding Date (other than UK Loans made for the
purpose of repaying the UK Overdraft Amount, which shall be in an amount equal
to the UK Overdraft Amount) shall be in an aggregate minimum amount of
L5,000,000 and integral multiples of L1,000,000 in excess of that amount;
Australian Loans made on any Funding Date (other than Australian Loans made
for the purpose of repaying the Australian Overdraft Amount, which shall be in
an amount equal to the Australian Overdraft Amount) shall be in an aggregate
minimum amount of A$25,000,000 and integral multiples of A$5,000,000 in excess
of that amount; and Italian Loans made on any Funding Date (other than Italian
Loans made for the purpose of repaying the Italian Overdraft Amount, which
shall be in an amount equal to the Italian Overdraft Amount) shall be in an
aggregate minimum amount of 5,000,000,000 Lire and integral multiples of
1,000,000,000 Lire in excess of that amount.
Each Subsidiary Borrower hereby unconditionally promises to pay to
the relevant Offshore Lenders the then unpaid principal amount of each
Offshore Loan of such Offshore Lender made to such Subsidiary Borrower on or
before the Revolving Loan Commitment Termination Date or such earlier date on
which such Offshore Loans become due and payable pursuant to Section 7. Each
Subsidiary Borrower hereby further agrees and promises to pay interest on the
unpaid principal amount of each Offshore Loan from time to time outstanding
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 this Agreement.
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(ii) At any time prior to the termination of the Revolving Loan
Commitments, following the occurrence and during the continuance of an Event
of Default, Offshore Lenders having more than 50% of the Offshore Loan
Exposure with respect to any Type of Offshore Loans (or the relevant Offshore
Administrative Agent, at the direction or with the consent of Offshore Lenders
having more than 50% of the Offshore Loan Exposure with respect to such Type
of Offshore Loans) may, by written notice (which shall be deemed to be a
Notice of Borrowing given by Company) to Administrative Agent (with a copy to
Company, the applicable Subsidiary Borrower and, if applicable, the relevant
Offshore Administrative Agent) no later than 11:00 A.M. (New York City time)
on the second Business Day in advance of the proposed Funding Date, terminate
the relevant Type of Offshore Loan Commitment and request Lenders having
Revolving Loan Exposure to make Revolving Loans that are Base Rate Loans on
such Funding Date in an amount equal to the Dollar Equivalent of the aggregate
principal amount of such Type of Offshore Loans (the "Refunded Offshore
Loans") outstanding on the date such notice is given (such date being an
"Offshore Loan Refunding Date"); provided, however, that Lenders shall only be
obligated to make such Revolving Loans in the respective proportions and
amounts provided in subsection 2.1G(i), and in the event that (a) the Total
Utilization of Revolving Loan Commitments immediately prior to giving effect
to such request would exceed (b) the Revolving Loan Commitments then in effect
minus any Blocked Availability Amount, such requested amount of Revolving
Loans shall be deemed for all purposes of this Agreement to be reduced by the
amount of such excess. Anything contained in this Agreement to the contrary
notwithstanding, the proceeds of such Revolving Loans made by Lenders shall be
immediately delivered by Administrative Agent to the relevant Offshore
Administrative Agent's Domestic Funding and Payment Office, and upon receipt
of such proceeds in Dollars such Offshore Administrative Agent shall exchange
such proceeds for the Applicable Currency at the applicable Spot Rate and
distribute such amount in such Applicable Currency in Same Day Funds to the
relevant Offshore Lenders (and not to any Borrower) to be applied to repay the
outstanding principal amount of the applicable Refunded Offshore Loans to the
full extent thereof, and such portion of the such Offshore Loans so paid shall
no longer be outstanding; provided that, if any Offshore Loans are repaid as
required under this subsection 2.1C(ii) prior to the end of any applicable
Interest Period, the relevant Subsidiary Borrower shall make any payments
required under subsection 2.6E in connection therewith. Company hereby
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 such Offshore Administrative Agent the Dollar
Equivalent amount of any Refunded Offshore Loans denominated in the Applicable
Currency to the extent the proceeds of such Revolving Loans made by Lenders
are not sufficient to repay in full such Dollar Equivalent amount.
Notwithstanding anything herein to the contrary, in the event that
(x) any Offshore Lender holding Refunded Offshore Loans of any Type (any such
Offshore Lender being, for purposes of this paragraph only, a "Relevant
Offshore Lender") or (y) any Affiliate of such Relevant Offshore Lender
becomes a Defaulting Participating Lender with respect to Refunded Offshore
Loans of such Type, then (A) that portion of the proceeds of any Revolving
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Loans made pursuant to this subsection 2.1C(ii) which would otherwise be
applied to repay such Refunded Offshore Loans of such Relevant Offshore Lender
shall be reduced, and the amount of such proceeds equal to such reduction
shall be applied to repay the Refunded Offshore Loans of such Type held by all
Offshore Lenders which are not Defaulting Participating Lenders or Affiliates
of Defaulting Participating Lenders, so that the aggregate proceeds applied to
the repayment of such Relevant Offshore Lender's Refunded Offshore Loans of
such Type are reduced by an amount equal to the difference between (1) the
principal amount of the Revolving Loan which such Defaulting Participating
Lender is required to fund under this subsection 2.1C(ii) and (2) the
principal amount of any Revolving Loan actually funded by such Defaulting
Participating Lender under this subsection, (B) all Relevant Offshore Lenders
with respect to such Type of Refunded Offshore Loans shall be entitled to
share ratably (in accordance with the respective outstanding principal amounts
of their Refunded Offshore Loans) in all amounts thereafter received in
payment of any portion of such Refunded Offshore Loans not repaid with the
proceeds of Revolving Loans, and (C) all Lenders which make Revolving Loans
pursuant to this subsection 2.1C(ii) shall be entitled to share ratably (in
accordance with the respective outstanding principal amounts of their
Revolving Loans) in all amounts received in payment of such Revolving Loans.
(iii)At any time after the termination of the Revolving Loan
Commitments for any reason (including acceleration of the maturity of the
Loans pursuant to Section 7), Offshore Lenders having more than 50% of the
Offshore Loan Exposure with respect to any Type of Offshore Loans (or the
relevant Offshore Administrative Agent, at the direction or with the consent
of Offshore Lenders having more than 50% of the Offshore Loan Exposure with
respect to such Type of Offshore Loans) may, by written notice to
Administrative Agent (with a copy to Company, the applicable Subsidiary
Borrower and, if applicable, the relevant Offshore Administrative Agent) no
later than 11:00 A.M. (New York City time) on the second Business Day in
advance of the proposed date (the "Offshore Participation Payment Date") of
payment of the amounts due under this subsection 2.1C(iii), (a) cause all
outstanding Offshore Loans of such Type to be immediately converted into
Offshore Loans of the applicable Subsidiary Borrower denominated in Dollars in
an aggregate principal amount equal to the Dollar Equivalent of the aggregate
principal amount of such Offshore Loans (such Dollar Equivalent amount being
the "Offshore Loan Dollar Amount"); provided, however, that in the event that
(A) the Total Utilization of Revolving Loan Commitments immediately prior to
giving effect to such conversion exceeds (B) the Revolving Loan Commitments in
effect immediately prior to the termination thereof minus any Blocked
Availability Amount, the aggregate amount of such Offshore Loans so converted
(and, correspondingly, the Offshore Loan Dollar Amount) shall be reduced by
the Dollar Equivalent of the amount of such excess, such reduction to be
applied ratably to the outstanding Offshore Loans of all applicable Offshore
Lenders (all Offshore Loans of the applicable Type that are converted after
giving effect to this proviso are hereinafter referred to as "Converted
Offshore Loans"); and (b) request each Lender having Revolving Loan Exposure
(each such Lender being an "Offshore Loan Participant") to (1) purchase from
each Offshore Lender with Converted Offshore Loans of such Type a
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participation in such Offshore Lender's Converted Offshore Loans in an amount
equal to such Offshore Loan Participant's Pro Rata Share (calculated with
respect to the Revolving Loan Commitments immediately prior to such
termination) of the Offshore Loan Dollar Amount in respect of such Offshore
Lender's Converted Offshore Loans (each such participation being an "Offshore
Loan Participation") and (2) deliver to the applicable Offshore Administrative
Agent, on the Offshore Participation Payment Date, an aggregate amount in
Dollars equal to such Offshore Loan Participant's aggregate Offshore Loan
Participations in the Converted Offshore Loans of all such Offshore Lenders.
Such notice shall set forth the applicable Offshore Loan Dollar Amount and the
aggregate amount of the related Offshore Loan Participations of each Offshore
Loan Participant.
Immediately upon the giving of such notice, and without further
action by any of the parties hereto, (X) the aggregate amount of the
applicable Type of Offshore Loans (after giving effect to the proviso to
clause (a) of the immediately preceding paragraph) shall become Converted
Offshore Loans of the applicable Subsidiary Borrower, denominated in Dollars,
in an aggregate principal amount equal to the Offshore Loan Dollar Amount and
(Y) each Offshore Loan Participant shall be deemed to, and hereby agrees to,
have irrevocably purchased from each relevant Offshore Lender its Offshore
Loan Participation in such Offshore Lender's outstanding Converted Offshore
Loans of such Type. On the applicable Offshore Participation Payment Date,
each Offshore Loan Participant shall deliver an amount in Dollars equal to the
aggregate amount of its Offshore Loan Participations in Same Day Funds to the
relevant Offshore Administrative Agent's Domestic Funding and Payment Office;
provided, however, that no Offshore Loan Participant shall be responsible for
any default by any other Offshore Loan Participant in that other Offshore Loan
Participant's obligation to pay such amount. Upon receipt of any such amounts
in Dollars from the Offshore Loan Participants, such Offshore Administrative
Agent shall distribute such amounts in Same Day Funds to the relevant Offshore
Lenders in accordance with their respective Pro Rata Shares (calculated with
respect to the applicable Type of Offshore Loans). In order to further
evidence such participation (and without prejudice to the effectiveness of the
participation provisions set forth above), each Offshore Loan Participant
agrees to enter into a separate participation agreement at the request of the
applicable Offshore Lender in form and substance reasonably satisfactory to
such Offshore Lender.
In the event that any Offshore Loan Participant fails to make
available to any Offshore Lender the amount of its Offshore Loan Participation
in respect of such Offshore Lender's Converted Offshore Loans as provided in
this subsection 2.1C(iii), such Offshore Lender shall be entitled to recover
such amount on demand from such Offshore Loan Participant 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 a rate per
annum equal to the Base Rate. A certificate of any Offshore Lender submitted
to any Lender with respect to amounts owing under this subsection 2.1C(iii)
shall be conclusive in the absence of manifest error.
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In the event that any Offshore Lender receives a payment in respect
of any Converted Offshore Loan (whether directly from the Subsidiary Borrower
of such Converted Offshore Loan or otherwise, including proceeds of any
collateral applied thereto by such Offshore Lender) in which Offshore Loan
Participants have purchased participations as provided in this subsection
2.1C(iii), such Offshore Lender shall promptly distribute to the relevant
Offshore Administrative Agent, for distribution to each such Offshore Loan
Participant which has paid all amounts payable by it under this subsection
2.1C(iii) with respect to any Converted Offshore Loan made by such Offshore
Lender, such Offshore Loan Participant's Pro Rata Share (as determined with
respect to the Revolving Loan Commitments immediately prior to termination
thereof) of such payment (to the extent received after such Offshore Loan
Participant has paid all such amounts). Any payment to any Offshore Loan
Participant pursuant to the preceding sentence shall be made in Dollars in
Same Day Funds by such Offshore Administrative Agent. If any payment received
by any Offshore Lender pursuant to the immediately preceding sentence with
respect to any Converted Offshore Loan made by it shall be required to be
returned by such Offshore Lender after such time as such Offshore Lender has
distributed such payment to the relevant Offshore Administrative Agent, each
Offshore Loan Participant which has received a portion of such payment shall
pay to such Offshore Lender an amount equal to its Pro Rata Share (as
determined with respect to the Revolving Loan Commitments immediately prior to
termination thereof) of such amount to be returned; provided, however, that no
Offshore Loan Participant shall be responsible for any default by any other
Offshore Loan Participant in that other Offshore Loan Participant's obligation
to pay such amount.
Notwithstanding anything herein to the contrary, if any Offshore
Periodic Rate Loans are converted to Loans denominated in Dollars as required
under this subsection 2.1C(iii) prior to the end of any applicable Interest
Period, the relevant Subsidiary Borrower shall make any payments required
under subsection 2.6E in connection therewith.
Notwithstanding anything herein to the contrary, in the event that
(x) any Offshore Lender holding Converted Offshore Loans of any Type (any such
Offshore Lender being, for purposes of this paragraph only, a "Relevant
Offshore Lender") or (y) any Affiliate of such Relevant Offshore Lender
becomes a Defaulting Participating Lender with respect to Converted Offshore
Loans of such Type, then (A) that portion of the proceeds of any Offshore Loan
Participant's funding of its relevant Offshore Loan Participations which such
Relevant Offshore Lender would otherwise have received pursuant to this
subsection 2.1C(iii) shall be reduced, and the amount of such reduction shall
be apportioned ratably among all Offshore Lenders with respect to such Type of
Offshore Loans which are not Defaulting Participating Lenders or Affiliates of
Defaulting Participating Lenders, so that the aggregate proceeds which such
Relevant Offshore Lender receives hereunder with respect to the relevant
Offshore Loan Participations is reduced by an amount equal to the difference
between (1) the amount in Dollars of the Offshore Loan Participations which
such Defaulting Participating Lender is required to purchase under this
subsection 2.1C(iii) and (2) the amount actually paid by such Defaulting
Participating Lender under this subsection 2.1C(iii), and (B) all Offshore
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Lenders which are Relevant Offshore Lenders and all Offshore Loan Participants
with respect to such Type of Converted Loans shall be entitled to share
ratably (in accordance with, as applicable (1) the amount paid by each to
purchase its relevant Offshore Loan Participations or (2) the principal amount
of such Converted Offshore Loans held by such Relevant Offshore Lender net of
any Offshore Loan Partiipations purchased therein) in all amounts received in
payment of such Converted Offshore Loans.
(iv) Anything contained herein to the contrary notwithstanding,
each relevant Lender's obligation to make Revolving Loans for the purpose of
repaying any Refunded Offshore Loans pursuant to subsection 2.1C(ii) and each
relevant Offshore Loan Participant's obligation to purchase Offshore Loan
Participations pursuant to subsection 2.1C(iii) shall be absolute and uncondi-
tional and shall not be affected by any circumstance, including, without
limitation, (a) any set-off, counterclaim, recoupment, defense or other right
which such Lender or Offshore Loan Participant may have against the relevant
Offshore Lender, the relevant Offshore Administrative Agent, any Borrower or
any other Person for any reason whatsoever; (b) the occurrence or continuance
of an Event of Default or a Potential Event of Default; (c) any adverse change
in the condition (financial or otherwise) of any Borrower; (d) any breach of
this Agreement or any other Loan Document by any Loan Party or any other
Lender; or (e) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing; provided that such obligations of each
such Lender and Offshore Loan Participant are subject to the condition that
(X) the relevant Offshore Lender believed in good faith that all conditions
under Section 3 to the making of such Refunded Offshore Loans or other unpaid
Offshore Loans, as the case may be, were satisfied at the time such Refunded
Offshore Loans or unpaid Offshore Loans were made or (Y) the satisfaction of
any such condition not satisfied had been waived in accordance with subsection
9.7 prior to or at the time such Refunded Offshore Loans or other unpaid
Offshore Loans were made.
(v)Anything contained in this Agreement to the contrary
notwithstanding, no amendment, modification, termination or waiver of any
provision of this Agreement or of the other Loan Documents, and no consent to
any departure by any Borrower therefrom, shall (a) modify, terminate or waive
any provision of subsection 2.1C(ii), 2.1C(iii) or 2.1C(iv) or clause (a), (b)
or (d) of this subsection 2.1C(v) in any manner adverse to any Offshore Lender
without the written concurrence of each Offshore Lender, (b) 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 extend the time
of payment of such interest, without the written concurrence of such Offshore
Lender, (c) modify, terminate or waive any provision of subsection 2.1C(iii)
or 2.1C(iv) or clause (c) of this subsection 2.1C(v) in any manner adverse to
any Offshore Loan Participant without the written concurrence of each Offshore
Loan Participant, or (d) increase the Offshore Loan Commitment of any Offshore
Lender over the amount thereof then in effect without the consent of such
Offshore Lender (it being understood that (1) amendments, modifications or
waivers of conditions precedent, covenants, Potential Events of Default or
Events of Default shall not constitute an increase of the Offshore Loan
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Commitment of any Offshore Lender and (2) an increase in the available portion
of the Offshore Loan Commitment of any Offshore Lender shall not constitute an
increase in the Offshore Loan Commitment of such Offshore Lender).
In no event shall (a) the participation of any Offshore Loan
Participant in any Offshore Loans pursuant to subsection 2.1C(iii) be
construed as a loan or other extension of credit by such Offshore Loan
Participant to any Subsidiary Borrower, any Offshore Lender or any Offshore
Administrative Agent, (b) this Agreement be construed to require any Offshore
Loan Participant to make any Loans or to otherwise extend any credit to any
Subsidiary Borrower, any Offshore Lender or any Offshore Administrative Agent
under this Agreement or under the other Loan Documents, or (c) this Agreement
be construed to require any Offshore Loan Participant to fund or pay any
amount in respect of its participation in any Offshore Loan except as set
forth in subsection 2.1C(iii).
D. Offshore Loan Commitment Increases.
(i) Subject to the provisions and conditions set forth in this
subsection 2.1D, not more than three times in any calendar year (a) UK
Subsidiary Borrowers may request an increase in the Offshore Currency Sublimit
applicable to Sterling in an aggregate minimum amount of $25,000,000 and
integral multiples of $25,000,000 in excess of that amount and an increase in
the UK Loan Commitments in an aggregate minimum amount equal to the Offshore
Currency Equivalent of $25,000,000 and integral multiples equal to the
Offshore Currency Equivalent of $25,000,000 in excess of that amount, (b)
Australian Subsidiary Borrowers may request an increase in the Offshore
Currency Sublimit applicable to ADollars in an aggregate minimum amount of
$50,000,000 and integral multiples of $50,000,000 in excess of that amount and
an increase in the Australian Loan Commitments in an aggregate minimum amount
equal to the Offshore Currency Equivalent of $50,000,000 and integral
multiples equal to the Offshore Currency Equivalent of $50,000,000 in excess
of that amount, and (c) O-I Italy may request an increase in the Offshore
Currency Sublimit applicable to Lire in an aggregate minimum amount of
$25,000,000 and integral multiples of $25,000,000 in excess of that amount and
an increase in the Italian Loan Commitments in an aggregate minimum amount
equal to the Offshore Currency Equivalent of $25,000,000 and integral
multiples equal to the Offshore Currency Equivalent of $25,000,000 in excess
of that amount (the amount of any such requested increase being the "Requested
Increase Amount"); provided that no such increase shall cause (1) the Offshore
Currency Sublimit applicable to Sterling to exceed $750,000,000, (2) the
Offshore Currency Sublimit applicable to ADollars to exceed $1,250,000,000, or
(3) the Offshore Currency Sublimit applicable to Lire to exceed $750,000,000;
provided further, however, that no Borrower shall request an increase in any
Offshore Currency Sublimit or any Type of Offshore Loan Commitment if the
amount of such Offshore Currency Sublimit or the Dollar Equivalent of such
Type of Offshore Loan Commitment after giving effect to such increase would
exceed the Revolving Loan Commitments then in effect; and provided further
that, immediately prior to and after giving effect to any increase in any of
the Offshore Loan Commitments, no Potential Event of Default or Event of
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Default shall have occurred and be continuing. Whenever a Subsidiary Borrower
desires that the applicable Offshore Lenders increase their respective
Offshore Loan Commitments pursuant to this subsection 2.1D(i), it shall
deliver to each other Borrower, Administrative Agent and the relevant Offshore
Administrative Agent a notice (a "Request for Commitment Increase") requesting
such increase at least five Business Days in advance of the proposed date of
such increase (the "Commitment Increase Date"). The Request for Commitment
Increase shall specify the Commitment Increase Date (which shall be an
Offshore Banking Day), the Type of Offshore Loan Commitments requested to be
increased, the Requested Increase Amount and the Offshore Currency Sublimit
and aggregate Offshore Loan Commitments in respect of the relevant Offshore
Currency after giving effect to such increase; and such Request for Commitment
Increase shall further certify that subsection 3.2B is satisfied on and as of
the date of such request and will be satisfied on and as of the Commitment
Increase Date. Promptly after its receipt of a Request for Commitment
Increase, (x) the UK Administrative Agent shall notify each UK Lender of the
requested increase and such UK Lender's Pro Rata Share of such Requested
Increase Amount, (y) the Australian Administrative Agent shall notify each
Australian Lender of the requested increase and such Australian Lender's Pro
Rata Share of such Requested Increase Amount, or (z) the Italian
Administrative Agent shall notify each Italian Lender of the requested
increase and such Italian Lender's Pro Rata Share of such Requested Increase
Amount, as the case may be. Any Offshore Lender requested to do so may (but
shall not be obligated to) offer to increase its relevant Offshore Loan
Commitment by its Pro Rata Share of the Requested Increase Amount by giving
notice to the relevant Offshore Administrative Agent no later than three
Business Days prior to the relevant Commitment Increase Date, and upon such
third Business Day prior to such Commitment Increase Date the relevant
Offshore Administrative Agent shall promptly notify the requesting Subsidiary
Borrower, Administrative Agent and the relevant Offshore Lenders which of such
Offshore Lenders have offered to increase their respective Offshore Loan
Commitments (all of such Offshore Lenders who so offer to increase their
respective Offshore Loan Commitments being "Accepting Lenders"). In the event
that an Offshore Lender has failed to so notify the relevant Offshore
Administrative Agent, such Offshore Lender shall be deemed not to have offered
to increase its Offshore Loan Commitment.
(ii) In the event any Offshore Lender (a "Non-Increasing Lender")
does not elect pursuant to subsection 2.1D(i) to increase its Offshore Loan
Commitment, each Accepting Lender may (but shall not be obligated to) further
offer, by notice to the relevant Offshore Administrative Agent specifying that
portion of the Non-Increasing Lenders' Pro Rata Shares of the Requested
Increase Amount which such Accepting Lender is willing to add to its Offshore
Loan Commitments, to increase its Offshore Loan Commitment by the amount set
forth in such notice. In the event the aggregate amount of Non-Increasing
Lenders' Pro Rata Shares of the Requested Increase Amount exceeds the amounts
for which offers are received from Accepting Lenders pursuant to the
immediately preceding sentence, the relevant Subsidiary Borrower may, at its
option (at any time prior to or on the applicable Commitment Increase Date),
solicit offers from one or more Lenders having Revolving Loan Exposure or
Affiliates of such Lenders (each a "Prospective Offshore Lender") to undertake
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and assume Offshore Loan Commitments hereunder with respect to all or any part
of such excess portion of the Requested Increase Amount; provided that such
Prospective Offshore Lenders must be able to satisfy the requirements set
forth in subsection 2.7C(iv) of this Agreement with respect to the relevant
Subsidiary Borrower.
(iii) In the event that the Requested Increase Amount exceeds the
sum (the "Offered Increase Amount") of (x) the amounts for which offers are
received from Accepting Lenders pursuant hereto plus (y) the amounts which
such Prospective Offshore Lenders offer to undertake and assume, prior to the
Commitment Increase Date (a) the relevant Offshore Administrative Agent shall
so notify the relevant Offshore Lenders and the relevant Subsidiary Borrower
and (b) such Subsidiary Borrower shall (1) accept in whole the offers of all
Accepting Lenders received pursuant to subsection 2.1D(i), and (2) accept in
whole or in part the offers of all Accepting Lenders received pursuant to the
first sentence of subsection 2.1D(ii) and the offers of all Prospective
Offshore Lenders, so that the aggregate amount of offers so accepted pursuant
to this sentence shall equal (A) in the case of offers to increase the UK Loan
Commitments, a minimum amount equal to the applicable Offshore Currency
Equivalent of the highest integral multiple of $25,000,000 which is less than
the aggregate amount of all such offers, (B) in the case of offers to increase
the Australian Loan Commitments, a minimum amount equal to the applicable
Offshore Currency Equivalent of the highest integral multiple of $50,000,000
which is less than the aggregate amount of all such offers, and (C) in the
case of offers to increase the Italian Loan Commitments, a minimum amount
equal to the applicable Offshore Currency Equivalent of the highest integral
multiple of $25,000,000 which is less than the aggregate amount of all such
offers. Any such offers accepted in part shall be accepted ratably according
to the amount set forth in each such offer delivered pursuant to subsection
2.1D(ii). Such Subsidiary Borrower shall notify such Offshore Administrative
Agent of the amount so accepted with respect to each Accepting Lender and
Prospective Offshore Lender.
(iv) In the event that the Offered Increase Amount equals or
exceeds the Requested Increase Amount, prior to the Commitment Increase Date
(a) the relevant Offshore Administrative Agent shall so notify the relevant
Offshore Lenders and the relevant Subsidiary Borrower and (b) such Subsidiary
Borrower shall (1) accept in whole the offers of all Accepting Lenders
received pursuant to subsection 2.1D(i), (2) accept in whole or in part the
offers of all Accepting Lenders received pursuant to the first sentence of
subsection 2.1D(ii), ratably (in the event the Offered Increase Amount exceeds
the Requested Increase Amount) according to the amount set forth in the offer
by each delivered pursuant to such sentence, and (3) accept in whole or in
part the offers of all Prospective Offshore Lenders, if any, ratably (in the
event the Offered Increase Amount exceeds the Requested Increase Amount)
according to the amount set forth in the offer by each delivered pursuant to
the last sentence of subsection 2.1D(ii), and shall notify such Offshore
Administrative Agent of the amount accepted with respect to each Accepting
Lender and Prospective Offshore Lender.
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(v) The relevant Offshore Administrative Agent shall promptly
notify each relevant Offshore Lender of the amounts accepted pursuant to
subsection 2.1D(iii) or 2.1D(iv) and the amount of the proposed increase to
its Offshore Loan Commitment. On or prior to the Commitment Increase Date (A)
each Accepting Lender shall execute an Increased Commitment Acceptance,
substantially in the form of Exhibit XXIII, confirming the amount of the
increase to its Offshore Loan Commitment set forth in the notice delivered
pursuant to the immediately preceding sentence, and each Prospective Offshore
Lender shall execute a New Commitment Acceptance, substantially in the form of
Exhibit XXIV, confirming the amount of its new Offshore Loan Commitment set
forth in the notice delivered pursuant to the immediately preceding sentence,
and (B) each such Accepting Lender and Prospective Offshore Lender shall
deliver such executed documents to Administrative Agent and the relevant
Offshore Administrative Agent, whereupon (1) the relevant Offshore Loan
Commitments shall be increased by an amount equal to the Offshore Currency
Equivalent of the Requested Increase Amount (or such lesser amount accepted
pursuant to subsection 2.1D(iii) above) on the Commitment Increase Date, (2)
the relevant Offshore Currency Sublimit shall be increased by the Requested
Increase Amount (or such lesser amount accepted pursuant to subsection
2.1D(iii) above), (3) such Offshore Loan Commitments of such Accepting Lenders
shall increase by the amounts set forth in their respective Increased
Commitment Acceptances, and (4) Prospective Offshore Lenders shall become
Offshore Lenders having Offshore Loan Commitments in the amounts set forth in
their respective New Commitment Acceptances.
(vi) On the Business Day immediately prior to each Commitment
Increase Date, Administrative Agent will calculate the appropriate adjustments
to the Register to reflect the reallocation of outstanding Offshore Loans in
accordance with the Pro Rata Shares of the relevant Offshore Lenders
(including any Prospective Offshore Lenders that are to become new Offshore
Lenders) after giving effect to the increase in the relevant Offshore Loan
Commitments, and will prior to 5:00 P.M. (New York City time) on such date
(a) notify each such Offshore Lender, the relevant Subsidiary Borrower and the
relevant Offshore Administrative Agent of the amounts of such reallocation of
Offshore Loans and (b) notify each such Offshore Lender of the amounts,
representing the principal amount of such outstanding Offshore Loans which are
deemed to be made by such Offshore Lender or which shall be repaid to such
Offshore Lender, which such Offshore Lender will either advance or receive,
respectively, as a result of such reallocation. No later than 11:00 A.M.
Local Time on the later of the Commitment Increase Date or the Business Day
following the receipt of the notice from Administrative Agent described in
clause (a) of the preceding sentence, each Offshore Lender which is deemed to
make an Offshore Loan as described above shall make the amount of such
Offshore Loan available at the applicable Offshore Base Rate to the relevant
Offshore Administrative Agent, in Same Day Funds. Promptly upon receipt of
funds from an Offshore Lender making an Offshore Loan as set forth above, such
Offshore Administrative Agent shall remit such amount to the Offshore Lender
or Offshore Lenders entitled to receive such amount, pro rata in proportion to
the amounts to be received by them as determined above. The making of an
Offshore Loan by an Offshore Lender as set forth above shall be deemed to be
the making of an Offshore Loan to the relevant Subsidiary Borrower on the date
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such funds are transmitted to such Offshore Administrative Agent. The receipt
by an Offshore Lender of funds as set forth above shall be deemed to be a
payment of Offshore Loans by such Subsidiary Borrower on the date such payment
is received. Notwithstanding anything herein to the contrary, if any Offshore
Periodic Rate Loans are required to be repaid in connection with any
reallocation under this subsection 2.1D(vi), such Borrower shall make any
payments required under subsection 2.6E in connection with such prepayments.
E. Offshore Overdraft Accounts.
(i) Offshore Lenders agree that Subsidiary Borrowers and Offshore
Overdraft Account Providers may establish and maintain Offshore Overdraft
Accounts to be established pursuant to the Offshore Overdraft Agreements;
provided that (a) (1) the UK Overdraft Amount shall not exceed at any time the
Offshore Currency Equivalent of $15,000,000, (2) the Australian Overdraft
Amount shall not exceed at any time the Offshore Currency Equivalent of
$25,000,000, and (3) the Italian Overdraft Amount shall not exceed at any time
the Offshore Currency Equivalent of $10,000,000, and (b) in no event shall a
Subsidiary Borrower request an extension of credit under an Offshore Overdraft
Agreement (and no Offshore Overdraft Account Provider shall be obligated to
extend credit under an Offshore Overdraft Agreement) if, after giving effect
to such extension of credit:
(1) (A) the Total Utilization of Revolving Loan Commitments would
exceed (B) the Revolving Loan Commitments then in effect minus any
Blocked Availability Amount;
(2) the Dollar Equivalent of the sum of the Total Utilization of UK
Loan Commitments plus the Total Utilization of Australian Loan
Commitments plus the Total Utilization of Italian Loan Commitments
would exceed the Aggregate Offshore Currency Sublimit;
(3) the Dollar Equivalent of the Total Utilization of UK Loan
Commitments, the Total Utilization of Australian Loan Commitments
or the Total Utilization of Italian Loan Commitments, as
applicable, would exceed the Offshore Currency Sublimit with
respect to the Applicable Currency;
(4) the Total Utilization of UK Loan Commitments would exceed the UK
Loan Commitments then in effect;
(5) the Total Utilization of Australian Loan Commitments would
exceed the Australian Loan Commitments then in effect; or
(6) the Total Utilization of Italian Loan Commitments would exceed
the Italian Loan Commitments then in effect.
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(ii) Notwithstanding anything contained in this Agreement to the
contrary (but subject, however, to the limitations set forth in subsection
2.1C(i) with respect to the making of Offshore Loans), Offshore Lenders and
each Subsidiary Borrower further agree that any Offshore Overdraft Account
Provider at any time in its sole and absolute discretion may, upon notice to
the relevant Subsidiary Borrower, the relevant Offshore Administrative Agent
and the relevant Offshore Lenders, require each such Offshore Lender
(including such Offshore Overdraft Account Provider) on one Business Day's
notice to make an Offshore Loan in the Applicable Currency in an amount equal
to that Offshore Lender's Pro Rata Share (determined with respect to such Type
of Offshore Loan Commitments) of the relevant Offshore Overdraft Amount or, in
the event the relevant Type of Offshore Loan Commitment has terminated,
require each other such Offshore Lender to purchase a participation in amounts
due with respect to the relevant Offshore Overdraft Account in an amount equal
to that Offshore Lender's Pro Rata Share (determined with respect to such Type
of Offshore Loan Commitments) of the relevant Offshore Overdraft Amount;
provided, however, that the obligation of each Offshore Lender to make each
such Offshore Loan or to purchase each such participation in any such Offshore
Overdraft Amount is subject to the condition that at the time such extension
of credit under the applicable Offshore Overdraft Agreement was made the duly
authorized officer of such Offshore Overdraft Account Provider responsible for
the administration of such Offshore Overdraft Account Provider's credit
relationship with the relevant Subsidiary Borrower believed in good faith that
(a) no Event of Default had occurred and was continuing or (b) 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 such Offshore Overdraft Agreement was made. In the
case of Offshore Loans denominated in a particular Offshore Currency made by
Offshore Lenders other than the relevant Offshore Overdraft Account Provider
under the immediately preceding sentence, each such Offshore Lender shall make
the amount of its Offshore Loan available to such Offshore Overdraft Account
Provider, in Same Day Funds in the Applicable Currency, at the relevant
Offshore Administrative Agent's Offshore Funding and Payment Office not later
than 12:00 Noon (Local Time) on the Business Day next succeeding the date such
notice is given. The proceeds of such Offshore Loans shall be immediately
delivered to such Offshore Overdraft Account Provider (and not to the relevant
Subsidiary Borrower) and applied to repay the relevant Offshore Overdraft
Amount. On the day such Offshore Loans are made, such Offshore Overdraft
Account Provider's Pro Rata Share of the Offshore Overdraft Amount being
refunded shall be deemed to be paid with the proceeds of an Offshore Loan made
by such Offshore Overdraft Account Provider and such portion of the Offshore
Overdraft Amount deemed to be so paid shall no longer be outstanding. Each
Subsidiary Borrower authorizes the relevant Offshore Administrative Agent or
Offshore Overdraft Account Provider to charge such Subsidiary Borrower's
accounts with such Offshore Administrative Agent or such Offshore Overdraft
Account Provider (up to the amount available in each such account) in order to
immediately pay such Offshore Administrative Agent or such Offshore Overdraft
Account Provider the amount of the Offshore Overdraft Amount to be refunded to
the extent amounts received from Offshore Lenders, including amounts deemed to
be received from such Offshore Overdraft Account Provider, are not sufficient
to repay in full the Offshore Overdraft Amount to be refunded; provided that
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such Offshore Administrative Agent or such Offshore Overdraft Account Provider
shall give such Subsidiary Borrower notice of such charges prior thereto or as
soon as reasonably practicable thereafter. Each Offshore Loan made in
accordance with the foregoing shall be made as an Offshore Base Rate Loan. If
any portion of any such amount paid to any Offshore Overdraft Account Provider
should be recovered by or on behalf of such Subsidiary Borrower from such
Offshore Overdraft Account Provider in bankruptcy, by assignment for the
benefit of creditors or otherwise, the loss of the amount so recovered shall
be ratably shared among all relevant Offshore Lenders in the manner
contemplated by subsection 9.6. In the event that such Offshore Overdraft
Account Provider requires the other relevant Offshore Lenders to purchase
participations in the relevant Offshore Overdraft Amount, payment for such
participations shall be made directly to such Offshore Overdraft Account
Provider at such Offshore Overdraft Account Provider's Offshore Funding and
Payment Office not later than 12:00 Noon (Local Time) on the Business Day next
succeeding the date notice to purchase such participations is given.
(iii) Except as provided above in this subsection 2.1E and except
for the satisfaction of the conditions specified in subsection 3.1, each
Offshore Lender's obligation to make Offshore Loans pursuant to this
subsection 2.1E and to purchase participations in any Offshore Overdraft
Amount pursuant to this subsection 2.1E shall be absolute and unconditional
and shall not be affected by any circumstance, including, without limitation,
(a) any set-off, counterclaim, recoupment, defense or other right which such
Offshore Lender may have against such Offshore Overdraft Account Provider, any
Borrower or any other Person for any reason whatsoever; (b) the occurrence or
continuance of an Event of Default or a Potential Event of Default; (c) any
adverse change in the condition (financial or otherwise) of any Borrower;
(d) any breach of this Agreement by any Borrower or any other Lender; or
(e) 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 Offshore Lenders to make Offshore Loans are terminated in
accordance with Section 7, Offshore Lenders having Offshore Loan Commitments
immediately prior to such termination shall thereafter only be obligated to
purchase participations in the relevant Offshore Overdraft Amount as provided
in this subsection 2.1E. In the event that any Offshore Lender fails to make
available to the relevant Offshore Administrative Agent the amount of any of
such Offshore Lender's Offshore Loans required to be made pursuant to this
subsection 2.1E or to the relevant Offshore Overdraft Account Provider the
amount of any participations in the relevant Offshore Overdraft Amount which
are required to be purchased from such Offshore Overdraft Account Provider by
such Offshore Lender pursuant to this subsection 2.1E, such Offshore Overdraft
Account Provider shall be entitled to recover such amount on demand from such
Offshore Lender together with interest at the customary rate set by such
Offshore Overdraft Account Provider for the correction of errors among banks
in the relevant jurisdiction for three Offshore Banking Days and thereafter at
the Offshore Base Rate in respect of the Applicable Currency. Nothing in this
subsection 2.1E shall be deemed to prejudice the right of any Offshore Lender
to recover from any Offshore Overdraft Account Provider any amounts made
available by such Offshore Lender to such Offshore Overdraft Account Provider
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pursuant to this subsection 2.1E in respect of any extension of credit by such
Offshore Overdraft Account Provider under the relevant Offshore Overdraft
Agreement in the event that it is determined by a court of competent juris-
diction that such extension of credit by such Offshore Overdraft Account
Provider constituted gross negligence or willful misconduct on the part of
such Offshore Overdraft Account Provider.
(iv) Any notice given by any Offshore Overdraft Account Provider to
the relevant Offshore Lenders pursuant to subsection 2.1E(iii) shall be
concurrently given by such Offshore Overdraft Account Provider to the relevant
Offshore Administrative Agent, Administrative Agent and the applicable
Subsidiary Borrower or its designated representative.
(v) Anything contained in this Agreement to the contrary
notwithstanding, no amendment, modification, termination or waiver of any
provision of this Agreement or of the other Loan Documents, and no consent to
any departure by any Borrower therefrom, shall modify, terminate or waive in
any manner adverse to any Offshore Overdraft Account Provider any provision of
this subsection 2.1E or any other provision of this Agreement directly
relating to the Offshore Overdraft Accounts or the Offshore Overdraft Amounts
(including any provision directly relating to the repayment of the Offshore
Overdraft Amounts with the proceeds of Offshore Loans or directly relating to
the obligations of Offshore Lenders to purchase participations in the Offshore
Overdraft Amounts) without the written concurrence of the Offshore Overdraft
Account Providers.
F. Notice of Borrowing.
(i) Whenever Company desires that Lenders make Term Loans or
Revolving Loans, it shall deliver to Administrative Agent a Notice of
Borrowing no later than 12:00 Noon (New York time) (x) on the proposed Funding
Date, in the case of Revolving Loans to be made as Base Rate Loans on a Bid
Rate Loan Shortfall Date in an aggregate amount not to exceed the applicable
Bid Rate Loan Shortfall Amount, (y) at least one Business Day in advance of
the proposed Funding Date, in the case of any other Base Rate Loan, or (z)
three Business Days in advance of the proposed Funding Date, in the case of a
Eurodollar Rate Loan. The Notice of Borrowing shall specify (1) the proposed
Funding Date (which shall be a Business Day), (2) the amount and Type of the
proposed Loans; provided that in the case of a Notice of Borrowing delivered
on a Bid Rate Loan Shortfall Date requesting Revolving Loans to be made as
Base Rate Loans on such Bid Rate Loan Shortfall Date, the amount of such
proposed Revolving Loans may not exceed the Bid Rate Loan Shortfall Amount in
respect of such Bid Rate Loan Shortfall Date, (3) whether such Loans are
initially to consist of Base Rate Loans or Eurodollar Rate Loans or a
combination thereof, and (4) if such 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 Term Loans or Revolving Loans, if any, to be made
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on any Funding Date as Eurodollar Rate Loans with a particular Interest Period
shall be $10,000,000 and integral multiples of $1,000,000 in excess of that
amount. Notwithstanding anything in this Agreement to the contrary, no Lender
shall make or be obligated to make a Revolving Loan if it shall have received
a Loan Limitation Notice with respect to such Revolving Loan from
Administrative Agent on or prior to the first Business Day immediately
preceding the proposed Funding Date for such Revolving Loan stating that the
statement contained in clause (1) of subsection 2.1F(v) is true or will be
true after giving effect to the making of the relevant Revolving Loans. Term
Loans and 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 Loans.
(ii) Whenever a Subsidiary Borrower desires that Offshore Lenders
make Offshore Loans, it shall deliver to Administrative Agent and the Offshore
Administrative Agent for the Offshore Currency in which such Offshore Loans
are to be denominated a Notice of Borrowing no later than 11:00 A.M. (Local
Time) at least three Business Days in advance of the proposed Funding Date, in
the case of an Offshore Base Rate Loan (provided, however, that with respect
to Offshore Base Rate Loans to be made on the Effective Date, such Subsidiary
Borrower shall be required to deliver the relevant Notice of Borrowing no
later than 11:00 A.M. (Local Time) at least one Business Day in advance of the
Effective Date) or in the case of an Offshore Periodic Rate Loan. The Notice
of Borrowing shall specify (1) the proposed Funding Date (which shall be an
Offshore Banking Day), (2) the amount and Type of the proposed Offshore Loans,
(3) whether such Loans are initially to consist of Offshore Base Rate Loans or
Offshore Periodic Rate Loans or a combination thereof, and (4) if such Loans,
or any portion thereof, are initially to be Offshore Periodic 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. Notwithstanding anything in this Agreement to the
contrary, no Offshore Lender shall make or be obligated to make an Offshore
Loan if it shall have received a Loan Limitation Notice with respect to such
Offshore Loan from Administrative Agent or the relevant Offshore
Administrative Agent on or prior to the first Business Day immediately
preceding the proposed Funding Date for such Offshore Loan. Offshore Loans
may be continued as or converted into Offshore Base Rate Loans and Offshore
Periodic Rate Loans in the manner provided in subsection 2.2D. In lieu of
delivering the above-described Notice of Borrowing, the relevant Subsidiary
Borrower may give Administrative Agent and the applicable Offshore
Administrative Agent telephonic notice by no later than 11:00 A.M. (Local
Time) at least three Business Days (or, in the case of the Initial Funding
Date, one Business Day), in advance of the proposed Funding Date; provided
that such notice shall be promptly confirmed in writing by delivery of a
Notice of Borrowing to Administrative Agent and such Offshore Administrative
Agent on or prior to the Funding Date of the requested Offshore Loans.
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(iii) Neither Administrative Agent nor any Offshore Administrative
Agent nor any Lender shall incur any liability to any Borrower in acting upon
any telephonic notice referred to above which Administrative Agent or such
Offshore Administrative Agent, as the case may be, believes in good faith to
have been given by a duly authorized officer or other person authorized to
borrow on behalf of Company or the relevant Subsidiary Borrower, as the case
may be, or for otherwise acting in good faith under this subsection 2.1F, and
upon funding of Loans by any Lender in accordance with this Agreement pursuant
to any such telephonic notice Company or such Subsidiary Borrower, as the case
may be, shall have effected Loans hereunder.
(iv) Except as provided in subsection 2.6D, a Notice of Borrowing
for a Eurodollar Rate Loan or an Offshore Periodic Rate Loan (or telephonic
notice in lieu thereof) shall be irrevocable on and after the related Interest
Rate Determination Date, and Company or the Subsidiary Borrower giving such
notice shall be bound to make a borrowing in accordance therewith, unless
Company or such Subsidiary Borrower, as the case may be, pays to Lenders such
amounts as may be due under subsection 2.6E for failure of a borrowing of a
Eurodollar Rate Loan or an Offshore Periodic Rate Loan, as applicable, to
occur on the date specified therefor in a Notice of Borrowing (or telephonic
notice in lieu thereof).
(v) Promptly after receipt of a Notice of Borrowing pursuant to
this subsection 2.1F (or telephonic notice in lieu thereof) with respect to
any Revolving Loans or Offshore Loans, Administrative Agent or any Offshore
Administrative Agent may (but shall not be obligated to) calculate whether,
before and after giving effect to the making of the relevant Loans:
(1) (A) the Total Utilization of Revolving Loan Commitments shall
exceed (B) the Revolving Loan Commitments then in effect minus any
Blocked Availability Amount;
(2) the Dollar Equivalent of the sum of the Total Utilization of UK
Loan Commitments plus the Total Utilization of Australian Loan
Commitments plus the Total Utilization of Italian Loan Commitments
shall exceed the Aggregate Offshore Currency Sublimit;
(3) the Dollar Equivalent of the Total Utilization of UK Loan
Commitments, the Total Utilization of Australian Loan Commitments
or the Total Utilization of Italian Loan Commitments, as
applicable, shall exceed the Offshore Currency Sublimit with
respect to the Applicable Currency;
(4) the Total Utilization of UK Loan Commitments shall exceed the UK
Loan Commitments then in effect;
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(5) the Total Utilization of Australian Loan Commitments shall
exceed the Australian Loan Commitments then in effect; and
(6) the Total Utilization of Italian Loan Commitments shall exceed
the Italian Loan Commitments then in effect.
In the event that Administrative Agent or any Offshore Administrative Agent
determines that any of the statements in clauses (1) through (6) is true or
will be true after giving effect to the making of the relevant Loans, such
Agent shall deliver to Administrative Agent (if applicable), each of the
Offshore Administrative Agents and each Borrower written notice (a "Loan
Limitation Notice") thereof, and (x) each such Offshore Administrative Agent
shall notify each relevant Offshore Lender promptly of its receipt of such
notice and (y) Administrative Agent shall notify each Lender having Revolving
Loan Exposure or Term Loan Exposure promptly of its receipt of such notice.
G. Disbursement of Funds.
(i) All Term Loans and Revolving Loans under this Agreement shall
be made by Lenders simultaneously and proportionately to their respective 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 a Term
Loan or a Revolving Loan requested hereunder nor shall the Commitment of any
Lender to make the particular type of Loan requested be increased or decreased
as a result of a default by any other Lender in that other Lender's obligation
to make a Loan requested hereunder. Promptly after receipt of a Notice of
Borrowing pursuant to subsection 2.1F (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. Each
Lender shall make the amount of its Term Loan and Revolving Loan available to
Administrative Agent, in Same Day Funds, at the Domestic 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 Domestic
Overdraft Amount), in subsection 2.8D (with respect to the reimbursement of
amounts drawn under Letters of Credit) and in subsection 2.1C(ii) (with
respect to payment of Refunded Offshore Loans), upon satisfaction or waiver of
the conditions precedent specified in subsections 3.1 (in the case of the
initial Loans) and 3.2 (in the case of all Loans), Administrative Agent shall
make the proceeds of such Term Loans and Revolving Loans available to Company
on such Funding Date by causing an amount of Same Day Funds equal to the pro-
ceeds of all such Term Loans and Revolving Loans received by Administrative
Agent to be credited to the account of Company at such office of
Administrative Agent.
(ii) All UK Loans, Australian Loans and Italian Loans under this
Agreement shall be made by Offshore Lenders simultaneously and proportionately
to their respective Pro Rata Shares of the UK Loan Commitments, the Australian
Loan Commitments or the Italian Loan Commitments, as the case may be, it being
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understood that no Offshore Lender shall be responsible for any default by any
other Offshore Lender in that other Offshore Lender's obligation to make a UK
Loan, an Australian Loan or an Italian Loan requested hereunder nor shall the
Commitment of any Offshore Lender to make the particular Type of Offshore Loan
requested be increased or decreased as a result of a default by any other
Offshore Lender in that other Offshore Lender's obligation to make an Offshore
Loan requested hereunder. Promptly after its receipt of a Notice of Borrowing
pursuant to subsection 2.1F (or telephonic notice in lieu thereof), (a) UK
Administrative Agent shall notify each UK Lender of the proposed borrowing,
(b) Australian Administrative Agent shall notify each Australian Lender of the
proposed borrowing, or (c) Italian Administrative Agent shall notify each
Italian Lender of the proposed borrowing, as the case may be. Each UK Lender
shall make the amount of its UK Loan available to UK Administrative Agent, in
Same Day Funds and in Sterling, at UK Administrative Agent's Offshore Funding
and Payment Office not later than 12:00 Noon (Local Time) on the Funding Date;
each Australian Lender shall make the amount of its Australian Loan available
to Australian Administrative Agent, in Same Day Funds and in ADollars, at
Australian Administrative Agent's Offshore Funding and Payment Office not
later than 12:00 Noon (Local Time) on the Funding Date; and each Italian
Lender shall make the amount of its Italian Loan available to Italian
Administrative Agent, in Same Day Funds and in Lira, at Italian Administrative
Agent's Offshore Funding and Payment Office not later than 12:00 Noon (Local
Time) on the Funding Date. Except as provided in subsection 2.1E (ii) with
respect to Offshore Loans used to repay Offshore Overdraft Amounts, upon
satisfaction or waiver of the conditions precedent specified in subsections
3.1 (in the case of the initial Loans) and 3.2 (in the case of all Loans), the
relevant Offshore Administrative Agent shall make the proceeds of such
Offshore Loans available to the applicable Subsidiary Borrower on such Funding
Date by causing an amount of Same Day Funds in the Applicable Currency equal
to the proceeds of all such Offshore Loans received by such Offshore
Administrative Agent to be credited to the account of such Subsidiary Borrower
at such office of such Offshore Administrative Agent.
(iii) Unless Administrative Agent or the applicable Offshore
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 or such Offshore Administrative Agent such Lender's Loan
on such Funding Date, Administrative Agent or such Offshore Administrative
Agent may assume that such Lender has made such amount available to
Administrative Agent or such Offshore Administrative Agent on such Funding
Date and Administrative Agent or such Offshore Administrative Agent in its
sole discretion may, but shall not be obligated to, make available to Company
or the applicable Subsidiary Borrower a corresponding amount on such Funding
Date. If such corresponding amount is not in fact made available to
Administrative Agent or the applicable Offshore Administrative Agent by such
Lender, (a) 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, and (b) such Offshore Administrative Agent shall
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be entitled to recover such corresponding amount on demand from such Offshore
Lender together with interest thereon, for each day from such Funding Date
until the date such amount is paid to such Offshore Administrative Agent, at
the customary rate set by such Offshore Administrative Agent for the
correction of errors among banks in the relevant jurisdiction for three
Offshore Banking Days and thereafter at a rate per annum equal to the relevant
Offshore Base Rate. If such Lender does not pay such corresponding amount
forthwith upon Administrative Agent's or the applicable Offshore
Administrative Agent's demand therefor, Administrative Agent or such Offshore
Administrative Agent shall promptly notify Company or the applicable
Subsidiary Borrower, and Company or such Subsidiary Borrower, as the case may
be, shall immediately pay such corresponding amount to Administrative Agent or
such Offshore Administrative Agent, as applicable. Nothing in this subsection
2.1G shall be deemed to relieve any Lender from its obligation to fulfill its
Commitments hereunder or to prejudice any rights which Company or any
Subsidiary Borrower may have against any Lender as a result of any default by
such Lender hereunder.
H. 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 Commitments and Loans of each Lender
from time to time (the "Register"). Borrowers, Agents, Arrangers
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,
Subsidiary Borrowers, Syndication Agent, Documentation Agents,
Offshore Administrative Agents or any Lender at any reasonable time
and from time to time upon reasonable prior notice. Each Offshore
Administrative Agent shall maintain, at its address referred to in
subsection 9.10, a register for the recordation of the names and
the Offshore Loan Commitments and Offshore Loans of each relevant
Offshore Lender, each repayment or prepayment in respect of the
principal amount of the Offshore Loans of each such Offshore Lender
and the amount of each such Offshore Loan in the Offshore Currency
in which such Loan was made and each Interest Period therefor.
Each Offshore Administrative Agent will (x) notify Administrative
Agent promptly of any new entry of information in its register
maintained pursuant to the immediately preceding sentence and (y)
at Administrative Agent's request, will provide to Administrative
Agent a copy of such register.
(ii) Administrative Agent shall record in the Register the
Commitments and the Loans from time to time of each Lender, the
amount of each Lender's participation in outstanding Letters of
Credit and Offshore Loans 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 Borrowers 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 any Borrower's Obligations in respect
of the applicable Loans.
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(iii) Each Lender shall record on its internal records (including,
without limitation, any promissory note described in subsection
2.1H(iv)) the amount of each Loan made by it and each payment in
respect thereof and, in the case of an Offshore Lender with respect
to each Offshore Loan made by it, the identity of the Subsidiary
Borrower in respect thereof, the amount thereof in the Offshore
Currency in which such Loan was made and each Interest Period
applicable thereto; 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 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 Term Loan or Revolving Loans or Bid
Rate Loans, substantially in the form of Exhibit VII, Exhibit VIII
or Exhibit IX hereto, respectively. If so requested by any Italian
Lender by written notice to O-I Italy (with a copy to
Administrative Agent) at least two Business Days' prior to the
Effective Date or at any time thereafter, O-I Italy shall execute
and deliver to such Italian Lender (and/or, if so specified in such
notice, any Person who is an assignee of such Italian Lender
pursuant to subsection 9.2 hereof) on the Effective Date (or, if
such notice is delivered after the Effective Date, promptly after
O-I Italy's receipt of such notice) a promissory note or promissory
notes to evidence such Italian Lender's Italian Loans,
substantially in the form of Exhibit X.
2.2 Interest on the Loans.
A. Rate of Interest.
Term Loans and 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. 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 Term Loans and Revolving Loans shall be selected by Company at the time a
Notice of Borrowing is given pursuant to subsection 2.1F (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 Term Loan
or 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 Loan shall bear interest determined by reference to the Base
Rate.
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Term Loans and Revolving Loans shall bear interest through maturity
as follows:
(a) if a Base Rate Loan, then at the Base Rate per annum; or
(b) if a Eurodollar Rate Loan, then at the sum of the Adjusted
Eurodollar Rate plus the Applicable Eurodollar Margin per annum.
(ii) Offshore 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 Offshore Base Rate or the
Adjusted Offshore Periodic Rate applicable to Offshore Loans denominated in
the applicable Offshore Currency. Except to the extent that this Agreement
specifically provides that certain Offshore Loans must be made at the Offshore
Base Rate, the applicable basis for determining the rate of interest with
respect to Offshore Loans shall be selected by the applicable Subsidiary
Borrower at the time a Notice of Borrowing is given pursuant to subsection
2.1F (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 an Offshore Loan is outstanding with respect to which notice has not
been delivered to the relevant Offshore Administrative Agent in accordance
with the terms of this Agreement specifying the basis for determining the rate
of interest, then for that day that Offshore Loan shall bear interest
determined by reference to the Offshore Base Rate for Offshore Loans
denominated in the applicable Offshore Currency.
Offshore Loans shall bear interest through maturity as follows:
(a) if an Offshore Base Rate Loan, then at the Offshore Base Rate
per annum applicable to Offshore Loans made in the Applicable
Currency; or
(b) if an Offshore Periodic Rate Loan, then at the sum of the
Adjusted Offshore Periodic Rate applicable to Offshore Loans made
in the Applicable Currency plus the Applicable Offshore Margin per
annum.
Anything contained in this Agreement to the contrary
notwithstanding, Offshore Loans converted to Offshore Loans denominated in
Dollars pursuant to subsection 2.1C(iii) shall bear interest upon and after
such conversion through maturity at the Base Rate per annum.
B. Interest Periods.
In connection with each Eurodollar Rate Loan and each Offshore
Periodic Rate Loan, the Borrower requesting such Loan shall elect an interest
period (each an "Interest Period") to be applicable to such Loan, which
Interest Period shall be a 14-day (solely in the case of the UK Loans) or a
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one, two, three, six or (subject to clause (ix) below) nine or twelve month
period; provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan or
Offshore Periodic 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 as an Offshore Periodic 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 or to an Offshore Periodic Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a Eurodollar Rate Loan or Offshore Periodic Rate Loan
continued as such pursuant to a Notice of Conversion/Continuation
or otherwise, each successive Interest Period shall commence on the
day on which the next preceding Interest Period expires;
(iii) if an Interest Period with respect to any Eurodollar Rate
Loan 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 such Interest Period would otherwise
expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day; and
if an Interest Period with respect to any Offshore Periodic Rate
Loan would otherwise expire on a day which is not an Offshore
Banking Day, such Interest Period shall expire on the next
succeeding Offshore Banking Day; provided that if any such Interest
Period which is based on a monthly period would otherwise expire on
a day which is not an Offshore Banking Day but is a day of the month
after which no further Offshore Banking Day occurs in such month,
such Interest Period shall expire on the next preceding Offshore
Banking Day;
(iv)any Interest Period with respect to Eurodollar Rate Loans 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; and any Interest Period with
respect to Offshore Periodic Rate Loans which is based on a monthly
period and which begins on the last Offshore Banking 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 Offshore Banking Day of a calendar
month;
(v) no Interest Period with respect to any Term Loan shall extend
beyond the Term Loan Maturity Date;
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(vi) no Interest Period with respect to any Revolving Loan or any
Offshore Periodic Rate Loan shall extend beyond the Revolving Loan
Commitment Termination Date;
(vii) there shall be no more than 20 Interest Periods outstanding at
any time with respect to Eurodollar Rate Loans; and there shall be
no more than (a) 10 Interest Periods outstanding at any time with
respect to Offshore Periodic Rate Loans denominated in Sterling,
(b) 15 Interest Periods outstanding at any time with respect to
Offshore Periodic Rate Loans denominated in ADollars and (c) 10
Interest Periods outstanding at any time with respect to Offshore
Periodic Rate Loans denominated in Lira;
(viii) 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 in the event a Subsidiary
Borrower fails to specify an Interest Period in the applicable
Notice of Borrowing or Notice of Conversion/Continuation, such
Subsidiary Borrower shall be deemed to have selected an Interest
Period of one month; and
(ix) with respect to Eurodollar Rate Loans, there shall be no
Interest Period of nine or twelve months unless Administrative
Agent, after consultation with Lenders having Revolving Loan
Exposure or Term Loan Exposure, 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
having Revolving Loan Exposure or Term Loan Exposure to first class
banks in the Eurodollar market for a comparable maturity; and with
respect to Offshore Periodic Rate Loans, there shall be no Interest
Period of nine or twelve months unless the relevant Offshore
Administrative Agent, after consultation with Lenders having UK
Loan Exposure, Australian Loan Exposure or Italian Loan Exposure,
as the case may be, has determined in good faith based on
prevailing conditions in the relevant interbank market on any date
of determination that (a) deposits in the Applicable Currency are
offered by each relevant Offshore Lender having such UK Loan
Exposure or Italian Loan Exposure, as the case may be, to first
class banks in the relevant interbank market for a comparable
maturity, or (b) bills of exchange of such term in ADollars are
being accepted by each relevant Offshore Lender having Australian
Loan Exposure.
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 and each Offshore Base Rate Loan
shall be payable in arrears on and to each March 15, June 15, Sep-
tember 15, and December 15 of each year, commencing on the first
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such date to occur after the Effective Date, and at maturity; and
(ii) interest on each Eurodollar Rate Loan and each Offshore
Periodic 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, the applicable Borrower shall have the option (i) to convert
at any time all or any part of its outstanding Term Loans or 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, (ii) upon the expiration of any Interest Period applicable
to a Eurodollar Rate Loan, to continue all or any portion of such Eurodollar
Rate Loan equal to $10,000,000 and integral multiples of $1,000,000 in excess
of that amount as a Eurodollar Rate Loan, (iii) to convert at any time all or
any part of its outstanding Offshore Loans equal to (x) L5,000,000 and
integral multiples of L1,000,000 in excess of that amount in the case of an
Offshore Loan denominated in Sterling, (y) A$25,000,000 and integral multiples
of A$5,000,000 in excess of that amount in the case of an Offshore Loan
denominated in ADollars, and (z) 5,000,000,000 Lire and integral multiples of
1,000,000,000 Lire in excess of that amount in the case of an Offshore Loan
denominated in Lire, 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 (iv) upon the expiration of any Interest
Period applicable to an Offshore Periodic Rate Loan, to continue as an
Offshore Periodic Rate Loan all or any portion of such Offshore Periodic Rate
Loan equal to (x) L5,000,000 and integral multiples of L1,000,000 in excess of
that amount in the case of an Offshore Periodic Rate Loan denominated in
Sterling, (y) A$25,000,000 and integral multiples of A$5,000,000 in excess of
that amount in the case of an Offshore Periodic Rate Loan denominated in
ADollars, and (z) 5,000,000,000 Lire and integral multiples of 1,000,000,000
Lire in excess of that amount in the case of an Offshore Periodic Rate Loan
denominated in Lira, 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, and an Offshore Periodic Rate Loan may only
be converted into an Offshore 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 or an Offshore Periodic Rate Loan
when any Event of Default has occurred and is continuing.
Company or the applicable Subsidiary Borrower shall deliver a
Notice of Conversion/Continuation to Administrative Agent (and, in the case of
a Subsidiary Borrower, to the relevant Offshore 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
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Rate Loan), 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), or three Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or a
continuation of, an Offshore Loan). A Notice of Conversion/Continuation shall
specify (i) the proposed conversion/continuation date (which shall be a
Business Day), (ii) the amount and Type 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 or an
Offshore Periodic Rate Loan, the requested Interest Period. In lieu of
delivering the above described Notice of Conversion/Continuation, the
applicable Borrower may give Administrative Agent (and, if applicable, such
Offshore 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 (and, if applicable, such
Offshore Administrative Agent) on or before the proposed conversion/
continuation date.
Neither Administrative Agent nor any Offshore Administrative Agent
shall incur any liability to Company or the relevant Subsidiary Borrower, as
the case may be, in acting upon any telephonic notice referred to above which
such 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 such
Subsidiary Borrower or for otherwise acting in good faith under this
subsection 2.2D and upon conversion/continuation by such Agent in accordance
with this Agreement pursuant to any telephonic notice, Company or such
Subsidiary Borrower, as the case may be, shall have effected a conversion or
continuation, as the case may be, hereunder.
Except as provided in subsection 2.6D, a Notice of Conversion/Con-
tinuation for conversion to, or continuation of, a Eurodollar Rate Loan or an
Offshore Periodic 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 or the relevant
Subsidiary Borrower, as the case may be, shall be bound to convert or continue
in accordance therewith, unless Company or such Subsidiary Borrower, as the
case may be, 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 or
Offshore Periodic 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 (i) in the
case of overdue amounts that are denominated in Dollars, the sum of the Base
Rate plus 2.00% per annum, (ii) in the case of overdue amounts that are
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denominated in an Offshore Currency, the sum of the Offshore Base Rate for the
Applicable Currency plus 2.00% per annum.
F. Computation of Interest. Interest on the Loans shall be computed
(i) in the case of Loans denominated in Sterling or ADollars, on the basis of
a 365-day year, and (ii) in the case of all other Loans, on the basis of a
360-day year, in each case for 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
A. Facility Fees. Company agrees to pay, or to cause Borrowers 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
outstanding Term Loans and the Revolving Loan Commitments, for the period from
and including the Effective Date to and excluding the Term Loan Maturity Date
or the Revolving Loan Commitment Termination Date, as the case may be, equal
to the daily average outstanding principal amount of the Term Loans or 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), as the case may be, 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 each Fee Payment Date for the three-month
period ending on the day prior to such Fee Payment Date, commencing on the
first such date to occur after the Effective Date, and on the Term Loan
Maturity Date or the Revolving Loan Commitment Termination Date, as the case
may be.
B. Other Fees. Company agrees to pay an annual administrative fee
to Administrative Agent and such other fees to Arrangers and Agents, in each
case in the amounts and at the times agreed upon between Company and the
applicable Arranger or Agent.
2.4 Prepayments and Payments; Reductions in 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
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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 Term Loan or 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. Any Subsidiary Borrower may, upon
three Offshore Banking Days' prior written or telephonic notice to
Administrative Agent and the relevant Offshore Administrative
Agent, which notice, if telephonic, shall be promptly confirmed in
writing to Administrative Agent and such Offshore Administrative
Agent and which notice such Offshore Administrative Agent will
promptly transmit by telephonic means to each Offshore Lender with
respect to such Offshore Loan, at any time and from time to time
prepay any Offshore Loan made to such Subsidiary Borrower in whole
or in part (a) in an aggregate minimum amount of L5,000,000 and
integral multiples of L1,000,000 in excess of that amount, in the
case of Offshore Loans denominated in Sterling, (b) in an aggregate
minimum amount of A$25,000,000 and integral multiples of
A$5,000,000 in excess of that amount, in the case of Offshore Loans
denominated in ADollars, and (c) in an aggregate minimum amount of
5,000,000,000 Lire and integral multiples of 1,000,000,000 Lire in
excess of that amount, in the case of Offshore Loans denominated in
Lire; provided, however, that if an Offshore Periodic Rate Loan is
prepaid on a date other than the last day of the Interest Period
applicable thereto, the Subsidiary Borrower making such prepayment
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.
(a) 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 (and cause the
relevant Subsidiary Borrowers, in the case of Offshore Loans, to
make) prepayments of the Revolving Loans, Bid Rate Loans and
Offshore Loans to the extent necessary so that the Total
Utilization of Revolving Loan Commitments at no time exceeds the
Revolving Loan Commitments then in effect minus any Blocked
Availability Amount.
(b) In the event that (1) the Dollar Equivalent of the Total
Utilization of UK Loan Commitments exceeds an amount equal to 105%
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of the Offshore Currency Sublimit for Sterling, (2) the Dollar
Equivalent of the Total Utilization of Australian Loan Commitments
exceeds an amount equal to 103% of the Offshore Currency Sublimit
for ADollars, (3) the Dollar Equivalent of the Total Utilization of
Italian Loan Commitments exceeds an amount equal to 105% of the
Offshore Currency Sublimit for Lire, or (4) (x) the sum of the
Dollar Equivalent of the Total Utilization of UK Loan Commitments
plus the Dollar Equivalent of the Total Utilization of Australian
Loan Commitments plus the Dollar Equivalent of the Total
Utilization of Italian Loan Commitments exceeds (y) an amount equal
to 103% of the Aggregate Offshore Currency Sublimit, then in each
case the applicable Subsidiary Borrower or Subsidiary Borrowers
shall make prepayments of the applicable Type of Offshore Loans
(or, in the case of a prepayment required under the immediately
preceding clause (4), such Type or Types of Offshore Loans as
Borrowers shall elect) so that, after giving effect to such
prepayment, the Dollar Equivalent of the Total Utilization of UK
Loan Commitments, the Dollar Equivalent of the Total Utilization of
Australian Loan Commitments or the Dollar Equivalent of the Total
Utilization of Italian Loan Commitments, as the case may be, does
not exceed the applicable Offshore Currency Sublimit for such
Offshore Currency and the sum of the Dollar Equivalent of the Total
Utilization of UK Loan Commitments plus the Dollar Equivalent of
the Total Utilization of Australian Loan Commitments plus the
Dollar Equivalent of the Total Utilization of Italian Loan
Commitments does not exceed the Aggregate Offshore Currency
Sublimit; provided, however, that no prepayment under this
subsection shall be required until ten Business Days after
Administrative Agent shall have notified the applicable Offshore
Administrative Agent, Company and the applicable Subsidiary
Borrower that an event described in clause (1), (2), (3) or (4), as
the case may be, has occurred; and provided further, however, that
no prepayment of Offshore Loans shall be required under this
subsection if, within seven Business Days after receipt of such
notice from Administrative Agent, the applicable Subsidiary
Borrower shall have increased the applicable Offshore Currency
Sublimit in accordance with subsection 2.1D so that the Total
Utilization of UK Loan Commitments, the Total Utilization of
Australian Loan Commitments and the Total Utilization of Italian
Loan Commitments (or the sum thereof, as the case may be) do not
(or does not, as the case may be) exceed the respective maximum
percentages of the Offshore Currency Sublimits or the Aggregate
Offshore Currency Sublimit, as the case may be, set forth above.
(c) Promptly after receipt by Company or any of its Subsidiaries of
any Net Rockware Asset Sale Proceeds, Company shall prepay the Term
Loans and/or the Revolving Loan Commitments shall be permanently
reduced in an aggregate amount equal to such Net Rockware Asset
Sale Proceeds. Concurrently with any such prepayment of the Loans
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and/or reduction of the Revolving Loan Commitments, Company shall
deliver to Administrative Agent an Officers' Certificate demonstra-
ting the calculation of the amount of the applicable Net Rockware
Asset Sale Proceeds that gave rise to such prepayment and/or
reduction and specifying the application thereof to the prepayment
of the Term Loans and/or any prepayment of the Revolving Loans (to
the extent Revolving Loans will be repaid) and the reduction of the
Revolving Loan Commitments. In the event that Company shall
subsequently determine that the actual amount of such Net Rockware
Asset Sale Proceeds was greater than the amount set forth in such
Officers' Certificate, Company shall promptly make an additional
prepayment of the Term Loans (and/or, if applicable, the Revolving
Loan Commitments shall be permanently reduced) in an amount equal
to the amount of such excess, and Company shall concurrently
therewith deliver to Administrative Agent an Officers' Certificate
demonstrating the derivation of the additional Net Rockware Asset
Sale Proceeds resulting in such excess and specifying the
application thereof as provided above.
(iii) Application of Prepayments. Any voluntary prepayments
pursuant to subsection 2.4A(i) shall be applied as specified by the
applicable Borrower in the applicable notice of prepayment;
provided that in the event Company fails to specify the Loans to
which any such prepayment by it shall be applied, such prepayment
shall be applied first to repay outstanding Revolving Loans to the
full extent thereof, and second to repay outstanding Term Loans to
the full extent thereof. Any mandatory prepayments pursuant to
subsection 2.4A(ii)(c) shall be applied to repay outstanding Loans
and/or reduce Commitments as specified by Company in the applicable
Officers' Certificate; provided that in the event Company fails to
specify the Loans to which any such prepayment shall be applied,
such prepayment shall be applied first to repay outstanding Term
Loans to the full extent thereof and second to repay outstanding
Revolving Loans to the full extent thereof and to permanently
reduce the Revolving Loan Commitments by the amount of such
prepayment; and provided further that, in any event, the Revolving
Loan Commitments shall be permanently reduced by an amount equal to
the portion of any such prepayments not applied to repayment of the
Term Loans. Any mandatory prepayment of Revolving Loans or Term
Loans shall be applied first to Base Rate Loans to the full extent
thereof before application to Eurodollar Rate Loans as determined
by 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. Any mandatory prepayment of Offshore Loans
denominated in a particular Offshore Currency shall be applied
first to Offshore Base Rate Loans denominated in the Applicable
Currency to the full extent thereof before application to Offshore
Periodic Rate Loans denominated in such Applicable Currency as
determined by Administrative Agent, in each case in a manner which
minimizes the amount of any payments required to be made by the
relevant Subsidiary Borrower pursuant to subsection 2.6E. All
prepayments of Eurodollar Rate Loans and Offshore Loans shall
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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
2.7C or 2.8E, all payments of principal, interest and fees hereunder and under
the Notes by Borrowers shall be made without defense, setoff, counterclaim or
other deduction and in Same Day Funds and delivered (i) in the case of
payments with respect to Term Loans, Revolving Loans and Bid Rate Loans, to
Administrative Agent not later than 12:00 Noon (New York time) on the date due
at the Domestic Funding and Payment Office for the account of Lenders, in
Dollars, and (ii) in the case of payments of principal and interest with
respect to any Offshore Loan, to the Offshore Administrative Agent for such
Offshore Loan not later than 12:00 Noon (Local Time) on the date due at such
Offshore Administrative Agent's Offshore Funding and Payment Office for the
account of the applicable Offshore Lenders, in the Offshore Currency in which
the Offshore Loans being repaid are denominated; funds received by
Administrative Agent or such Offshore Administrative Agent after the
applicable time shall be deemed to have been paid by Company or the relevant
Subsidiary Borrower, as the case may be, on the next succeeding Business Day.
Company hereby authorizes Administrative Agent to charge its accounts with
Administrative Agent, and each Subsidiary Borrower hereby authorizes each
Offshore Administrative Agent to charge its accounts with such Offshore
Administrative Agent, in order to cause timely payment to be made to
Administrative Agent or such Offshore 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 and such
Offshore Administrative Agent shall give the Borrower whose accounts are being
so charged notice of such charges prior thereto or as soon as reasonably
practicable thereafter.
C. Apportionment of Payments.
(i) Generally. Subject to the provisions of subsections 2.1C(ii)
and 2.1C(iii), aggregate principal and interest payments in respect
of Term Loans and 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 Term Loans, 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 Domestic 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 Domestic 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 Domestic Overdraft
Account. All principal and interest payments in respect of any
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Offshore Overdraft Account shall be transferred to and retained by
the relevant Offshore Overdraft Account Provider; provided that
such Offshore Overdraft Account Provider shall transfer to the
relevant Offshore Administrative Agent that portion of any payments
subsequently received by such Offshore Overdraft Account Provider
in respect of amounts due with respect to such Offshore Overdraft
Account necessary to permit such Offshore Administrative Agent to
distribute to each Offshore Lender that has purchased a
participation in such amounts due pursuant to subsection 2.1E such
Offshore Lender's Pro Rata Share of such payments. Subject to the
provisions of subsections 2.1C(ii) and 2.1C(iii), aggregate
principal and interest payments in respect of Offshore Loans shall
be apportioned among the Offshore Loans to which such payments
relate, in each case proportionally to the relevant Offshore
Lenders' respective Pro Rata Shares. 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) or the relevant
Offshore Administrative Agent, as the case may be, 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
in respect of Term Loans, Revolving Loans, Letters of Credit, the
Domestic Overdraft Account, the Offshore Overdraft Accounts,
Offshore Loans and Bid Rate Loans received by Administrative Agent
(or such Issuing Lender) or such Offshore Administrative Agent 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 or Offshore Base Rate Loans in
lieu of its Pro Rata Share of Offshore Periodic Rate Loans,
Administrative Agent or the relevant Offshore Administrative Agent,
as the case may be, shall give effect thereto in apportioning
payments received thereafter and (ii) after the occurrence of an
Event of Default and acceleration of the maturity of the Loans and
amounts available for drawing under Letters of Credit as provided
in Section 7, Administrative Agent or the relevant Offshore
Administrative Agent, as the case may be, 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
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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 inter-
est thereon has been paid and will notify the Borrower obligated under such
Note 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 such Borrower or
Administrative Agent of the name and address of such transferee shall not
limit or otherwise affect the obligation of such Borrower hereunder or under
such Note with respect to any Loan and payments of principal or interest on
any such Note.
F. Voluntary Reductions of Commitments and Offshore Currency
Sublimits. The applicable Borrower shall have the right, at any time and from
time to time, (i) 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, (ii) to terminate in whole or reduce in part, without premium or
penalty, the UK Loan Commitments in an amount up to the amount by which the UK
Loan Commitments exceed the Total Utilization of UK Loan Commitments at the
time of such proposed termination or reduction, (iii) to terminate in whole or
reduce in part, without premium or penalty, the Australian Loan Commitments in
an amount up to the amount by which the Australian Loan Commitments exceed the
Total Utilization of Australian Loan Commitments at the time of such proposed
termination or reduction, (iv) to terminate in whole or reduce in part,
without premium or penalty, the Italian Loan Commitments in an amount up to
the amount by which the Italian Loan Commitments exceed the Total Utilization
of Italian Loan Commitments at the time of such proposed termination or
reduction, and (v) prior to the Effective Date, to terminate in whole or
permanently reduce in part, without premium or penalty, the Term Loan Commit-
ments.
The applicable Borrower shall give not less than three Business
Days' prior written notice to Administrative Agent (and to the relevant
Offshore Administrative Agent, in the case of termination or reduction of any
Offshore Loan Commitments) designating the date (which shall be a Business
Day) of such termination or reduction and the amount of any partial reduction.
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Promptly after receipt of a notice of such termination or partial reduction
(or receipt of any notice pursuant to subsection 6.1A(vi)), Administrative
Agent or such Offshore Administrative Agent, as the case may be, shall notify
each Lender of the proposed termination or partial reduction. Such
termination or partial reduction of any of the Offshore Loan Commitments, the
Revolving Loan Commitments or the Term Loan Commitments shall be effective on
the date specified in the notice delivered by such Borrower and shall reduce
the applicable Offshore Loan Commitment, the Revolving Loan Commitment or the
Term Loan Commitment, as the case may be, of each Lender proportionately to
its Pro Rata Share. Any such partial reduction of the Revolving Loan
Commitments or the Term 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; any such partial reduction of the UK Loan Commitments shall be in an
aggregate minimum amount of L5,000,000, and integral multiples of L1,000,000
in excess of that amount; any such partial reduction of the Australian Loan
Commitments shall be in an aggregate minimum amount of A$25,000,000, and
integral multiples of A$5,000,000 in excess of that amount; and any such
partial reduction of the Italian Loan Commitments shall be in an aggregate
minimum amount of 5,000,000,000 Lire, and integral multiples of 1,000,000,000
Lire in excess of that amount. Any such reduction of the Offshore Loan
Commitments shall correspondingly reduce the Offshore Currency Sublimit for
the applicable Offshore Currency by an amount equal to the Dollar Equivalent
of the amount of such reduction.
2.5 Use of Proceeds
A. Term Loans, Initial Revolving Loans and Initial Offshore Loans.
The proceeds of the Term Loans, together with up to $3,500,000,000 in proceeds
of Revolving Loans and Offshore Loans made on the Effective Date (it being
understood that such $3,500,000,000 limitation shall be inclusive of the
Dollar Equivalent of any portion of such Loans denominated in any Offshore
Currency), shall be applied by Company and its Subsidiaries to fund the
Applegate Acquisition Consideration, to purchase certain outstanding
convertible notes issued by an Acquired Applegate Subsidiary and to pay
related fees and expenses.
B. Other Revolving Loans, Bid Rate Loans and Offshore Loans. The
proceeds of any Revolving Loans (other than the Revolving Loans referred to in
subsection 2.5A) or Bid Rate Loans shall be used to repay the Existing
Revolving Loans on the Effective Date and to provide for the working capital
requirements and general corporate purposes of Company and its Subsidiaries,
which may include the payment of the Domestic 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, the payment or prepayment of
the Term Loans, and the making of intercompany loans to Company's Subsidiaries
for their own general corporate purposes. The proceeds of any Offshore Loans
to any Subsidiary Borrower (other than the Offshore Loans referred to in
subsection 2.5A) shall be used to provide for the working capital requirements
and general corporate purposes of such Subsidiary Borrower and its
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Subsidiaries, which may include the payment of Offshore Overdraft Amounts
pursuant to subsection 2.1E and the making and repayment of intercompany loans
to such Subsidiaries for their own general corporate purposes.
C. 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.
D. Margin Regulations. No portion of the proceeds of any borrowing
under this Agreement shall be used by any Borrower in any manner which would
cause the borrowing or the application of such proceeds to violate 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 and Offshore
Periodic Rate Loans
Notwithstanding other provisions of this Agreement, the following
provisions shall govern with respect to Eurodollar Rate Loans and Offshore
Periodic Rate Loans as to the matters covered:
A. Determination of Interest Rate. As soon as practicable after
11:00 A.M. (New York time) on each Interest Rate Determination Date with
respect to Eurodollar Rate Loans, 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. As soon as practicable after (i)
11:00 A.M. (London time) on each Interest Rate Determination Date with respect
to UK Loans which are Offshore Periodic Rate Loans, (ii) 10:30 A.M. (Sydney
time) on each Interest Rate Determination Date with respect to Australian
Loans which are Offshore Periodic Rate Loans, and (iii) 11:00 A.M. (London
time) on each Interest Rate Determination Date with respect to Italian Loans
which are Offshore Periodic Rate Loans, the relevant Offshore 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 such Offshore Periodic Rate Loans for the
applicable Interest Period (subject to any changes in the Applicable Offshore
Margin pursuant to the terms of the definition thereof) and shall promptly
give notice thereof (in writing or by telephone confirmed in writing) to the
relevant Subsidiary Borrower, Administrative Agent and to each Offshore Lender
with respect to such Offshore Periodic Rate Loans.
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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 (in the case of a Lender
having Term Loan Exposure or Revolving Loan Exposure) or other
relevant market (in the case of a Lender having Offshore Loan
Exposure) 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 (x) in the
definition of Adjusted Eurodollar Rate with respect to the
Eurodollar Rate Loans as to which an interest rate determination is
then being made or (y) in the definition of Adjusted Offshore
Periodic Rate with respect to the Offshore Loans as to which an
interest rate determination is then 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 (in
the case of a Lender having Term Loan Exposure or Revolving Loan
Exposure) or other relevant market (in the case of a Lender having
Offshore Loan Exposure) 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 or,
in the case of any Offshore Lender, the Adjusted Offshore Periodic
Rate shall not represent (1) in the case of a UK Lender or an
Italian Lender, the effective pricing to that Offshore Lender for
deposits in the Applicable Currency of comparable amounts for the
relevant period or (2) in the case of an Australian Lender, the
effective bid rate for bills of exchange of such term in ADollars
for that Australian Lender;
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 the applicable Borrower and Administrative Agent and, in the case
of any Affected Lender which is an Offshore Lender to the, relevant Offshore
Administrative Agent (which notice Administrative Agent shall promptly
transmit to each other relevant Lender) of such determination. Thereafter,
the applicable Borrower shall pay to the Affected Lender with respect to
Company's Eurodollar Rate Loans or the Offshore Loans made to a Subsidiary
Borrower, as the case may be, 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 dis-
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cretion 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 or Offshore Loans (as applicable) for the Interest Period(s)
following that Interest Rate Determination Date at a rate per annum equal to
(x) in the case of Eurodollar Rate Loans, 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 and (y) in the case of
Offshore Loans, the sum of the effective pricing to the Affected Lender for
deposits in the Applicable Currency to make or maintain its Offshore Loans
plus the Applicable Offshore 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 the relevant Borrower and
Administrative Agent (and to the relevant Offshore Administrative Agent, in
the case of any Affected Lender which is an Offshore Lender) 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
(in the case of a Lender having Term Loan Exposure or Revolving Loan Exposure)
or Offshore Loans (in the case of a Lender having Offshore Loan Exposure) 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 the applicable
Borrower, Administrative Agent (which notice Administrative Agent shall
promptly transmit to each Lender) and, in the case of any Affected Lender
which is an Offshore Lender, to the relevant Offshore Administrative Agent, of
that determination. Subject to the following subsection 2.6D, the obligation
of the Affected Lender to make or maintain its Eurodollar Rate Loans or
Offshore Loans, as the case may be, 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 or the relevant Subsidiary Borrower 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 or Offshore Loans, as the
case may be, of the Affected Lender, together with all interest accrued
thereon.
D. Options of Borrowers. In lieu of paying an Affected Lender such
additional moneys as are required by subsection 2.6B or the prepayment of an
Affected Lender required by subsection 2.6C, Borrowers may exercise any one of
the following options:
(i) If the determination by an Affected Lender relates only to
Eurodollar Rate Loans or Offshore Periodic Rate Loans then being
requested by a Borrower pursuant to a Notice of Borrowing or a
Notice of Conversion/Continuation, such Borrower may by giving
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notice (by telephone confirmed in writing) to Administrative Agent
(who shall promptly give similar notice to each relevant Lender)
and, in the case of any Lender which is an Offshore Lender, to the
relevant Offshore Administrative Agent no later than the date
immediately prior to the date on which such Eurodollar Rate Loans
or Offshore Periodic 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 or Offshore Periodic Rate Loan then
being requested, converted or continued as a Base Rate Loan or an
Offshore Base Rate Loan, respectively; or
(ii) Upon written notice to Administrative Agent and the relevant
Offshore Administrative Agents, the applicable Borrower may
terminate the obligations of Lenders to make or maintain Loans as,
and to convert Loans into, Eurodollar Rate Loans and Offshore
Periodic Rate Loans, as the case may be, and, in any such event,
the applicable Borrower 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 or Offshore Periodic Rate Loans into Base Rate Loans or
Offshore Base Rate Loans, respectively, in the manner contemplated
by subsection 2.2D but without satisfying the advance notice
requirements therein; or
(iii) The applicable Borrower may give notice (by telephone
confirmed in writing) to the Affected Lender and Administrative
Agent (who shall promptly give similar notice to each relevant
Lender) and, in the case of any Lender which is an Offshore Lender,
to the relevant Offshore Administrative Agent and require the
Affected Lender to make the Eurodollar Rate Loan or Offshore
Periodic Rate Loan then being requested as a Base Rate Loan or an
Offshore Base Rate Loan, respectively, or to continue to maintain
its outstanding Base Rate Loan or Offshore Base Rate Loan then the
subject of a Notice of Conversion/ Continuation as a Base Rate Loan
or an Offshore Base Rate Loan, respectively, or to convert its
Eurodollar Rate Loans or Offshore Periodic Rate Loans then
outstanding that are so affected into Base Rate Loans or Offshore
Base Rate Loans, respectively, 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 Offshore Periodic Rate Loans or to convert Base Rate
Loans or Offshore Base Rate Loans into Eurodollar Rate Loans or
Offshore Periodic Rate Loans.
E. Compensation. The applicable Borrower 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
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paid by that Lender to lenders of funds borrowed by it to make or carry its
Eurodollar Rate Loans or Offshore Periodic Rate Loans, as the case may be, 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 or with respect to any Subsidiary Borrower's Offshore Periodic Rate
Loans: (i) if for any reason (other than a default by that Lender) a
borrowing of any Eurodollar Rate Loan or any Offshore Periodic 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 given pursuant to subsection 2.2D, (ii) if any prepayment or other
principal payment of any of its Eurodollar Rate Loans or Offshore Periodic
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 or Offshore Periodic Rate Loans is not made on any date
specified in a notice of prepayment given by the applicable Borrower, or (iv)
as a consequence of any other default by such Borrower to repay such Lender's
Eurodollar Rate Loans or Offshore Periodic Rate Loans when required by the
terms of this Agreement.
F. Quotation of Adjusted Eurodollar Rate and Adjusted Offshore
Periodic Rate. Anything herein to the contrary notwithstanding, if (i) 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, and (ii) on any Interest Rate Determination Date no applicable Adjusted
Offshore Periodic Rate is available by reason of the failure of the relevant
Offshore Administrative Agent to provide a quotation in accordance with the
definition of "LIBOR," such Offshore Administrative Agent shall give the
relevant Borrower and each Offshore Lender prompt notice thereof and the Loans
requested shall be made as Offshore Base Rate Loans.
G. Booking of Eurodollar Rate Loans, Offshore Periodic Rate Loans
or Offshore Base Rate Loans. Any Lender may make, carry or transfer
Eurodollar Rate Loans, Offshore Periodic Rate Loans and Offshore Base Rate
Loans at, to, or for the account of, any of its branch offices or the office
of an Affiliate of that Lender; provided that Offshore Periodic Rate Loans to
any Subsidiary Borrower and Offshore Base Rate Loans to any Australian
Subsidiary Borrower may only be made, carried or transferred at, to or for the
account of a branch office or the office of an Affiliate that is located in
the same jurisdiction as the relevant Subsidiary Borrower or, in the case of
Australian Subsidiary Borrower, in any Australian jursidiction.
H. Assumptions Concerning Funding of Eurodollar Rate Loans and
Offshore Periodic Rate Loans. Calculation of all amounts payable to a Lender
under this subsection 2.6 shall be made (i) with respect to Eurodollar Rate
Loans, as though that Lender had actually funded its relevant Eurodollar Rate
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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, and (ii) with
respect to Offshore Periodic Rate Loans denominated in Sterling or Lire, as
though that Offshore Lender had actually funded its relevant Offshore Periodic
Rate Loan through the purchase of a deposit in the Applicable Currency bearing
interest at the rate obtained pursuant to the definition of LIBOR in an amount
equal to the amount of that Offshore Periodic Rate Loan and having a maturity
comparable to the relevant Interest Period; provided, however, that each
Lender may fund each of its Eurodollar Rate Loans and Offshore Periodic Rate
Loans in any manner it sees fit and the foregoing assumptions shall be
utilized only for the calculation of amounts payable under this subsection
2.6.
I. Eurodollar Rate Loans and Offshore Periodic Rate Loans After
Default. Unless Requisite Lenders shall otherwise agree, after the occurrence
of and during the continuance of an Event of Default, no Borrower may elect to
have a Loan be made or maintained as, or converted to, a Eurodollar Rate Loan
or Offshore Periodic 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 or Offshore Periodic Rate Loans,
as the case may be, 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. The applicable Borrower hereby agrees to pay all
reasonable expenses incurred by any Lender in utilizing another lending office
of such Lender pursuant to this subsection 2.6J.
K. Replacement of Lender. If a Borrower 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 the applicable Borrower 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, the applicable Borrower may require the Lender giving such notice to
assign all of its Loans, its Commitments and its other Obligations to such
other Lender or Eligible Assignee, at par, pursuant to the provisions of
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subsection 9.2B; provided that, prior to or concurrently with such replacement
(i) the applicable Borrower 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.
L. Calculation of Spot Rates. No later than 10:30 A.M. (Local Time)
on each Calculation Date with respect to any Offshore Currency, the relevant
Offshore Administrative Agent shall determine the Spot Rate as of such
Calculation Date with respect to such Offshore Currency and shall promptly
notify Administrative Agent thereof (it being acknowledged and agreed that
Administrative Agent shall use the Spot Rates so calculated for the purposes
of determining (i) compliance with subsection 2.1C(i) with respect to any
borrowing request and (ii) whether any prepayment is required under subsection
2.4A(ii)(b)). Any Spot Rate so determined shall become effective on the first
Business Day immediately following the relevant Calculation Date (each, a
"Reset Date") and shall remain effective until the next succeeding Reset Date.
No later than 1:00 P.M. (Local Time) on the date of its receipt of a Notice of
Borrowing (or telephonic notice in lieu thereof) under subsection 2.1F, each
Offshore Administrative Agent shall determine the Dollar Equivalent of the
amount of Offshore Loans requested in such Notice of Borrowing and notify
Administrative Agent promptly, but no later than 2:00 P.M. (Local Time) on the
same day, of the amount of such Dollar Equivalent. Each Offshore
Administrative Agent shall promptly notify Borrowers of each determination of
a Spot Rate hereunder.
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 Commitments 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
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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
(or cause the applicable Subsidiary Borrower to 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 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, including, without limitation, any agency of the
European Monetary Union (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to any
additional Tax (other than any Excluded Tax) 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
any Tax (other than any Excluded Tax));
(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 or Offshore
Periodic Rate Loans that are reflected in the definition of
Adjusted Eurodollar Rate or Adjusted Offshore Periodic Rate,
respectively); or
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(imposes any other condition on or affecting such Lender (or
its applicable lending office) or its obligations hereunder or the
interbank Eurodollar market or other relevant market for an
Offshore Currency, 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 (or cause the applicable Subsidiary Borrower to 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 and Offshore Periodic 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 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 any Borrower
under this Agreement and the other Loan Documents (including
without limitation any amounts payable to Offshore Loan
Participants in respect of Offshore Loan Participations purchased
pursuant to subsection 2.1C(iii)) 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 such Borrower 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 any Borrower 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 such Borrower or other Person to Administrative Agent, any
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Offshore Administrative Agent or any Lender or Offshore Loan
Participant under any of the Loan Documents:
(a) such Borrower shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as such
Borrower becomes aware of it;
(b) such Borrower 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, such Offshore
Administrative Agent or such Lender or Offshore Loan Participant,
as the case may be) on behalf of and in the name of Administrative
Agent, such Offshore Administrative Agent or such Lender or
Offshore Loan Participant;
(c) (1) with respect to any Borrower other than an Australian
Subsidiary Borrower, in the event such Tax is a Covered Tax, the
sum payable by such Borrower 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, the
relevant Offshore Administrative Agent or such Lender or Offshore
Loan Participant, 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 (2)
solely with respect to any Australian Subsidiary Borrower and
amounts payable thereby, in the event such Tax is a Covered Tax,
such Australian Subsidiary Borrower shall pay an additional amount
by way of indemnity so that the Administrative Agent or such
Lender, as the case may be, receives on the due date and retains
(free and clear of any Tax on such additional amount) the full
amount it would have received and so retained and 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, such Borrower shall deliver to Administrative
Agent and the relevant Offshore 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 (other than amounts payable
to Offshore Loan Participants in respect of Offshore Loan
Participations purchased pursuant to subsection 2.1C(iii)) shall be
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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 any Borrower 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 such Borrower (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
such Borrower's expense if requested by such Borrower (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 such
Borrower to the extent payment has been made in full as and when
required pursuant to this subsection 2.7C.
(iv) Tax Certificates. (1) Each Lender (other than an Offshore
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; (2) each
UK Lender (other than a UK Qualifying Lender; provided that this
clause (2) shall apply to a UK Qualifying Lender which loses such
status, other than through a change in any applicable law, treaty
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or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof after the
Relevant Date (as defined below) as set out in the proviso to the
second sentence of this subsection 2.7C(iv), from the date of such
loss) shall deliver to the appropriate Person such application
forms, certificates, documents or other evidence as may be required
from time to time, properly completed and duly executed by such UK
Lender, to enable UK Subsidiary Borrowers to be able to pay
interest on the UK Loans of such UK Lender without withholding or
deduction for or on account of any UK income tax; (3) each
Australian Lender that is organized under the laws of any
jurisdiction other than Australia or any political subdivision
thereof (for purposes of this subsection 2.7C(iv), a "Non-
Australian Lender") agrees to deliver to Australian Subsidiary
Borrowers and Australian Administrative Agent upon request such
certificates, documents or other evidence as may be required from
time to time, properly completed and duly executed by such Non-
Australian Lender, to establish the basis for any applicable
exemption from or reduction of Taxes with respect to any payments
to such Non-Australian Lender of principal, interest, fees,
commissions or any other amount payable under this Agreement or the
Australian Loans; and (4) each Italian Lender that is organized
under the laws of any jurisdiction other than Italy or any
political subdivision thereof (for purposes of this subsection
2.7C(iv), a "Non-Italian Lender") agrees to deliver to O-I Italy
and Italian Administrative Agent upon request such certificates,
documents or other evidence as may be required from time to time,
properly completed and duly executed by such Non-Italian Lender, to
establish the basis for any applicable exemption from or reduction
of Taxes with respect to any payments to such Non-Italian Lender of
principal, interest, fees, commissions or any other amount payable
under this Agreement or the Italian Loans. No Borrower shall be
required to pay any additional amount to any such Lender under
subsection 2.7C(ii) (a) if such Lender shall have failed to satisfy
the requirements of the immediately preceding sentence or (b) in
the case of Loans to Company, to the extent such amount results
from any Lender being treated as a "conduit entity" within the
meaning of Treasury Regulation Section 1.881-3 or any successor
provision thereto; provided 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) (such date being the "Relevant
Date" with respect to a Lender), nothing in this subsection
2.7C(iv) shall relieve any Borrower 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.
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D. Replacement of Lender. If any Borrower 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 such Borrower 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, such Borrower may require the Lender giving such notice to
assign all of its Loans, its Commitments and its other Obligations to such
other Lender or Eligible Assignee, at par, pursuant to and in accordance with
the provisions of subsection 9.2B; provided that, prior to or concurrently
with such replacement (i) the applicable Borrower 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 (and no Lender
shall issue) any Letter of Credit if, after giving effect to such
issuance, (A) the Total Utilization of Revolving Loan Commitments
would exceed (B) the Revolving Loan Commitments then in effect
minus any Blocked Availability Amount;
(ii) In no event shall any Issuing Lender issue (w) any Letter of
Credit having an expiration date later than ten days prior to 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 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
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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
$500,000,000.
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 (each such letter of credit being referred to herein as an
"Existing Letter of Credit") 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 Existing Letters of Credit shall
accrue from and after the Effective Date. All Existing Letters of Credit as
of the date hereof are described in Schedule E annexed hereto.
Immediately upon the issuance of any Letter of Credit by an Issuing
Lender, each Lender other than such Issuing Lender shall be deemed to, and
hereby agrees to, have irrevocably purchased from such 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 amount which is or at any
time may become available to be drawn thereunder.
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B. Notice of Request for 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 Request for 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 Request for 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 Request for 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
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any Letter of Credit denominated in a foreign currency which in the
reasonable judgment of Administrative Agent is not 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) In the event that Administrative Agent is not the Issuing
Lender in respect of a Commercial Letter of Credit, the Issuing
Lender of such Commercial Letter of Credit will deliver to
Administrative Agent, promptly on the first Business Day of each
week such Commercial Letter of Credit is outstanding, a report
setting forth for the previous week the daily aggregate amount
available to be drawn under such Commercial Letter of Credit.
Administrative Agent shall deliver to each Lender, promptly after
the end of each calendar month and upon each payment by
Administrative Agent to Lenders of the letter of credit fees
described in subsection 2.8F(1) or (2), a report setting forth, for
the period from the date of the last such report, the daily
aggregate amount available to be drawn (to the extent such amounts
have been reported to Administrative Agent pursuant to the
immediately preceding sentence) under each Commercial Letter of
Credit issued by each Issuing Lender.
D. Payment of Amounts Drawn Under Letters of Credit. In the event
of any 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 draw-
ing 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
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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 on the date such
drawing is honored), 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 (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 on the date such drawing is honored)
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 Issu-
ing 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.
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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 to (but excluding) each January 1, April 1, July 1
and October 1 of each year 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
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 to (but excluding) each
January 1, April 1, July 1 and October 1 of each year 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, inter-
est, 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.
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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 having a Revolving Loan Commitment 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:
(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 substantially 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 as
determined by a court of competent jurisdiction;
(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 ap-
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plication 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, re-
quest 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 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
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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
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 substantially 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
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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 having Revolving Loan Commitments 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 Total
Utilization of Revolving Loan Commitments at any time shall not exceed the
Revolving Loan Commitments then in effect minus any Blocked Availability
Amount 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 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 re-
quested, 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 having Revolving Loan Commitments by
telecopy an Invitation for Bid Rate Loan Quotes substantially in the form of
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Exhibit V annexed hereto, which shall constitute an invitation by Company to
each such 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 having a Revolving Loan Commitment 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 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).
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(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 aggregate
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
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
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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 Domestic 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
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
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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 the last day of the Bid Rate Loan Interest
Period 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 2.1H(iv), Company shall execute and deliver to such
Lender (or to Administrative Agent for that Lender) a Bid Rate Loan Note,
substantially in the form of Exhibit IX 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 lia-
bilities (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.
M. Existing Bid Rate Loans. Company and Lenders agree that any
Existing Bid Rate Loans shall for all purposes of this Agreement be deemed to
have been made as Bid Rate Loans under and pursuant to the terms of this
Agreement.
2.10 Eurocurrency Provisions
A. Effectiveness. The provisions of subsections 2.10B and 2.10C
shall become effective with respect to the Lira and Sterling (and to Italian
Loans and UK Loans) on the respective dates on which it is no longer legally
permissible to retain the Lire or Sterling as an Offshore Currency.
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B. Redenomination, Rounding and Other Consequential Changes. (i)
Each obligation under this Agreement which has been denominated in Sterling or
Lire shall be redenominated into the Euro in accordance with European Monetary
Union legislation, and thereafter any Loans in either of such Offshore
Currencies shall be denominated and made in the Euro, and (ii) without
prejudice and in addition to any method of conversion or rounding prescribed
by any European Monetary Union legislation and without prejudice to the
respective liabilities for indebtedness of each relevant Subsidiary Borrower
to Agents and Lenders under or pursuant to this Agreement, each reference in
this Agreement to an amount (or an integral multiple thereof) in Sterling or
Lire to be paid to or by any Agent or any Offshore Lender shall be replaced by
a reference to such reasonably comparable and convenient amount (or an
integral multiple thereof) in the Euro as the relevant Offshore Administrative
Agent may from time to time specify after consultation with the relevant
Subsidiary Borrower and Company.
C. Basis of Accrual. If, in relation to Sterling or Lire, the basis
of accrual of interest expressed in this Agreement in respect of that Offshore
Currency shall be inconsistent with prevailing convention or practice in the
London Interbank Market for the basis of accrual of interest in respect of the
Euro, such expressed basis shall be replaced by such convention or practice.
SECTION 3
CONDITIONS TO LOANS AND LETTERS OF CREDIT
3.1 Conditions to Effectiveness
This Agreement shall become effective only upon, and the
obligations of Lenders to make the Term Loans and any Revolving Loans and
Offshore Loans to be made on the Effective Date and to maintain the Existing
Bid Rate Loans and the Existing Letters of Credit as Bid Rate Loans and
Letters of Credit hereunder are (in addition to the conditions precedent
specified in subsection 3.2) subject to, prior or concurrent satisfaction (or
waiver in accordance with the terms hereof) of the following conditions:
A. Borrower Documents. On or before the Effective Date, each
Borrower, as applicable, shall deliver 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) In the case of Company, 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;
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(2) In the case of any Subsidiary Borrower, certified copies of its
charter documents, together with evidence of good standing from its
jurisdiction of organization if generally available for companies
similar to such Subsidiary Borrower from such jurisdiction, each to
be dated a recent date prior to the Effective Date;
(3) Copies of its Bylaws, if any, certified as of the Effective Date
by its corporate secretary, an assistant secretary or, in the case
of Subsidiary Borrowers, any director or a notary public;
(4) Resolutions of its Board of Directors or comparable governing
body approving and authorizing the execution, delivery and
performance of this Agreement and, in the case of Company, the
Company Guaranty and the Domestic Overdraft Agreement and, in the
case of Subsidiary Borrowers, the Offshore Overdraft Agreements and
approving and authorizing the execution, delivery and payment of
any Notes issued by it, each certified as of the Effective Date by
its corporate secretary, an assistant secretary or, in the case of
Subsidiary Borrowers, any director or a notary public as being in
full force and effect without modification or amendment;
(5) Signature and incumbency certificates of its officers executing
this Agreement and the other Loan Documents (and, if applicable,
any powers of attorney authorizing other Persons to execute this
Agreement and the other Loan Documents) to which it is a party;
(6) Executed copies of this Agreement and the other Loan Documents
to which it is a party; and
(7) Such other documents as Administrative Agent may reasonably
request.
B. No Material Adverse Change Regarding Company and its
Subsidiaries. Since December 31, 1997, 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, or of the Acquired Applegate Subsidiaries.
C. Applegate Acquisition Agreement. Administrative Agent shall have
received a fully executed or conformed copy of the Applegate Acquisition
Agreement (including all exhibits and schedules thereto) and any documents
executed in connection therewith that Agents may reasonably request, and the
Applegate Acquisition Agreement shall be in full force and effect and no
provision thereof shall have been modified or waived in any respect determined
by Agents to be material, in each case without the consent of Agents and
Requisite Lenders.
D. Necessary Governmental Authorizations and Consents; Expiration
of Waiting Periods, Etc. Company shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
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necessary or advisable in connection with the Applegate Acquisition, the other
transactions contemplated by the Loan Documents and the Applegate Acquisition
Agreement, and the continued operation of the business conducted by Acquired
Applegate Subsidiaries in substantially the same manner as conducted prior to
the consummation of the Applegate Acquisition, and each of the foregoing shall
be in full force and effect, in each case other than those the failure to
obtain or maintain which, either individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect. All applicable
waiting periods shall have expired without any action being taken or
threatened by any competent authority which would restrain, prevent or
otherwise impose conditions on the Applegate Acquisition or the financing
thereof which are material and adverse in the opinion of Agents. No action,
request for stay, petition for review or rehearing, reconsideration, or appeal
with respect to any of the foregoing shall be pending.
E. Consummation of Applegate Acquisition.
(i) All conditions to the Applegate Acquisition set forth in the
Applegate Acquisition Agreement shall have been satisfied or the
fulfillment of any such conditions shall have been waived;
provided, that Agents and Requisite Lenders shall have consented to
any such waiver of any such condition which Agents reasonably deem
material;
(ii) The Applegate Acquisition shall have become effective in
accordance with the terms of the Applegate Acquisition Agreement;
and
(iii) Administrative Agent shall have received an Officers'
Certificate of Company to the effect set forth in clauses (i) and
(ii) above and stating that Company will proceed to consummate the
Applegate Acquisition immediately upon the making of the initial
Loans.
F. Financial Statements. Lenders shall have received from Company
(i) audited financial statements of Company and its Subsidiaries for Fiscal
Year 1997, consisting of a balance sheet and the related consolidated and
consolidating statements of income, stockholders' equity and cash flows for
such fiscal years, and (ii) audited financial statements of each of the
Acquired Applegate Subsidiaries and their respective Subsidiaries, if any, for
their fiscal years ending December 31, 1997, consisting of balance sheets and
the related consolidated and consolidating statements of income, stockholders'
equity and cash flows for such fiscal years.
G. Opinions of Counsel to Borrowers. Lenders shall have received
(i) originally executed copies of one or more favorable written opinions of
Latham & Watkins, counsel for Borrowers, in substantially the form of Exhibit
XV 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 XVI annexed hereto, in each case
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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.
H. 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 XVII annexed hereto and as to such other
matters as Administrative Agent on behalf of Lenders may reasonably request.
I. Opinions of Counsel Delivered Under Applegate Acquisition
Agreement. Administrative Agent and its counsel shall have received copies of
such opinions of counsel delivered to the parties under the Applegate
Acquisition Agreement as Administrative Agent may reasonably request, together
with a letter from each counsel delivering such an opinion (to the extent not
inconsistent with such counsel's established internal policies) authorizing
Lenders to rely upon such opinion to the same extent as though it were
addressed to Lenders.
J. Payment of Agents' Fees, Consent Fees and Syndication Fees. On
or before the Effective Date, (i) Company shall have paid to Arrangers and
Administrative Agent any fees referred to in subsection 2.3 that are payable
on the Effective Date and (ii) Company shall have paid to Administrative
Agent, for distribution (as appropriate) to Lenders, the "Consent Fees" and
"Syndication Fees" described in that certain letter agreement dated February
27, 1998, among Company, Bankers, Bankers Trust New York Corporation, BofA,
BancAmerica Robertson Stephens, NationsBank, NationsBanc Montgomery Securities
LLC and ScotiaBank.
K. Payment 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 the Effective Date,
Company shall have repaid all Existing Revolving Loans that are outstanding
(and, in connection therewith, Company hereby agrees to pay to Existing
Lenders any amounts payable pursuant to subsection 2.6E of the Existing Credit
Agreement with respect to any Existing Revolving Loans which are Eurodollar
Rate Loans 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 facility
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.
L. 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
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Date, there exists no "Event of Default" or "Potential Event of Default" under
and as defined in the Existing Credit Agreement.
M. 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
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.
N. Performance of Agreements. On or before the Effective Date,
Company shall have performed in all material respects all agreements which
this Agreement or the Existing Credit 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, 2.1C(ii), 2.1E and
2.8D, the obligations of Lenders to make all Loans are subject to the
following further conditions precedent:
A. Administrative Agent and, in the case of a Funding Date with
respect to an Offshore Loan, the relevant Offshore Administrative Agent shall
have received, in accordance with the provisions of subsection 2.1F or 2.9B
(unless otherwise agreed to in respect of the initial Funding Date), 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, an
assistant treasurer, the controller, an assistant controller or (in the case
of Subsidiary Borrowers) a director of the applicable Borrower or by any
executive officer of the applicable Borrower (or other Person lawfully
designated by power of attorney, in the case of Subsidiary Borrowers)
designated by any of the above-described officers or director on behalf of
such Borrower in writing delivered to Administrative Agent or such Offshore
Administrative Agent, as the case may be.
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 same 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
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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) Each Loan Party 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
Reserve System; and
(6) There shall not be pending or, to the knowledge of any Borrower
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 any Borrower hereunder shall constitute a
representation and warranty by Borrowers 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 Request for Issuance of
Letter of Credit requesting the issuance of such Letter of Credit, all other
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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
BORROWERS' 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
Domestic Overdraft Account, to induce Offshore Overdraft Account Providers to
make overdrafts in respect of the Offshore Overdraft Accounts, to induce
Issuing Lenders to issue Letters of Credit and to induce Lenders to purchase
participations in Letters of Credit, in the Domestic Overdraft Amount and in
the Offshore Overdraft Amounts and in the Offshore Loans, each Borrower
represents and warrants to each Lender, on the date of this Agreement, on the
Effective Date both immediately before and immediately after giving effect to
the Applegate Acquisition, on each other Funding Date, on the date of issuance
of each Letter of Credit and on the date of execution by any Loan Party of a
Loan Document pursuant to subsection 5.8, that the following statements are
true, correct and complete, which representations and warranties in the case
of each Subsidiary Borrower shall be limited to such Subsidiary Borrower and
its Subsidiaries:
4.1 Organization, Powers, Good Standing, Business and Subsidiaries
A. Organization and Powers. Each of the Loan Parties is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation. Each of the Loan Parties 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, in the case of Borrowers,
to issue the Notes.
B. Good Standing. Each of the Loan Parties 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.
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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 juris-
diction 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 each
Loan Party.
B. No Conflict. The execution, delivery and performance by each
Loan Party of the Loan Documents to which it is a party, the issuance,
delivery and performance of the Notes, and the consummation of the Applegate
Acquisition did not, do not and will not (i) violate any provision of law
applicable to any Loan Party, the Certificates of Incorporation or other
charter documents, as applicable to such Loan Party, or Bylaws (if any) of any
Loan Party, or any order, judgment or decree of any court or other agency of
government binding on any Loan Party, (ii) except as disclosed in the
Applegate Acquisition Agreement, 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 (other than
Liens in favor of the Collateral Agent) 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 of any Person under any Contractual
Obligation of Company or any of its Subsidiaries, other than those approvals
and consents which have been obtained.
C. Governmental Consents. The execution, delivery and performance
by each Loan Party of the Loan Documents to which it is a party and the
issuance, delivery and performance of the Notes and the consummation of the
Applegate Acquisition 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 filings, consents or notices that 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
the applicable Loan Parties, enforceable against the applicable Loan Parties
in accordance with their respective terms, except as enforcement may be
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limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
4.3 Financial Condition
Company has heretofore delivered to Lenders, at Lenders' request,
(i) 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 and (ii) the audited consolidated balance sheet of
Company and its Subsidiaries as at December 31, 1997 and the related
consolidated statements of income, stockholders' equity and cash flows of
Company and its Subsidiaries for the three-Fiscal Quarter period 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 3.1F or 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, 1997 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, 1997, there is no action, suit, proceeding,
governmental investigation or arbitration of which Company has knowledge
(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.
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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,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
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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 as-
sumptions 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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4.12 Applegate Acquisition Agreement
A. Delivery of Applegate Acquisition Agreement. Company has
delivered to Lenders complete and correct copies of the Applegate Acquisition
Agreement and of all exhibits and schedules thereto.
B. Seller's Warranties. Except to the extent otherwise set forth
herein or in the schedules hereto, each of the representations and warranties
given by Seller and the Selling Companies to Company or the Purchasing
Companies in the Applegate Acquisition Agreement is true and correct in all
material respects as of the date hereof (or as of any earlier date to which
such representation and warranty specifically relates) and will be true and
correct in all material respects as of the Effective Date (or as of such
earlier date, as the case may be), in each case subject to the qualifications
set forth in the Applegate Acquisition Agreement and the schedules and
exhibits thereto and, with respect to the representations and warranties given
by Seller and the Selling Companies, on the basis set forth in Section 6.2 of
the Applegate Acquisition Agreement.
C. Warranties of Company. Subject to the qualifications set forth
therein, each of the representations and warranties given by Company to Seller
in the Applegate Acquisition Agreement is true and correct in all material
respects as of the date hereof and will be true and correct in all material
respects as of the Effective Date.
D. Survival. Notwithstanding anything in the Applegate Acquisition
Agreement to the contrary, the representations and warranties of Company set
forth in subsections 4.12B and 4.12C shall, solely for purposes of this
Agreement, survive the Effective Date for the benefit of Lenders.
SECTION 5
COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the
Commitments hereunder shall be in effect and until payment in full of all of
the Loans, the Notes, the Offshore Overdraft Amounts and the Domestic
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 Sub-
sidiaries to maintain, a system of accounting established and administered in
accordance with sound business practices to permit preparation of consolidated
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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(viii), all in reasonable detail and certified by the
chief accounting officer, the chief financial officer, the
treasurer, an assistant treasurer, the controller or an assistant
controller 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 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(viii), 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
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such financial statements with respect to Reporting Units,
certified by the chief accounting officer, the chief financial
officer, the treasurer, an assistant treasurer, the controller or
an assistant controller 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 re-
viewed 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, chief financial officer,
treasurer, any assistant treasurer, controller or any assistant
controller 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, chief
financial officer, treasurer, an assistant treasurer, controller or
any assistant controller 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 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;
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(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 Com-
pany 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;
(viii) Financial Plans. as soon as practicable and in any event
within 90 days after the beginning 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,
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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) fore-
casted 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.
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Company will maintain or cause to be maintained, with financially 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 there-
from, 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.
5.8 Execution of Intercreditor Agreement, Company Pledge Agreement,
Subsidiary Guaranty and Subsidiary Pledge Agreement.
A. Execution of Intercreditor Agreement, Company Pledge Agreement,
Subsidiary Guaranty and Subsidiary Pledge Agreement. In the event that the
Consolidated Leverage Ratio as of the end of the first Fiscal Quarter ending
after the date that is twelve months after the Effective Date is equal to or
greater than 4.00:1.00, Company will, within 45 days after the delivery of the
Compliance Certificate in respect of such Fiscal Quarter, (i) execute and
deliver to Collateral Agent a counterpart of the Company Pledge Agreement and
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an acknowledgment to the Intercreditor Agreement, (ii) cause Group, each
First-Tier Subsidiary and each Second-Tier Subsidiary to execute and deliver
to Collateral Agent a counterpart of the Subsidiary Guaranty and an
acknowledgment to the Intercreditor Agreement, (iii) cause Group and each
First-Tier Subsidiary to execute and deliver to Collateral Agent a counterpart
of the Subsidiary Pledge Agreement, and (iv) take, and cause Group and each
First-Tier Subsidiary to take, all such further actions and execute all such
further documents and instruments as may be necessary or, in the reasonable
opinion of Administrative Agent, desirable to create in favor of Collateral
Agent a valid and perfected first priority Lien on all of the Pledged
Collateral to secure the Secured Obligations (as defined in the Company Pledge
Agreement or the Subsidiary Pledge Agreement, as the case may be).
B. Subsidiary Charter Documents, Legal Opinions, Etc. In the event
that Company is required to deliver the Loan Documents described in subsection
5.8A above, Company shall deliver to Administrative Agent, together with such
Loan Documents, (i) certified copies of each Subsidiary Guarantor's
Certificate or Articles of Incorporation, together with a good standing
certificate from the Secretary of State of the jurisdiction of its
incorporation, each to be dated a recent date prior to their delivery to
Administrative Agent, (ii) a copy of such Subsidiary Guarantor's Bylaws,
certified by its corporate secretary or an assistant secretary as of a recent
date prior to their delivery to Administrative Agent, (iii) a certificate
executed by the secretary or an assistant secretary of such Subsidiary
Guarantor as to (a) the fact that the attached resolutions of the Board of
Directors of such Subsidiary Guarantor approving and authorizing the
execution, delivery and performance of such Loan Documents are in full force
and effect and have not been modified or amended and (b) the incumbency and
signatures of the officers of such Subsidiary Guarantor executing such Loan
Documents, and (iv) one or more favorable opinions of counsel to Company and
each Subsidiary Guarantor, in form and substance satisfactory to
Administrative Agent and its counsel, as to (a) the due organization and good
standing of each Subsidiary Guarantor, (b) the due authorization, execution
and delivery by Company and each Subsidiary Guarantor of such Loan Documents,
(c) the enforceability of such Loan Documents against Company and each
Subsidiary Guarantor, and (d) such other matters (including matters relating
to the creation and perfection of Liens in the Pledged Collateral pursuant to
the Company Pledge Agreement and the Subsidiary Pledge Agreement) as
Administrative Agent may reasonably request, all of the foregoing to be
satisfactory in form and substance to Administrative Agent and its counsel.
SECTION 6
COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the
Commitments shall be in effect and until payment in full of all of the Loans,
the Notes, the Offshore Overdraft Amounts and the Domestic Overdraft Amount,
the cancellation or expiration of all Letters of Credit and the reimbursement
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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 or its UK Subsidiaries or its Australian 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 document or instrument
in respect of goods or accounts receivable) of Company or any of its
Consolidated Subsidiaries or its UK Subsidiaries or its Australian
Subsidiaries, whether now owned or hereafter acquired, or any income or
profits therefrom, except:
(i) Permitted Encumbrances;
(ii) Liens, if any, created pursuant to the Company Pledge Agreement
and the Subsidiary Pledge Agreement;
(iii) 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;
(iv) 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
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existing Liens, on such property) of such property to Company or
any of its Subsidiaries;
(v) Liens encumbering accounts receivable sold and cash reserves
established in connection therewith pursuant to any transaction
permitted under subsection 6.6(v);
(vi) Liens securing Indebtedness of Company's UK Subsidiaries or
Australian Subsidiaries (other than Liens securing Obligations);
provided that, to the extent the aggregate outstanding principal
amount of Indebtedness secured by such Liens exceeds $150,000,000
at any time, Company shall have either (1) delivered to
Administrative Agent written notice designating all or a portion of
such excess as effecting a reduction in current availability under
the Revolving Loan Commitments or (2) reduced the Revolving Loan
Commitments pursuant to subsection 2.4F in an amount equal to any
portion of such excess not so designated under the immediately
preceding clause (1); and
(vii) 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 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
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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 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
$750,000,000.
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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 $750,000,000.
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, (ii) make Restricted Junior Payments
consisting of payments of Common Stock to holders of preferred stock of
Company in order to redeem or in exchange for all or a portion of such
preferred stock, (iii) make Restricted Junior Payments at any time on or prior
to the first anniversary of the Effective Date consisting of acquisitions of
Common Stock held in the Rabbi Trust in connection with the exercise by an
underwriter or underwriters of its or their over-allotment option in
connection with a public offering of Common Stock, and (iv) 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. The provisions of
this subsection 6.4 shall not be breached by the payment of any dividend
within 60 days after the declaration thereof if, at such date of declaration,
the making of such payment would not have been in violation of this
subsection.
6.5 Financial Covenants
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:
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MINIMUM INTEREST
PERIOD COVERAGE RATIO
Effective Date - 03/31/00 2.25:1.00
Thereafter 2.50:1.00
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 - 06/30/99 4.90:1.00
07/01/99 - 12/31/99 4.75:1.00
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 any other Person if as a
result of such merger or consolidation such other Person becomes a
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;
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(iii) in addition to any Rockware Asset Sales permitted under
subsection 6.6(vi), 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
Effective Date, an amount equal to or greater than an aggregate of
(i) $500,000,000 in fair market value of stock or other assets pursuant
to this subsection 6.6(iii) during any consecutive 12-month period after
the Effective Date or (ii) $1,000,000,000 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
dispose of real or personal property held for sale or resale in the
ordinary course of business;
(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);
(vi) Company and its Subsidiaries may, at any time on or prior to
the second anniversary of the Effective Date, make Rockware Asset Sales;
provided that (x) the consideration received for the assets sold,
transferred or otherwise disposed of in any Rockware Asset Sale shall be
in an amount at least equal to the fair market value thereof; and
(y) the proceeds of such Rockware Asset Sale shall be applied as
required by subsection 2.4A(ii)(c); and
(vii) Company may, at any time on or prior to the first
anniversary of the Effective Date, acquire and dispose of Common Stock
held in the Rabbi Trust pursuant to the exercise by an underwriter or
underwriters of its or their over-allotment option in connection with a
public offering of Common Stock.
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
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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.
SECTION 7
EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default")
shall occur and be continuing:
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
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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 any Borrower 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 by any Loan Party in any Loan
Document or in any statement or certificate at any time given by any Loan
Party 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
Any Loan Party shall default in the performance of or compliance
with any term contained in this Agreement or any other Loan Document 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
decree or order for relief in respect of Company or any of its Material
Subsidiaries or any Subsidiary Borrower 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 or any Subsidiary Borrower 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 any
Subsidiary Borrower, 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 or
any Subsidiary Borrower 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 or any Subsidiary Borrower, and the continuance of any such
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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 or any Subsidiary
Borrower 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 or any Subsidiary
Borrower of any general assignment for the benefit of creditors; or the
inability or failure of Company or any of its Material Subsidiaries or any
Subsidiary Borrower, or the admission by Company or any of its Material
Subsidiaries or any Subsidiary Borrower 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 Subsidiary Borrower (or any committee
thereof) adopts any resolution or otherwise authorizes action to approve any
of the foregoing; provided, however, that no Event of Default shall be deemed
to have occurred for purposes of this subsection 7.7 in the event that any
Australian Subsidiary other than an Australian Subsidiary Borrower, with the
consent of Administrative Agent (which consent shall not be unreasonably
withheld), commences a voluntary winding up with respect to itself for the
purposes of a solvent reconstruction or amalgamation under Australian law; 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
$50,000,000 or (ii) in the aggregate at any time an amount in excess of
$100,000,000 (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 Subsidiary Borrower
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 or any Subsidiary Borrower decreeing the
dissolution or split up of Company or that Subsidiary or that Subsidiary
Borrower and such order shall remain undischarged or unstayed for a period in
excess of 30 days; or
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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; or
7.12 Invalidity of Company Guaranty or Subsidiary Guaranty;
Failure of Security
At any time after the execution and delivery thereof, (i) the
Company Guaranty or the Subsidiary Guaranty for any reason, other than the
satisfaction in full of all Obligations, shall cease to be in full force and
effect (other than in accordance with its terms) or shall be declared to be
null and void, (ii) the Company Pledge Agreement or the Subsidiary Pledge
Agreement shall cease to be in full force and effect (other than by reason of
a release of Pledged Collateral thereunder in accordance with the terms hereof
or thereof, the satisfaction in full of the Obligations or any other
termination of the Company Pledge Agreement, or the Subsidiary Pledge
Agreement in accordance with the terms hereof or thereof) or shall be declared
null and void, or Collateral Agent shall not have or shall cease to have a
valid and perfected first priority Lien in any Pledged Collateral purported to
be covered thereby, in each case for any reason other than the failure of
Collateral Agent, Administrative Agent or any Lender to take any action within
its control, or (iii) any Loan Party shall contest the validity or
enforceability of any Loan Document in writing or deny in writing that it has
any further liability, including with respect to future advances by Lenders,
under any Loan Document to which it is a party:
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 Domestic Overdraft Amount and
the Offshore Overdraft Amounts 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 each Borrower, and the obligation of
Administrative Agent to honor any overdraft in respect of the Domestic
Overdraft Account, the obligation of any Offshore Overdraft Account Provider
to honor any overdraft in respect of any Offshore 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
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written notice to Borrowers, 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, without (except for such notice) presentment, demand, protest
or other requirements of any kind, all of which are hereby expressly waived by
each Borrower, together with accrued interest thereon, and the obligation of
Administrative Agent to honor any overdraft in respect of the Domestic
Overdraft Account, the obligation of any Offshore Overdraft Account Provider
to honor any overdraft in respect of any Offshore 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
Domestic 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 Domestic Overdraft Amount as
provided in subsection 2.1B, (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, (D) the
obligations of Offshore Loan Participants to purchase from Offshore Lenders
participations in any unpaid Offshore Loans as provided in subsection
2.1C(iii), or (E) the obligations of Offshore Lenders to purchase
participations in Offshore Overdraft Amounts as provided in subsection 2.1E.
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
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, Borrowers 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 Borrowers may rescind and annul the acceleration and its
consequences (and upon such written notice all obligations of each Lender
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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 Po-
tential 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 (including
without limitation the Company Guaranty, the Subsidiary Guaranty, the Company
Pledge Agreement, the Subsidiary Pledge Agreement and the Intercreditor
Agreement) as its agent hereunder and thereunder, and Bankers agrees to act as
such upon the express conditions contained in this Section 8 and in the
Company Guaranty, the Subsidiary Guaranty, the Company Pledge Agreement, the
Subsidiary Pledge Agreement and the Intercreditor Agreement. The First
National Bank of Chicago, Bank of America National Trust and Savings
Association and Societe Generale, Milan Branch are hereby appointed UK
Administrative Agent, Australian Administrative Agent and Italian
Administrative Agent, respectively, hereunder by each Lender, and each Lender
hereby authorizes UK Administrative Agent, Australian Administrative Agent and
Italian Administrative Agent to act hereunder as its agent hereunder, and The
First National Bank of Chicago, Bank of America National Trust and Savings
Association and Societe Generale, Milan Branch agree 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 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
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Section 8 are solely for the benefit of Agents and Lenders, and no Borrower
shall have any rights as a third party beneficiary of any of the provisions
hereof (except with respect to the provisions relating solely to consent
rights set forth in subsection 8.6). In performing their functions and duties
under this Agreement, Agents shall act solely as agents of Lenders (except in
connection with the exercise of consent rights pursuant to subsection 9.7A)
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 or any of its
Subsidiaries. Neither Syndication Agent nor Documentation Agents nor any
Lenders named as Arrangers, Managing Agents, Co-Agents or Lead Managers
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 (including without limitation the Company Guaranty, the
Subsidiary Guaranty, the Company Pledge Agreement, the Subsidiary Pledge
Agreement and the Intercreditor Agreement) 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, the Company Guaranty, the Subsidiary Guaranty, the Company Pledge
Agreement, the Subsidiary Pledge Agreement and the Intercreditor Agreement and
may perform such duties by or through its agents or employees. Each Lender
irrevocably authorizes each Offshore Administrative Agent to take such action
on such Lender's behalf and to exercise such powers hereunder as are
specifically delegated to such Offshore Administrative Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. Each
Offshore Administrative Agent shall have only those duties and
responsibilities which are expressly specified in this Agreement and may
perform such duties by or through its agents or employees. Each of the
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, the
Company Guaranty, the Subsidiary Guaranty, the Company Pledge Agreement, the
Subsidiary Pledge Agreement or the Intercreditor Agreement or any 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
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in connection herewith or therewith furnished or made by Administrative Agent
to Lenders or by or on behalf of any Borrower to Administrative Agent or any
Offshore 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 notwith-
standing, neither Administrative Agent nor any Offshore Administrative Agent
shall have any liability arising from (i) confirmations of the amount of
outstanding Loans or the Letter of Credit Usage or the component amounts
thereof or (ii) failure for any reason whatsoever to deliver a Loan Limitation
Notice or notice thereof to any Offshore Administrative Agent or any Lender
pursuant to subsection 2.1F(v) in connection with any Offshore Loan requested
by any Subsidiary Borrower hereunder.
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 (including without
limitation any act or omission under the Company Guaranty, the Subsidiary
Guaranty, the Company Pledge Agreement, the Subsidiary Pledge Agreement or the
Intercreditor Agreement) 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 and each Offshore
Administrative Agent shall be entitled to refrain from such act or taking such
action unless and until Administrative Agent or such Offshore Administrative
Agent, as the case may be, shall have received instructions from Requisite
Lenders. Without prejudice to the generality of the foregoing,
(i) Administrative Agent and each Offshore 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 and its
Subsidiaries), accountants, experts and other professional advisors selected
by it; and (ii) no Lender shall have any right of action whatsoever against
Administrative Agent or any Offshore Administrative Agent as a result of
Administrative Agent or such Offshore Administrative Agent, as the case may
be, 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
and each Offshore 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
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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 any
Borrower or any Affiliate of any Borrower as if it were not performing the
duties specified herein, and may accept fees and other consideration from any
Borrower 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 Borrowers
in connection with the making of the Loans, the extensions of credit under the
Domestic Overdraft Account and the Offshore Overdraft Accounts (in the case of
Administrative Agent and each Lender that is an Offshore Overdraft Account
Provider) and the issuance of Letters of Credit hereunder and such Lender's
purchasing of participations in such Loans, the Domestic Overdraft Account,
the Offshore Overdraft Accounts or such Letters of Credit and has made and
shall continue to make its own appraisal of the creditworthiness of Borrowers.
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,
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.
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8.5 Registered Persons Treated as Owners
Administrative Agent and each Offshore 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 9.2B(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 Agents and Domestic Overdraft Account Provider
(i) 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.
(ii) 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 Domestic 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 Domestic Overdraft Account for all purposes
hereunder. In such event (a) Company shall repay in full the Domestic
Overdraft Amount and all other amounts owing to the retiring or removed
Administrative Agent under the Overdraft Agreement, and (b) Company and the
retiring or removed Administrative Agent shall terminate the Domestic
Overdraft Agreement to which they are a party and Company and the successor
Administrative Agent shall enter into a successor Domestic Overdraft
Agreement.
(iii) Any Offshore Administrative Agent may resign at any
time by giving 30 days prior written notice thereof to Administrative Agent,
Lenders and Company, and any Offshore Administrative Agent may be removed at
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any time with or without cause by an instrument or concurrent instruments in
writing delivered to Company and the applicable Subsidiary Borrower and such
Offshore 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 and the applicable Subsidiary
Borrower, to appoint a successor Offshore Administrative Agent for Offshore
Loans denominated in the Applicable Currency; 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 Offshore
Administrative Agent hereunder by a successor Offshore Administrative Agent,
that successor Offshore Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring or removed Offshore Administrative Agent, and the retiring or removed
Offshore Administrative Agent shall be discharged from its duties and
obligations as an Offshore Administrative Agent under this Agreement. After
any retiring or removed Offshore Administrative Agent's resignation or removal
hereunder as an Offshore 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 an Offshore Administrative Agent under this Agreement.
8.7 Intercreditor Agreement, Company Guaranty, Subsidiary
Guaranty and Pledge Agreements; Release of Subsidiary
Guaranty and Pledged Collateral
A. Each Lender hereby authorizes Administrative Agent to enter
into the Intercreditor Agreement on behalf of and for the benefit of that
Lender, and agrees to be bound by the terms of the Intercreditor Agreement.
Each Lender hereby authorizes Collateral Agent to enter into the Company
Guaranty, the Subsidiary Guaranty, the Intercreditor Agreement, the Company
Pledge Agreement, and the Subsidiary Pledge Agreement and to take all action
contemplated by the Intercreditor Agreement, the Company Guaranty, the
Subsidiary Guaranty, the Company Pledge Agreement, and the Subsidiary Pledge
Agreement; provided that Administrative Agent shall not enter into or consent
to any amendment, modification, termination or waiver of any provision
contained in the Intercreditor Agreement without the prior consent of the
Requisite Lenders. Each Lender agrees that no Lender shall have any right
individually to seek to enforce the Company Guaranty or the Subsidiary
Guaranty or to realize upon the security granted by the Company Pledge
Agreement, or the Subsidiary Pledge Agreement, it being understood and agreed
that such rights and remedies may be exercised by Collateral Agent for the
benefit of Lenders and the parties to the Intercreditor Agreement upon the
terms of the Company Guaranty, the Subsidiary Guaranty, the Company Pledge
Agreement, the Subsidiary Pledge Agreement and the Intercreditor Agreement.
B. Anything contained in this Agreement or any of the other Loan
Documents to the contrary notwithstanding, in the event that (i) Company and
Subsidiary Guarantors are required to execute and deliver the Subsidiary
Guaranty, the Company Pledge Agreement and the Subsidiary Pledge Agreement
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pursuant to subsection 5.8 and (ii) the Consolidated Leverage Ratio shall be
less than 4.00:1.00 as of the end of any four consecutive Fiscal Quarters
ending after the date of such execution and delivery, the Subsidiary Guaranty,
the Company Pledge Agreement and the Subsidiary Pledge Agreement shall be
terminated, and the Subsidiary Guaranty and all Pledged Collateral shall be
released, without further action on the part of any Agent or any Lender, upon
the delivery of the Compliance Certificate for the fourth such consecutive
Fiscal Quarter. Any release of Pledged Collateral in accordance with the
provisions of this subsection 8.7B shall be deemed to be a release of such
Pledged Collateral upon the approval thereof by Requisite Lenders for purposes
of Section 7A of the Company Pledge Agreement or the Subsidiary Pledge
Agreement, as the case may be. In connection with any such release,
Administrative Agent and Collateral Agent shall, upon request by Company and
at Company's expense, execute all such further documents and instruments as
may be reasonably requested by Company in order to more fully evidence or
effect such release.
C. Anything contained in this Agreement or any of the other Loan
Documents to the contrary notwithstanding, in the event that (i) Company and
Subsidiary Guarantors are required to execute and deliver the Company Pledge
Agreement, the Subsidiary Guaranty and the Subsidiary Pledge Agreement
pursuant to subsection 5.8 and (ii) the trustee under the Existing Senior Note
Indenture or any trustee under any other indenture pursuant to which Company
has publicly issued (prior to the time the documents described in clause (i)
are required to be executed) senior debt Securities declines to enter into the
Intercreditor Agreement after being requested to do so, Borrowers, Lenders and
Collateral Agent hereby agree that Company and Collateral Agent shall, and
Company shall cause Subsidiary Guarantors to, amend or otherwise modify the
Company Pledge Agreement, the Subsidiary Pledge Agreement and the
Intercreditor Agreement, without further consent or other action on the part
of any Lender and in a manner satisfactory in form and substance to
Administrative Agent and its counsel and Company and its counsel, so as to
effectuate the provisions of the Intercreditor Agreement without requiring the
execution thereof by such trustee.
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. Each UK Lender
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severally warrants to UK Subsidiary Borrowers that on the Relevant Date it is
a UK Qualifying Lender.
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 Commitments
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 any
Borrower to file a registration statement with the Securities and Exchange
Commission or any foreign securities exchange 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. No
such sale, assignment, transfer or negotiation of the Term Loan or Term Loan
Commitment or participation therein by a Lender shall require a ratable sale,
assignment, transfer or negotiation of the Revolving Loans or Revolving Loan
Commitment of such Lender, and no such sale, assignment, transfer or
negotiation of the Revolving Loans or Revolving Loan Commitment or
participation therein by a Lender shall require a ratable sale, assignment,
transfer or negotiation of the Term Loan or Term Loan Commitment of such
Lender. Except as otherwise provided in this subsection 9.2, no Lender shall,
as between any Borrower 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, Commitments,
Letters of Credit or participations therein or the other Obligations owed to
such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each 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, Commitments, 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 than $10,000,000 of the Loans,
Commitments 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
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2.7C(iv) of this Agreement, if applicable, shall constitute reasonable
grounds for withholding such consent); provided, further that, no
assignment of a Revolving Loan Commitment to a Person other than a
Lender having Revolving Loan Exposure immediately prior to such
assignment shall be effective unless (x) the proposed assignor or
assignee has given notice to Administrative Agent and the Offshore
Administrative Agents more than five Business Days in advance of the
proposed effective date of such assignment and each relevant Offshore
Lender shall have received notice of such assignment from the relevant
Offshore Administrative Agent five or more Business Days in advance of
such proposed effective date and (y) Requisite Offshore Lenders or the
Offshore Administrative Agents, acting at the direction of Requisite
Offshore Lenders shall not have notified Administrative Agent of their
objection (which objection shall not be made unreasonably) to such
assignment on or prior to the Business Day preceding the proposed
effective date of such assignment. Notwithstanding anything herein to
the contrary, (1) no UK Lender, Australian Lender or Italian Lender may
make any such assignment of all or any portion of its Offshore Loans or
Offshore Loan Commitments to any Person other than a Lender or Eligible
Assignee which has an Affiliate which is a Lender or Eligible Assignee
having or simultaneously acquiring Revolving Loan Exposure (provided
that any such assigning Offshore Lender may make such an assignment to
an Eligible Assignee described in the last sentence of the definition of
"Eligible Assignee" (referred to herein as an "SPV") so long as such
assigning Offshore Lender or an Affiliate of such assigning Offshore
Lender shall have, immediately before and after giving effect to such
assignment, Revolving Loan Exposure), (2) no assignment referred to in
the immediately preceding clause (1) shall be effective without the
consent of the relevant Offshore Administrative Agent, which consent
shall not be unreasonably withheld, or shall require a pro rata
assignment of any other Type of Commitment or Type of Loan of such
assigning Offshore Lender and (3) except as set forth in the last
sentence of the definition of "Eligible Assignee," with respect to SPVs
no Lender or Eligible Assignee may at any time be or become an Offshore
Lender hereunder unless such Lender or Eligible Assignee or an Affiliate
of such Lender or Eligible Assignee has or simultaneously acquires
Revolving Loan Exposure (and no assignment shall be made by any Lender
in contravention of this clause (3)); and provided further, however,
that any assignment in accordance with clause (b) either after the
occurrence and during the continuation of an Event of Default or if
required by applicable law shall not require the consent of Company. 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, Commitments, 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, and to the relevant Offshore Administrative Agent, in the case
of any assignment of an Offshore Loan Commitment, an Assignment and
Acceptance, together with, with respect to assignments which occur
following the Effective Date, a processing and recordation fee of $3,500
payable to Administrative Agent, and such certificates, documents or
other evidence, if any, with respect to United States federal income tax
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withholding and foreign tax withholding matters as the assignee under
such Assignment and Acceptance may be required to deliver to
Administrative Agent and/or such Offshore 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" and, if applicable, a "UK Lender", "Australian Lender" or
"Italian Lender" hereunder to the extent of the portion of any such
Commitment so assigned 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 (except as otherwise provided in subsection 9.11) 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
Commitments hereunder shall be modified to reflect the Commitments of
such assignee and any remaining Commitments 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
2.1H(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, Exhibit VIII, Exhibit
IX or (in the case of assignments of Italian Loans or Italian Loan
Commitments) Exhibit X annexed hereto, as the case may be, with
appropriate insertions, to reflect the new Commitments and/or
outstanding Loans, as the case may be, of the assignee and the assigning
Lender. In the event that a Lender assigns the full amount of its Term
Loans and Revolving Loans, its Revolving Loan Commitments and its other
Obligations and such Lender has an Offshore Loan Commitment, any
outstanding Offshore Loans or any outstanding Bid Rate Loans at the time
of such assignment, such Lender must also assign the full amount of such
Bid Rate Loans and such Offshore Loans to an Eligible Assignee and the
full amount of such Offshore Loan Commitment in accordance with the
terms of this paragraph. 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.
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(ii) Acceptance by Administrative Agent; Recordation in Register.
Subject to the requirements of subsection 9.2B(i) with respect to
assignments of Offshore Loan Commitments, 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 and foreign tax withholding matters that
such assignee may be required to deliver to Administrative Agent and any
Offshore 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 XIV 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 Commitments shall require the holder of such participation to agree 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 any Borrower, such Lender shall require such prospective
participant to agree 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 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.
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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 any Borrower, 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. Successor Offshore Overdraft Providers. Any Offshore
Overdraft Account Provider may resign at any time by giving 30 days prior
written notice thereof to the relevant Offshore Lenders, the relevant
Subsidiary Borrower, the relevant Offshore Administrative Agent and
Administrative Agent. Upon (i) any such notice of resignation, upon five days
notice to such Offshore Lenders, such Offshore Administrative Agent and
Administrative Agent, or (ii) an assignment by such Offshore Overdraft Account
Provider of all of its Offshore Loan Commitment with respect to the relevant
Offshore Currency, such Subsidiary Borrower shall have the right to appoint an
Offshore Lender with respect to Offshore Loans denominated in the Applicable
Currency as successor Offshore Overdraft Account Provider with respect to the
Applicable Currency; provided that such appointment shall be subject to the
consent of such Offshore Lenders, such Offshore Administrative Agent and
Administrative Agent, which consent shall not be unreasonably withheld. Upon
the acceptance of any such appointment as an Offshore Overdraft Account
Provider hereunder by a successor Offshore Overdraft Account Provider, the
relevant Subsidiary Borrower shall repay in full the relevant Offshore
Overdraft Amount and all other amounts owing to the resigning Offshore
Overdraft Account Provider under the relevant Offshore Overdraft Agreement,
and such Borrower and the resigning Offshore Overdraft Account Provider shall
terminate such Offshore Overdraft Agreement and the successor Offshore
Overdraft Account Provider shall enter into a successor Offshore Overdraft
Agreement.
F. 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.
G. Replacement of Post-Effective Date Lender. At any time the
Moody's rating or the S&P rating for any Post-Effective Date Lender (as
defined below) is lower than Baa3 or BBB-, respectively:
(i) if Company's long term unsecured debt rating is Ba2 or higher
from Moody's and BB or higher from S&P, then Company may (but shall not
be obligated to) obtain a commitment from another Lender or Lenders or
an Eligible Assignee or Eligible Assignees to become a Lender or Lenders
for all purposes under this Agreement (in the case of any such Eligible
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Assignee) and to assume all obligations of such Post-Effective Date
Lender hereunder; and
(ii) if Company's long term unsecured debt rating is lower than
Ba2 from Moody's or lower than BB from S&P, and Requisite Offshore
Lenders have elected to replace such Post-Effective Date Lender, then
Requisite Offshore Lenders or Company (with the consent of Requisite
Offshore Lenders) may obtain a commitment from another Lender or Lenders
or an Eligible Assignee or Eligible Assignees to become a Lender or
Lenders for all purposes under this Agreement (in the case of any such
Eligible Assignee) and to assume all obligations of such Post-Effective
Date Lender hereunder.
In the event the commitment referred to in clause (i) or (ii) above to assume
all obligations of the relevant Post-Effective Date Lender is obtained in
accordance with such clause, the relevant Post-Effective Date Lender (1) shall
assign all of its Loans, its Commitments and its other obligations to such
other Lender or Lenders or Eligible Assignee or Eligible Assignees, at par,
pursuant to the provisions of subsection 9.2B; provided that, such replacement
shall not be effective until (x) the applicable Borrower has paid or caused to
be paid to such Post-Effective Date Lender all principal, interest, fees and
other amounts then due and owing to such Post-Effective Date Lender hereunder
through such date of replacement (including any amounts payable under
subsection 2.6E) (and each Borrower hereby agrees to pay such amounts with
respect to the relevant Loans, Commitments and other obligations), (y) Company
has paid to Administrative Agent the processing and recordation fee required
to be paid by subsection 9.2B(i) (and Company hereby agrees to pay such
amounts), and (z) 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, and (2) shall be obligated to use its best efforts to
cause the foregoing replacement to occur. For purposes of this subsection
9.2G, "Post-Effective Date Lender" means any Lender having Revolving Loan
Exposure which is neither a Lender on the Effective Date nor an Affiliate of
any Lender party to this Agreement on the Effective Date.
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 Arrangers and Agents and their counsel in connection
with the syndication of the Commitments and 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
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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 any Borrower
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,
Company agrees to indemnify, pay and hold Agents and Lenders and the officers,
directors, employees, agents, and affiliates of Agents and Lenders
(collectively called the "Indemnitees") harmless from and against, any and all
other liabilities, obligations, losses (including, without limitation, any
loss arising from the repayment in Dollars of any Loans made in an Offshore
Currency pursuant to subsection 2.1C(ii) hereof), damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements of any kind or
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 Domestic Overdraft Agreement or the purchase of
participations by Lenders in the Domestic Overdraft Amount or in the Offshore
Overdraft Amounts or the purchase of participations by Offshore Loan
Participants in the Offshore Loans (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 rea-
sonable 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.
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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 each
Borrower at any time or from time to time, without notice to such Borrower, 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 such Borrower against and on account of the
obligations and liabilities of such Borrower to that Lender under this
Agreement, the Notes, the Domestic Overdraft Agreement, the Offshore Overdraft
Agreements 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
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
Domestic Overdraft Amount or any Offshore Overdraft Amount or any Letter of
Credit or Offshore Loan 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. Each Borrower 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 Domestic Overdraft Amount or any Offshore Overdraft
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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 such
Borrower to that holder as fully as if that holder were a holder of such a
Loan or Letter of Credit or the Domestic Overdraft Amount or any Offshore
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 any
Borrower 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
beyond the Term Loan Maturity Date or the Revolving Loan Commitment
Termination Date, as the case may be, 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 or the Term Loan
Commitments and the Term Loans are included in such determinations on the
Effective Date), (iv) release Company from the Company Guaranty, or (v)
consent to the assignment or transfer by any Borrower 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 Term Loan Commitment or 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 Term Loan Commitment or 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 Domestic Overdraft Account or the Domestic Overdraft
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Amount (including any provision relating to the repayment of the Domestic
Overdraft Amount with the proceeds of Revolving Loans or relating to the
obligations of Lenders to purchase participations in the Domestic 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 Commitments and repay in full its outstanding Loans,
together with accrued and unpaid interest, fees and other amounts owing to
such Lender, in accordance with subsection 2.4A(i); provided that unless the
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 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
Commitments 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 then in effect minus any Blocked
Availability Amount; 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.
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, Borrowers may,
upon five Business Days' written notice to Administrative Agent (which
notice Administrative Agent shall promptly transmit to each Lender)
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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 Commitments of such Lender are terminated
concurrently with such repayment (at which time Schedule A shall be
deemed modified to reflect the changed 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 Commitments and outstanding Loans
of, and participations in the Domestic 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 any Borrower 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 the
applicable Borrowers, 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 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
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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 any Borrower in any case shall entitle any
Borrower 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 any
Borrower, on such Borrower.
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 fi-
nancial 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
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person or by courier service, by receipt of telecopy or telex or four Business
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 any Borrower 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. All notices to any Subsidiary Borrower
provided for hereunder shall be copied concurrently to Company.
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 each Borrower set forth in subsections
2.6E, 2.7, 9.3, 9.4 and 9.21 and the agreements of Lenders set forth in
subsections 8.2C, 8.4, 9.5, 9.6 and 9.20 shall survive the payment of the
Loans, the Notes, the Offshore Overdraft Amounts and the Domestic 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.
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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.
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 the rights
or obligations of any Borrower under the Loan Documents nor any interest
therein may be assigned without the written consent of all Lenders. Lenders'
rights of assignment are subject to subsection 9.2.
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9.18 Consent to Jurisdiction and Service of Process
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY BORROWER 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, EACH BORROWER, 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 SUCH BORROWER 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 SUCH BORROWER 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
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH
BORROWER 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
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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 or any of its Subsidiaries in accordance with their customary
procedures for handling confidential information of this nature and in ac-
cordance 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
Commitment, any Loan, any Letter of Credit or any participation therein; (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 (iii) may make disclosure to their respective Affiliates in connection
herewith, provided that each such Affiliate is advised of and agrees to be
bound by the provisions of this subsection 9.20; and further provided that in
no event shall any Lender be obligated or required to return any materials
furnished by Company or any of its Subsidiaries. Each Lender's obligations
under this subsection 9.20 shall survive the termination of this Agreement and
any release of such Lender's obligations under this Agreement pursuant to
subsection 9.2B(i).
9.21 Judgment Currency
A. If, for the purposes of obtaining judgment in any court, it
is necessary to convert a sum due hereunder in any currency (the "Original
Currency") into another currency (the "Other Currency"), the parties hereto
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agree, to the fullest extent permitted by law, that the rate of exchange used
shall be that at which in accordance with normal banking procedures
Administrative Agent or a Lender could purchase the Original Currency with
such Other Currency in New York, New York on the Business Day immediately
preceding the day on which any such judgment, or any relevant part thereof, is
given.
B. The obligations of each Borrower in respect of any sum due
from it to any Agent or Lender hereunder shall, notwithstanding any judgment
in such Other Currency, be discharged only to the extent that on the Business
Day following receipt by such Agent or Lender of any sum adjudged to be so due
in such Other Currency such Agent or Lender may in accordance with normal
banking procedures purchase the Original Currency with such Other Currency; if
the Original Currency so purchased is less than the sum originally due such
Agent or Lender in the Original Currency, such Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Agent or
Lender against such loss, and if the Original Currency so purchased exceeds
the sum originally due to such Agent or Lender in the Original Currency, such
Agent or Lender shall remit such excess to such Borrower.
9.22 Additional Subsidiary Borrowers
The initial Subsidiary Borrowers hereunder shall be United Glass,
United Glass Group, O-I Australia and O-I Italy. From time to time subsequent
to the date hereof, Company may, with the consent of Administrative Agent,
Australian Administrative Agent and Australian Lenders (which consent shall
not be unreasonably withheld), designate additional Australian Subsidiaries as
Australian Subsidiary Borrowers (each such designated Australian Subsidiary
being an "Additional Subsidiary Borrower" with respect to ADollars), and any
such Australian Subsidiary may become an Australian Subsidiary Borrower by
executing a Borrowing Subsidiary Agreement substantially in the form of
Exhibit XXV annexed hereto and delivering such executed Borrowing Subsidiary
Agreement, executed by Company and each other Borrower, to Administrative
Agent and Australian Administrative Agent, together with (i) a certificate
executed by the secretary, an assistant secretary or any director of such
Subsidiary as to (a) the fact that attached copies of such Subsidiary's
Certificate of Incorporation and Memorandum and Articles of Association are
true and correct copies thereof, (b) the fact that attached resolutions of the
Board of Directors of such Subsidiary approving and authorizing the execution,
delivery and performance of the Borrowing Subsidiary Agreement and the Credit
Agreement as modified thereby are in full force and effect and have not been
modified or amended, (c) the fact that attached copies of powers of attorney,
if any, are true and correct copies thereof, and (d) the incumbency and
signatures of the officers of such Subsidiary executing the Borrowing
Subsidiary Agreement (and, if applicable, any powers of attorney authorizing
other Persons to execute such Borrowing Subsidiary Agreement), and (ii) such
other documents as Administrative Agent or such Offshore Administrative Agent
may reasonably request, all of the foregoing to be satisfactory in form and
substance to Administrative Agent and its counsel and such Offshore
Administrative Agent. Upon delivery of such executed Borrowing Subsidiary
Agreement by the other Borrowers, notice of which is hereby waived by the
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Borrowers other than Company, and each of the other documents referred to in
the immediately preceding sentence, each such Additional Subsidiary Borrower
shall be a Subsidiary Borrower and shall be as fully a party hereto as if such
Subsidiary were an original signatory hereto as a Subsidiary Borrower with
respect to ADollars. Each Borrower hereby expressly agrees that its
Obligations arising hereunder or under the other Loan Documents shall not be
affected or diminished by the addition or release of any Subsidiary Borrower
hereunder.
9.23 Limitation on Subsidiary Borrower Obligations
Notwithstanding anything herein to the contrary, no provision of
this Agreement shall render any Subsidiary Borrower liable for the Obligations
of Company or of any other Subsidiary Borrower.
9.24 Counterparts; Effectiveness
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 each Borrower, 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; provided that, unless
and until all of the conditions set forth in subsections 3.1 and 3.2 have been
satisfied or waived in accordance with subsection 9.7 of the Existing Credit
Agreement, the Existing Credit Agreement shall remain in full force and effect
without giving effect to the amendments set forth herein, all as if this
Agreement had never been executed and delivered.
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WITNESS the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
BORROWERS: OWENS-ILLINOIS, INC.
By: /s/ David G. Van Hooser
Name: David G. Van Hooser
Title: Senior Vice President
Notice Address for Owens-Illinois:
Owens-Illinois, Inc.
One Seagate
Toledo, Ohio 43666
Attention: Treasurer
S-1-A
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UNITED GLASS LIMITED
By: /s/ David G. Van Hooser
Name: David G. Van Hooser
Title: Attorney
Notice Address for United Glass Limited:
Porter Wood
St. Albans
Hertfordshire
AL3 6NY, England
Attention: Terry Lilley
Tel: 44-1-727-859-261
Fax: 44-1-727-842-661
with a copy to:
Owens-Illinois, Inc.
One Seagate
Toledo, Ohio 43666
Attention: Treasurer
S-1-B
<PAGE>
UNITED GLASS GROUP LIMITED
By: /s/ David G. Van Hooser
Name: David G. Van Hooser
Title: Attorney
Notice Address for United Glass Group:
Porter Wood
St. Albans
Hertfordshire
AL3 6NY, England
Attention: Terry Lilley
Tel: 44-1-727-859-261
Fax: 44-1-727-842-661
with a copy to:
Owens-Illinois, Inc.
One Seagate
Toledo, Ohio 43666
Attention: Treasurer
S-1-C
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OWENS-ILLINOIS (AUSTRALIA) PTY
LIMITED
By: /s/ David G. Van Hooser
Name: David G. Van Hooser
Title: Attorney
Notice Address for O-I Australia:
Level 17, Chifley Tower
Two Chifley Square
Sydney NSW 2000
Australia
Attention: Allen Mawby
Tel: 61-3-9296-2311
Fax: 61-3-9818-0012
with a copy to:
Owens-Illinois, Inc.
One Seagate
Toledo, Ohio 43666
Attention: Treasurer
S-1-D
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OI ITALIA S.R.L.
By: /s/ David G. Van Hooser
Name: David G. Van Hooser
Title: Director
Notice Address for OI Italia:
Aziende Vetrarie Industriali Ricciardi,
S.p.A.
Alzaia Trieste, 45
20094, Corsico
Milano, Italy
Attention: Harry R. Silletti
Tel: 39-2-451-791
Fax: 39-2-101-688
with a copy to:
Owens-Illinois, Inc.
One Seagate
Toledo, Ohio 43666
Attention: Treasurer
S-1-E
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INTENTIONALLY LEFT BLANK
S-2
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AGENTS AND LENDERS: BANKERS TRUST COMPANY,
individually and as Administrative Agent
By: /s/ 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
with a copy to:
Bankers Trust Company
300 South Grand Avenue, 41st Floor
Los Angeles, California 90071
Attention: Robert G. Kolb
Tel: (213) 620-8465
Fax: (213) 620-8484
S-3
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BANCAMERICA ROBERTSON STEPHENS,
as an Arranger
By: /s/ Thomas M. Brown
Name: Thomas M. Brown
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
individually and as Syndication Agent
By: /s/ 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
For the Lender:
Attention: Paul Higdon
Telephone: (312) 828-7652
Fax: (312) 987-0303
For the Arranger:
Attention: Thomas M. Brown
Tel: (312) 828-5687
Fax: (312) 828-7448
S-4
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THE BANK OF NOVA SCOTIA,
individually and as an Arranger and as
a Documentation Agent
By: /s/ 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: Pearl Jackson
with a copy to:
The Bank of Nova Scotia
Chicago Representative Office
181 W. Madison Street
Suite 3700
Chicago, IL 60602
Attn: David Visny
Tel: (312) 201-4112
Fax: (312) 201-4108
S-5
<PAGE>
NATIONSBANC MONTGOMERY
SECURITIES LLC,
as an Arranger
By: /s/ Daniel G. Montgomery
Name: Daniel G. Montgomery
Title: Principal
NATIONSBANK, N.A.,
individually and as a Documentation
Agent
By: /s/ Valerie C. Mills
Name: Valerie C. Mills
Title: Sr. Vice President
Notice Address for the foregoing Arranger
and Lender:
101 N. Tryon
NC-001-15-05
Charlotte, North Carolina 28255
Attention: Ms. Tia Bailey
Fax: (704) 386-5181
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-6
<PAGE>
ABN AMRO BANK N.V.,
individually and as a Managing Agent
By: /s/ J.M. Janovsky
Name: J.M. Janovsky
Title: Group Vice President
By: /s/ Carrie Pence
Name: Carrie Pence
Title: Vice President
Notice Address:
ABN Amro Bank N.V.
One PPG Place
Suite 2950
Pittsburgh, PA 15222-5401
Attention: James Janovsky
Tel: (412) 566-2250
Fax: (412) 566-2266
with a copy to:
ABN Amro Bank N.V.
135 South LaSalle St., Suite 2805
Chicago, IL 60603
Attention: Ken Keck
Tel: (312) 904-1136
Fax: (312) 904-8427
S-7
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE,
individually and as a Managing Agent
By: /s/ Cyd Petre
Name: Cyd Petre
Title: Executive Director
CIBC Oppenheimer Corp., as Agent
Notice Address:
Canadian Imperial Bank of Commerce
2727 Paces Ferry Road, Suite 1200
2 Paces West, Building 2
Atlanta, Georgia 30339
Attention: Charlene Harris
Tel: (770) 319-4847
Fax: (770) 319-4950
with a copy to:
Canadian Imperial Bank of Commerce
425 Lexington Avenue
New York, New York 10017
Attention: Tim Doyle
Tel: (212) 856-3650
Fax: (212) 856-3991
S-8
<PAGE>
CREDIT LYONNAIS CHICAGO BRANCH,
individually and as a Managing Agent
By: /s/ Lee E. Greve
Name: Lee E. Greve
Title: First Vice President
Notice Address:
Credit Lyonnais
227 West Monroe
Suite 3800
Chicago, Illinois
Attention: Peter Kelly
Telephone: (312) 220-7306
Fax: (312) 641-0527
with a copy to:
Credit Lyonnais
227 West Monroe
Suite 3800
Chicago, Illinois
Attention: Mel Smith
Telephone: (312) 220-7304
Fax: (312) 641-0527
S-9
<PAGE>
THE FIRST NATIONAL BANK OF
CHICAGO,
individually and as a Managing Agent
By: /s/ 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: Philip Medsger
Tel: (313) 225-2406
Fax: (313) 225-1671
with a copy to:
The First National Bank of Chicago
Attention: Ian Harvey
1 Triton Square
Suite 5000
London NW1 3FN, England
The First National Bank of Chicago
Level 19, 90 Collins Street
Melbourne, Victoria 3000
Australia
Attention: Tim Blackmore
Tel: 61-2-9650-1388
Fax: 61-2-9650-2721
S-10
<PAGE>
THE INDUSTRIAL BANK OF JAPAN,
LIMITED,
individually and as a Managing Agent
By: /s/ Walter Wolff
Name: Walter Wolff
Title: Senior Vice President/
Deputy General Manager
Notice Address:
The Industrial Bank of Japan, Limited
227 West Monroe Street, Suite 2600
Chicago, IL 60606
Attention: Steve Ryan
Fax: (312) 855-8200
Tel: (312) 855-6251
S-11
<PAGE>
KEYBANK NATIONAL ASSOCIATION,
individually and as a Managing Agent
By: /s/ Thomas J. Purcell
Name: Thomas J. Purcell
Title: Vice President
Notice Address:
KeyBank National Association
127 Public Square
Cleveland, OH 44114-1306
Attention: Thomas Purcell
Tel: (216) 689-4439
Fax: (216) 689-4981
S-12
<PAGE>
SOCIETE GENERALE, CHICAGO BRANCH
individually and as a Managing Agent
By: /s/ Eric Bellaiche
Name: Eric Bellaiche
Title: Director
Notice Address:
Societe Generale
181 W. Madison St., Suite 3400
Chicago, Illinois 60602
Attention: Mr. Eric Bellaiche
Tel: (312) 578-5015
Fax: (312) 578-5099
S-13
<PAGE>
THE SUMITOMO BANK, LIMITED,
CHICAGO BRANCH,
individually and as a Managing Agent
By: /s/ Kenichiro Kobayashi
Name: Kenichiro Kobayashi
Title: Joint General Manager
Notice Address:
The Sumitomo Bank, Ltd.
Chicago Branch
Suite 4800
233 South Wacker Drive
Chicago, Illinois 60606-6448
Attention: John Dilegge
Tel: (312) 876-6444
Fax: (312) 876-6436
With a copy to:
The Sumitomo Bank, Ltd.
Chicago Branch
Suite 4800
233 South Wacker Drive
Chicago, Illinois 60606-6448
Attention: Teresa Howard
Tel: (312) 879-7663
Fax: (312) 876-1490
S-14
<PAGE>
BARCLAYS BANK PLC,
individually and as a Co-Agent
By: /s/ Keith Mackie
Name: Keith Mackie
Title: Director
Notice Address:
Barclays Bank PLC
222 Broadway
New York, NY 10038
Attention: Paul Kavanagh
Tel: (212) 412-1547
S-15
<PAGE>
TORONTO DOMINION (TEXAS), INC.,
individually and as a Co-Agent
By: /s/ Neva Nesbitt
Name: Neva Nesbitt
Title: Vice President
Notice Address:
The Toronto-Dominion Bank,
Houston Branch
909 Fannin, Suite 1700
Houston, Texas 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: Kevin Gillis
Tel: (212) 827-7574
Fax: (212) 262-1926
S-16
<PAGE>
BANQUE NATIONALE DE PARIS,
individually and as a Lead Manager
By: /s/ Arnaud Collin du Bocage
Name: Arnaud Collin du Bocage
Title: Executive Vice President and
General Manager
Notice Address:
Banque Nationale de Paris
209 South LaSalle Street
Chicago, IL 60604
Attention: Kristin Petinaux
Tel: (312) 977-2208
Fax: (312) 977-1380
with a copy to:
Banque Nationale de Paris
209 South LaSalle Street
Chicago, IL 60604
Attention: Rosalie Hawley
Telephone: (312) 977-2203
Fax: (312) 977-1380
S-17
<PAGE>
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE,
individually and as a Lead Manager
By: /s/ Brian O'Leary
Name: Brian O'Leary
Title: Vice President
By: /s/ 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
Tel: (212) 715-4422
Fax: (212) 715-4535
S-18
<PAGE>
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By: /s/ Brady S. Sadek
Name: Brady S. Sadek
Title: Senior Vice President
Notice Address:
The Long-Term Credit Bank of Japan, Ltd.
190 South LaSalle Street, Suite 800
Chicago, Illinois 60603
Attention: Kris Grosshans
Tel: (312) 704-5475
Fax: (312) 704-8505
with a copy to:
The Long-Term Credit Bank of Japan, Ltd.
165 Broadway, 50th Floor
New York, NY 10006
Attention: Cathy Dorsch-Santiago
S-19
<PAGE>
THE BANK OF NEW YORK
By: /s/ Edward J. Dougherty III
Name: Edward J. Dougherty III
Title: Vice President
U.S. Commercial Banking
Notice Address:
The Bank of New York
One Wall Street 22nd Floor
New York, New York 10286
Attention: Edward J. Dougherty
Tel: (212) 635-7842
Fax: (212) 635-6434
S-20
<PAGE>
THE SAKURA BANK, LIMITED
By: /s/ Yoshikazu Nagura
Name: Yoshikazu Nagura
Title: Vice President
Notice Address:
The Sakura Bank, Limited
277 Park Avenue
New York, New York 10172
Attention: Stephen Chan
Tel: (212) 756-6774
Fax: (212) 888-7651
S-21
<PAGE>
THE FUJI BANK, LIMITED
By: /s/ 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
Tel: (312) 621-0397
Fax: (312) 621-0539
S-22
<PAGE>
ROYAL BANK OF CANADA
By: /s/ Molly Drennan
Name: Molly Drennan
Title: Senior Manager Corporate Banking
Notice Address:
Royal Bank of Canada
One N. Franklin, Suite 700
Chicago, Illinois 60606
Attention: Molly Drennan
Tel: (312) 551-1615
Fax: (312) 551-0805
with a copy to:
Royal Bank of Canada
One Liberty Plaza
165 Broadway
New York, New York 10006
Attention: Danielle Gillis
Tel: (212) 428-6332
Fax: (212) 428-2372
S-23
<PAGE>
BANQUE PARIBAS
By: /s/ Karen E. Coons
Name: Karen E. Coons
Title: Vice President
By: /s/ Francois Delangle
Name: Francois Delangle
Title: Vice President
Notice Address:
Banque Paribas
227 West Monroe
Suite 3300
Chicago, Illinois 60606
Attention: Karen Coons
Fax: (312) 853-6020
S-24
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By: /s/ Sunao Hirata
Name: Sunao Hirata
Title: Vice President
Notice Address:
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch
10 South Wacker Drive
Chicago, Illinois 60606
Attention: Norman Fedder
Tel: (312) 715-6451
Fax: (312) 876-2011
with a copy to:
The Dai-Ichi Kangyo Bank, Ltd.,
New York Branch
One World Trade Center, 48th Floor
New York, NY 10048
Attention: Miriam Ramos
Tel: (212) 432-8330
Fax: (212) 912-1147
S-25
<PAGE>
FLEET NATIONAL BANK
By: /s/ Steve Kalin
Name: Steve Kalin
Title: Vice President
Notice Address:
Fleet National Bank
One Landmark Square
Stamford, Connecticut 06904
Attention: Steven Kalin
Tel: (203) 358-2013
Fax: (203) 358-6111
S-26
<PAGE>
NATIONAL CITY BANK
By: /s/Davis R. Bonner
Name: Davis R. Bonner
Title: Vice President
Notice Address:
National City Bank
1900 East Ninth Street
Cleveland, OH 44114-3484
Attention: Jeffrey Douglas
Tel: (216) 575-2836
Fax: (216) 222-0003
S-27
<PAGE>
INTENTIONALLY LEFT BLANK
S-28
<PAGE>
ARAB BANKING CORPORATION
By: /s/ Grant E. McDonald
Name: Grant E. McDonald
Title: Vice President
Notice Address:
Arab Banking Corporation
277 Park Avenue, 32nd Floor
New York, New York 10172-3299
Attention: Grant McDonald
Tel: (212) 583-4759
Fax: (212) 583-0935
S-29
<PAGE>
BANCA COMMERCIALE ITALIANA,
CHICAGO BRANCH
By: /s/ Julian M. Teodori
Name: Julian M. Teodori
Title: Senior Vice President and Branch
Manager
By: /s/ 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
Tel: (312) 456-2503
Fax: (312) 346-5758
Letter of Credit Contact:
Banca Commerciale Italiana, New York
Branch
One William Street
New York, NY 10004
Attention: Jonathan Sahr
Tel: (212) 607-3531
Fax: (212) 607-3897
S-30
<PAGE>
BANCA DI ROMA
By: /s/ Aurora Pensa
Name: Aurora Pensa
Title: Vice President
By: /s/ Claudio Perna
Name: Claudio Perna
Title: Senior Vice President and Branch
Manager
Notice Address:
Banca di Roma
225 West Washington Street
Suite 1200
Chicago, Illinois 60606
Attention: Steven Paley
Tel: (312) 704-2629
Fax: (312) 726-3058
S-31
<PAGE>
BANCA POPOLARE DI MILANO,
NEW YORK BRANCH
By: /s/Fulvio Montanari
Name: Fulvio Montanari
Title: First Vice President
By: /s/ Esperanza Quintero
Name: Esperanzo Quintero
Title: Vice President
Notice Address:
Banca Popolare di Milano
375 Park Avenue, 9th Floor
New York, New York 10152
Attention: Monica Panzani/Esperanza
Quintero
Tel: (212) 758-5040
Fax: (212) 838-1077
S-32
<PAGE>
BANK OF HAWAII
By: /s/ 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
S-33
<PAGE>
BANK OF MONTREAL
By: /s/ Leon H. Sinclair
Name: Leon H. Sinclair
Title: Director
Notice Address:
Bank of Montreal
115 South LaSalle Street, 12W
Chicago, Illinois 60603
Attention: Ninfa Arenas
Tel: (312) 750-3453
Fax: (312) 750-4345
S-34
<PAGE>
CARIPLO CASSA DI RISPARMIO DELLE
PROVINCIE LOMBARDE, S.p.A.
By: /s/ Anthony F. Giobbi
Name: Anthony F. Giobbi
Title: First Vice President
By: /s/ Charles W. Kennedy
Name: Charles W. Kennedy
Title: First Vice President
Notice Address:
Cariplo Bank
10 East 53rd Street
36th Floor
New York, New York 10022
Attention: Anthony Giobbi
Tel: (212) 527-8737
Fax: (212) 527-8777
S-35
<PAGE>
CITIBANK, N.A.
By: /s/ Marjorie Futornick
Name: Marjorie Futornick
Title: Vice President
Notice Address:
Citibank, N.A.
200 South Wacker Drive
Chicago, Illinois 60606
Attention: Emily Rosenstock
Tel: (312) 993-3233
Fax: (312) 993-1050
S-36
<PAGE>
COMERICA BANK
By: /s/ Anthony Davis
Name: Anthony Davis
Title: Account Officer
Notice Address:
Comerica
One Detroit Center
500 Woodward Avenue
Detroit, Michigan 48226-3268
Attention: Anthony Davis
Tel: (313) 222-9452
Fax: (313) 222-9514
S-37
<PAGE>
COMMERZBANK AKTIENGESELLSCHAFT,
CHICAGO BRANCH
By: /s/ Arne Jahn
Name: Arne Jahn
Title: Assistant Treasurer
By: /s/ Carol Otten
Name: Carol Otten
Title: Assistant Vice President
Notice Address:
Commerzbank AG
311 South Wacker Drive
Chicago, Illinois 60606
Attention: William Binder
Telephone: (312) 408-6920
Fax: (312) 435-1486
S-38
<PAGE>
CREDITO ITALIANO S.p.A.
By: /s/ Harmon P. Butler
Name: Harmon P. Butler
Title: First Vice President and Deputy
Manager
By: /s/ Gianfranco Bisagni
Name: Gianfranco Bisagni
Title: First Vice President
Notice Address:
Credito Italiano S.p.A.
375 Park Avenue, 2nd Floor
New York, New York 10152
Attention: Harmon P. Butler
Tel: (212) 546-9611
Fax: (212) 546-9675
S-39
<PAGE>
ISTITUTO BANCARIO SAN PAOLO
DI TORINO, S.p.A.
By: /s/ Luca Sacchi
Name: Luca Sacchi
Title: Vice President
By: /s/ R. Wurster
Name: R. Wurster
Title: First Vice President
Notice Address:
Istituto Bancario San Paolo
Di Torino, S.p.A.
245 Park Avenue, 35th Floor
New York, New York 10167
Attention: Luca Sacchi
Tel: (212) 692-3130
Fax: (212) 599-5303
S-40
<PAGE>
KREDIETBANK N.V.
By: /s/ Robert Snauffer
Name: Robert Snauffer
Title: Vice President
By: /s/ Tod R. Angus
Name: Tod R. Angus
Title: Vice President
Notice Address:
Kredietbank N.V.
125 West 55th Street
10th Floor
New York, New York 10019
Attention: John E. Thierfelder
Tel: (212) 541-0727
Fax: (212) 541-0793
S-41
<PAGE>
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Toshihiro Hayashi
Name: Toshihiro Hayashi
Title: Senior Vice President
Notice Address:
The Mitsubishi Trust and Banking Corp.
520 Madison Ave., 26th Floor
New York, NY 10022
Attention: Toshihiro Hayashi
Tel: (212) 891-8319
Fax: (212) 644-6825
S-42
<PAGE>
THE MITSUI TRUST AND
BANKING COMPANY, LIMITED
By: /s/ Margaret Holloway
Name: Margaret Holloway
Title: Senior Vice President and Manager
Notice Address:
The Mitsui Trust and Banking Company
1251 Avenue of the Americas
39th Floor
New York, NY 10020-1104
Attention: Margaret Holloway
Tel: (212) 790-5368
Fax: (212) 790-5435
with a copy to:
The Mitsui Trust and Banking Company
1251 Avenue of the Americas
39th Floor
New York, NY 10020-1104
Attention: Edward Simnor
Tel: (212) 790-5352
S-43
<PAGE>
THE NORTHERN TRUST COMPANY
By: /s/ Stephen B. Bowman
Name: Stephen B. Bowman
Title: Vice President
Notice Address:
The Northern Trust Company
50 S. LaSalle Street, 11th Floor
Chicago, Illinois 60675
Attention: Stephen Bowman
Tel: (312) 444-7946
Fax: (312) 630-6062
S-44
<PAGE>
REPUBLIC NATIONAL BANK OF NEW
YORK
By: /s/ Jean-Pierre F. Diels
Name: Jean-Pierre F. Diels
Title: Executive Vice President
By: /s/ Monisha V. Khadse
Name: Monisha V. Khadse
Title: Assistant Vice President
Notice Address:
Republic National Bank of New York
452 Fifth Avenue, 25th Floor
New York, New York 10018
Attention: Monisha Khadse
Tel: (212) 525-6087
Fax: (212) 525-8370
S-45
<PAGE>
THE TOKAI BANK, LTD., CHICAGO
BRANCH
By: /s/ Shusui Toyoda
Name: Shusui Toyoda
Title: General Manager
Notice Address:
The Tokai Bank,, Ltd., Chicago Branch
181 West Madison Street
Suite 3600
Chicago, IL 60602
Attention: H. Iio
Tel: (312) 456-3441
Fax: (312) 977-0003
S-46
<PAGE>
THE TOYO TRUST & BANKING CO., LTD.
By: /s/ 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: /s/ Gail L. Fletcher
Name: Gail L. Fletcher
Title: Vice President
Notice Address:
Union Bank of California, N.A.
350 California Street
6th Floor
San Francisco, California 94104
Attention: David Kinkela
Tel: (415) 705-7048
Fax: (415) 705-5093
S-48
<PAGE>
WACHOVIA BANK
By: /s/ Terence A. Snellings
Name: Terence A. Snellings
Title: Senior Vice President
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-49
<PAGE>
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/ Kheil A. McIntyre
Name: Kheil A. McIntyre
Title: Vice President
By: /s/ Walter T. Duffy III
Name: Walter T. Duffy III
Title: Associate
Notice Address:
Westdeutsche Landesbank
1211 Avenue of the Americas
New York, New York 10036
Attention: Cheryl Wilson
Telephone: (212) 852-6152
Fax: (212) 302-7946
with a copy to:
Westdeutsche Landesbank
1211 Avenue of the Americas
New York, New York 10036
Attention: Walter T. Duffy III
Telephone: (212) 852-6095
Fax: (212) 852-6148
S-50
<PAGE>
MERITA BANK LTD.
By: /s/ Frank Maffei
Name: Frank Maffei
Title: Vice President
By: /s/ Clifford Abramsky
Name: Clifford Abramsky
Title: Vice President
Notice Address:
Merita Bank Ltd.
437 Madison Avenue, 21st Floor
New York, New York, 10022
Attention: Frank Maffei
Tel: (212) 318-9561
Fax: (212) 318-9318
S-51
<PAGE>
THE ROYAL BANK OF SCOTLAND plc
By: /s/ Derek Bonnar
Name: Derek Bonnar
Title: Vice President
Notice Address:
The Royal Bank of Scotland plc
Wall Street Plaza, 88 Pine Street
New York, New York, 10005
Attention: Derek Bonnar
Tel: (212) 269-1718
Fax: (212) 480-0791
S-52
<PAGE>
BANCA NAZIONALE DEL LAVORO SPA,
NEW YORK BRANCH
By: /s/ Lenoardo Valentini
Name: Leonardo Valentini
Title: First Vice President
By: /s/ Roberto Mancone
Name: Roberto Mancone
Title: AVP, Senior Loan Officer
Notice Address:
Banca Nazionale del Lavoro Spa,
New York Branch
25 West 51st Street
New York, New York 10019
Attention: Roberto Mancone
Tel: (212) 314-0734
Fax: (212) 765-2978
S-53
<PAGE>
AMSOUTH BANK
By: /s/ Bryan Grantham
Name: Bryan Grantham
Title: Commercial Banking Officer
Notice Address:
AmSouth Bank
1900 Fifth Avenue North, 7th Floor
Birmingham, AL 35203
Attention: Bryan Grantham
Tel: (205) 801-0331
Fax: (205) 583-4436
S-54
<PAGE>
WESTPAC BANKING CORPORATION
By: /s/ Brad Masters
Name: Brad Masters
Title: Vice President
Notice Address:
Westpac Banking Corporation
575 Fifth Avenue
New York, NY 10017
Attention: Susan Wildstein
Tel: (212) 551-1960
Fax: (212) 551-1998
S-55
<PAGE>
DRESDNER BANK AG,
NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Brigitte Sacin
Name: Brigitte Sacin
Title: Assistant Treasurer
By: /s/ Christopher E. Sarisky
Name: Christopher E. Sarisky
Title: Assistant Vice President
Notice Address:
Dredner Bank AG
75 Wall Street - Credit Services
New York, NY 10005
Attention: Howard Ramlal
Tel: (212) 429-2281
Fax: (212) 429-2130
with a copy to:
Dresdner Bank AG
190 S. LaSalle
Chicago, IL 60603
Attention: James Jerz
Tel: (312) 444-1314
Fax: (312) 444-1192
S-56
<PAGE>
CREDIT AGRICOLE INDOSUEZ
By: /s/ Dean Balice
Name: Dean Balice
Title: Senior Vice President and Branch
Manager
By: /s/ Todd C. Voss
Name: Todd C. Voss
Title: First Vice President
Notice Address:
Credit Agricole Indosuez
55 E. Monroe St., Suite 4700
Chicago, IL 60603
Attention: Raymond Falkenberg
Tel: (312) 917-7426
Fax: (312) 372-3724
S-57
<PAGE>
ERSTE BANK
By: /s/ Arcinee Hovanessian
Name: Arcinee Hovanessian
Title: Senior Transactor
By: /s/ Robert Suehnholz
Name: Robert Suehnholz
Title: First Vice President
Notice Address:
Erste Bank
280 Park Avenue
West Building, 32nd Floor
New York, NY 10022
Attention: Arcinee Hovanessian
Tel: (212) 984-5635
Fax: (212) 984-5627
S-58
<PAGE>
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Mark R. Olmon
Name: Mark R. Olmon
Title: Vice President
Notice Address:
U.S. Bank National Association
601 2nd Avenue South
Minneapolis, MN 55402-4302
Attention: Mark Olmon
Tel: (612) 973-1085
Fax: (612) 973-0825
S-59
<PAGE>
MELLON BANK, N.A.
By: /s/ Mark F. Johnston
Name: Mark F. Johnston
Title: Assistant Vice President
Notice Address:
Mellon Bank, N.A.
One Mellon Bank Center
Room 151-4530
Pittsburgh, PA 15258
Attention: Mark Johnston
Tel: (412) 236-2793
Fax: (412) 236-1914
with a copy to:
Mellon Bank, N.A.
Three Mellon Bank Center
Pittsburgh, PA 15259
Attention: Jodi Stewart
Tel: (412) 234-9448
Fax: (412) 209-6138
S-60
<PAGE>
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/ Robert B. Benoit
Name: Robert B. Benoit
Title: Senior Vice President
By: /s/ Dana Hemenway
Name: Dana Hemenway
Title: Vice President
Notice Address:
Rabobank
245 Park Avenue
New York, NY 10167
Attention: Andrew Sherman
Tel: (212) 808-2513
Fax: (212) 916-7880
with a copy to:
Rabobank
300 South Wacker Drive, Suite 3500
Chicago, IL 60606
Attention: Tom Levasseur
Tel: (312) 408-8249
Fax: (312) 408-8240
S-61
<PAGE>
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK
By: /s/ Robert H. Herber
Name: Robert H. Herber
Title: Vice President
By: /s/ Elizabeth L. Ryan
Name: Elizabeth L. Ryan
Title: Vice President
Notice Address:
DG Bank
609 Fifth Avenue
New York, NY 10017
Attention: Robert Herber
Tel: (212) 745-1581
Fax: (212) 745-1556
S-62
<PAGE>
POSTIPANKKI OYJ, NEW YORK BRANCH
By: /s/ Pekka Vataja
Name: Pekka Vataja
Title: General Manager
By: /s/ Gary Tanner
Name: Gary Tanner
Title: Senior Vice President
Notice Address:
Postipankki Oyj, New York Branch
153 E. 53rd Street, 36th Floor
New York, NY 10022
Attention: Lourdes Marrero
Tel: (212) 758-8181
Fax: (212) 758-0011
S-63
<PAGE>
FIFTH THIRD BANK OF NORTHWESTERN
OHIO, N.A.
By: /s/ Christopher M. Prisby
Name: Christopher M. Prisby
Title: Vice President
Notice Address:
Fifth Third Bank
606 Madison
Toledo, OH 43604
Attention: Christopher Prisby
Tel: (419) 259-7141
Fax: (419) 259-7134
S-64
<PAGE>
LLOYDS BANK PLC
By: /s/ Paul D. Briamonte
Name: Paul D. Briamonte
Title: Director, Acquisition & Project
Finance, USA B374
By: /s/ David C. Rodway
Name: David C. Rodway
Title: Assistant Vice President R156
Notice Address:
Lloyds Bank Plc
575 Fifth Avenue
New York, NY 10017
Attention: Paul Briamonte
Tel: (212) 930-8904
Fax: (212) 930-5098
S-65
<PAGE>
BANK HAPOALIM
By: /s/ John M. Orpen
Name: John M. Orpen
Title: Vice President
By: /s/ Michael J. Byrne
Name: Michael J. Byrne
Title: Vice President - Senior Lending
Officer
Notice Address:
Bank Hapoalim
255 N. Michigan Avenue, Suite 900
Chicago, IL 60601
Attention: Michael Byrne
Tel: (312) 228-6410
Fax: (312) 228-6490
S-66
<PAGE>
SUMMIT BANK
By: /s/ Robert D. Mace
Name: Robert D. Mace
Title: Assistant Vice President
Notice Address:
Summit Bank
512 Township Line Road, Suite 280
Blue Bell, PA 19422
Attention: Robert Mace
Tel: (215) 619-4817
Fax: (215) 619-4820
S-67
<PAGE>
STAR BANK, NATIONAL ASSOCIATION
By: /s/ Mark A. Whitson
Name: Mark A. Whitson
Title: Vice President
Notice Address:
Star Bank
425 Walnut Street
Cincinnati, OH 45201
Attention: Mark Whitson
Tel: (513) 632-2013
Fax: (513) 632-2068
S-68
<PAGE>
ARAB AMERICAN BANK
By: /s/ William G. Reynolds
Name: William G. Reynolds
Title: Vice President
By: /s/ Nicolas A. Kanaris
Name: Nicolas A. Kanaris
Title: Vice President
Notice Address:
Arab American Bank
40 East 52nd Street, 22nd Floor
New York, NY 10022
Attention: William Reynolds
Tel: (212) 326-8106
Fax: (212) 755-6944
S-69
<PAGE>
BANK OF IRELAND
By: /s/ Niall O'Leary
Name: Niall O'Leary
Title: Senior Manager
By: /s/ Niamh O'Flynn
Name: Niamh O'Flynn
Title: Manager
Notice Address:
Bank of Ireland
La Touche House
International Financial Service Centre
Custom House Docks
Dublin 1, Ireland
Attention: Niall O'Leary
Tel: (353)1-609-3492
Fax: (353)1-829-0129
S-70
<PAGE>
THE SUMITOMO BANK, LIMITED,
MILAN BRANCH
By: /s/ Yoshihiro Nishiguchi
Name: Yoshihiro Nishiguchi
Title: General Manager
Notice Address:
Sumitomo Bank- Milan Branch
Via Palestro 2
20121 Milano
Italy
Attention: Michele Russo
Tel: (39) 2-76081216
Fax: (39) 2-76020921
S-71
<PAGE>
ABN AMRO AUSTRALIA LIMITED
ACN 000 862 797
By: /s/ Christopher Leberne
Name: Christopher Leberne
Title: Senior Corporate Solicitor
By: /s/ Rex Burgess
Name: Rex Burgess
Title: Company Secretary
Notice Address:
ABN AMRO Australia Limited
Level 33
101 Collins Street
Melbourne VIC 3000
Australia
Attention: Geoff Rae
Tel: 61-3-9228-7202 (direct)
61-3-9228-7228 (switch)
Fax: 61-3-9228-7200
copy drawdown notices etc. to:
Attention: Loans Administration
Tel: 61-2-9321-2380
Fax: 61-2-9321-2389
S-72
<PAGE>
THE BANK OF NOVA SCOTIA
By: /s/ P.A. Clements
Name: P.A. Clements
Title: Relationship Manager
Notice Address:
The Bank of Nova Scotia
Scotia House
33 Finsburg Square
London EC2A 1BB
England
Attention: Marian Staples
Tel: (44-171) 638-5644
Fax: (44-171) 638-8488
Telex: 885188
S-73
<PAGE>
INTENTIONALLY LEFT BLANK
S-74
<PAGE>
TORONTO DOMINION AUSTRALIA
LIMITED
A.C.N. 004 858 020
By: /s/ Neva Nesbitt
Name: Neva Nesbitt
Title: Attorney in Fact
Notice Address:
Toronto Dominion Australia Limited
Level 36, 385 Bourke St.
GPO Box 1838Q
Melbourne, Victoria 3001
Australia
Attention: Manager, Credit
Administration
Tel: 61-3-9602-1344
Fax: 61-3-9670-3779
S-75
<PAGE>
BA AUSTRALIA LIMITED
By: /s/ Karen Peter
Name: Karen Peter
Title: Credit Manager
Notice Address:
BA Australia Limited
Level 63, MLC Centre
19-29 Martin Place
Sydney N.S.W. 2000
Australia
Attention: Karen Peter
Tel: 61-2-9931-4466
Fax: 61-2-9221-1023
with a copy to:
BA Australia Ltd
Level 37, Tower 2
525 Collins Street
Melbourne, Victoria 3000
Australia
Attention: Jon Pooley
Tel: 61-3-9623-6406
Fax: 61-3-9629-1534
S-76
<PAGE>
SOCIETE GENERALE, LONDON BRANCH
By: /s/ Jacques Hippolyte
Name: Jacques Hippolyte
Title: Director
By: /s/ Frederic Oudea
Name: Frederic Oudea
Title: Executive Director
Notice Address:
Societe Generale
Exchange House
Primrose Street
Broadgate
London
EC2A 2EH
United Kingdom
Attention: Mr. Duncan Irvine
Tel: 44-171-462-4251
Fax: 44-171-638-6506
S-77
<PAGE>
SOCIETE GENERALE, MILAN BRANCH,
individually and as
Italian Administrative Agent
By: /s/ Robert Cauderon
Name: Robert Cauderon
Title: Direttore Dirigente
By: /s/ Elena de Santis
Name: Elena de Santis
Title: Vice Direttore
Notice Address:
Societe Generale S.A.
Via Olona, 2
20123 MILANO
Italy
Attention: Ms. Elena De Santis/
Ms. Gloria Crespi
Tel: 39-2-85-49-213
Fax: 39-2-85-49-245
S-78
<PAGE>
SOCIETE GENERALE AUSTRALIA LIMITED
(ACN 002 093 021)
By: /s/ Anthony Jenkins
Name: Anthony Jenkins
Title: Associate Director, Corporate Finance
Notice Address:
Societe Generale Australia Limited
Level 20
101 Collins Street
Melbourne, Victoria 3000
Australia
Attention: Anthony Jenkins
Tel: 613-9654-6600
Fax: 613-9654-6590
S-79
<PAGE>
CREDIT LYONNAIS AUSTRALIA LIMITED
By: /s/ Lee Greve
Name: Lee Greve
Title: Authorized Signature
Notice Address:
Credit Lyonnais Australia Ltd
Level 12
440 Collins Street
Melbourne Victoria 3000
Australia
Attention: Tony Battle/Greg Reardon
Tel: (613) 9600-4433
Fax: (613) 9670-4330
with a copy to:
Credit Lyonnais Americas
227 West Monroe
Suite 3800
Chicago, Illinois
Attention: Peter Kelly
Tel: (312) 220-7306
Fax: (312) 641-0527
S-80
<PAGE>
RABO AUSTRALIA LIMITED
By: /s/ Philip Streten
Name: Philip Streten
Title: State Manager Corporate Banking
By: /s/ R. Brett Agg
Name: R. Brett Agg
Title: Manager Corporate Banking
Notice Address:
Rabo Australia Ltd
Level 7, 115 Pitt Street
Sydney N.S.W. 2000
Australia
Attention: Suzanne Speck, Manager,
Corporate Loans Administration
Tel: 61-2-9234-4382
Fax: 61-2-9223-1096
S-81
<PAGE>
WESTPAC BANKING CORPORATION
ARBN 007 457 141
By: /s/ Brad Masters
Name: Brad Masters
Title: Vice President
Notice Address:
Westpac Banking Corporation
Level 5, 179 Elizabeth Street
Sydney 2000
Australia
Attention: Mary Papadopoulos
Tel: 61-2-9272-1627
Fax: 61-2-9272-1652
S-82
<PAGE>
CREDITO ITALIANO, NEW YORK BRANCH
on behalf of CORSICO BRANCH
By: /s/ Harmon P. Butler
Name: Harmon P. Butler
Title: First Vice President and Deputy
Manager
By: /s/ Gianfranco Bisagni
Name: Gianfranco Bisagni
Title: First Vice President
Notice Address:
Credito Italiano Corsico Branch
Via Caboto, 3
20094 Corsico
Italy
Attention: Fulvio Pedretti
Tel: 39-2-45100078
Fax: 39-2-4409095
S-83
<PAGE>
BANCA POPOLARE DI MILANO
By: /s/ Anthony Franco
Name: Anthony Franco
Title: Executive Vice President and General
Manager, Banca Popolare di
Milano, New York Branch
By: /s/ Patrick Dillon
Name: Patrick Dillon
Title: Vice President and Chief Credit
Officer,
Banca Popolare di Milano, New York
Branch
Notice Address:
Banca Popolare di Milano
Piazza F. Meda 4
Milano 20121
Italy
Attention: Walter Apostolo
Tel: 392-7700-2323
Fax: 392-7700-2176
S-84
<PAGE>
BANCA DI ROMA S.P.A.- MILANO SEDE
(acting as an Italian Lender)
By: /s/ Francesco Francis
Name: Francesco Francis
Title: Consulante Gestore
By: /s/ Vittorio De Stasio
Name: Vittorio De Stasio
Title: Direttore
Notice Address:
Banca di Roma S.P.A. Milano Sede
Piazza Edison 1
20123 Milano
Italy
Attention: Mr. Francesco Francis
Tel: 39-2-72292561
Fax: 39-2-72292369
S-85
<PAGE>
INTENTIONALLY LEFT BLANK
S-86
<PAGE>
BANCA NAZIONALE DEL LAVORO -
MILANO SUD OVEST BRANCH
By: /s/ Gennaro Sorrentino
Name: Gennaro Sorrentino
Title: Branch Manager
By: /s/ Gabriella Serravalle
Name: Gabriella Serravalle
Title: Deputy Branch Manager
Notice Address:
Banca Nazionale del Lavaro - Milano Sud
Ovest Branch
Vials Lorenteggio 270/A
20152 Milano
Italy
Attention: Ms. Gabriella Serravalle
Tel: 39-2-8024-4295
Fax: 39-2-8024-4281
S-87
<PAGE>
CREDIT LYONNAIS (LONDON BRANCH)
By: /s/ A.P. Revill
Name: A.P. Revill
Title: A.G.M.
Notice Address:
Credit Lyonnais (London Branch)
Broadwalk House
5 Appold Street
London EC2A 2JP
United Kingdom
Attention: Katy Brown
Tel: 44-171-214-7028
Fax: 44-171-214-6850
S-88
<PAGE>
INTENTIONALLY LEFT BLANK
S-89
<PAGE>
WACHOVIA BANK LONDON BRANCH
By: /s/ Kurt A. Shreiner
Name: Kurt A. Shreiner
Title: Senior Vice President
Notice Address:
Wachovia Bank London Branch
Leconfield House
Curzon Street
London W1Y7 FB
United Kingdom
Attention: Alister McClaggan
Tel: 44-171-408-4700
Fax: 44-171-629-4778
S-90
<PAGE>
CIBC WOOD GUNDY plc
By: /s/ Timothy E. Doyle
Name: Timothy E. Doyle
Title: Authorized Signatory
Notice Address:
CIBC Wood Gundy plc
Cottons Centre
Cottons Lane
London SE1 2QL
United Kingdom
Attention: Manager, Banking Service
Tel: 44-171-234-6175
Fax: 44-171-234-7001
S-91
<PAGE>
FIRST NATIONAL BANK OF CHICAGO
individually and as UK Administrative
Agent
By: /s/ Ian J. Harvey
Name: Ian J. Harvey
Title: First Vice President
Notice Address:
First National Bank of Chicago
1 Triton Square
London NW1 3FN
United Kingdom
Attention: Dot O'Flaherty
Tel: 44-171-903-4150
Fax: 44-171-903-4148
S-92
<PAGE>
INTENTIONALLY LEFT BLANK
S-93
<PAGE>
INTENTIONALLY LEFT BLANK
S-94
<PAGE>
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Australian Administrative Agent
By: /s/ Gary Flieger
Name: Gary Flieger
Title: Vice President
Notice Address:
BA Robertson Stephens Asia
Devon House
979 Kings Road, 10th Floor
Quarry Bay, Hong Kong
Attention: Donny Lam
Tel: (852) 2597-3428
Fax: (852) 2597-3424/3425
S-95
<PAGE>
EXHIBIT I
[FORM OF]
NOTICE OF BORROWING
Pursuant to that certain Second Amended and Restated Credit Agreement
dated as of April 30, 1998 (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, United
Glass Limited, a corporation organized under the laws of England and Wales,
United Glass Group Limited, a corporation organized under the laws of England
and Wales, Owens-Illinois (Australia) Pty Limited, a corporation organized
under the laws of Australia, and OI Italia S.r.l., a limited liability company
organized under the laws of Italy (each a "Borrower"), the Lenders, Managing
Agents, Co-Agents, Lead Managers and Arrangers named therein, The Bank of Nova
Scotia and NationsBank, N.A., as Documentation Agents, Bank of America
National Trust and Savings Association, as Syndication Agent, the Offshore
Administrative Agents named therein, and Bankers Trust Company, as
Administrative Agent, this represents [Company's] [the undersigned Subsidiary
Borrower's] request to borrow on _________, ___ from [UK/Australian/Italian]
Lenders on a pro rata basis [$][L][A$][Lire]________ in [Term/Revolving]
[UK/Australian/Italian] Loans as [Base Rate/Eurodollar Rate] [Offshore Base
Rate/Offshore Periodic Rate] Loans. [The Interest Period for such Loans is
requested to be a ________[-day/-month] period (ending on ________, ___).]
The proceeds of such Loans are to be deposited in the undersigned Borrower's
account at [UK/Australian/Italian] Administrative Agent.
The undersigned [officer][director][attorney on behalf] of the
undersigned Borrower, to the best of his/her knowledge as [an officer][a
director][an attorney] of such Borrower, and such Borrower do hereby certify
that (i) the undersigned is [the [insert title of undersigned officer]][a
director][an attorney appointed by power of attorney] of such Borrower; (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
I-1
<PAGE>
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: ___________________
[NAME OF BORROWER]
By ____________________________
Title ____________________________
I-2
<PAGE>
EXHIBIT II
[FORM OF]
NOTICE OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT
Pursuant to that certain Second Amended and Restated Credit Agreement
dated as of April 30, 1998 (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"), United Glass Limited, a corporation organized under the laws of
England and Wales, United Glass Group Limited, a corporation organized under
the laws of England and Wales, Owens-Illinois (Australia) Pty Limited, a
corporation organized under the laws of Australia, and OI Italia S.r.l., a
limited liability company organized under the laws of Italy, the Lenders,
Managing Agents, Co-Agents, Lead Managers and Arrangers named therein, The
Bank of Nova Scotia and NationsBank, N.A., as Documentation Agents, Bank of
America National Trust and Savings Association, as Syndication Agent, the
Offshore Administrative Agents named therein, 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
- ---------------------------------
1 Insert foreign currency, if applicable.
2 Insert name and address of the beneficiary of the Letter of Credit.
II-1
<PAGE>
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 ____________________________
II-2
<PAGE>
EXHIBIT III
[FORM OF]
NOTICE OF CONVERSION/CONTINUATION
Pursuant to that certain Second Amended and Restated Credit Agreement
dated as of April 30, 1998 (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, United
Glass Limited, a corporation organized under the laws of England and Wales,
United Glass Group Limited, a corporation organized under the laws of England
and Wales, Owens-Illinois (Australia) Pty Limited, a corporation organized
under the laws of Australia, and OI Italia S.r.l., a limited liability company
organized under the laws of Italy (each a "Borrower"), the Lenders, Managing
Agents, Co-Agents, Lead Managers and Arrangers named therein, The Bank of Nova
Scotia and NationsBank, N.A., as Documentation Agents, Bank of America
National Trust and Savings Association, as Syndication Agent, the Offshore
Administrative Agents named therein, and Bankers Trust Company, as
Administrative Agent, this represents the undersigned Borrower's request 1 [A:
to convert [$][L][A$][Lire]_________ in principal amount of presently
outstanding [Term/Revolving] [Offshore] Loans that are [Base Rate/Eurodollar
Rate] [Offshore Base Rate/Offshore Periodic Rate] Loans [with a final Interest
Payment Date of _________, ____] to [Base Rate/Eurodollar Rate] [Offshore Base
Rate/Offshore Periodic Rate] Loans on _________, ____. [The Interest Period
for such [Eurodollar Rate Loans] [Offshore Periodic Rate] Loans is requested
to be a _______[-day/-month] period (ending on ________, ___).]] [B: to
continue as Eurodollar Rate Loans [$][L][A$][Lire]__________ in principal
amount of presently outstanding [Term/Revolving] Loans that are 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 _______[-day/-month] period (ending on
________, ___).] [C: to continue as [UK/Australian/Italian] Loans
_______ in principal amount of presently outstanding [UK/Australian/Italian]
Loans with a final Interest Payment Date of _________, ____. The Interest
Period for such [UK/Australian/Italian] Loans commencing on such Interest
Payment Date is requested to be a _______[-day/-month] period (ending on
________, ___).]
- --------------------------------
1 Insert A, B or C with appropriate insertions and deletions.
III-1
<PAGE>
The undersigned [officer][director][attorney on behalf] of the
undersigned Borrower, to the best of his/her knowledge as [an officer][a
director][an attorney] of such Borrower [appointed by power of attorney], and
such Borrower do hereby certify that no Event of Default has occurred and is
continuing under the Credit Agreement.
DATED:_____________________
[NAME OF BORROWER]
By _________________________
Title _________________________
III-2
<PAGE>
EXHIBIT IV
[FORM OF]
BID RATE LOAN QUOTE REQUEST
To: Bankers Trust Company ("Administrative Agent")
From: Owens-Illinois, Inc. ("Company")
Re: Second Amended and Restated Credit Agreement dated as of April 30,
1998 (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "Credit Agreement") among Company, United Glass
Limited, United Glass Group Limited, Owens-Illinois (Australia) Pty Limited,
OI Italia S.r.l., the Lenders, Managing Agents, Co-Agents, Lead Managers and
Arrangers listed therein, The Bank of Nova Scotia and NationsBank, N.A., as
Documentation Agents, Bank of America National Trust and Savings Association,
as Syndication Agent, the Offshore Administrative Agents named therein, 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(s): ________________
Principal Amount Duration of Bid Rate Loan Interest Period
$__________
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 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
- -----------------------------
1 Amount must be $5,000,000 or a larger integral multiple of $1,000,000.
2 30,60,90 or 180 days, subject to the provisions of the definition of Bid
Rate Loan Interest Period.
IV-1
<PAGE>
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 Second Amended and Restated
Credit Agreement dated as of April 30, 1998 (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, United Glass Limited,
United Glass Group Limited, a corporation organized under the laws of England
and Wales, Owens-Illinois (Australia) Pty Limited, OI Italia S.r.l., the
Lenders, Managing Agents, Co-Agents, Lead Managers and Arrangers listed
therein, The Bank of Nova Scotia and NationsBank, N.A., as Documentation
Agents, Bank of America National Trust and Savings Association, as Syndication
Agent, the Offshore Administrative Agents named therein, 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(s): _________________
Principal Amount Duration of Bid Rate 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
- -------------------------------
1 As specified in the related Invitation for Bid Rate Loan Quotes.
VI-1
<PAGE>
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:
Principal Amount 2 Duration of Bid 3 Interest Rate 4
$__________ Rate Loan Period
$__________
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 Second Amended
and Restated Credit Agreement dated as of April 30, 1998 (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,
United Glass Limited, United Glass Group Limited, Owens-Illinois (Australia)
Pty Limited, OI Italia S.r.l., the Lenders, Managing Agents, Co-Agents, Lead
Managers and Arrangers listed therein, The Bank of Nova Scotia and
NationsBank, N.A., as Documentation Agents, Bank of America National Trust and
Savings Association, as Syndication Agent, the Offshore Administrative Agents
named therein, 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 limitation 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 fo funds and
rounded to the nearest 1/100th of 1%).
VI-2
<PAGE>
EXHIBIT VII
[FORM OF TERM NOTE]
OWENS-ILLINOIS, INC.
PROMISSORY NOTE DUE ___________, 1999
(TERM LOANS)
___________, 1998
$__________1
FOR VALUE RECEIVED, OWENS-ILLINOIS, INC., a Delaware corporation
("Company"), promises to pay to the order of __________2 ("Payee") the
principal amount of __________3 ($__________1) on or before the Term Loan
Maturity Date.
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 Second
Amended and Restated Credit Agreement dated as of April 30, 1998 among
Company, United Glass Limited, United Glass Group Limited, Owens-Illinois
(Australia) Pty Limited, OI Italia S.r.l., the Lenders, Managing Agents, Co-
Agents, Lead Managers and Arrangers named therein, The Bank of Nova Scotia and
NationsBank, N.A., as Documentation Agents, Bank of America National Trust and
Savings Association, as Syndication Agent, the Offshore Administrative Agents
named therein, and Bankers Trust Company, as Administrative Agent, as amended,
amended and restated, supplemented or otherwise modified from time to time
(said 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 "Term Notes" in the aggregate principal
amount of $2,500,000,000 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 Term Loan
evidenced hereby was made and is 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
Domestic 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
- -----------------------------
1 Insert amount of Lender's Term Loan in numbers.
2 Insert name of Lender in capital letters.
3 Insert amount of Lender's Term Loan in words.
VII-1
<PAGE>
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) of the Credit Agreement and to 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 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.
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 TERM NOTE
Date Amount of Outstanding Notation Made By
Principal or Interest Principal
Paid This Date Balance This Date
VII-4
<PAGE>
EXHIBIT VIII
[FORM OF REVOLVING NOTE]
OWENS-ILLINOIS, INC.
PROMISSORY NOTE DUE DECEMBER 31, 2001
(REVOLVING LOANS)
___________, 1998
$__________1
FOR VALUE RECEIVED, OWENS-ILLINOIS, INC., a Delaware corporation
("Company"), promises to pay to the order of __________2 ("Payee"), on or
before the Revolving Loan Commitment Termination Date, the lesser of (x)
__________3 ($ __________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 Second
Amended and Restated Credit Agreement dated as of April 30, 1998 among
Company, United Glass Limited, United Glass Group Limited, Owens-Illinois
(Australia) Pty Limited, OI Italia S.r.l., the Lenders, Managing Agents, Co-
Agents, Lead Managers and Arrangers named therein, The Bank of Nova Scotia and
NationsBank, N.A., as Documentation Agents, Bank of America National Trust and
Savings Association, as Syndication Agent, the Offshore Administrative Agents
named therein, and Bankers Trust Company, as Administrative Agent, as amended,
amended and restated, supplemented or otherwise modified from time to time
(said 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 $4,500,000,000 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.
VIII-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
Domestic 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 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 REVOLVING NOTE
Date Type of Amount of Amount of Outstanding Notation
Loan Made Loan Made Principal Principal Made By
This Date This Date or Interest Balance
Paid This Date
This Date
VIII-4
<PAGE>
EXHIBIT IX
[FORM OF BID RATE LOAN NOTE]
OWENS-ILLINOIS, INC.
PROMISSORY NOTE DUE DECEMBER 31, 2001
(BID RATE LOANS)
___________, 1998
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 Second Amended and Restated Credit Agreement dated
as of April 30, 1998 among Company, United Glass Limited, United Glass Group
Limited, Owens-Illinois (Australia) Pty Limited, OI Italia S.r.l., the
Lenders, Managing Agents, Co-Agents, Lead Managers and Arrangers named
therein, The Bank of Nova Scotia and NationsBank, N.A., as Documentation
Agents, Bank of America National Trust and Savings Association, as Syndication
Agent, the Offshore Administrative Agents named therein, and Bankers Trust
Company, as Administrative Agent, as amended, amended and restated,
supplemented or otherwise modified from time to time (said 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
Domestic 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
- -------------------------------
1 Insert name of Lender in capital letters.
IX-1
<PAGE>
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) 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.
IX-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 ___________________________
IX-3
<PAGE>
TRANSACTIONS ON BID RATE LOAN NOTE
Date Amount of Amount of Outstanding Notation
Loan Made Principal Principal Made By
This Date or Interest Balance
Paid This Date
This Date
IX-4
<PAGE>
EXHIBIT X
[FORM OF OFFSHORE LOAN NOTE]
OI ITALIA S.R.L.
PROMISSORY NOTE DUE DECEMBER 31, 2001
(ITALIAN LOANS)
___________, 1998
__________1
FOR VALUE RECEIVED, OI Italia S.r.l., a limited liability company
organized under the laws of Italy ("Borrower"), promises to pay to the order
of __________2 ("Payee"), on or before the Revolving Loan Commitment
Termination Date, the lesser of (x) __________3 (__________1) and (y) the
unpaid principal amount of all advances made by Payee to Borrower as Italian
Loans under the Credit Agreement referred to below.
Borrower 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 Second
Amended and Restated Credit Agreement dated as of April 30, 1998 among
Company, the other Borrowers named therein, the Lenders, Managing Agents, Co-
Agents, Lead Managers and Arrangers named therein, The Bank of Nova Scotia and
NationsBank, N.A., as Documentation Agents, Bank of America National Trust and
Savings Association, as Syndication Agent, the Offshore Administrative Agents
named therein, and Bankers Trust Company, as Administrative Agent, as amended,
amended and restated, supplemented or otherwise modified from time to time
(said 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 Borrower's "Offshore Loan Notes" in the aggregate
principal amount of [_______________] 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 Italian
Loans evidenced hereby were made and are to be repaid.
- -------------------------------
1 Insert amount of Italian Lender's applicable Italian Loan Commitment in
numbers.
2 Insert name of Italian Lender in capital letters.
3 Insert amount of Italian Lender's applicable Italian Loan Commitment in
words.
X-1
<PAGE>
All payments of principal and interest in respect of this Note shall be
made in lawful money of Italy in Same Day Funds at the Italian Administrative
Agent's Offshore 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,
Borrower and Administrative Agent and Italian Administrative Agent shall be
entitled to deem Payee or such person who has been so identified by the
transferor in writing to Borrower and Administrative Agent and Italian
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 Borrower 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 Borrower 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 Borrower,
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.
Borrower and endorsers of this Note 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.
X-2
<PAGE>
IN WITNESS WHEREOF, Borrower has caused this Note to be executed and
delivered by its duly authorized director, as of the day and year first above
written.
OI ITALIA S.R.L.
By ____________________________
Title ____________________________
X-3
<PAGE>
TRANSACTIONS ON OFFSHORE LOAN NOTE
Date Type of Amount of Amount of Outstanding Notation
Loan Made Loan Made Principal Principal Made By
This Date This Date or Interest Balance
Paid This Date
This Date
X-4
<PAGE>
EXHIBIT XI
[FORM OF]
DOMESTIC OVERDRAFT AGREEMENT
This DOMESTIC OVERDRAFT AGREEMENT is dated as of __________, 1998 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 Second Amended and
Restated Credit Agreement dated as of April 30, 1998 among Company, United
Glass Limited, United Glass Group Limited, Owens-Illinois (Australia) Pty
Limited, OI Italia S.r.l., the Lenders, Managing Agents, Co-Agents, Lead
Managers and Arrangers listed therein, The Bank of Nova Scotia and
NationsBank, N.A., as Documentation Agents, Bank of America National Trust and
Savings Association, as Syndication Agent, the Offshore Administrative Agents
named therein, 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 Total Utilization of
Revolving Loan Commitments shall not exceed the amount of the Revolving Loan
Commitments at such time minus the Blocked Availability Amount.
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
in good faith 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
XI-1
<PAGE>
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
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 365-day or 366-day year, as the case may be, 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 Days written notice to the other party, terminate this Agreement;
XI-2
<PAGE>
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 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]
XI-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: ___________________________
XI-S-1
<PAGE>
EXHIBIT XII
[FORM OF]
OFFSHORE OVERDRAFT AGREEMENT
This OFFSHORE OVERDRAFT AGREEMENT is dated as of __________, 1998 and
entered into by and between [NAME OF SUBSIDIARY BORROWER], a corporation
organized under the laws of ______________ ("Subsidiary Borrower"), and [NAME
OF OFFSHORE ADMINISTRATIVE AGENT] ("Bank").
RECITALS
WHEREAS, Subsidiary Borrower and Bank are parties to that certain Second
Amended and Restated Credit Agreement dated as of April 30, 1998 among
Subsidiary Borrower, the other Borrowers named therein, the Lenders, Managing
Agents, Co-Agents, Lead Managers and Arrangers listed therein, The Bank of
Nova Scotia and NationsBank, N.A., as Documentation Agents, Bank of America
National Trust and Savings Association, as Syndication Agent, the Offshore
Administrative Agents named therein, and Bankers Trust Company, 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 2.1E of the Credit Agreement, Subsidiary Borrower and Bank are
permitted to establish and maintain an overdraft facility to facilitate
Subsidiary Borrower'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 Subsidiary
Borrower on Subsidiary Borrower'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 [UK/Australian/Italian] Overdraft Amount shall not exceed
__________, (ii) the Total Utilization of Revolving Loan Commitments shall not
exceed the amount of the Revolving Loan Commitments at such time minus the
Blocked Availability Amount, (iii) the sum of the Dollar Equivalent of the
Total Utilization of UK Loan Commitments plus the Dollar Equivalent of the
Total Utilization of Australian Loan Commitments plus the Dollar Equivalent of
the Total Utilization of Italian Loan Commitments shall not exceed the
XII-1
<PAGE>
Aggregate Offshore Currency Sublimit, and (iv) the Total Utilization of
[UK/Australian/Italian] Loan Commitments shall not exceed the amount of the
[UK/Australian/Italian] Loan Commitments at such time.
2. Bank may elect not to pay any item that would create an overdraft,
with or without notice to Subsidiary Borrower, if Bank, in its sole
discretion, believes in good faith that it will not be able, pursuant to
subsection 2.1E of the Credit Agreement, to require each other
[UK/Australian/Italian] Lender to make a [UK/Australian/Italian] Loan or to
purchase a participation, in each case for the purpose of refunding Bank in
the amount of such overdraft.
3. Subsidiary Borrower 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 Account, an amount equal to the [UK/Australian/Italian] Overdraft
Amount then outstanding in respect of such overdraft. In addition, Subsidiary
Borrower shall pay, on demand or, if no demand is made, on the last Business
Day of each month, interest on the [UK/Australian/Italian] Overdraft Amount
from time to time outstanding at a fluctuating rate per annum (calculated on
the basis of a [360][365]-day year and the actual number of days elapsed)
equal to the [*Interest rate to be determined*]; provided that if the
[UK/Australian/Italian] Overdraft Amount or interest thereon is not paid when
due, the [UK/Australian/Italian] 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 [*Interest
rate to be determined*] 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 [UK/Australian/Italian] Lenders to make
[UK/Australian/Italian] Loans as provided in subsection 2.1E of the Credit
Agreement and apply the proceeds of such [UK/Australian/Italian] Loans to
effect payment of the [UK/Australian/Italian] Overdraft Amount as set forth
above.
4. Subsidiary Borrower shall make each payment hereunder to Bank in
lawful money of [UK/Australia/Italy] and in Same Day Funds at the office of
Bank located at _______________________________________.
5. Promptly after the last day of each month, Bank will prepare and
send to Subsidiary Borrower copies of statements of the Account showing the
charges made thereto and the [UK/Australian/Italian] 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 Subsidiary Borrower hereunder.
6. Without prejudice to Bank's other rights, Subsidiary Borrower
hereby authorizes Bank to charge against any balance in the Account and/or in
any of Subsidiary Borrower's other accounts with Bank and/or against any other
debt owing by Bank to Subsidiary Borrower any amount owing by Subsidiary
Borrower to Bank hereunder; provided that Bank shall give Subsidiary Borrower
XII-2
<PAGE>
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 Subsidiary Borrower
in violation of any limitation or prohibition provided by any applicable
statute or regulation.
8. This Agreement shall terminate upon the termination of the
[UK/Australian/Italian] Loan Commitments. In addition, at any time prior to
the termination of the [UK/Australian/Italian] Loan Commitments, Bank or
Subsidiary Borrower may, upon at least five Business Days written notice to
the other party, terminate this Agreement; provided that no such termination
shall affect Subsidiary Borrower'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
Subsidiary Borrower 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 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. Subsidiary Borrower 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]
XII-3
<PAGE>
WITNESS the due execution hereof by the respective duly authorized
officers, directors or attorneys of the undersigned as of the date first
written above.
[NAME OF OFFSHORE OVERDRAFT
ACCOUNT PROVIDER]
By: ___________________________
Title:___________________________
[NAME OF SUBSIDIARY BORROWER]
By: ___________________________
Title:___________________________
XII-S-1
<PAGE>
EXHIBIT XIII
[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 Second Amended and Restated
Credit Agreement dated as of April 30, 1998 among Company, United Glass
Limited, United Glass Group Limited, Owens-Illinois (Australia) Pty Limited,
OI Italia S.r.l., the Lenders, Managing Agents, Co-Agents, Lead Managers and
Arrangers named therein, The Bank of Nova Scotia and NationsBank, N.A., as
Documentation Agents, Bank of America National Trust and Savings Association,
as Syndication Agent, the Offshore Administrative Agents named therein, 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:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
XIII-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 ____________________________
XIII-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) $750,000,000
B. Letters of Credit
1. Reimbursement obligations in respect of letters of credit $__________
2. Maximum permitted under subsection 6.3 $750,000,000
C. Restricted Junior Payments
1. Consolidated Net Income for period from December 31, 1996
until ___________, ____ $__________
2. Aggregate amount of Restricted Junior Payments (other than (i)
Restricted Junior Payments in respect of Common Stock
purchases in connection with Company's employee benefits
program, (ii) Restricted Junior Payments consisting of payments
of Common Stock to holders of preferred stock of Company in
order to redeem all or a portion of such preferred stock and (iii)
Restricted Junior Payments made at any time on or prior to the
first anniversary of the Effective Date consisting of repurchases
of Common Stock held in the Rabbi Trust in connection with
the exercise by an underwriter or underwriters of its or their
over-allotment option in connection with a public offering of
Common Stock) 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) $__________
XIII-3
<PAGE>
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 $__________
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 consummated after the Effective Date
during any consecutive 12-month period in one or more
transactions permitted under subsection 6.6(iii)(b)(i) and not
otherwise permitted under subsection 6.6 $__________
XIII-4
<PAGE>
2. Maximum permitted during consecutive 12-month period after
the Effective Date under subsection 6.6(iii)(b)(i) before consent
of Requisite Lenders required $500,000,000
3. Aggregate fair market value of stock or other assets sold in any
one or more Asset Sales after Effective Date in one or more
transactions permitted under subsection 6.6(iii)(b)(ii) and not
otherwise permitted under subsection 6.6 $__________
4. Maximum permitted under subsection 6.6(iii)(b)(ii) before
consent of Requisite Lenders required $1,000,000,000
XIII-5
<PAGE>
EXHIBIT XIV
[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 Commitments 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 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, (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, (iii) the sale to Assignee of a ratable portion of any
participations previously purchased by Assignor pursuant to subsection
2.1C(iii) of the Credit Agreement with respect to any [UK/Australian/Italian]
Loans,[ and] (iv) the sale to Assignee of a ratable portion of any
XIV-1
<PAGE>
participations previously purchased by Assignor pursuant to subsection 2.1B
with respect to any Domestic Overdraft Amount[, and (v) the sale to Assignee
of a ratable portion of any participations previously purchased by Assignor
pursuant to subsection 2.1E(ii) of the Credit Agreement with respect to any
Offshore Overdraft Amount].
(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 Commitments, the
outstanding Term Loan and the Pro Rata Shares 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" [and a "[UK/Australian/Italian] 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 except as otherwise provided in
subsection 9.11 of the Credit Agreement. 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
Commitments and any outstanding Loans shall have no effect on the Commitments,
the outstanding Term Loan and the Pro Rata Shares 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 [and the applicable
Offshore Administrative Agents] 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 [and any such Offshore Administrative
Agents] 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.
XIV-2
<PAGE>
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, 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
XIV-3
<PAGE>
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 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.
XIV-4
<PAGE>
(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 [and to
[UK/Australian/Italian] Administrative Agent] of such forms, certificates or
other evidence with respect to United States federal income tax withholding
[and foreign tax withholding] matters as Assignee may be required to deliver
to Administrative Agent [and to [UK/Australian/Italian] 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) 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 [, [and] (viii) the execution of a
counterpart hereof by the [UK/Australian/Italian] Administrative Agent as
evidence of its consent hereto to the extent required under subsection 9.2B(i)
of the Credit Agreement] [, and (ix) failure of Requisite Offshore Lenders to
notify Administrative Agent of their objection to this assignment on or prior
to the Business Day preceding the Settlement Date in accordance with
subsection 9.2B(i)].
[Remainder of page intentionally left blank]
XIV-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.
XIV-6
<PAGE>
SCHEDULE OF TERMS
1. Borrowers: Owens-Illinois, Inc., United Glass Limited, United Glass
Group Limited, Owens-Illinois (Australia) Pty Limited and OI Italia S.r.l..
2. Name and Date of Credit Agreement: Second Amended and Restated Credit
Agreement dated as of April 30, 1998 by and among Owens-Illinois, Inc., United
Glass Limited, United Glass Group Limited, Owens-Illinois (Australia) Pty
Limited, OI Italia S.r.l., the financial institutions listed therein as
Lenders, Managing Agents, Co-Agents, Lead Managers and Arrangers, The Bank of
Nova Scotia and NationsBank, N.A., as Documentation Agents, Bank of America
National Trust and Savings Association, as Syndication Agent, the Offshore
Administrative Agents named therein, and Bankers Trust Company, as
Administrative Agent.
3. Amounts:
Term Revolving [[UK/Australian/
Loans Loans Italian] Loans
(a) Aggregate Commitments of all Lenders: $________ $________ $________
(b) Assigned Share/Pro Rata Share: _____% _____% _____%
(c) Amount of Assigned Share of Commitments: $________ $________ $ ________]
(d) Amount of Assigned Share of Term Loans: $________
4. Settlement Date: ____________, ____
5. Payment Instructions:
ASSIGNOR: ASSIGNEE:
_____________________________ _____________________________
_____________________________ _____________________________
_____________________________ _____________________________
Attention:___________________ Attention:___________________
Reference:___________________ Reference:___________________
6. Notice Address:
ASSIGNOR: ASSIGNEE:
_____________________________ _____________________________
_____________________________ _____________________________
_____________________________ _____________________________
_____________________________ _____________________________
7. Signatures:
XIV-7
<PAGE>
[NAME OF ASSIGNOR], [NAME OF ASSIGNEE],
As Assignor As Assignee
By:___________________________ By:__________________________
Name:_________________________ Name:________________________
Title:________________________ Title:_______________________
[Consented to in accordance with Accepted in accordance with
subsection 9.2B(i) of the Credit subsection 9.2B(ii) of the Credit
Agreement Agreement
OWENS-ILLINOIS, INC. [NAME OF ADMINISTRATIVE
AGENT], as Administrative
Agent
By:____________________________ By:___________________________
Name:__________________________ Name:_________________________
Title:_________________________] Title:________________________
[Consented to in accordance with
subsection 9.2B(i) of the Credit
Agreement
[NAME OF OFFSHORE
ADMINISTRATIVE AGENT], as an
Offshore Administrative Agent
By:____________________________
Name:__________________________
Title:_________________________]
XIV-8
<PAGE>
EXHIBIT XV
[FORM OF OPINION OF LATHAM & WATKINS]
April ___, 1998
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 Documentation Agent
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
NationsBank, N.A.,
as Documentation Agent
101 N. Tryon
NC-001-15-05
Charlotte, North Carolina 28255
and
The Offshore Administrative Agents
and Lenders identified on Exhibit A hereto
Re: Second Amended and Restated Credit Agreement dated as of April 30,
1998 among Owens-Illinois, Inc., United Glass Limited, United Glass Group
Limited, Owens-Illinois (Australia) Pty Limited, OI Italia S.r.l., the
Lenders, Managing Agents, Co-Agents, Lead Managers, Arrangers and Offshore
Administrative Agents listed therein, The Bank of Nova Scotia and NationsBank,
N.A., as Documentation Agents, Bank of America National Trust and Savings
Association, as Syndication Agent and Bankers Trust Company, as
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<PAGE>
Administrative Agent
Ladies and Gentlemen:
We have acted as special counsel to Owens-Illinois, Inc., a
Delaware corporation (the "Company"), United Glass Limited, a corporation
organized under the laws of England and Wales, United Glass Group Limited, a
corporation organized under the laws of England and Wales, Owens-Illinois
(Australia) Pty Limited, a corporation organized under the laws of Australia,
and OI Italia S.r.l., a limited liability company organized under the laws of
Italy (each a "Subsidiary Borrower" and together with Company, the
"Borrowers"), in connection with that certain Second Amended and Restated
Credit Agreement dated as of April 30, 1998 (the "Credit Agreement") among the
Borrowers, the Lenders listed therein (collectively, the "Lenders"), the
Arrangers listed therein, The Bank of Nova Scotia and NationsBank, N.A., as
Documentation Agents (each, in such capacity, a "Documentation Agent"), The
First National Bank of Chicago, as UK Administrative Agent ("UK Administrative
Agent"), Bank of America National Trust and Savings Association, as Australian
Administrative Agent ("Australian Administrative Agent"), Societe Generale, as
Italian Administrative Agent ("Italian Administrative Agent"), Bank of America
National Trust and Savings Association, as Syndication Agent (in such
capacity, the "Syndication Agent") and Bankers Trust Company, as
Administrative Agent (in such capacity, the "Administrative Agent").
This opinion is rendered to you, at the request of the Borrowers,
pursuant to Section 3.1G(i) 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 Company Guaranty;
(c) the Term Notes, Revolving Notes and Bid Rate Loan Notes, in
each case issued by the Company on the Effective Date (collectively, the
"Notes");
(d) the Domestic Overdraft Agreement; and
(e) the Existing Senior Note Indenture (the "Indenture").
The documents described in subsections (a) through (d) above are
collectively referred to herein 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
XV-2
<PAGE>
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 Borrowers 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.
For purposes of our opinion, we have assumed, with your
permission, that (i) each Borrower 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) each Borrower has duly authorized,
executed and delivered each Loan Document to which it is a party, (iii) none
of the execution, delivery and performance by any Borrower of any Loan
Document will result in the violation of the Certificate of Incorporation or
charter, as the case may be, or Bylaws (if any) of such Borrower, and (iv)
with respect to applicable Australian, English and Italian law, the Loan
Documents to which any of the Subsidiary Borrowers is a party do not violate
the laws of the Commonwealth of Australia or its states, the laws of England
and Wales or the laws of Italy.
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 each Borrower party thereto, enforceable against such
Borrower in accordance with its terms.
2. The execution and delivery by each Borrower of the Loan
Documents and the borrowing and repayment of the Loans by each Borrower
pursuant to the Credit Agreement do not: (i) violate any federal or New York
statute, rule or regulation applicable to such Borrower (including, without
limitation, Regulations 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 the Indenture, or (iii) require any
consents, approvals, authorizations, registrations, declarations or filings by
such Borrower under any federal or New York statute, rule or regulation
XV-3
<PAGE>
applicable to such Borrower 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. No Borrower is 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 any Borrower 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. A money judgment (other than a judgment for taxes, a fine or
other penalty) obtained in the courts of England, Italy or Australia against
the requisite Subsidiary Borrower which is final, conclusive and enforceable
in England, Italy or Australia, as the case may be, will be recognized and
enforceable against such Borrower and its assets in the courts of the State of
New York or in a United States court sitting in the State of New York provided
that the judgment satisfies the provisions of the Uniform Foreign Country
Money-Judgments Recognition Act, Article 53 of the New York Civil Practice Law
and Rules, a copy of which is attached hereto as Exhibit B, subject to the
exceptions to recognition and the discretionary stay provisions set forth
therein.]
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;
(b) the effect of general principles of equity, whether
enforcement considered in a proceeding in equity or at law, and the discretion
of the court before which any proceeding therefor may be brought;
(c) 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
(d) 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 effective enforcement of a claim
denominated in a foreign currency may be limited by requirements that the
claim (or a judgment in respect of such claim) be converted into United States
Dollars at a rate of exchange prevailing on a specified date. We express no
opinion as to whether a federal or state court would award a judgment in
currency other than United States Dollars and we express no opinion as to the
validity or enforceability of subsection 9.21 of the Credit Agreement or of
any provision of any Loan Document to the extent it requires any Loan Party to
XV-4
<PAGE>
indemnify any other party against loss in obtaining the currency due under
such Loan Document for a court judgment in another currency.
We call to your attention that the provisions of the Loan
Documents which permit the Administrative Agent, any Offshore Administrative
Agent, the Syndication Agent, either Documentation Agent, any Arranger 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 that 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.
For purposes of our opinions expressed in paragraph 5, we have
assumed with your permission that the consent to jurisdiction and service of
process by the Subsidiary Borrowers in subsection 9.18 of the Credit Agreement
is valid and enforceable against each Subsidiary Borrower.
To the extent that the obligations of a Borrower 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 Borrowers) 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 you 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
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
XV-5
<PAGE>
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,
XV-6
<PAGE>
Exhibit A
to
Opinion of Latham & Watkins
Dated April ___, 1998
Rendered In Connection With
Owens-Illinois, Inc. Credit Agreement
Offshore Administrative Agents:
The First National Bank of Chicago
[Address]
Bank of America National Trust and Savings Association
[Address]
Societe Generale
[Address]
Lenders:
XV-7
<PAGE>
[Exhibit B
to
Opinion of Latham & Watkins
Dated April ___, 1998
Rendered In Connection With
Owens-Illinois, Inc. Credit Agreement
[Uniform Foreign Country Money Judgment Recognition Act]]
XV-8
<PAGE>
EXHIBIT XVI
[FORM OF OPINION OF ASSOCIATE GENERAL COUNSEL
FOR OWENS-ILLINOIS]
April ___, 1998
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 Documentation Agent
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
NationsBank, N.A.,
as Documentation Agent
101 N. Tryon
NC-001-15-05
Charlotte, North Carolina 28255
and
The Offshore Administrative Agents
and Lenders identified on Exhibit A hereto
Re: Second Amended and Restated Credit Agreement dated as of April 30,
1998 among Owens-Illinois, Inc., United Glass Limited, United Glass Group
Limited, Owens-Illinois (Australia) Pty Limited, OI Italia S.r.l., the
Lenders, Managing Agents, Co-Agents, Lead Managers, Arrangers and Offshore
Administrative Agents listed therein, The Bank of Nova Scotia and NationsBank,
N.A., as Documentation Agents, Bank of America National Trust and Savings
Association, as Syndication Agent and Bankers Trust Company, as Administrative
Agent
Ladies and Gentlemen:
XVI-1
<PAGE>
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 3.1G(ii) of that certain Second Amended and Restated
Credit Agreement dated as of April 30, 1998 (the "Credit Agreement") among the
Company, United Glass Limited, United Glass Group Limited, Owens-Illinois
(Australia) Pty Limited, OI Italia S.r.l., the Lenders listed therein
(collectively, the "Lenders"), the Managing Agents listed therein, the Co-
Agents listed therein, the Lead Managers listed therein, the Arrangers listed
therein, The Bank of Nova Scotia and NationsBank, N.A., as Documentation
Agents (each, in such capacity, a "Documentation Agent"), The First National
Bank of Chicago, as UK Administrative Agent ("UK Administrative Agent"), Bank
of America National Trust and Savings Association, as Australian
Administrative Agent ("Australian Administrative Agent"), Societe Generale, as
Italian Administrative Agent ("Italian Administrative Agent"), Bank of America
National Trust and Savings Association, as Syndication Agent (in such
capacity, the "Syndication Agent"), and Bankers 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. For purposes of this opinion, the terms "Subsidiary" and
"Subsidiaries" shall not include any Person that becomes a Subsidiary of
Company as a result of the Applegate Acquisition.
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 Company Guaranty;
(c) the Term Notes, Revolving Notes and Bid Rate Loan Notes, in each
case issued by the Company on the Effective Date (collectively, the "Notes");
(d) the Domestic Overdraft Agreement;
(e) the Certificate of Incorporation and Bylaws (the "Governing
Documents") of the Company;
(f) the indenture(s) (but not including the Existing Senior 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
(g) 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").
XVI-2
<PAGE>
The documents described in subsections (a) through (d) 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
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 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
XVI-3
<PAGE>
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,
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, 1997) that has a
significant likelihood of resulting in a Material Adverse Effect.
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
not 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,
XVI-4
<PAGE>
Exhibit A
to
Opinion of James W. Baehren
Dated April ___, 1998
Rendered In Connection With
Owens-Illinois, Inc. Credit Agreement
Offshore Administrative Agents:
The First National Bank of Chicago
[Address]
Bank of America National Trust and Savings Association
[Address]
Societe Generale
[Address]
Lenders:
XVI-5
<PAGE>
EXHIBIT XVII
[FORM OF OPINION OF O'MELVENY & MYERS LLP]
______________, 1998
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 Documentation Agent
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
NationsBank, N.A.,
as Documentation Agent
101 N. Tryon
NC-001-15-05
Charlotte, North Carolina 28255
and
The Offshore Administrative Agents,
Lenders and Arrangers
Party to the Credit
Agreement Referenced Below
Re: Loans to Owens-Illinois, Inc., United Glass Limited, United
Glass Group Limited, Owens-Illinois (Australia) Pty Limited and OI Italia
S.r.l.
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 a Second Amended and Restated Credit Agreement dated as of April
30, 1998 (the "Credit Agreement") among Owens-Illinois, Inc., a Delaware
XVII-1
<PAGE>
corporation, United Glass Limited, a corporation organized under the laws of
England and Wales, United Glass Group Limited, a corporation organized under
the laws of England and Wales, Owens-Illinois (Australia) Pty Limited, a
corporation organized under the laws of Australia, and OI Italia S.r.l., a
limited liability company organized under the laws of Italy (each a "Borrower"
and collectively, the "Borrowers"), the Lenders, Managing Agents, Co-Agents,
Lead Managers and Arrangers named therein, the Lenders named as 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 Borrowers and Agents and conferences and telephone calls with Latham &
Watkins, counsel to the Borrowers, and with your representatives, during which
the 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,
XVII-2
<PAGE>
EXHIBIT XVIII
[FORM OF]
COMPANY GUARANTY
This COMPANY GUARANTY (as amended, amended and restated or
otherwise modified from time to time, this "Guaranty") is entered into as of
April 30, 1998, by OWENS-ILLINOIS, INC., a Delaware corporation ("Guarantor"),
in favor of and for the benefit of BANKERS TRUST COMPANY, as Collateral Agent
for and representative of (in such capacity herein called the "Collateral
Agent") the lenders ("Current Lenders") from time to time party to the Current
Credit Agreement (as hereinafter defined), any Successor Lenders (as
hereinafter defined), and any Lender or Affiliate thereof (as hereinafter
defined) party to the Interest Rate Agreements and Currency Agreements
referred to below (collectively, the "Guarantied Parties").
R E C I T A L S
WHEREAS, Guarantor and United Glass Limited, a corporation
organized under the laws of England and Wales, United Glass Group Limited, a
corporation organized under the laws of England and Wales, Owens-Illinois
(Australia) Pty Limited, a corporation organized under the laws of Australia,
and OI Italia S.r.l., a limited liability company organized under the laws of
Italy (each such Person or any Additional Subsidiary Borrower being a
"Subsidiary Borrower"), Current Lenders, the Managing Agents, Co-Agents, Lead
Managers and Arrangers named therein, The Bank of Nova Scotia and NationsBank,
N.A., as Documentation Agents, Bank of America National Trust and Savings
Association, as Syndication Agent for Current Lenders, the Offshore
Administrative Agents named therein, and Bankers Trust Company, as
Administrative Agent for Current Lenders ("Current Credit Agent"), have
entered into that certain Second Amended and Restated Credit Agreement dated
as of April 30, 1998 (said Credit Agreement, as it may hereafter be amended,
amended and restated or otherwise modified from time to time, being the
"Current Credit Agreement"; capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined or as defined in
the Successor Credit Agreement (as hereinafter defined) then in effect)
pursuant to which Current Lenders have agreed to provide certain credit
facilities to Guarantor and Subsidiary Borrowers for the purpose of, among
other things, providing financing for the Applegate Acquisition;
WHEREAS, it is contemplated that, from time to time, Current
Lenders or other Persons (collectively, "Successor Lenders") may enter into
one or more agreements with Guarantor and other Persons, including
Subsidiaries of Guarantor, either extending the maturity of, refinancing or
otherwise restructuring (including, but not limited to, the inclusion of
additional borrowers thereunder which are Subsidiaries of Guarantor) all or
any portion of the Indebtedness under the Current Credit Agreement or any
Successor Credit Agreement (as hereinafter defined) (said agreements, as they
may exist from time to time (but, in the case of such a refinancing or
XVIII-1
<PAGE>
restructuring, only to the extent thereof), being the "Successor Credit
Agreements", which together with the Current Credit Agreement are referred to
herein as the "Credit Agreements"; provided that in no event shall any
amendment, amendment and restatement or other modification of the Current
Credit Agreement after the date hereof cause the Current Credit Agreement to
be deemed to be a Successor Credit Agreement or require Current Credit Agent
to execute an acknowledgment to the Intercreditor Agreement in connection with
such amendment, amendment and restatement or other modification) (Current
Lenders and any Successor Lenders being collectively referred to herein as
"Lenders", and Current Credit Agent and any agents under any Successor Credit
Agreements (collectively, "Successor Credit Agents") being collectively
referred to herein as "Credit Agents"), and it is desired that the obligations
of Subsidiary Borrowers and any additional borrowers which are Subsidiaries of
Guarantor under any Successor Credit Agreements (collectively, the "Successor
Credit Agreement Obligations") be guarantied hereunder to the same extent as
the Obligations of Subsidiary Borrowers under the Current Credit Agreement;
WHEREAS, it is contemplated that Guarantor and Subsidiary
Borrowers may from time to time enter into Interest Rate Agreements and
Currency Agreements with one or more Lenders or their Affiliates, and
Guarantor desires to guaranty all the obligations of Subsidiary Borrowers
under such Interest Rate Agreements and Currency Agreements (all such
obligations of Subsidiary Borrowers being the "Interest Rate Obligations" or
the "Currency Obligations", as the case may be);
WHEREAS, it is a condition precedent to the effectiveness of the
Current Credit Agreement that this Guaranty be executed and delivered by
Guarantor:
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Guarantor hereby agrees as follows:
Guarantor hereby irrevocably and unconditionally guaranties the
due and punctual payment of all Obligations of Subsidiary Borrowers, all
Successor Credit Agreement Obligations, all Interest Rate Obligations and all
Currency Obligations when the same shall become due, whether at stated
maturity, by required payment, declaration, demand or otherwise (including
amounts which would become due but for the operation of the automatic stay
under Section 362(a) of the Bankruptcy Code, 11 U.S.C. e 362(a)), and agrees
to pay any and all costs and expenses (including fees and disbursements of
counsel and allocated costs of internal counsel) incurred by Collateral Agent,
Credit Agents or Lenders in enforcing or preserving any rights under this
Guaranty (collectively, the "Guarantied Obligations").
Guarantor agrees that the Guarantied Obligations may be extended
or renewed, in whole or in part, without notice or further assent from it, and
that Guarantor will remain bound upon this Guaranty notwithstanding any
extension, renewal or other alteration of any Guarantied Obligation.
XVIII-2
<PAGE>
Guarantor waives presentation of, demand of, and protest of any
Guarantied Obligation and also waives notice of protest for nonpayment. The
obligations of Guarantor under this Guaranty shall not be affected by:
(a) the failure of any Guarantied Party, Collateral Agent, any
Credit Agent or any other Person to assert any claim or demand or to enforce
any right or remedy against Guarantor, any Subsidiary Borrower or any other
borrower under the provisions of any Credit Agreement, any other Loan
Document, any Interest Rate Agreement or any Currency Agreement or any other
agreement or otherwise,
(b) any extension or renewal of any provision of any thereof,
(c) any rescission, waiver, amendment or modification of any of
the terms or provisions of any Credit Agreement, any other Loan Document, any
Interest Rate Agreement, any Currency Agreement or any instrument or agreement
executed pursuant thereto,
(d) the failure to perfect any security interest in, or the
release of, any of the security held by any Guarantied Party, Collateral
Agent, any Credit Agent or any other Person for any of the Guarantied
Obligations, or
(e) the failure of any Guarantied Party, Collateral Agent, any
Credit Agent or any other Person to exercise any right or remedy against any
other guarantor of any of the Guarantied Obligations.
Guarantor further agrees that this Guaranty constitutes a guaranty
of payment when due and not of collection and waives any right to require that
any resort be had by any Guarantied Party, Collateral Agent, any Credit Agent
or any other Person to any of the security held for payment of any of the
Guarantied Obligations or to any balance of any deposit account or credit on
the books of any Guarantied Party, Collateral Agent, any Credit Agent or any
other Person in favor of a Subsidiary Borrower or any other Person.
The obligations of Guarantor under this Guaranty shall not be
subject to any reduction, limitation, impairment or termination for any
reason, including, without limitation, any claim of waiver, release,
surrender, alteration or compromise of any of the Guarantied Obligations, and
shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Guarantied Obligations, the discharge of any
Subsidiary Borrower or any other borrower from any of the Guarantied
Obligations in a bankruptcy or similar proceeding, or otherwise. Without
limiting the generality of the foregoing, the obligations of Guarantor under
this Guaranty shall not be discharged or impaired or otherwise affected by the
failure of any Guarantied Party, Collateral Agent, any Credit Agent or any
other Person to assert any claim or demand or to enforce any remedy under any
Credit Agreement, any other Loan Document, any Interest Rate Agreement, any
Currency Agreement or any other agreement, by any waiver or modification of
any thereof, by any default, or any other act or thing or omission or delay to
do any other act or thing which may or might in any manner or to any extent
XVIII-3
<PAGE>
vary the risk of Guarantor or which would otherwise operate as a discharge of
Guarantor as a matter of law or equity.
Guarantor further agrees that this Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of, interest on or any other amount with respect to
any Guarantied Obligation is rescinded or must otherwise be restored by any
Guarantied Party, Collateral Agent, any Credit Agent or any other Person upon
the bankruptcy or reorganization of Guarantor, any other Person or otherwise.
Guarantor further agrees, in furtherance of the foregoing and not
in limitation of any other right which any Guarantied Party, Collateral Agent,
any Credit Agent or any other Person may have at law or in equity against
Guarantor by virtue hereof, upon the failure of any Subsidiary Borrower to pay
any of the Guarantied Obligations when and as the same shall become due,
whether by required prepayment, declaration or otherwise (including amounts
which would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. e 362(a)), Guarantor will
forthwith pay, or cause to be paid, in cash, to Collateral Agent for the
ratable benefit of Guarantied Parties, an amount equal to the sum of the
unpaid principal amount of such Guarantied Obligations then due as aforesaid,
accrued and unpaid interest on such Guarantied Obligations (including, without
limitation, interest which, but for the filing of a petition in a bankruptcy,
reorganization or other similar proceeding with respect to a Subsidiary
Borrower, would have accrued on such Guarantied Obligations) and all other
Guarantied Obligations then owed to Guarantied Parties as aforesaid. All such
payments shall be applied promptly from time to time by Collateral Agent:
First, to the payment of the costs and expenses of any collection
or other realization under this Guaranty, including reasonable compensation to
Collateral Agent and its agents and counsel, and all expenses, liabilities and
advances made or incurred by Collateral Agent in connection therewith;
Second, (i) upon and during the effectiveness of the Intercreditor
Agreement, to the payment of the Guarantied Obligations as provided in Section
3 of the Intercreditor Agreement and (ii) except as set forth in clause (i),
to the payment of the Guarantied Obligations for the ratable benefit of the
holders thereof; and
Third, after payment in full of all Guarantied Obligations, to the
payment to Guarantor, or its successors or assigns, or to whomsoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct, of any surplus then remaining from such payments.
Guarantor hereby waives any claim, right or remedy, direct or
indirect, that it now has or may hereafter have against any Subsidiary
Borrower or any of its assets in connection with this Guaranty or the
performance by Guarantor of its obligations hereunder, in each case whether
such claim, right or remedy arises in equity, under contract, by statute,
under common law or otherwise and including without limitation (a) any right
XVIII-4
<PAGE>
of subrogation, reimbursement or indemnification that Guarantor now has or may
hereafter have against any Subsidiary Borrower, (b) any right to enforce, or
to participate in, any claim, right or remedy that Collateral Agent or any
Guarantied Party now has or may hereafter have against any Subsidiary
Borrower, and (c) any benefit of, and any right to participate in, any
collateral or security now or hereafter held by Collateral Agent or any
Guarantied Party. In addition, until the Guarantied Obligations shall have
been paid in full and the Commitments shall have terminated and all Letters of
Credit shall have expired or been cancelled, Guarantor shall withhold exercise
of any right of contribution it may have against any other guarantor of the
Guarantied Obligations as a result of any payment hereunder. Guarantor
further agrees that, to the extent the waiver of its rights of subrogation,
reimbursement, indemnification and contribution as set forth herein is found
by a court of competent jurisdiction to be void or voidable for any reason,
any such rights of subrogation, reimbursement or indemnification Guarantor may
have against any Subsidiary Borrower or against any collateral or security,
and any such rights of contribution Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights Collateral Agent or
any Guarantied Party may have against any Subsidiary Borrower, to all right,
title and interest Collateral Agent or any Guarantied Party may have in any
such collateral or security, and to any right Collateral Agent or any
Guarantied Party may have against such other guarantor. If any amount shall
be paid to Guarantor on account of any such subrogation, reimbursement,
indemnification or contribution rights at any time when all Guarantied
Obligations shall not have been paid in full, such amount shall be held in
trust for Collateral Agent on behalf of Guarantied Parties and shall forthwith
be paid over to Collateral Agent for the benefit of Guarantied Parties to be
credited and applied against the Guarantied Obligations, whether matured or
unmatured, in accordance with the terms hereof.
No delay or omission by any Guarantied Party, Collateral Agent or
any Credit Agent to exercise any right under this Guaranty shall impair any
such right, nor shall it be construed to be a waiver thereof. No amendment,
modification, termination or waiver of any provision of this Guaranty, or
consent to any departure by Guarantor therefrom, shall in any event be
effective without the written concurrence of Requisite Lenders (or such other
Lenders as may be required under the Credit Agreement) under the Credit
Agreement then in effect. No waiver of any single breach or default under
this Guaranty shall be deemed a waiver of any other breach or default.
Collateral Agent has been appointed to act as Guarantied Party
hereunder by Lenders and, by their acceptance of the benefits hereof, the
holders of any Interest Rate Obligations and Currency Obligations. Except as
otherwise provided in the next succeeding paragraph, Collateral Agent shall be
obligated, and shall have the right hereunder, to make demands, to give
notices, to exercise or refrain from exercising any rights, and to take or
refrain from taking any action, solely in accordance with this Guaranty and
the Credit Agreement; provided that, except as otherwise provided in the
Intercreditor Agreement, Guarantied Party shall exercise, or refrain from
exercising, any remedies hereunder in accordance with the instructions of (a)
Requisite Lenders or (b) after payment in full of all Obligations under the
Credit Agreement and the other Loan Documents, the holders of a majority of
the aggregate notional amount (or, with respect to any Interest Rate Agreement
or Currency Agreement entered into by any Subsidiary Borrower and any Lender
XVIII-5
<PAGE>
or Affiliate of any Lender (each such Interest Rate Agreement being a "Lender
Interest Rate Agreement" and each such Currency Agreement being a "Lender
Currency Agreement") that has been terminated in accordance with its terms,
the amount then due and payable (exclusive of expenses and similar payments
but including any early termination payments then due) under such Lender
Interest Rate Agreement or Lender Currency Agreement) under all Lender
Interest Rate Agreements and all Lender Currency Agreements. In furtherance
of the foregoing provisions of this paragraph, each holder of Interest Rate
Obligations or Currency Obligations, by its acceptance of the benefits hereof,
agrees that it shall have no right individually to enforce this Guaranty, it
being understood and agreed by such holder that all rights and remedies
hereunder may be exercised solely by Collateral Agent for the benefit of the
Guarantied Parties in accordance with the terms of this paragraph. Except as
otherwise provided in the Intercreditor Agreement: Collateral Agent shall at
all times be the same Person that is Administrative Agent under the Credit
Agreement; written notice of resignation by Administrative Agent pursuant to
subsection 8.6 of the Credit Agreement shall also constitute notice of
resignation as Collateral Agent under this Guaranty; removal of Administrative
Agent pursuant to subsection 8.6 of the Credit Agreement shall also constitute
removal as Collateral Agent under this Guaranty; and appointment of a
successor Administrative Agent pursuant to subsection 8.6 of the Credit
Agreement shall also constitute appointment of a successor Collateral Agent
under this Guaranty. Except as otherwise provided in the Intercreditor
Agreement: upon the acceptance of any appointment as Administrative Agent
under subsection 8.6 of the Credit Agreement by a successor Collateral 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 Collateral Agent under this Guaranty, and the retiring or removed
Collateral Agent under this Guaranty shall promptly (i) transfer to such
successor Collateral Agent all sums held hereunder, together with all records
and other documents necessary or appropriate in connection with the
performance of the duties of the successor Collateral Agent under this
Guaranty, and (ii) take such other actions as may be necessary or appropriate
in connection with the assignment to such successor Collateral Agent of the
rights created hereunder, whereupon such retiring or removed Collateral Agent
shall be discharged from its duties and obligations under this Guaranty.
After any retiring or removed Collateral Agent's resignation or removal
hereunder as Collateral Agent, the provisions of this Guaranty shall inure to
its benefit as to any actions taken or omitted to be taken by it under this
Guaranty while it was Collateral Agent hereunder.
Anything contained in this Guaranty to the contrary
notwithstanding, upon and during the effectiveness of the Intercreditor
Agreement no Guarantied Party shall be entitled to take any action whatsoever
to enforce any term or provision of this Guaranty except through the
Collateral Agent in accordance with the terms of the Intercreditor Agreement.
This Guaranty shall be binding upon Guarantor and its successors
and assigns and shall inure to the benefit of the successors and assigns of
Collateral Agent and Guarantied Parties and, in the event of any transfer or
assignment of rights by Collateral Agent or any Guarantied Party, the rights
and privileges herein conferred upon Collateral Agent and Guarantied Parties
shall automatically extend to and be vested in such transferee or assignee,
all subject to the terms and conditions hereof.
XVIII-6
<PAGE>
Upon the liquidation of Guarantor, the obligations of Guarantor
hereunder shall be assumed by its successors (including, without limitation,
its stockholders on the date of such liquidation) except to the extent that
any such assumption (i) shall be prohibited by applicable law or (ii) would be
considered an investment of earnings in United States property under Section
956 (or a successor provision) of the Internal Revenue Code which investment
would trigger an increase in the gross income of a United States stockholder
of such successor pursuant to Section 951 (or a successor provision) of the
Internal Revenue Code.
THIS GUARANTY, AND ANY INSTRUMENT OR AGREEMENT REQUIRED HEREUNDER,
SHALL BE DEEMED TO BE MADE UNDER, 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.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST GUARANTOR ARISING OUT OF
OR RELATING TO THIS GUARANTY, OR ANY OBLIGATIONS HEREUNDER, 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, GUARANTOR, 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 GUARANTOR AT ITS ADDRESS PROVIDED IN THE CURRENT CREDIT
AGREEMENT OR THE SUCCESSOR CREDIT AGREEMENT THEN IN EFFECT;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER GUARANTOR IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT;
(V) AGREES THAT COLLATERAL AGENT RETAINS THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST
GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION; AND
XVIII-7
<PAGE>
(VI) AGREES THAT THE PROVISIONS OF THIS PARAGRAPH 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.
This Guaranty may be executed in any number of counterparts and by
the different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original for all purposes; but
all such counterparts together shall constitute but one and the same
instrument. This Guaranty shall become effective as to Guarantor upon the
execution of a counterpart hereof by Guarantor and receipt by Collateral Agent
of written or telephonic notification of such execution and authorization of
delivery thereof.
[Remainder of page intentionally left blank]
XVIII-8
<PAGE>
IN WITNESS WHEREOF, the undersigned Guarantor has caused this
Guaranty to be duly executed as of the day and year first written above.
OWENS-ILLINOIS, INC.
By: ________________________________
Title:
ACCEPTED AND AGREED TO:
BANKERS TRUST COMPANY,
as Collateral Agent
By: __________________________
Title:
XVIII-S-1
<PAGE>
EXHIBIT XIX
[FORM OF]
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY (as amended, amended and restated or
otherwise modified from time to time, this "Guaranty") is entered into as of
___________, 1999, by the undersigned ("Guarantors") in favor of and for the
benefit of BANKERS TRUST COMPANY, as Collateral Agent for and representative
of (in such capacity herein called the "Collateral Agent") the lenders
("Current Lenders") from time to time party to the Current Credit Agreement
(as hereinafter defined), any Successor Lenders (as hereinafter defined), and
any Lender or Affiliate thereof (as hereinafter defined) party to the Interest
Rate Agreements and Currency Agreements referred to below (collectively, the
"Guarantied Parties").
R E C I T A L S
WHEREAS, Owens-Illinois, Inc., a Delaware corporation ("Company"),
United Glass Limited, a corporation organized under the laws of England and
Wales, United Glass Group Limited, a corporation organized under the laws of
England and Wales, Owens-Illinois (Australia) Pty Limited, a corporation
organized under the laws of Australia, and OI Italia S.r.l., a limited
liability company organized under the laws of Italy (the Company, each such
Person and any Additional Subsidiary Borrower being a "Borrower" and
collectively, the "Borrowers"), Current Lenders, the Managing Agents, Co-
Agents, Lead Managers and Arrangers named therein, The Bank of Nova Scotia and
NationsBank, N.A., as Documentation Agents, Bank of America National Trust and
Savings Association, as Syndication Agent for Current Lenders, the Offshore
Administrative Agents named therein, and Bankers Trust Company, as
Administrative Agent for Current Lenders ("Current Credit Agent"), have
entered into that certain Second Amended and Restated Credit Agreement dated
as of April 30, 1998 (said Credit Agreement, as it may hereafter be amended,
amended and restated or otherwise modified from time to time, being the
"Current Credit Agreement"; capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined or as defined in
the Successor Credit Agreement (as hereinafter defined) then in effect)
pursuant to which Current Lenders have agreed to provide certain credit
facilities to Borrowers for the purpose of, among other things, providing
financing for the Applegate Acquisition;
WHEREAS, it is contemplated that certain proceeds of the Loans
made to Borrowers by Current Lenders will be advanced to Guarantors and that
certain Letters of Credit will be issued directly or indirectly for the
benefit of Guarantors, and to such extent the Obligations of Borrowers are
being incurred for and will inure to the benefit of Guarantors (which benefits
are hereby acknowledged);
XIX-1
<PAGE>
WHEREAS, it is contemplated that, from time to time, Current
Lenders or other Persons (collectively, "Successor Lenders") may enter into
one or more agreements with Borrowers and other Persons, including
Subsidiaries of Company, either extending the maturity of, refinancing or
otherwise restructuring (including, but not limited to, the inclusion of
additional borrowers thereunder which are Subsidiaries of Company) all or any
portion of the Indebtedness under the Current Credit Agreement or any
Successor Credit Agreement (as hereinafter defined) (said agreements, as they
may exist from time to time (but, in the case of such a refinancing or
restructuring, only to the extent thereof), being the "Successor Credit
Agreements", which together with the Current Credit Agreement are referred to
herein as the "Credit Agreements"; provided that in no event shall any
amendment, amendment and restatement or other modification of the Current
Credit Agreement after the date hereof cause the Current Credit Agreement to
be deemed to be a Successor Credit Agreement or require Current Credit Agent
to execute an acknowledgment to the Intercreditor Agreement in connection with
such amendment, amendment and restatement or other modification) (Current
Lenders and any Successor Lenders being collectively referred to herein as
"Lenders", and Current Credit Agent and any agents under any Successor Credit
Agreements (collectively, "Successor Credit Agents") being collectively
referred to herein as "Credit Agents"), and it is desired that the obligations
of Company and any additional borrowers which are Subsidiaries of Company
under any Successor Credit Agreements (collectively, the "Successor Credit
Agreement Obligations") be guarantied hereunder to the same extent as the
Obligations under the Current Credit Agreement;
WHEREAS, it is contemplated that the Successor Credit Agreement
Obligations will be incurred for and will inure to, in whole or in part, the
benefit of Guarantors (which benefits are hereby acknowledged);
WHEREAS, it is contemplated that Borrowers may from time to time
enter into Interest Rate Agreements and Currency Agreements with one or more
Lenders or their Affiliates, and Guarantors desire to guaranty all the
obligations of Borrowers under such Interest Rate Agreements and Currency
Agreements (all such obligations being the "Interest Rate Obligations" or the
"Currency Obligations", as the case may be);
WHEREAS, it is contemplated that the Interest Rate Obligations and
Currency Obligations will be incurred for and will inure to, in whole or in
part, the benefit of Guarantors; and
WHEREAS, Current Lenders have required that this Guaranty be
executed and delivered by Guarantors pursuant to subsection 5.8 of the Current
Credit Agreement:
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Guarantors hereby agree as follows:
Guarantors jointly and severally hereby irrevocably and
unconditionally guaranty the due and punctual payment of all Obligations, all
Successor Credit Agreement Obligations, all Interest Rate Obligations and all
Currency Obligations when the same shall become due, whether at stated
XIX-2
<PAGE>
maturity, by required payment, declaration, demand or otherwise (including
amounts which would become due but for the operation of the automatic stay
under Section 362(a) of the Bankruptcy Code, 11 U.S.C. e 362(a)), and agree to
pay any and all costs and expenses (including fees and disbursements of
counsel and allocated costs of internal counsel) incurred by Collateral Agent,
Credit Agents or Lenders in enforcing or preserving any rights under this
Guaranty (collectively, the "Guarantied Obligations"); provided that the
guaranty hereunder and any other provisions of this Guaranty shall be
effective as to any obligations in respect of any Successor Credit Agreements
or any Interest Rate Obligations and Currency Obligations only if the holders
of said obligations (or their representatives) and Guarantors shall have
acknowledged and delivered to Collateral Agent a counterpart of the
Intercreditor Agreement.
Anything contained in this Guaranty to the contrary
notwithstanding, if any Fraudulent Transfer Law (as hereinafter defined) is
determined by a court of competent jurisdiction to be applicable to the
obligations of any Guarantor under this Guaranty, such obligations of such
Guarantor hereunder shall be limited to a maximum aggregate amount equal to
the largest amount that would not render its obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11
of the United States Code or any applicable provisions of comparable state law
(collectively, the "Fraudulent Transfer Laws"), in each case after giving
effect to all other liabilities of such Guarantor, contingent or otherwise,
that are relevant under the Fraudulent Transfer Laws (specifically excluding,
however, any liabilities of such Guarantor in respect of intercompany
indebtedness to Company or other affiliates of Company to the extent that such
indebtedness would be discharged in an amount equal to the amount paid by such
Guarantor hereunder) and after giving effect as assets to the value (as
determined under the applicable provisions of the Fraudulent Transfer Laws) of
any rights to subrogation, reimbursement, indemnification or contribution of
such Guarantor pursuant to applicable law or pursuant to the terms of any
agreement (including any such right of contribution hereunder).
Guarantors under this Guaranty together desire to allocate among
themselves, in a fair and equitable manner, their obligations arising under
this Guaranty. Accordingly, in the event any payment or distribution is made
on any date by any Guarantor under this Guaranty (a "Funding Guarantor") that
exceeds its Fair Share (as defined below) as of such date, that Funding
Guarantor shall be entitled to a contribution from each of the other
Guarantors in the amount of such other Guarantor's Fair Share Shortfall (as
defined below) as of such date, with the result that all such contributions
will cause each Guarantor's Aggregate Payments (as defined below) to equal its
Fair Share as of such date. "Fair Share" means, with respect to a Guarantor
as of any date of determination, an amount equal to (i) the ratio of (x) the
Adjusted Maximum Amount (as defined below) with respect to such Guarantor to
(y) the aggregate of the Adjusted Maximum Amounts with respect to all
Guarantors, multiplied by (ii) the aggregate amount paid or distributed on or
before such date by all Funding Guarantors under this Guaranty in respect of
the obligations guarantied. "Fair Share Shortfall" means, with respect to a
Guarantor as of any date of determination, the excess, if any, of the Fair
Share of such Guarantor over the Aggregate Payments made by such Guarantor.
"Adjusted Maximum Amount" means, with respect to a Guarantor as of any date of
determination, the maximum aggregate amount of the obligations of such
XIX-3
<PAGE>
Guarantor under this Guaranty, determined as of such date in accordance with
the immediately preceding paragraph; provided that solely for purposes of
calculating the "Adjusted Maximum Amount" with respect to any Guarantor for
purposes of this paragraph, any assets or liabilities of such Guarantor
arising by virtue of any rights to subrogation, reimbursement or
indemnification or any rights to or obligations of contribution hereunder
shall not be considered as assets or liabilities of such Guarantor.
"Aggregate Payments" means, with respect to a Guarantor as of any date of
determination, an amount equal to (i) the aggregate amount of all payments and
distributions made on or before such date by such Guarantor in respect of this
Guaranty (including, without limitation, in respect of this paragraph) minus
(ii) the aggregate amount of all payments received on or before such date by
such Guarantor from the other Guarantors as contributions under this
paragraph. The amounts payable as contributions hereunder shall be determined
as of the date on which the related payment or distribution is made by the
applicable Funding Guarantor. The allocation among Guarantors of their
obligations as set forth in this paragraph shall not be construed in any way
to limit the liability of any Guarantor hereunder.
Guarantors agree that the Guarantied Obligations may be extended
or renewed, in whole or in part, without notice or further assent from them,
and that each Guarantor will remain bound upon this Guaranty notwithstanding
any extension, renewal or other alteration of any Guarantied Obligation.
Guarantors waive presentation of, demand of, and protest of any
Guarantied Obligation and also waive notice of protest for nonpayment. The
obligations of Guarantors under this Guaranty shall not be affected by:
(a) the failure of any Guarantied Party, Collateral Agent, any
Credit Agent or any other Person to assert any claim or demand or to enforce
any right or remedy against any Borrower or any other borrower under the
provisions of any Credit Agreement, any other Loan Document, any Interest Rate
Agreement or any Currency Agreement or any other agreement or otherwise,
(b) any extension or renewal of any provision of any thereof,
(c) any rescission, waiver, amendment or modification of any of
the terms or provisions of any Credit Agreement, any other Loan Document, any
Interest Rate Agreement, any Currency Agreement or any instrument or agreement
executed pursuant thereto,
(d) the failure to perfect any security interest in, or the
release of, any of the security held by any Guarantied Party, Collateral
Agent, any Credit Agent or any other Person for any of the Guarantied
Obligations, or
(e) the failure of any Guarantied Party, Collateral Agent, any
Credit Agent or any other Person to exercise any right or remedy against any
other guarantor of any of the Guarantied Obligations.
XIX-4
<PAGE>
Guarantors further agree that this Guaranty constitutes a guaranty
of payment when due and not of collection and waive any right to require that
any resort be had by any Guarantied Party, Collateral Agent, any Credit Agent
or any other Person to any of the security held for payment of any of the
Guarantied Obligations or to any balance of any deposit account or credit on
the books of any Guarantied Party, Collateral Agent, any Credit Agent or any
other Person in favor of Company or any other Person.
The obligations of Guarantors under this Guaranty shall not be
subject to any reduction, limitation, impairment or termination for any
reason, including, without limitation, any claim of waiver, release,
surrender, alteration or compromise of any of the Guarantied Obligations, and
shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Guarantied Obligations, the discharge of any
Borrower or any other borrower from any of the Guarantied Obligations in a
bankruptcy or similar proceeding, or otherwise. Without limiting the
generality of the foregoing, the obligations of Guarantors under this Guaranty
shall not be discharged or impaired or otherwise affected by the failure of
any Guarantied Party, Collateral Agent, any Credit Agent or any other Person
to assert any claim or demand or to enforce any remedy under any Credit
Agreement, any other Loan Document, any Interest Rate Agreement, any Currency
Agreement or any other agreement, by any waiver or modification of any
thereof, by any default, or any other act or thing or omission or delay to do
any other act or thing which may or might in any manner or to any extent vary
the risk of Guarantors or which would otherwise operate as a discharge of
Guarantors as a matter of law or equity.
Guarantors further agree that this Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of, interest on or any other amount with respect to
any Guarantied Obligation is rescinded or must otherwise be restored by any
Guarantied Party, Collateral Agent, any Credit Agent or any other Person upon
the bankruptcy or reorganization of Company, any Guarantor, any other Person
or otherwise.
Guarantors further agree, in furtherance of the foregoing and not
in limitation of any other right which any Guarantied Party, Collateral Agent,
any Credit Agent or any other Person may have at law or in equity against
Guarantors by virtue hereof, upon the failure of Company to pay any of the
Guarantied Obligations when and as the same shall become due, whether by
required prepayment, declaration or otherwise (including amounts which would
become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code, 11 U.S.C. e 362(a)), Guarantors will forthwith pay, or
cause to be paid, in cash, to Collateral Agent for the ratable benefit of
Guarantied Parties, an amount equal to the sum of the unpaid principal amount
of such Guarantied Obligations then due as aforesaid, accrued and unpaid
interest on such Guarantied Obligations (including, without limitation,
interest which, but for the filing of a petition in a bankruptcy,
reorganization or other similar proceeding with respect to Company, would have
accrued on such Guarantied Obligations) and all other Guarantied Obligations
then owed to Guarantied Parties as aforesaid. All such payments shall be
applied promptly from time to time by Collateral Agent:
XIX-5
<PAGE>
First, to the payment of the costs and expenses of any collection or
other realization under this Guaranty, including reasonable compensation to
Collateral Agent and its agents and counsel, and all expenses, liabilities and
advances made or incurred by Collateral Agent in connection therewith;
Second, to the payment of the Guarantied Obligations as provided
in Section 3 of the Intercreditor Agreement; and
Third, after payment in full of all Guarantied Obligations, to the
payment to Guarantors, or their successors or assigns, or to whomsoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct, of any surplus then remaining from such payments.
Each Guarantor hereby waives any claim, right or remedy, direct or
indirect, that such Guarantor now has or may hereafter have against any
Borrower or any of its assets in connection with this Guaranty or the
performance by such Guarantor of its obligations hereunder, in each case
whether such claim, right or remedy arises in equity, under contract, by
statute, under common law or otherwise and including without limitation (a)
any right of subrogation, reimbursement or indemnification that such Guarantor
now has or may hereafter have against any Borrower, (b) any right to enforce,
or to participate in, any claim, right or remedy that Collateral Agent or any
Guarantied Party now has or may hereafter have against any Borrower, and (c)
any benefit of, and any right to participate in, any collateral or security
now or hereafter held by Collateral Agent or any Guarantied Party. In
addition, until the Guarantied Obligations shall have been paid in full and
the Commitments shall have terminated and all Letters of Credit shall have
expired or been cancelled, each Guarantor shall withhold exercise of any right
of contribution such Guarantor may have against any other guarantor (including
any other Guarantor) of the Guarantied Obligations (including without
limitation any such right of contribution hereunder) as a result of any
payment hereunder. Each Guarantor further agrees that, to the extent the
waiver of its rights of subrogation, reimbursement, indemnification and
contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any such rights of subrogation,
reimbursement or indemnification such Guarantor may have against any Borrower
or against any collateral or security, and any such rights of contribution
such Guarantor may have against any such other guarantor, shall be junior and
subordinate to any rights Collateral Agent or any Guarantied Party may have
against Company, to all right, title and interest Collateral Agent or any
Guarantied Party may have in any such collateral or security, and to any right
Collateral Agent or any Guarantied Party may have against such other
guarantor. If any amount shall be paid to any Guarantor on account of any
such subrogation, reimbursement, indemnification or contribution rights at any
time when all Guarantied Obligations shall not have been paid in full, such
amount shall be held in trust for Collateral Agent on behalf of Guarantied
Parties and shall forthwith be paid over to Collateral Agent for the benefit
of Guarantied Parties to be credited and applied against the Guarantied
Obligations, whether matured or unmatured, in accordance with the terms
hereof.
No delay or omission by any Guarantied Party, Collateral Agent or
any Credit Agent to exercise any right under this Guaranty shall impair any
XIX-6
<PAGE>
such right, nor shall it be construed to be a waiver thereof. No amendment,
modification, termination or waiver of any provision of this Guaranty, or
consent to any departure by Guarantors therefrom, shall in any event be
effective without the written concurrence of Requisite Lenders under the
Credit Agreement then in effect. No waiver of any single breach or default
under this Guaranty shall be deemed a waiver of any other breach or default.
Anything contained in this Guaranty to the contrary
notwithstanding, no Guarantied Party shall be entitled to take any action
whatsoever to enforce any term or provision of this Guaranty except through
the Collateral Agent in accordance with the terms of the Intercreditor
Agreement.
This Guaranty shall be binding upon each Guarantor and its
respective successors and assigns and shall inure to the benefit of the
successors and assigns of Collateral Agent and Guarantied Parties and, in the
event of any transfer or assignment of rights by Collateral Agent or any
Guarantied Party, the rights and privileges herein conferred upon Collateral
Agent and Guarantied Parties shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
Upon the liquidation of any Guarantor, the obligations of that
Guarantor hereunder shall be assumed by its successors (including, without
limitation, its stockholders on the date of such liquidation) except to the
extent that any such assumption (i) shall be prohibited by applicable law or
(ii) would be considered an investment of earnings in United States property
under Section 956 (or a successor provision) of the Internal Revenue Code
which investment would trigger an increase in the gross income of a United
States stockholder of such successor pursuant to Section 951 (or a successor
provision) of the Internal Revenue Code.
If all of the stock of any Guarantor or any of its successors in
interest under this Guaranty shall be sold or otherwise disposed of (including
by merger or consolidation) in an Asset Sale not prohibited by the Credit
Agreement then in effect or otherwise consented to by Requisite Lenders under
the Credit Agreement then in effect, the Guaranty of such Guarantor or such
successor in interest, as the case may be, hereunder shall automatically be
discharged and released without any further action by any Credit Agent,
Collateral Agent or any other Person or any Guarantied Party, effective as of
the time of such Asset Sale or consent.
If any Guarantor or any of its successors in interest under this
Guaranty shall be merged with and into any Subsidiary of Company in a
transaction not prohibited by the Credit Agreement then in effect or otherwise
consented to by Requisite Lenders under the Credit Agreement then in effect,
and if such Guarantor or such successor in interest, as the case may be, is
not the surviving corporation in such merger, the Guaranty of such Guarantor
or such successor in interest, as the case may be, hereunder shall be
automatically discharged and released without any further action by any Credit
Agent, Collateral Agent or any other Person or any Guarantied Party, effective
as of the time of consummation of such merger.
XIX-7
<PAGE>
THIS GUARANTY, AND ANY INSTRUMENT OR AGREEMENT REQUIRED HEREUNDER,
SHALL BE DEEMED TO BE MADE UNDER, 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.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY GUARANTOR ARISING OUT
OF OR RELATING TO THIS GUARANTY, OR ANY OBLIGATIONS HEREUNDER, 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, EACH
GUARANTOR, 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 SUCH GUARANTOR AT THE ADDRESS OF COMPANY PROVIDED IN THE CURRENT
CREDIT AGREEMENT OR THE SUCCESSOR CREDIT AGREEMENT THEN IN EFFECT;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH GUARANTOR IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT;
(V) AGREES THAT COLLATERAL AGENT RETAINS THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST
SUCH GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS PARAGRAPH 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.
The initial Guarantors hereunder shall be such of the Subsidiaries
of Company as are signatories hereto on the date hereof. From time to time
subsequent to the date hereof, additional Subsidiaries of Company may become
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parties hereto, as additional Guarantors (each an "Additional Guarantor"), by
executing a counterpart of this Guaranty. Upon delivery of any such
counterpart to Collateral Agent, notice of which is hereby waived by
Guarantors, each such Additional Guarantor shall be a Guarantor and shall be
as fully a party hereto as if such Additional Guarantor were an original
signatory hereof. Each Guarantor expressly agrees that its obligations
arising hereunder shall not be affected or diminished by the addition or
release of any other Guarantor hereunder, nor by any election of Lenders not
to cause any Subsidiary of Company to become an Additional Guarantor
hereunder. This Guaranty shall be fully effective as to any Guarantor that is
or becomes a party hereto regardless of whether any other Person becomes or
fails to become or ceases to be a Guarantor hereunder.
This Guaranty may be executed in any number of counterparts and by
the different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original for all purposes; but
all such counterparts together shall constitute but one and the same
instrument. This Guaranty shall become effective as to each Guarantor upon
the execution of a counterpart hereof by such Guarantor (whether or not a
counterpart hereof shall have been executed by any other Guarantor) and
receipt by Collateral Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the undersigned Guarantors has caused this
Guaranty to be duly executed as of the day and year first written above.
[NAMES OF INITIAL SUBSIDIARY
GUARANTORS]
By: ________________________________
Title:
ACCEPTED AND AGREED TO:
BANKERS TRUST COMPANY,
as Collateral Agent
By: __________________________
Title:
IN WITNESS WHEREOF, the undersigned Additional Guarantor has
caused this Guaranty to be duly executed as of __________, ____.
ACCEPTED AND AGREED TO: ________________________________
(Name of Additional Guarantor)
BANKERS TRUST COMPANY, By:_____________________________
as Collateral Agent Name:___________________________
Title:__________________________
By:_____________________________
Title:__________________________
XIX-S-1
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EXHIBIT XX
[FORM OF]
COMPANY PLEDGE AGREEMENT
This COMPANY PLEDGE AGREEMENT (as amended, amended and restated or
otherwise modified from time to time, herein called this "Agreement") is dated
as of ________ ___, 1999, between OWENS-ILLINOIS, INC., a Delaware corporation
(the "Pledgor"), and BANKERS TRUST COMPANY ("Bankers"), as Collateral Agent
for and representative of (in such capacity herein called the "Collateral
Agent") the Lenders (as hereinafter defined), the Interest Rate Exchangers (as
hereinafter defined), the Currency Exchangers (as hereinafter defined), and
the trustees (including any successors, the "Senior Note Trustees") under the
Senior Note Indentures (as hereinafter defined). Certain defined terms used
in this Agreement are indexed in Annex 1 to this Agreement.
R E C I T A L S
1. The Pledgor is the legal and beneficial owner of (i) the
shares of stock described in Part I of Schedule I hereto (the "Pledged
Shares") issued by the corporations named therein, which shares constitute the
percentage of all of the issued and outstanding shares of all classes of
capital stock of such companies identified in Part I of said Schedule I, and
(ii) the indebtedness described in Part II of said Schedule I (the "Pledged
Debt") issued by the obligors named therein;
2. Certain lenders (together with their successors and assigns
under the Current Credit Agreement, the "Current Lenders"), the Managing
Agents, Co-Agents, Lead Managers and Arrangers named therein, The Bank of Nova
Scotia and NationsBank, N.A., as Documentation Agents, Bank of America
National Trust and Savings Association, as Documentation Agent for the Current
Lenders, the Offshore Administrative Agents named therein, and Bankers, as
Administrative Agent for the Current Lenders (in such capacity herein called
the "Current Credit Agent"), have entered into a Second Amended and Restated
Credit Agreement dated as of April 30, 1998 with the Pledgor and the other
Borrowers named therein (said Credit Agreement, as it may hereafter be
amended, amended and restated or otherwise modified from time to time, being
the "Current Credit Agreement"; capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined or as defined in
the Successor Credit Agreement (as hereinafter defined) then in effect),
pursuant to which the Current Lenders have agreed, subject to the terms and
conditions set forth in the Current Credit Agreement, to extend certain credit
facilities to the Pledgor and such other Borrowers for the purpose of, among
other things, providing financing for the Applegate Acquisition, and the
Pledgor desires that all obligations of the Pledgor under the Current Credit
Agreement be secured by a first-priority Lien on the Pledged Collateral (as
hereinafter defined);
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3. It is contemplated that, from time to time, the Current Lenders
or other Persons (collectively, the "Successor Lenders") may enter into one or
more agreements with the Pledgor, the other Borrowers and other Persons,
including Subsidiaries of the Pledgor, either extending the maturity of,
refinancing or otherwise restructuring (including, but not limited to, the
inclusion of additional borrowers thereunder which are Subsidiaries of the
Pledgor) all or any portion of the Indebtedness under the Current Credit
Agreement or any Successor Credit Agreement (said agreements, as they may
exist from time to time (but, in the case of such a refinancing or
restructuring, only to the extent thereof), being the "Successor Credit
Agreements", which together with the Current Credit Agreement are referred to
herein as the "Credit Agreements"; provided that in no event shall any
amendment, amendment and restatement or other modification of the Current
Credit Agreement after the date hereof cause the Current Credit Agreement to
be deemed to be a Successor Credit Agreement or require the Current Credit
Agent to execute an acknowledgment to the Intercreditor Agreement in
connection with such amendment, amendment and restatement or other
modification) (the Current Lenders and any Successor Lenders being
collectively referred to herein as the "Lenders", and the Current Credit Agent
and any agents under any Successor Credit Agreements (collectively, the
"Successor Credit Agents") being collectively referred to herein as the
"Credit Agents"), and the Pledgor desires that the obligations of the Pledgor
and any additional borrowers which are Subsidiaries of the Pledgor under any
Successor Credit Agreements be secured by the Pledged Collateral to the same
extent as the obligations under the Current Credit Agreement;
4. It is contemplated that the Pledgor may from time to time
enter into Interest Rate Agreements and Currency Agreements with one or more
Lenders or their Affiliates (collectively, the "Company Interest Rate
Exchangers" or the "Company Currency Exchangers," as the case may be) and the
Pledgor desires that its obligations under such agreements, including the
obligation to make payments in the event of early termination thereunder (all
such obligations being the "Company Interest Rate Obligations" or the "Company
Currency Obligations," as the case may be), be secured hereunder;
5. Pledgor has executed and delivered to the Collateral Agent a
Company Guaranty dated as of April 30, 1998 (as amended, amended and restated
or otherwise modified from time to time, herein called the "Company Guaranty")
pursuant to which Pledgor has guarantied the obligations of the Subsidiary
Borrowers (and, in the case of any Successor Credit Agreements, the
obligations of any other Subsidiaries of the Company which are additional
borrowers thereunder) under the Current Credit Agreement and any Successor
Credit Agreements and under any Interest Rate Agreements and Currency
Agreements that may from time to time be entered into between the Subsidiary
Borrowers and one or more Lenders or their Affiliates (collectively, the
"Subsidiary Interest Rate Exchangers" or the "Subsidiary Currency Exchangers,"
as the case may be; together with the Company Interest Rate Exchangers and the
Company Currency Exchangers, respectively, the "Interest Rate Exchangers" and
the "Currency Exchangers", respectively), and Pledgor desires that its
obligations under the Company Guaranty with respect to the Credit Agreements
and any such Interest Rate Agreements and Currency Agreements, including the
obligation to make payments in the event of early termination under such
Interest Rate Agreements and Currency Agreements (all such obligations being
the "Subsidiary Interest Rate Obligations" or the "Subsidiary Currency
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Obligations," as the case may be; together with the Company Interest Rate
Obligations and the Company Currency Obligations, respectively, the "Interest
Rate Obligations" and the "Currency Obligations", respectively), be secured
hereunder; provided that any Interest Rate Exchanger or any Currency Exchanger
requiring such security shall execute and deliver to the Collateral Agent a
counterpart of the Intercreditor Agreement (as hereinafter defined) or an
acknowledgment to the Intercreditor Agreement, in the form attached thereto,
acknowledged by the Pledgor;
6. The Pledgor has entered into (i) an Indenture dated as of
May 15, 1997 pursuant to which the Pledgor has issued (a) $300,000,000 in
aggregate principal amount of 7.85% Senior Notes due 2004 and (b) $300,000,000
in aggregate principal amount of 8.10% Senior Notes due 2007 and (ii) an
Indenture dated as of __________, 199_ pursuant to which the Pledgor has
issued [Insert description of any other publicly (or Rule 144A) issued senior
debt securities issued after the Effective Date that are not prohibited under
the Credit Agreement], in each case with the Senior Note Trustee named therein
(collectively, such indentures are referred to herein as the "Senior Note
Indentures" and such Senior Notes and [Insert description of any such other
publicly (or Rule 144A) issued senior debt securities] are referred to herein
as the "Senior Notes"; the obligations of the Pledgor under the Senior Note
Indentures and the Senior Notes being referred to herein as the "Senior Note
Obligations"), and the Pledgor desires that the Indebtedness evidenced by the
Senior Notes and all other amounts due under the Senior Note Indentures
relating to the Senior Notes be equally and ratably secured with the other
Secured Obligations hereunder by a first-priority Lien on the Pledged
Collateral; provided that, notwithstanding the foregoing, the holders of any
Senior Notes and the Senior Note Trustees shall only be entitled to the
benefits of this Agreement if the applicable Senior Note Trustees shall have
executed and delivered to the Collateral Agent a counterpart of the
Intercreditor Agreement, in the form attached thereto, acknowledged by the
Pledgor; and
7. The Current Credit Agent, the Senior Note Trustees and the
Collateral Agent have entered into an Intercreditor Agreement dated the date
hereof (said Intercreditor Agreement, as it may hereafter be amended, amended
and restated or otherwise modified from time to time, being the "Intercreditor
Agreement"), which provides for, inter alia, the appointment of the Collateral
Agent to administer the Pledged Collateral.
NOW, THEREFORE, in consideration of the premises, the parties
hereto hereby agree as follows:
SECTION 1. Pledge. The Pledgor hereby pledges to the Collateral
Agent, and grants to the Collateral Agent for the benefit of the Lenders, the
Credit Agents, the Interest Rate Exchangers, the Currency Exchangers, the
holders of the Senior Notes and the Senior Note Trustees (collectively, the
"Secured Parties") a first-priority security interest in the following (the
"Pledged Collateral") to secure the Secured Obligations (as defined in Section
2):
(i) the Pledged Shares and the certificates representing the
Pledged Shares and any interest of the Pledgor in the entries on the books of
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any financial intermediary pertaining to the Pledged Shares, and, subject to
Section 6, all dividends, cash or proceeds, options, warrants, rights,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of the Pledged Shares;
(ii) all additional shares of stock of any issuer of the Pledged
Shares from time to time acquired by the Pledgor in any manner (which shares
shall be deemed to be part of the Pledged Shares), and the certificates
representing such additional shares and any interest of the Pledgor in the
entries on the books of any financial intermediary pertaining to such
additional shares, and, subject to Section 6, all dividends, cash, options,
warrants, rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of such shares;
(iii) all shares of any Person directly owned or held by the
Pledgor which, after the date of this Agreement, is or becomes, as a result of
any occurrence, a Subsidiary (subject to the obtaining or making of any
foreign governmental actions, notices or filings as referred to in Section
4(iii)) of the Pledgor (which shares shall be deemed to be part of the Pledged
Shares) and the certificates representing such shares and any interest of the
Pledgor in the entries on the books of any financial intermediary pertaining
to such shares, and, subject to Section 6, all dividends, cash, options,
warrants, rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of such shares; provided that the Pledgor shall not be required to
pledge more than 65% of the shares of capital stock of any Subsidiary which is
a Foreign Entity and, in any event, shall not be required to pledge the shares
of stock of any Subsidiary otherwise required to be pledged pursuant to this
Section 1(iii) to the extent that such pledge would constitute an investment
of earnings in United States property under Section 956 (or a successor
provision) of the Internal Revenue Code which investment would trigger an
increase in the gross income of a United States shareholder of the Pledgor
pursuant to Section 951 (or a successor provision) of the Internal Revenue
Code; and
(iv) the Pledged Debt and the instruments evidencing the Pledged
Debt, and all interest, cash instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Debt.
SECTION 2. Secured Obligations. This Agreement secures, and the
Pledged Collateral is collateral security for, the prompt payment or
performance in full when due, whether at stated maturity, by acceleration or
otherwise (including the payment of amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. e 362(a)), of all Guarantied Obligations (such term being used
herein as defined in the Company Guaranty) and all Obligations of the Pledgor
now or hereafter existing under or in respect of the Credit Agreements (the
"Obligations"), the notes which evidence Indebtedness under the Credit
Agreements (the "Notes"), all Interest Rate Obligations and Currency
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Obligations now or hereafter existing under or in respect of the Interest Rate
Agreements and the Currency Agreements, and all obligations of the Pledgor now
or hereafter existing under the Senior Note Indentures and the Senior Notes
issued thereunder, in each case whether for principal, premium or interest
(including, without limitation, interest which, but for the filing of a
petition in a bankruptcy, reorganization or other similar proceeding with
respect to the Pledgor, would accrue on such obligations), payments for early
termination, fees, expenses or otherwise and all obligations of the Pledgor
now or hereafter existing under this Agreement or the Company Guaranty (all
such obligations being the "Secured Obligations"); provided that the pledge
made and security interest granted in Section 1 and any other provisions of
this Agreement shall be effective as to any Guarantied Obligations or
obligations in respect of any Successor Credit Agreements, Interest Rate
Agreements and Currency Agreements only if the holders of such obligations or
their representatives shall have executed and delivered to the Collateral
Agent a counterpart of the Intercreditor Agreement or an acknowledgment to the
Intercreditor Agreement, in the form attached thereto, acknowledged by the
Pledgor; provided, further that the pledge made and security interest granted
in Section 1 and any other provisions of this Agreement shall be effective as
to any obligations in respect of any of the Senior Note Indentures and the
Senior Notes issued thereunder only if the applicable Senior Note Trustee
shall have executed and delivered to the Collateral Agent a counterpart of the
Intercreditor Agreement.
SECTION 3. Delivery of Pledged Collateral. All certificates or
instruments representing or evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of the Collateral Agent pursuant hereto
and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in blank,
all in form and substance satisfactory to the Collateral Agent. The
Collateral Agent shall have the right, at any time upon or after the
occurrence of an Event of Default (as defined in Section 11A) and without
notice to the Pledgor, to transfer to or to register in the name of the
Collateral Agent or any of its nominees any or all of the Pledged Collateral.
In addition, the Collateral Agent shall have the right at any time to exchange
certificates or instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations.
SECTION 4. Representations and Warranties. The Pledgor
represents and warrants as follows:
(i) The Pledgor is, and at the time of delivery of any Pledged
Collateral to the Collateral Agent pursuant to Section 3 of this Agreement
will be, the legal and beneficial owner of the Pledged Collateral free and
clear of any Lien except for the lien and security interest created by this
Agreement.
(ii) The Pledgor has full power, authority and legal right to
pledge all the Pledged Collateral pursuant to this Agreement.
(iii) No consent of any other party (including, without
limitation, stockholders or creditors of the Pledgor) and no consent,
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authorization, approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required either (x) for the
pledge by the Pledgor of the Pledged Collateral pursuant to this Agreement or
for the execution, delivery or performance of this Agreement by the Pledgor or
(y) for the exercise by the Collateral Agent of the voting or other rights
provided for in this Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Agreement; except (a) for foreign governmental
actions, notices or filings required for actions referred to in clauses (x)
and (y) as to Pledged Shares issued by corporations which own, directly or
indirectly, the stock of Foreign Entities and (b) as may be required in
connection with such disposition by laws affecting the offering and sale of
securities generally.
(iv) All of the Pledged Shares have been duly authorized and
validly issued and are fully paid and non-assessable. The Pledged Debt has
been duly authorized, authenticated or issued and delivered, and is the legal,
valid and binding obligation of the issuers thereof, and is not in default.
(v) The pledge of the Pledged Shares and the Pledged Debt
pursuant to this Agreement creates a valid and perfected first priority
security interest in the Pledged Shares and the Pledged Debt securing the
payment of the Secured Obligations.
(vi) As of the date hereof, the Pledged Shares consisting of
capital stock of the Persons identified in Part I of Schedule I annexed hereto
constitute the percentage of the issued and outstanding shares of stock of
such Persons as identified in Part I of Schedule I annexed hereto. The
Pledged Debt constitutes all of the issued and outstanding promissory notes
issued by Group to evidence intercompany indebtedness of Group owing to the
Pledgor as of the date hereof.
(vii) Except as otherwise permitted by the Credit Agreements, the
Pledgor at all times will be sole beneficial owner of the Pledged Collateral.
(viii) All information set forth herein relating to the
Pledged Collateral is accurate and complete in all material respects.
(ix) The pledge of the Pledged Collateral pursuant to this
Agreement does not violate Regulations U or X of the Federal Reserve Board.
(x) The Pledgor does not directly own any other shares of
capital stock of any Subsidiary of the Pledgor other than the shares of
capital stock described in Part I of Schedule I annexed hereto and shares of
capital stock not required to be pledged hereunder pursuant to the first
parenthetical of or the proviso to Section 1(iii).
SECTION 5. Supplements, Further Assurances. The Pledgor agrees
that at any time and from time to time, at the expense of the Pledgor, the
Pledgor will promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or that the
Collateral Agent may reasonably request, in order to perfect and protect any
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security interest granted or purported to be granted hereby or to enable the
Collateral Agent to exercise and enforce its rights and remedies hereunder
with respect to any Pledged Collateral.
The Pledgor further agrees that it will, upon obtaining any shares
of any Person required to be pledged pursuant to Sections 1(ii) or 1(iii),
promptly (and in any event within five (5) Business Days) deliver to the
Collateral Agent a pledge amendment, duly executed by the Pledgor, in
substantially the form of Schedule II hereto (a "Pledge Amendment"), in
respect of the additional Pledged Shares which are to be pledged pursuant to
this Agreement. The Pledgor hereby authorizes the Collateral Agent to attach
each Pledge Amendment to this Agreement and agrees that all Pledged Shares
listed on any Pledge Amendment delivered to the Collateral Agent shall for all
purposes hereunder be considered Pledged Collateral.
SECTION 6. Voting Rights; Dividends; Etc. (a) As long as no
Event of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Pledged Collateral or any part
thereof for any purpose not inconsistent with the terms of this Agreement, the
Credit Agreements or the Senior Note Indentures; provided, however, that the
Pledgor shall give the Collateral Agent at least 5 days' prior written notice
of the manner in which it intends to exercise any such right. It is
understood, however, that neither (A) the voting by the Pledgor of any Pledged
Shares for, or the Pledgor's consent to, the election of directors at a
regularly scheduled annual or other meeting of stockholders or with respect to
incidental matters at any such meeting nor (B) the Pledgor's consent to or
approval of any action otherwise permitted under this Agreement, the Credit
Agreements and the Senior Note Indentures shall be deemed inconsistent with
the terms of this Agreement, the Credit Agreements or the Senior Note
Indentures within the meaning of this Section 6(a)(i), and no notice of any
such voting or consent need be given to the Collateral Agent.
(ii) The Pledgor shall be entitled to receive and retain, and to
utilize free and clear of the Lien of this Agreement, any and all dividends,
distributions, principal and interest paid in respect of the Pledged
Collateral; provided, however, that any and all dividends and other
distributions in equity securities shall be, and shall be forthwith delivered
to the Collateral Agent to hold as, Pledged Collateral and shall, if received
by the Pledgor, be received in trust for the benefit of the Collateral Agent,
be segregated from the other property or funds of the Pledgor, and be
forthwith delivered to the Collateral Agent as Pledged Collateral in the same
form as so received (with any necessary endorsement).
(iii) In order to permit the Pledgor to exercise the voting and
other rights which it is entitled to exercise pursuant to Section 6(a)(i)
above and to receive the dividends, distributions, principal or interest
payments which it is authorized to receive and retain pursuant to Section
6(a)(ii) above, the Collateral Agent shall, if necessary, upon written request
of the Pledgor, from time to time execute and deliver (or cause to be executed
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and delivered) to the Pledgor all such proxies, dividend payment orders and
other instruments as the Pledgor may reasonably request.
(b) Upon the occurrence and during the continuance of an Event
of Default:
(i) Upon written notice from the Collateral Agent to the
Pledgor, all rights of the Pledgor to exercise the voting and other consensual
rights which it would otherwise be entitled to exercise pursuant to Section
6(a)(i) above shall cease, and all such rights shall thereupon become vested
in the Collateral Agent which shall thereupon have the sole right to exercise
such voting and other consensual rights during the continuance of such Event
of Default.
(ii) All rights of the Pledgor to receive the dividends,
distributions, principal and interest payments which it would otherwise be
authorized to receive and retain pursuant to Section 6(a)(ii) above shall
cease and all such rights shall thereupon become vested in the Collateral
Agent who shall thereupon have the sole right to receive and hold as Pledged
Collateral such dividends, distributions, principal and interest payments
during the continuance of such Event of Default.
(c) In order to permit the Collateral Agent to receive all
dividends and other distributions to which it may be entitled under Section
6(a)(ii) above, to exercise the voting and other consensual rights which it
may be entitled to exercise pursuant to Section 6(b)(i) above, and to receive
all dividends, distributions, principal and interest payments and other
distributions which it may be entitled to receive under Section 6(b)(ii)
above, the Pledgor shall, if necessary, upon written notice from the
Collateral Agent, from time to time execute and deliver to the Collateral
Agent appropriate proxies, dividend payment orders and other instruments as
the Collateral Agent may reasonably request.
(d) All dividends, distributions, principal and interest
payments which are received by the Pledgor contrary to the provisions of
Section 6(b)(ii) above shall be received in trust for the benefit of the
Collateral Agent, shall be segregated from other funds of the Pledgor and
shall be forthwith paid over to the Collateral Agent as Pledged Collateral in
the same form as so received (with any necessary endorsement).
SECTION 7. Transfers and Other Liens; Additional Shares.
A. Transfers and Other Liens. The Pledgor agrees that it will
not, except as not prohibited by the Credit Agreements and the Senior Note
Indentures, (i) sell or otherwise dispose of, or grant any option or warrant
with respect to, any of the Pledged Collateral, (ii) create or permit to exist
any Lien upon or with respect to any of the Pledged Collateral, except for the
lien and security interest under this Agreement, or (iii) permit any issuer of
Pledged Shares to merge or consolidate unless all the outstanding capital
stock of the surviving or resulting corporation is, upon such merger or
consolidation, pledged hereunder and no cash, securities or other property is
distributed in respect of the outstanding shares of any other constituent
corporation; provided, however, that in the event of an Asset Sale not
prohibited by the Credit Agreements wherein the assets subject to such Asset
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Sale are Pledged Shares, the Collateral Agent shall release the Pledged Shares
that are the subject of such Asset Sale and any related Pledged Debt to the
Pledgor free and clear of the lien and security interest under this Agreement
concurrently with the consummation of such Asset Sale; and provided, further
that, notwithstanding anything herein to the contrary, (x) the Collateral
Agent shall release Pledged Shares or other Pledged Collateral from the lien
and security interest of this Agreement as may be specified by the Credit
Agent upon the approval of the release of such Pledged Shares or other Pledged
Collateral by Requisite Lenders under the Credit Agreement and (y) the
Collateral Agent shall release Pledged Shares from the lien and security
interest of this Agreement if and to the extent such Pledged Shares are not
required to be pledged due to the limitations set forth in the proviso to
Section 1(iii).
B. Additional Shares. The Pledgor agrees that it will (i) cause
each issuer of Pledged Shares not to issue any stock or other securities in
addition to or in substitution for the Pledged Shares issued by such issuer,
except to the Pledgor, (ii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all additional shares of stock or
other equity securities of each issuer of Pledged Shares; provided, however,
that the Pledgor shall not be required under this clause (ii) to pledge shares
of the capital stock of such issuer acquired by any of its Subsidiaries, and
(iii) subject to the proviso to Section 1(iii), pledge hereunder, immediately
upon its direct acquisition thereof, any and all shares of stock of any Person
which, after the date of this Agreement, becomes, as a result of any
occurrence, a Subsidiary (subject to the obtaining or making of any foreign
governmental actions, notices or filings referred to in Section 4(iii)) of the
Pledgor.
SECTION 8. Collateral Agent Appointed Attorney-in-Fact. The
Pledgor hereby appoints the Collateral Agent the Pledgor's attorney-in-fact,
with full authority in the place and stead of the Pledgor and in the name of
the Pledgor or otherwise, from time to time in the Collateral Agent's
discretion to take any action and to execute any instrument which the
Collateral Agent may reasonably deem necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation, to receive, endorse
and collect all instruments made payable to the Pledgor representing any
dividend, interest payment or other distribution in respect of the Pledged
Collateral or any part thereof and to give full discharge for the same.
SECTION 9. Collateral Agent May Perform. If the Pledgor fails to
perform any agreement contained herein after receipt of a written request to
do so from the Collateral Agent, the Collateral Agent may itself perform, or
cause performance of, such agreement, and the reasonable expenses of the
Collateral Agent, including the reasonable fees and expenses of its counsel,
incurred in connection therewith shall be payable by the Pledgor under Section
13 hereof.
SECTION 10. Reasonable Care. The Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation of
the Pledged Collateral in its possession if the Pledged Collateral is accorded
treatment substantially equivalent to that which the Collateral Agent, in its
individual capacity, accords its own property consisting of negotiable
securities, it being understood that neither the Collateral Agent nor any
other Secured Party shall have responsibility for (i) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
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<PAGE>
other matters relative to any Pledged Collateral, whether or not the
Collateral Agent or any other Secured Party has or is deemed to have knowledge
of such matters, or (ii) taking any necessary steps (other than steps taken in
accordance with the standard of care set forth above to maintain possession of
the Pledged Shares and Pledged Debt) to preserve rights against any Person
with respect to any Pledged Collateral.
SECTION 11. Remedies Upon Default; Decisions Relating to Exercise
of Remedies.
A. Remedies Upon Default. Subject to Section 11B, (i) if any
event of default under any Credit Agreement or the Senior Note Indentures, or
(ii) after such time as all Obligations and all Senior Note Obligations shall
have been paid in full (and provided that the Pledged Collateral then secures
the payment and performance of Interest Rate Obligations, Currency Obligations
or obligations of the Pledgor under the Senior Note Indentures, as the case
may be) if any event of default under any Interest Rate Agreement or Currency
Agreement which is secured by the Pledged Collateral (each of the events of
default described in the foregoing clauses (i) and (ii) (subject to any
provisos set forth therein) being referred to herein as an "Event of Default")
shall have occurred and be continuing:
(a)(i) The Collateral Agent may exercise in respect of the
Pledged Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a secured
party on default under the Uniform Commercial Code (the "Code") in effect in
the State of New York at that time, and the Collateral Agent may also in its
sole discretion, without notice except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at public or private
sale, at any exchange, broker's board or at any of the Collateral Agent's
offices or elsewhere, for cash, on credit or for future delivery, and at such
price or prices and upon such other terms as the Collateral Agent may deem
commercially reasonable, irrespective of the impact of any such sales on the
market price of the Pledged Collateral. The Collateral Agent or any other
Secured Party may be the purchaser of any or all of the Pledged Collateral at
any such sale but shall not be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Pledged Collateral sold at such sale, to use and apply any of the Secured
Obligations owed to such Person as a credit on account of the purchase price
of any Pledged Collateral payable by such Person at such sale. Each purchaser
at any such sale shall hold the property sold absolutely free from any claim
or right on the part of the Pledgor, and the Pledgor hereby waives (to the
extent permitted by law) all rights of redemption, stay and/or appraisal which
it now has or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted. The Pledgor agrees that, to the
extent notice of sale shall be required by law, at least ten days' notice to
the Pledgor of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable notification. The
Collateral Agent shall not be obligated to make any sale of Pledged Collateral
regardless of notice of sale having been given. The Collateral Agent may
XX-10
<PAGE>
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned. The Pledgor hereby
waives any claims against the Collateral Agent arising by reason of the fact
that the price at which any Pledged Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a
public sale, even if the Collateral Agent accepts the first offer received and
does not offer such Pledged Collateral to more than one offeree.
(ii) The Pledgor recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act"), and applicable state securities laws, the Collateral Agent
may be compelled, with respect to any sale of all or any part of the Pledged
Collateral, to limit purchasers to those who will agree, among other things,
to acquire the Pledged Collateral for their own account, for investment and
not with a view to the distribution or resale thereof. The Pledgor
acknowledges that any such private sales may be at prices and on terms less
favorable to the Collateral Agent than those obtainable through a public sale
without such restrictions (including, without limitation, a public offering
made pursuant to a registration statement under the Securities Act), and,
notwithstanding such circumstances, agrees that any private sale shall be
deemed to have been made in a commercially reasonable manner and that the
Collateral Agent shall have no obligation to engage in public sales and no
obligation to delay the sale of any Pledged Collateral for the period of time
necessary to permit the issuer thereof to register it for a form of public
sale requiring registration under the Securities Act or under applicable state
securities laws, even if the Pledgor would agree to do so.
(b) If the Collateral Agent determines to exercise its right to
sell any or all of the Pledged Collateral, upon written request, the Pledgor
shall and shall cause each issuer of any Pledged Shares to be sold hereunder
from time to time to furnish to the Collateral Agent all such information as
the Collateral Agent may request in order to determine the number of shares
and other instruments included in the Pledged Collateral which may be sold by
the Collateral Agent as exempt transactions under the Securities Act and the
rules of the Securities and Exchange Commission thereunder, as the same are
from time to time in effect.
B. Decisions Relating to Exercise of Remedies. Notwithstanding
anything in this Agreement to the contrary, as provided in the Intercreditor
Agreement, the Collateral Agent shall exercise, or shall refrain from
exercising, any remedy provided for in Section 11A in accordance with the
instructions of Requisite Obligees (as defined in the Intercreditor
Agreement), and the Credit Agents, the Lenders, the Interest Rate Exchangers,
the Currency Exchangers, the holders of the Senior Notes and the Senior Note
Trustees shall be bound by such instructions; and the sole rights of the
Credit Agents, the Lenders, the Interest Rate Exchangers, the Currency
Exchangers, the holders of the Senior Notes and the Senior Note Trustees under
this Agreement shall be to be equally and ratably secured by the Pledged
Collateral and to receive the payments provided for in Section 12 hereof.
XX-11
<PAGE>
SECTION 12. Application of Proceeds. After and during the
continuance of an Event of Default, any cash held by the Collateral Agent as
Pledged Collateral and all cash proceeds received by the Collateral Agent (all
such cash being "Proceeds") in respect of any sale of, collection from, or
other realization upon all or any part of the Pledged Collateral pursuant to
the exercise by the Collateral Agent of its remedies as a secured creditor as
provided in Section 11 of this Agreement or in any bankruptcy proceeding shall
be applied promptly from time to time by the Collateral Agent as follows:
First, to the payment of the costs and expenses of such sale,
collection or other realization, including reasonable compensation to the
Collateral Agent and its agents and counsel, and all expenses, liabilities and
advances made or incurred by the Collateral Agent in connection therewith;
Second, to the payment of the Secured Obligations as provided in
Section 3 of the Intercreditor Agreement; provided that in making such
application to the Secured Parties in respect of outstanding Secured
Obligations, the Collateral Agent shall be entitled to deduct from the share
of such Proceeds otherwise payable to any Secured Party an amount equal to
such Secured Party's pro rata share of all amounts that the Collateral Agent
has requested to be paid by the Paying Indemnifying Parties (such term being
used in this Section 12 as defined in Section 6(c) of the Intercreditor
Agreement) pursuant to Section 6(c) of the Intercreditor Agreement, minus, in
the event such Secured Party is a Paying Indemnifying Party, any portion of
such requested amount theretofore paid by such Secured Party to the Collateral
Agent; and
Third, after payment in full of all Secured Obligations, to the
Pledgor, or its successors or assigns, or to whomsoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may
direct, of any surplus then remaining from such Proceeds.
At the time of any application of Proceeds by the Collateral Agent
pursuant to this Section 12, the Collateral Agent shall provide the Senior
Note Trustees with a certificate setting forth the total amount paid to the
Collateral Agent pursuant to Section 6(c) of the Intercreditor Agreement and a
calculation of the amounts, if any, deducted from Proceeds paid to the Senior
Note Trustees.
SECTION 13. Expenses. The Pledgor will upon demand pay to the
Collateral Agent the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts and agents,
which the Collateral Agent may incur in connection with (i) the administration
of this Agreement, (ii) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Pledged Collateral,
(iii) the exercise or enforcement of any of the rights of the Collateral Agent
or any other Secured Party hereunder or (iv) the failure by the Pledgor to
perform or observe any of the provisions hereof.
SECTION 14. No Waiver. No failure on the part of the Collateral
Agent to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
XX-12
<PAGE>
thereof; nor shall any single or partial exercise by the Collateral Agent of
any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies
herein provided are to the fullest extent permitted by law cumulative and are
not exclusive of any remedies provided by law.
SECTION 15. Collateral Agent. The Collateral Agent has been
appointed as Collateral Agent hereunder pursuant to the Intercreditor
Agreement by the Current Credit Agent and the Senior Note Trustees and, in the
event that any Interest Rate Obligations or Currency Obligations are secured
hereby, by each Interest Rate Exchanger and Currency Exchanger executing a
counterpart to the Intercreditor Agreement, and the Collateral Agent shall be
entitled to the benefits of the Intercreditor Agreement. The Collateral Agent
shall be obligated, and shall have the right, hereunder to make demands, to
give notices, to exercise or refrain from exercising any rights, and to take
or refrain from taking action (including, without limitation, the release or
substitution of Pledged Collateral) solely in accordance with this Agreement
and the Intercreditor Agreement. The Collateral Agent may resign and a
successor Collateral Agent may be appointed in the manner provided in the
Intercreditor Agreement. Upon the acceptance of any appointment as a
Collateral Agent by a successor Collateral Agent, that successor Collateral
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Collateral Agent under this
Agreement, and the retiring Collateral Agent shall thereupon be discharged
from its duties and obligations under this Agreement and shall deliver any
Pledged Collateral in its possession to the successor Collateral Agent. After
any retiring Collateral Agent's resignation, the provisions of this Agreement
shall inure to its benefit as to any actions taken or omitted to be taken by
it under this Agreement while it was Collateral Agent. Anything contained in
this Agreement to the contrary notwithstanding, in the event of any conflict
between the express terms and provisions of this Agreement and the express
terms and provisions of the Intercreditor Agreement, such terms and provisions
of the Intercreditor Agreement shall control.
SECTION 16. Indemnification. The Pledgor hereby agrees to
indemnify the Collateral Agent for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Collateral Agent in any way relating to or
arising out of this Agreement, the Intercreditor Agreement, the Credit
Agreements, the Interest Rate Agreements, the Currency Agreements, the Senior
Notes, the Senior Note Indentures or any other documents contemplated by or
referred to therein or the transactions contemplated thereby or the
enforcement of any of the terms hereof or of any such other documents or
otherwise arising or relating in any manner to the pledges, dispositions of
Pledged Collateral or proceeds of Pledged Collateral, or other actions of any
nature with respect to the Pledged Collateral contemplated hereunder and under
the Intercreditor Agreement to secure the payment of the Secured Obligations;
provided, however, that the Pledgor shall not be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the Collateral Agent or failure by the Collateral Agent to
exercise reasonable care in the custody and preservation of the Pledged
Collateral as provided in Section 10.
XX-13
<PAGE>
SECTION 17. Amendments, Etc.
This Agreement may not be amended, modified or waived except with the written
consent of the Pledgor, the Collateral Agent and the Credit Agents and, solely
with respect to an amendment of Section 12, the relative ranking or the
priority of the security interests granted in Section 1, the definitions
herein of "Pledged Collateral" or "Secured Obligations", this Section 17, or
the release of Pledged Collateral except as herein provided, with the written
consent of each Interest Rate Exchanger (if the Pledged Collateral then
secures such Interest Rate Exchanger), each Currency Exchanger (if the Pledged
Collateral then secures such Currency Exchanger) and the Senior Note Trustees;
provided that the written consent of the Credit Agents shall not be required
if the Obligations have been paid in full and all related commitments to
extend credit have been cancelled or terminated; provided, further, that if
the Obligations have been paid in full and all related commitments to extend
credit have been cancelled or terminated, the written consent of the holders
of a majority of the outstanding Interest Rate Obligations and Currency
Obligations which are secured by the Pledged Collateral shall be required to
any amendment, modification or waiver of this Agreement; provided, however,
that, notwithstanding the foregoing, such written consent of the Senior Note
Trustees shall not be required with respect to amendments, modifications or
waivers solely to permit the incurrence of additional Indebtedness secured by
the Pledged Collateral and entitled to the benefits hereof insofar as the
foregoing is not prohibited by the Senior Note Indentures.
SECTION 18. Termination. When all Secured Obligations have been
paid in full and all related commitments to extend credit have been cancelled
or terminated, this Pledge Agreement shall terminate, and the Collateral Agent
shall, upon the request and at the expense of the Pledgor, forthwith assign,
transfer and deliver, against receipt and without recourse to the Collateral
Agent, such of the Pledged Collateral as shall not have been sold or otherwise
applied pursuant to the terms hereof to or on the order of the Pledgor.
Notwithstanding anything herein (including Section 20) to the contrary, if all
the Secured Obligations except the obligations in respect of the Interest Rate
Obligations, Currency Obligations and the Senior Notes have either been paid
in full or are no longer secured by any of the Pledged Collateral and all
related commitments to extend credit have been cancelled or terminated, this
Pledge Agreement shall be terminable at the election of the Pledgor and upon
the delivery of written notice of such election to the Collateral Agent, this
Pledge Agreement shall terminate and the Collateral Agent shall, at the
expense of the Pledgor, forthwith assign, transfer and deliver, against
receipt and without recourse to the Collateral Agent, such Pledged Collateral
as shall not have been sold or otherwise applied pursuant to the terms hereof
to or on the order of the Pledgor.
SECTION 19. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic or telecopy communication) and mailed, telegraphed, telecopied or
delivered, if to the Pledgor, addressed to it at the address set forth on the
signature page of this Agreement, if to the Collateral Agent, addressed to it
at the address set forth on the signature page of this Agreement, if to the
Current Credit Agent, addressed to it at the address set forth on the
signature page of the Current Credit Agreement, and if to any of the Senior
Note Trustees, addressed to such trustee at the address provided by such
trustee pursuant to the Intercreditor Agreement, or as to any party at such
other address as shall be designated by such party in a written notice to each
XX-14
<PAGE>
other party complying as to delivery with the terms of this Section 19. All
such notices and other communications shall, when mailed or telegraphed,
respectively, be effective when deposited in the mails or delivered to the
telegraph company, respectively, addressed as aforesaid and shall, when
delivered or telecopied, be effective when received.
SECTION 20. Continuing Security Interest; Transfer of
Indebtedness. Subject to Section 18, this Agreement shall create a continuing
security interest in the Pledged Collateral and shall (i) remain in full force
and effect until payment in full of all Secured Obligations and the
cancellation or termination of all related commitments to extend credit, (ii)
be binding upon the Pledgor, its successors and assigns, and (iii) inure,
together with the rights and remedies of the Collateral Agent hereunder, to
the benefit of the Collateral Agent and each other Secured Party and each of
their respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (iii) and subject to the provisions of
subsections 9.2 and 9.17 of the Current Credit Agreement, any Secured Party
may assign or otherwise transfer any indebtedness held by it secured by this
Agreement to any other person or entity, and such other person or entity shall
thereupon become vested with all the benefits in respect thereof granted to
such Secured Party herein or otherwise, subject, however, to the provisions of
the Intercreditor Agreement.
SECTION 21. Governing Law; Terms. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK), EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF
LAW AND EXCEPT TO THE EXTENT THAT THE CODE REQUIRES THAT THE PERFECTION OF THE
SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR PLEDGED COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK. Unless otherwise defined herein or in the Current
Credit Agreement, terms defined in Articles 8 and 9 of the Code are used
herein as therein defined.
SECTION 22. Consent to Jurisdiction and Service of Process. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST THE PLEDGOR ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR ANY OBLIGATIONS HEREUNDER, 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, THE PLEDGOR, 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
XX-15
<PAGE>
REQUESTED, TO THE PLEDGOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION
19;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE PLEDGOR IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT;
(V) AGREES THAT THE COLLATERAL AGENT RETAINS THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST
THE PLEDGOR IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION 22 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.
SECTION 23. Security Interest Absolute. All rights of the
Collateral Agent and security interests hereunder, and all obligations of the
Pledgor hereunder, shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of any of the Credit
Agreements, the Notes, the Company Guaranty, any Interest Rate Agreement, any
Currency Agreement, the Senior Notes, the Senior Note Indentures or any other
agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from any of the Credit
Agreements, the Notes, the Company Guaranty, any Interest Rate Agreement, any
Currency Agreement, the Senior Notes or the Senior Note Indentures;
(iii) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to any
departure from any guaranty, for all or any of the Secured Obligations; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Pledgor.
[Remainder of page intentionally left blank]
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<PAGE>
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the
date first above written.
Pledgor:
OWENS-ILLINOIS, INC.
By _____________________________
Title __________________________
Notice Address:
Owens-Illinois, Inc.
One Seagate
Toledo, Ohio 43666
Attention: Treasurer
Collateral Agent:
BANKERS TRUST COMPANY
By _____________________________
Title __________________________
Notice Address:
Bankers Trust Company
130 Liberty Street, 14th Floor
New York, New York 10006
Attention: Mary Jo Jolly
with a copy to:
Bankers Trust Company
300 South Grand Avenue, 41st Floor
Los Angeles, California 90071
Attention: Robert G. Kolb
XX-S-1
<PAGE>
SCHEDULE I
Attached to and forming a part of that certain Company Pledge
Agreement dated as of ________ ___, 1999, by Owens-Illinois, Inc., as Pledgor,
to Bankers Trust Company, as Collateral Agent.
PART I
Class Stock Number Percentage of
of Certificate Par of All Capital
Stock Issuer Stock No(s). Value Shares Stock Owned
PART II
Principal Date of
Amount of Promissory Note
Indebtedness as of Evidencing the
Debt Issuer ____________, 1999 Pledged Debt
The Pledged Debt of each of the Debt Issuers referenced in this
Part II of Schedule I shall include all outstanding Indebtedness of such Debt
Issuer from time to time owing to Pledgor which indebtedness shall be
evidenced by the promissory note or notes referenced above, as amended or
supplemented from time to time, and by the records of Pledgor relating to the
amounts outstanding from time to time under such promissory note or notes or
by any replacement or successor promissory notes issued by such Debt Issuer in
favor of Pledgor.
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<PAGE>
SCHEDULE II
To the Company Pledge Agreement
PLEDGE AMENDMENT
This Pledge Amendment, dated as of _________, 19__, is delivered
pursuant to Section 5 of the Pledge Agreement referred to below. The
undersigned hereby agrees that this Pledge Amendment may be attached to the
Company Pledge Agreement dated as of ________ __, 1999, between the
undersigned and Bankers Trust Company, as Collateral Agent (the "Pledge
Agreement"; capitalized terms defined therein being used as therein defined),
and that the Pledged Shares listed on this Pledge Amendment shall be deemed to
be part of the Pledged Shares and shall become part of the Pledged Collateral
and shall secure all Secured Obligations as provided in the Pledge Agreement.
OWENS-ILLINOIS, INC.
By ___________________________
Title ________________________
Class Stock Number Percentage of
of Certificate Par of All Capital
Stock Issuer Stock No(s). Value Shares Stock Owned
XX-II-1
<PAGE>
ANNEX 1
to
COMPANY PLEDGE AGREEMENT
INDEX OF TERMS
Agreement.......................................Introduction
Bankers.........................................Introduction
Borrowers.......................................Credit Agreement
Code............................................Section 11A
Collateral Agent................................Introduction
Company Currency Exchangers.....................Recital 4
Company Currency Obligations....................Recital 4
Company Guaranty................................Recital 5
Company Interest Rate Exchangers................Recital 4
Company Interest Rate Obligations...............Recital 4
Credit Agents...................................Recital 3
Credit Agreements...............................Recital 3
Currency Exchangers.............................Recital 4
Currency Obligations............................Recital 4
Current Credit Agent............................Recital 2
Current Credit Agreement........................Recital 2
Current Lenders.................................Recital 2
Event of Default................................Section 11A
Intercreditor Agreement.........................Recital 6
Interest Rate Exchangers........................Recital 4
Interest Rate Obligations.......................Recital 4
Lenders.........................................Recital 3
Notes...........................................Section 2
Obligations.....................................Section 2
Paying Indemnifying Parties.....................Intercreditor Agreement
Pledge Amendment................................Section 5
Pledged Collateral..............................Section 1
Pledged Debt....................................Recital 1
Pledged Shares..................................Recital 1
Pledgor.........................................Introduction
Proceeds........................................Section 12
Secured Parties.................................Section 1
Securities Act..................................Section 11A
Senior Note Indentures..........................Recital 5
Senior Note Trustees............................Introduction
Senior Notes....................................Recital 5
Secured Obligations.............................Section 2
Subsidiary Currency Exchangers..................Recital 5
Subsidiary Currency Obligations.................Recital 5
ANNEX 1-1
<PAGE>
Subsidiary Interest Rate Exchangers.............Recital 5
Subsidiary Interest Rate Obligations............Recital 5
Successor Credit Agents.........................Recital 3
Successor Credit Agreements.....................Recital 3
Successor Lenders...............................Recital 3
ANNEX 1-2
<PAGE>
EXHIBIT XXI
[FORM OF]
SUBSIDIARY PLEDGE AGREEMENT
This SUBSIDIARY PLEDGE AGREEMENT (as amended, amended and restated
or otherwise modified from time to time, herein called this "Agreement") is
dated as of ____________, 1999, among THE PLEDGORS LISTED ON THE SIGNATURE
PAGES HEREOF, each of which is a Delaware corporation (individually a
"Pledgor" and collectively the "Pledgors"), and BANKERS TRUST COMPANY
("Bankers"), as Collateral Agent for and representative of (in such capacity
herein called the "Collateral Agent") the Lenders (as hereinafter defined),
the Interest Rate Exchangers (as hereinafter defined), the Currency Exchangers
(as hereinafter defined), and the trustees (including any successors, the
"Senior Note Trustees") under the Senior Note Indentures (as hereinafter
defined). Certain defined terms used in this Agreement are indexed in Annex 1
to this Agreement.
R E C I T A L S
1. Each Pledgor is the legal and beneficial owner of (a) the
shares of stock described opposite its name in Part I of Schedule I hereto
(the "Pledged Shares") issued by the corporations named therein, which shares
constitute the percentage of all of the issued and outstanding shares of all
classes of capital stock of such companies identified in Part I of said
Schedule I, and (b) the indebtedness described opposite its name in Part II of
said Schedule I (the "Pledged Debt") issued by the obligors named therein;
2. Certain lenders (together with their successors and assigns
under the Current Credit Agreement, the "Current Lenders"), the Managing
Agents, Co-Agents, Lead Managers and Arrangers named therein, The Bank of Nova
Scotia and NationsBank, N.A., as Documentation Agents, Bank of America
National Trust and Savings Association, as Syndication Agent for the Current
Lenders, the Offshore Administrative Agents named therein, and Bankers, as
Administrative Agent for the Current Lenders (in such capacity herein called
the "Current Credit Agent"), have entered into a Second Amended and Restated
Credit Agreement dated as of April 30, 1998 with Owens-Illinois, Inc., a
Delaware corporation (the "Company"), United Glass Limited, a corporation
organized under the laws of England and Wales, United Glass Group Limited, a
corporation organized under the laws of England and Wales, Owens-Illinois
(Australia) Pty Limited, a corporation organized under the laws of Australia,
and OI Italia S.r.l., a limited liability company organized under the laws of
Italy (the Company and each such Person being a "Borrower" and collectively,
the "Borrowers") (said Credit Agreement, as it may hereafter be amended,
amended and restated or otherwise modified from time to time, being the
XXI-1
<PAGE>
"Current Credit Agreement"; capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined or as defined in
the Successor Credit Agreement (as hereinafter defined) then in effect),
pursuant to which the Current Lenders have agreed, subject to the terms and
conditions set forth in the Current Credit Agreement, to extend certain credit
facilities to the Company and the other Borrowers for the purpose of, among
other things, providing financing for the Applegate Acquisition;
3. It is contemplated that, from time to time, the Current
Lenders or other Persons (collectively, the "Successor Lenders") may enter
into one or more agreements with the Company, the other Borrowers and other
Persons, including Subsidiaries of the Company, either extending the maturity
of, refinancing or otherwise restructuring (including, but not limited to, the
inclusion of additional borrowers thereunder which are Subsidiaries of the
Company) all or any portion of the Indebtedness under the Current Credit
Agreement or any Successor Credit Agreement (said agreements, as they may
exist from time to time (but, in the case of such a refinancing or
restructuring, only to the extent thereof), being the "Successor Credit
Agreements", which together with the Current Credit Agreement are referred to
herein as the "Credit Agreements"; provided that in no event shall any
amendment, amendment and restatement or other modification of the Current
Credit Agreement after the date hereof cause the Current Credit Agreement to
be deemed to be a Successor Credit Agreement or require the Current Credit
Agent to execute an acknowledgment to the Intercreditor Agreement (as
hereinafter defined) in connection with such amendment, amendment and
restatement or other modification) (the Current Lenders and any Successor
Lenders being collectively referred to herein as the "Lenders", and the
Current Credit Agent and any agents under any Successor Credit Agreements
(collectively, the "Successor Credit Agents") being collectively referred to
herein as the "Credit Agents");
4. As required pursuant to subsection 5.8 of the Current Credit
Agreement, the Pledgors have executed and delivered to the Collateral Agent a
Subsidiary Guaranty dated as of ____________, 1999 (as amended, amended and
restated or otherwise modified from time to time, herein called the
"Subsidiary Guaranty") pursuant to which Pledgors have guarantied the
obligations of the Company and the other Borrowers (and, in the case of any
Successor Credit Agreements, the obligations of any Subsidiaries of the
Company which are additional borrowers thereunder) under the Current Credit
Agreement and any Successor Credit Agreements and under any Interest Rate
Agreements and Currency Agreements that may from time to time be entered into
between the Company or any other Borrower and one or more Lenders or their
Affiliates (collectively, the "Interest Rate Exchangers" or the "Currency
Exchangers," as the case may be), and each Pledgor desires that its
obligations under the Subsidiary Guaranty with respect to the Credit
Agreements and any such Interest Rate Agreements and Currency Agreements,
including the obligation to make payments in the event of early termination
under such Interest Rate Agreements and Currency Agreements (all such
obligations being the "Interest Rate Obligations" or the "Currency
Obligations," as the case may be), be secured by a first-priority Lien on the
Pledged Collateral (as hereinafter defined); provided that any Interest Rate
Exchanger or any Currency Exchanger requiring such security shall execute and
deliver to the Collateral Agent a counterpart of the Intercreditor Agreement
XXI-2
<PAGE>
or an acknowledgment to the Intercreditor Agreement, in the form attached
thereto, acknowledged by each Pledgor;
5. The Company has entered into (i) an Indenture dated as of
May 15, 1997 pursuant to which the Company has issued (a) $300,000,000 in
aggregate principal amount of 7.85% Senior Notes due 2004 and (b) $300,000,000
in aggregate principal amount of 8.10% Senior Notes due 2007 and (ii) an
Indenture dated as of __________, 199_ pursuant to which the Company has
issued [Insert description of any other publicly (or Rule 144A) issued senior
debt securities issued after the Effective Date that are not prohibited under
the Credit Agreement], in each case with the Senior Note Trustee named therein
(collectively, such indentures are referred to herein as the "Senior Note
Indentures" and such Senior Notes [Insert description of any such other
publicly (or Rule 144A) issued senior debt securities] are referred to herein
as the "Senior Notes"; the obligations of the Company under the Senior Note
Indentures and the Senior Notes being referred to herein as the "Senior Note
Obligations"), and each Pledgor desires that the Indebtedness evidenced by the
Senior Notes and all other amounts due under the Senior Note Indentures
relating to the Senior Notes be equally and ratably secured with the other
Secured Obligations hereunder by a first-priority Lien on the Pledged
Collateral; provided that, notwithstanding the foregoing, the holders of any
Senior Notes and the Senior Note Trustees shall only be entitled to the
benefits of this Agreement if the applicable Senior Note Trustees shall have
executed and delivered to the Collateral Agent a counterpart of the
Intercreditor Agreement, in the form attached thereto, acknowledged by each
Pledgor; and
6. The Current Credit Agent, the Senior Note Trustees and the
Collateral Agent have entered into an Intercreditor Agreement dated the date
hereof (said Intercreditor Agreement, as it may hereafter be amended, amended
and restated or otherwise modified from time to time, being the "Intercreditor
Agreement"), which provides for, inter alia, the appointment of the Collateral
Agent to administer the Pledged Collateral.
NOW, THEREFORE, in consideration of the premises, the parties
hereto hereby agree as follows:
SECTION 1. Pledge. Each Pledgor hereby pledges to the Collateral
Agent and grants to the Collateral Agent for the benefit of the Lenders, the
Credit Agents, the Interest Rate Exchangers, the Currency Exchangers, the
holders of the Senior Notes and the Senior Note Trustees (collectively, the
"Secured Parties") a first priority security interest in the following (the
"Pledged Collateral") to secure the Secured Obligations (as defined in Section
2):
(i) the Pledged Shares and the certificates representing the
Pledged Shares and any interest of each Pledgor in the entries on the books of
any financial intermediary pertaining to the Pledged Shares, and, subject to
Section 6, all dividends, cash or proceeds, options, warrants, rights,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of the Pledged Shares;
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(ii) all additional shares of stock of any issuer of the Pledged
Shares from time to time acquired by each Pledgor in any manner (which shares
shall be deemed to be part of the Pledged Shares), and the certificates
representing such additional shares and any interest of each Pledgor in the
entries on the books of any financial intermediary pertaining to such
additional shares, and, subject to Section 6, all dividends, cash, options,
warrants, rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of such shares;
(iii) all shares of any Person directly owned or held by each
Pledgor which, after the date of this Agreement, is or becomes, as a result of
any occurrence, a Subsidiary (subject to the obtaining or making of any
foreign governmental actions, notices or filings as referred to in Section
4(iii)) of the Company (which shares shall be deemed to be part of the Pledged
Shares) and the certificates representing such shares and any interest of each
Pledgor in the entries on the books of any financial intermediary pertaining
to such shares, and, subject to Section 6, all dividends, cash, options,
warrants, rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of such shares; provided that no Pledgor shall be required to
pledge more than 65% of the shares of capital stock of any Subsidiary which is
a Foreign Entity and, in any event, shall not be required to pledge the shares
of stock of any Subsidiary otherwise required to be pledged pursuant to this
Section 1(iii) to the extent that such pledge would constitute an investment
of earnings in United States property under Section 956 (or a successor
provision) of the Internal Revenue Code which investment would trigger an
increase in the gross income of a United States shareholder of any Pledgor
pursuant to Section 951 (or a successor provision) of the Internal Revenue
Code; and
(iv) the Pledged Debt and the instruments evidencing the Pledged
Debt, and all interest, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Debt.
SECTION 2. Secured Obligations. With respect to each Pledgor,
this Agreement secures, and the Pledged Collateral is collateral security for,
the prompt payment or performance in full when due, whether at stated
maturity, by acceleration or otherwise (including the payment of amounts which
would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. e362(a)), of all Guarantied
Obligations (such term being used herein as defined in the Subsidiary
Guaranty) now or hereafter existing and all obligations of the Company now or
hereafter existing under the Senior Note Indentures and the Senior Notes
issued thereunder, in each case whether for principal, premium or interest
(including, without limitation, interest which, but for the filing of a
petition in a bankruptcy, reorganization or other similar proceeding with
respect to the Company, would accrue on such obligations), payments for early
termination, fees, expenses or otherwise, and all other obligations of each
Pledgor now or hereafter existing under this Agreement and the Subsidiary
XXI-4
<PAGE>
Guaranty (all such obligations being the "Secured Obligations"); provided that
the pledge made and security interest granted in Section 1 and any other
provisions of this Agreement shall be effective as to any Guarantied
Obligations in respect of any Successor Credit Agreements, Interest Rate
Agreements or Currency Agreements only if the holders of such obligations or
their representatives shall have executed and delivered to the Collateral
Agent a counterpart of the Intercreditor Agreement or an acknowledgement to
the Intercreditor Agreement, in the form attached thereto, acknowledged by
each Pledgor; and provided, further that the pledge made and security interest
granted by any Pledgor in Section 1 and any other provisions of this Agreement
with respect to such pledge made and security interest granted by such Pledgor
shall be effective as to any obligations in respect of any of the Senior Note
Indentures and the Senior Notes issued thereunder only if the applicable
Senior Note Trustee shall have executed and delivered to the Collateral Agent
a counterpart of the Intercreditor Agreement, in the form attached thereto,
acknowledged by each Pledgor.
SECTION 3. Delivery of Pledged Collateral. All certificates or
instruments representing or evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of the Collateral Agent pursuant hereto
and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in blank,
all in form and substance satisfactory to the Collateral Agent. The
Collateral Agent shall have the right, at any time upon or after the
occurrence of an Event of Default (as defined in Section 11A) and without
notice to any Pledgor, to transfer to or to register in the name of the
Collateral Agent or any of its nominees any or all of the Pledged Collateral.
In addition, the Collateral Agent shall have the right at any time to exchange
certificates or instruments representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger denominations.
SECTION 4. Representations and Warranties. Each Pledgor
represents and warrants as follows:
(i) Each Pledgor is, and at the time of delivery of any Pledged
Collateral to the Collateral Agent pursuant to Section 3 of this Agreement
will be, the legal and beneficial owner of the Pledged Collateral pledged by
such Pledgor hereunder free and clear of any Lien except for the lien and
security interest created by this Agreement.
(ii) Each Pledgor has full power, authority and legal right to
pledge all the Pledged Collateral pledged by such Pledgor pursuant to this
Agreement.
(iii) No consent of any other party (including, without
limitation, stockholders or creditors of any Pledgor) and no consent,
authorization, approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required either (x) for the
pledge by any Pledgor of the Pledged Collateral pursuant to this Agreement or
for the execution, delivery or performance of this Agreement by any Pledgor or
(y) for the exercise by the Collateral Agent of the voting or other rights
provided for in this Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Agreement; except (a) for foreign governmental
actions, notices or filings required for actions referred to in clauses (x)
XXI-5
<PAGE>
and (y) as to Pledged Shares issued by corporations which own, directly or
indirectly, the stock of Foreign Entities and (b) as may be required in
connection with such disposition by laws affecting the offering and sale of
securities generally.
(iv) All of the Pledged Shares have been duly authorized and
validly issued and are fully paid and non-assessable. The Pledged Debt has
been duly authorized, authenticated or issued and delivered, and is the legal,
valid and binding obligation of the issuers thereof, and is not in default.
(v) The pledge of the Pledged Shares pursuant to this Agreement
creates a valid and perfected first priority security interest in the Pledged
Shares securing the payment of the Secured Obligations. The pledge of the
Pledged Debt pursuant to this Agreement creates a valid and perfected first
priority security interest in the Pledged Debt securing the payment of the
Secured Obligations.
(vi) As of the date hereof, the Pledged Shares consisting of
capital stock of the Persons identified in Part I of Schedule I annexed hereto
constitute the percentage of the issued and outstanding shares of stock of
such Persons as identified in Part I of Schedule I annexed hereto. The
Pledged Debt constitutes all of the issued and outstanding promissory notes
issued by Company or Subsidiary Guarantors to evidence intercompany
indebtedness of Company or such Subsidiary Guarantors owing to each Pledgor
owning the capital stock of such Subsidiary Guarantors as of the date hereof.
(vii) Except as otherwise permitted by the Credit Agreements, each
Pledgor at all times will be the sole beneficial owner of the Pledged
Collateral pledged by such Pledgor hereunder.
(viii) All information set forth herein relating to the
Pledged Collateral is accurate and complete in all material respects.
(ix) The pledge of the Pledged Collateral pursuant to this
Agreement does not violate Regulations U or X of the Federal Reserve Board.
(x) No Pledgor directly owns any other shares of capital stock
of any Subsidiary of the Company other than the shares of capital stock
described in Part I of Schedule I annexed hereto and shares of capital stock
not required to be pledged hereunder pursuant to the first parenthetical of or
the proviso to Section 1(iii).
SECTION 5. Supplements, Further Assurances. Each Pledgor agrees
that at any time and from time to time, at the expense of the Pledgor, each
Pledgor will promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or that the
Collateral Agent may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable the
Collateral Agent to exercise and enforce its rights and remedies hereunder
with respect to any Pledged Collateral. Each Pledgor further agrees
that it will, upon obtaining any shares of any Person required to be pledged
pursuant to Sections 1(ii) or 1(iii), promptly (and in any event within five
(5) Business Days) deliver to the Collateral Agent a pledge amendment, duly
executed by such Pledgor, in substantially the form of Schedule II hereto (a
"Pledge Amendment"), in respect of the additional Pledged Shares which are to
be pledged pursuant to this Agreement. Each Pledgor hereby authorizes the
Collateral Agent to attach each Pledge Amendment to this Agreement and agrees
that all Pledged Shares listed on any Pledge Amendment delivered to the
Collateral Agent shall for all purposes hereunder be considered Pledged
Collateral.
XXI-6
<PAGE>
SECTION 6. Voting Rights; Dividends; Etc. (a) As long as no
Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged Collateral
pledged by such Pledgor hereunder or any part thereof for any purpose not
inconsistent with the terms of this Agreement, the Credit Agreements or the
Senior Note Indentures; provided, however, that such Pledgor shall give the
Collateral Agent at least 5 days' prior written notice of the manner in which
it intends to exercise any such right. It is understood, however, that
neither (A) the voting by any Pledgor of any Pledged Shares for, or any
Pledgor's consent to, the election of directors at a regularly scheduled
annual or other meeting of stockholders or with respect to incidental matters
at any such meeting nor (B) any Pledgor's consent to or approval of any action
otherwise permitted under this Agreement, the Credit Agreements and the Senior
Note Indentures shall be deemed inconsistent with the terms of this Agreement,
the Credit Agreements or the Senior Note Indentures within the meaning of this
Section 6(a)(i), and no notice of any such voting or consent need be given to
the Collateral Agent.
(ii) Each Pledgor shall be entitled to receive and retain, and to
utilize free and clear of the Lien of this Agreement, any and all dividends,
distributions, principal and interest paid in respect of the Pledged
Collateral; provided, however, that any and all dividends and other
distributions in equity securities shall be, and shall be forthwith delivered
to the Collateral Agent to hold as, Pledged Collateral and shall, if received
by such Pledgor, be received in trust for the benefit of the Collateral Agent,
be segregated from the other property or funds of such Pledgor, and be
forthwith delivered to the Collateral Agent as Pledged Collateral in the same
form as so received (with any necessary endorsement).
(iii) In order to permit each Pledgor to exercise the voting and
other rights which it is entitled to exercise pursuant to Section 6(a)(i)
above and to receive the dividends, distributions, principal or interest
payments which it is authorized to receive and retain pursuant to Section
6(a)(ii) above, the Collateral Agent shall, if necessary, upon written request
of any Pledgor, from time to time execute and deliver (or cause to be executed
and delivered) to such Pledgor all such proxies, dividend payment orders and
other instruments as such Pledgor may reasonably request.
XXI-7
<PAGE>
(b) Upon the occurrence and during the continuance of an Event
of Default:
(i) Upon written notice from the Collateral Agent to any
Pledgor, all rights of such Pledgor to exercise the voting and other
consensual rights which it would otherwise be entitled to exercise pursuant to
Section 6(a)(i) above shall cease, and all such rights shall thereupon become
vested in the Collateral Agent which shall thereupon have the sole right to
exercise such voting and other consensual rights during the continuance of
such Event of Default.
(ii) All rights of each Pledgor to receive the dividends,
distributions, principal and interest payments which it would otherwise be
authorized to receive and retain pursuant to Section 6(a)(ii) above shall
cease and all such rights shall thereupon become vested in the Collateral
Agent who shall thereupon have the sole right to receive and hold as Pledged
Collateral such dividends, distributions, principal and interest payments
during the continuance of such Event of Default.
(c) In order to permit the Collateral Agent to receive all
dividends and other distributions to which it may be entitled under Section
6(a)(ii) above, to exercise the voting and other consensual rights which it
may be entitled to exercise pursuant to Section 6(b)(i) above, and to receive
all dividends, distributions, principal and interest payments and other
distributions which it may be entitled to receive under Section 6(b)(ii)
above, each Pledgor shall, if necessary, upon written notice from the
Collateral Agent, from time to time execute and deliver to the Collateral
Agent appropriate proxies, dividend payment orders and other instruments as
the Collateral Agent may reasonably request.
(d) All dividends, distributions, principal and interest
payments which are received by any Pledgor contrary to the provisions of
Section 6(b)(ii) above shall be received in trust for the benefit of the
Collateral Agent, shall be segregated from other funds of such Pledgor and
shall be forthwith paid over to the Collateral Agent as Pledged Collateral in
the same form as so received (with any necessary endorsement).
SECTION 7. Transfers and Other Liens; Additional Shares.
A. Transfers and Other Liens. Each Pledgor agrees that it will
not, except as not prohibited by the Credit Agreements and the Senior Note
Indentures, (i) sell or otherwise dispose of, or grant any option or warrant
with respect to, any of the Pledged Collateral, (ii) create or permit to exist
any Lien upon or with respect to any of the Pledged Collateral, except for the
lien and security interest under this Agreement, or (iii) permit any issuer of
Pledged Shares to merge or consolidate unless all the outstanding capital
stock of the surviving or resulting corporation is, upon such merger or
consolidation, pledged hereunder and no cash, securities or other property is
distributed in respect of the outstanding shares of any other constituent
corporation; provided, however, that in the event of an Asset Sale not
prohibited by the Credit Agreements wherein the assets subject to such Asset
Sale are Pledged Shares, the Collateral Agent shall release the Pledged Shares
that are the subject of such Asset Sale and any related Pledged Debt to the
Pledgor owning such Pledged Shares free and clear of the lien and security
interest under this Agreement concurrently with the consummation of such Asset
XXI-8
<PAGE>
Sale; and provided, further that, notwithstanding anything herein to the
contrary, (x) the Collateral Agent shall release Pledged Shares or other
Pledged Collateral from the lien and security interest of this Agreement as
may be specified by the Credit Agent upon the approval of the release of such
Pledged Shares or other Pledged Collateral by Requisite Lenders under the
Credit Agreements and (y) the Collateral Agent shall release Pledged Shares
from the lien and security interest of this Agreement if and to the extent
such Pledged Shares are not required to be pledged due to the limitations set
forth in the proviso to Section 1(iii).
B. Additional Shares. Each Pledgor agrees that it will (i)
cause each issuer of Pledged Shares not to issue any stock or other securities
in addition to or in substitution for the Pledged Shares issued by such
issuer, except to a Pledgor, (ii) pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all additional shares of
stock or other equity securities of each issuer of Pledged Shares; provided
however, that no Pledgor shall be required under this clause (ii) to pledge
shares of the capital stock of such issuer acquired by any of its
Subsidiaries, and (iii) subject to the proviso to Section 1(iii), pledge
hereunder, immediately upon its acquisition (directly or indirectly) thereof,
any and all shares of stock of any Person which, after the date of this
Agreement, becomes, as a result of any occurrence, a Subsidiary (subject to
the obtaining or making of any foreign governmental actions, notices or
filings referred to in Section 4(iii)) of the Company.
SECTION 8. Collateral Agent Appointed Attorney-in-Fact. Each
Pledgor hereby appoints the Collateral Agent such Pledgor's attorney-in-fact,
with full authority in the place and stead of such Pledgor and in the name of
such Pledgor or otherwise, from time to time in the Collateral Agent's
discretion to take any action and to execute any instrument which the
Collateral Agent may reasonably deem necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation, to receive, endorse
and collect all instruments made payable to such Pledgor representing any
dividend, interest payment or other distribution in respect of the Pledged
Collateral or any part thereof and to give full discharge for the same.
SECTION 9. Collateral Agent May Perform. If any Pledgor fails to
perform any agreement contained herein after receipt of a written request to
do so from the Collateral Agent, the Collateral Agent may itself perform, or
cause performance of, such agreement, and the reasonable expenses of the
Collateral Agent, including the reasonable fees and expenses of its counsel,
incurred in connection therewith shall be payable by the Pledgors under
Section 13 hereof.
SECTION 10. Reasonable Care. The Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation of
the Pledged Collateral in its possession if the Pledged Collateral is accorded
treatment substantially equivalent to that which the Collateral Agent, in its
individual capacity, accords its own property consisting of negotiable
securities, it being understood that neither the Collateral Agent nor any
other Secured Party shall have responsibility for (i) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
XXI-9
<PAGE>
other matters relative to any Pledged Collateral, whether or not the
Collateral Agent or any other Secured Party has or is deemed to have knowledge
of such matters, or (ii) taking any necessary steps (other than steps taken in
accordance with the standard of care set forth above to maintain possession of
the Pledged Shares and Pledged Debt) to preserve rights against any Person
with respect to any Pledged Collateral.
SECTION 11. Remedies Upon Default; Decisions Relating to Exercise
of Remedies.
A. Remedies Upon Default. Subject to Section 11B, (i) if any
event of default under any Credit Agreement or the Senior Note Indentures, or
(ii) after such time as all Obligations now or hereafter existing under or in
respect of the Credit Agreements (the "Obligations") and all Senior Note
Obligations shall have been paid in full (and provided that the Pledged
Collateral then secures the payment and performance of Interest Rate
Obligations, Currency Obligations or obligations of the Company under the
Senior Note Indentures, as the case may be) if any event of default under any
Interest Rate Agreement or Currency Agreement which is secured by the Pledged
Collateral (each of the events of default described in the foregoing clauses
(i) and (ii) (subject to any provisos set forth therein) being referred to
herein as an "Event of Default"), shall have occurred and be continuing:
(a)(i) The Collateral Agent may exercise in respect of the
Pledged Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a secured
party on default under the Uniform Commercial Code (the "Code") in effect in
the State of New York at that time, and the Collateral Agent may also in its
sole discretion, without notice except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at public or private
sale, at any exchange, broker's board or at any of the Collateral Agent's
offices or elsewhere, for cash, on credit or for future delivery, and at such
price or prices and upon such other terms as the Collateral Agent may deem
commercially reasonable, irrespective of the impact of any such sales on the
market price of the Pledged Collateral. The Collateral Agent or any other
Secured Party may be the purchaser of any or all of the Pledged Collateral at
any such sale but shall not be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Pledged Collateral sold at such sale, to use and apply any of the Secured
Obligations owed to such Person as a credit on account of the purchase price
of any Pledged Collateral payable by such Person at such sale. Each purchaser
at any such sale shall hold the property sold absolutely free from any claim
or right on the part of any Pledgor, and each Pledgor hereby waives (to the
extent permitted by law) all rights of redemption, stay and/or appraisal which
it now has or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted. Each Pledgor agrees that, to the
extent notice of sale with respect to the Pledged Collateral pledged by such
Pledgor hereunder shall be required by law, at least ten days' notice to such
Pledgor of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The
Collateral Agent shall not be obligated to make any sale of Pledged Collateral
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regardless of notice of sale having been given. The Collateral Agent may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned. Each Pledgor hereby
waives any claims against the Collateral Agent arising by reason of the fact
that the price at which any Pledged Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a
public sale, even if the Collateral Agent accepts the first offer received and
does not offer such Pledged Collateral to more than one offeree.
(ii) Each Pledgor recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act"), and applicable state securities laws, the Collateral Agent
may be compelled, with respect to any sale of all or any part of the Pledged
Collateral, to limit purchasers to those who will agree, among other things,
to acquire the Pledged Collateral for their own account, for investment and
not with a view to the distribution or resale thereof. Each Pledgor
acknowledges that any such private sales may be at prices and on terms less
favorable to the Collateral Agent than those obtainable through a public sale
without such restrictions (including, without limitation, a public offering
made pursuant to a registration statement under the Securities Act), and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner and that the
Collateral Agent shall have no obligation to engage in public sales and no
obligation to delay the sale of any Pledged Collateral for the period of time
necessary to permit the issuer thereof to register it for a form of public
sale requiring registration under the Securities Act or under applicable state
securities laws, even if any Pledgor would agree to do so.
(b) If the Collateral Agent determines to exercise its right to
sell any or all of the Pledged Collateral, upon written request, each Pledgor
shall and shall cause each issuer of any Pledged Shares to be sold hereunder
from time to time to furnish to the Collateral Agent all such information as
the Collateral Agent may request in order to determine the number of shares
and other instruments included in the Pledged Collateral which may be sold by
the Collateral Agent as exempt transactions under the Securities Act and the
rules of the Securities and Exchange Commission thereunder, as the same are
from time to time in effect.
B. Decisions Relating to Exercise of Remedies. Notwithstanding
anything in this Agreement to the contrary, as provided in the Intercreditor
Agreement, the Collateral Agent shall exercise, or shall refrain from
exercising, any remedy provided for in Section 11A in accordance with the
instructions of Requisite Obligees (as defined in the Intercreditor
Agreement), and the Credit Agents, the Lenders, the Interest Rate Exchangers,
the Currency Exchangers, the holders of the Senior Notes and the Senior Note
Trustees shall be bound by such instructions; and the sole rights of the
Credit Agents, the Lenders, the Interest Rate Exchangers, the Currency
Exchangers, the holders of the Senior Notes and the Senior Note Trustees under
this Agreement shall be to be equally and ratably secured by the Pledged
Collateral and to receive the payments provided for in Section 12 hereof.
XXI-11
<PAGE>
SECTION 12. Application of Proceeds. After and during the
continuance of an Event of Default, any cash held by the Collateral Agent as
Pledged Collateral and all cash proceeds received by the Collateral Agent (all
such cash being "Proceeds") in respect of any sale of, collection from, or
other realization upon all or any part of the Pledged Collateral pursuant to
the exercise by the Collateral Agent of its remedies as a secured creditor as
provided in Section 11 of this Agreement or in any bankruptcy proceeding shall
be applied promptly from time to time by the Collateral Agent as follows:
First, to the payment of the costs and expenses of such sale,
collection or other realization, including reasonable compensation to the
Collateral Agent and its agents and counsel, and all expenses, liabilities and
advances made or incurred by the Collateral Agent in connection therewith;
Second, to the payment of the Secured Obligations as provided in
Section 3 of the Intercreditor Agreement; provided that in making such
application to the Secured Parties in respect of outstanding Secured
Obligations, the Collateral Agent shall be entitled to deduct from the share
of such Proceeds otherwise payable to any Secured Party an amount equal to
such Secured Party's pro rata share of all amounts that the Collateral Agent
has requested to be paid by the Paying Indemnifying Parties (such term being
used in this Section 12 as defined in Section 6(c) of the Intercreditor
Agreement) pursuant to Section 6(c) of the Intercreditor Agreement, minus, in
the event such Secured Party is a Paying Indemnifying Party, any portion of
such requested amount theretofore paid by such Secured Party to the Collateral
Agent; and
Third, after payment in full of all Secured Obligations, to the
Pledgor which pledged such Pledged Collateral or the Pledged Collateral from
which such Proceeds were received, or its successors or assigns, or to
whomsoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct, of any surplus then remaining from such
Proceeds.
At the time of any application of Proceeds by the Collateral Agent
pursuant to this Section 12, the Collateral Agent shall provide the Senior
Note Trustees with a certificate setting forth the total amount paid to the
Collateral Agent pursuant to Section 6(c) of the Intercreditor Agreement and a
calculation of the amounts, if any, deducted from Proceeds paid to the Senior
Note Trustees.
SECTION 13. Expenses. Each Pledgor will upon demand pay to the
Collateral Agent the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts and agents,
which the Collateral Agent may incur in connection with (i) the administration
of this Agreement, (ii) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Pledged Collateral,
(iii) the exercise or enforcement of any of the rights of the Collateral Agent
or any other Secured Party hereunder or (iv) the failure by any Pledgor to
perform or observe any of the provisions hereof.
XXI-12
<PAGE>
SECTION 14. No Waiver. No failure on the part of the Collateral
Agent to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Collateral Agent of
any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies
herein provided are to the fullest extent permitted by law cumulative and are
not exclusive of any remedies provided by law.
SECTION 15. Collateral Agent. The Collateral Agent has been
appointed as Collateral Agent hereunder pursuant to the Intercreditor
Agreement by the Current Credit Agent and the Senior Note Trustees and, in the
event that any Interest Rate Obligations or Currency Obligations are secured
hereby, by each Interest Rate Exchanger and Currency Exchanger executing a
counterpart to the Intercreditor Agreement, and the Collateral Agent shall be
entitled to the benefits of the Intercreditor Agreement. The Collateral Agent
shall be obligated, and shall have the right, hereunder to make demands, to
give notices, to exercise or refrain from exercising any rights, and to take
or refrain from taking action (including, without limitation, the release or
substitution of Pledged Collateral) solely in accordance with this Agreement
and the Intercreditor Agreement. The Collateral Agent may resign and a
successor Collateral Agent may be appointed in the manner provided in the
Intercreditor Agreement. Upon the acceptance of any appointment as a
Collateral Agent by a successor Collateral Agent, that successor Collateral
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Collateral Agent under this
Agreement, and the retiring Collateral Agent shall thereupon be discharged
from its duties and obligations under this Agreement and shall deliver any
Pledged Collateral in its possession to the successor Collateral Agent. After
any retiring Collateral Agent's resignation, the provisions of this Agreement
shall inure to its benefit as to any actions taken or omitted to be taken by
it under this Agreement while it was Collateral Agent. Anything contained in
this Agreement to the contrary notwithstanding, in the event of any conflict
between the express terms and provisions of this Agreement and the express
terms and provisions of the Intercreditor Agreement, such terms and provisions
of the Intercreditor Agreement shall control.
SECTION 16. Indemnification. Each Pledgor hereby agrees to
indemnify the Collateral Agent for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Collateral Agent in any way relating to or
arising out of this Agreement, the Intercreditor Agreement, the Credit
Agreements, the Interest Rate Agreements, the Currency Agreements, the Senior
Notes or the Senior Note Indentures or any other documents contemplated by or
referred to therein or the transactions contemplated thereby or the
enforcement of any of the terms hereof or of any such other documents or
otherwise arising or relating in any manner to the pledges, dispositions of
Pledged Collateral or proceeds of Pledged Collateral, or other actions of any
nature with respect to the Pledged Collateral contemplated hereunder and under
the Intercreditor Agreement to secure the payment of the Secured Obligations;
provided, however, that no Pledgor shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
Collateral Agent or failure by the Collateral Agent to exercise reasonable
XX-13
<PAGE>
care in the custody and preservation of the Pledged Collateral as provided in
Section 10.
SECTION 17. Amendments, Etc. This Agreement may not be amended,
modified or waived except with the written consent of each Pledgor, the
Collateral Agent and the Credit Agents and, solely with respect to an
amendment of Section 12, the definitions of "Pledged Collateral" or "Secured
Obligations" herein or this Section 17, or the release of Pledged Collateral
except as herein provided, with the written consent of each Interest Rate
Exchanger (if the Pledged Collateral then secures such Interest Rate
Exchanger), each Currency Exchanger (if the Pledged Collateral then secures
such Currency Exchanger) and the Senior Note Trustees; provided that the
written consent of the Credit Agents shall not be required if the Obligations
have been paid in full and all related commitments to extend credit have been
cancelled or terminated; provided, further, that if the Obligations have been
paid in full and all related commitments to extend credit have been cancelled
or terminated, this Agreement may not be amended, modified or waived except
with the written consent of the holders of a majority of the outstanding
Interest Rate Obligations and Currency Obligations which are secured by the
Pledged Collateral; and provided, further, that during such time as the
Pledged Collateral secures only the payment of the obligations under or in
respect of the Senior Note Indentures, this Agreement may not be amended,
modified or waived except with the written consent of each Pledgor, the
Collateral Agent and the Senior Note Trustees; provided, however, that,
notwithstanding the foregoing, no such written consent of the Senior Note
Trustees shall be required with respect to amendments, modifications or
waivers solely to permit the incurrence of additional Indebtedness secured by
the Pledged Collateral and entitled to the benefits hereof insofar as the
foregoing is not prohibited by the Senior Note Indentures.
SECTION 18. Termination. When all Secured Obligations have been
paid in full and all related commitments to extend credit have been cancelled
or terminated, this Pledge Agreement shall terminate, and the Collateral Agent
shall, upon the request and at the expense of each Pledgor, forthwith assign,
transfer and deliver, against receipt and without recourse to the Collateral
Agent, such of the Pledged Collateral as shall not have been sold or otherwise
applied pursuant to the terms hereof to or on the order of the Pledgor owning
such Pledged Collateral. Notwithstanding anything herein (including Section
20) to the contrary, if all the Secured Obligations except the obligations in
respect of the Interest Rate Obligations, Currency Obligations and the Senior
Notes have either been paid in full or are no longer secured by any of the
Pledged Collateral and all related commitments to extend credit have been
cancelled or terminated, this Pledge Agreement shall be terminable at the
election of the Company, and upon the delivery of written notice of such
election to the Collateral Agent, this Pledge Agreement shall terminate and
the Collateral Agent shall, at the expense of each Pledgor, forthwith assign,
transfer and deliver, against receipt and without recourse to the Collateral
Agent, such Pledged Collateral as shall not have been sold or otherwise
applied pursuant to the terms hereof to or on the order of the Pledgor owning
such Pledged Collateral.
SECTION 19. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic or telecopy communication) and mailed, telegraphed, telecopied or
XXI-14
<PAGE>
delivered, if to a Pledgor, addressed to it at the address of the Company set
forth on the applicable signature page of the Current Credit Agreement, if to
the Collateral Agent, addressed to it at the address set forth on the
applicable signature page of this Agreement, if to the Current Credit Agent,
addressed to it at the address set forth on the applicable signature page of
the Current Credit Agreement, if to any of the Senior Note Trustees, addressed
to such trustee at the address provided by such trustee pursuant to the
Intercreditor Agreement, or as to any party at such other address as shall be
designated by such party in a written notice to each other party complying as
to delivery with the terms of this Section 19. All such notices and other
communications shall, when mailed or telegraphed, respectively, be effective
when deposited in the mails or delivered to the telegraph company,
respectively, addressed as aforesaid and shall, when delivered or telecopied,
be effective when received.
SECTION 20. Continuing Security Interest; Transfer of
Indebtedness. This Agreement shall create a continuing security interest in
the Pledged Collateral and shall (i) remain in full force and effect until
payment in full of all Secured Obligations and the cancellation or termination
of all related commitments to extend credit, (ii) be binding upon each
Pledgor, its successors and assigns, and (iii) inure, together with the rights
and remedies of the Collateral Agent hereunder, to the benefit of the
Collateral Agent and each other Secured Party and each of their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii) and subject to the provisions of subsections 9.2 and
9.17 of the Current Credit Agreement, any Secured Party may assign or
otherwise transfer any indebtedness held by it secured by this Agreement to
any other person or entity, and such other person or entity shall thereupon
become vested with all the benefits in respect thereof granted to such Secured
Party herein or otherwise, subject, however, to the provisions of the
Intercreditor Agreement.
SECTION 21. Governing Law; Terms; Joint and Several Obligations
of Pledgors. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE
EXTENT THAT THE CODE REQUIRES THAT THE PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK. Unless otherwise defined herein or in the Current Credit Agreement,
terms defined in Articles 8 and 9 of the Code are used herein as therein
defined. All obligations of the Pledgors hereunder shall be joint and
several.
SECTION 22. Consent to Jurisdiction and Service of Process. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PLEDGOR ARISING OUT OF OR RELATING TO
THIS AGREEMENT, OR ANY OBLIGATIONS HEREUNDER, 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, EACH PLEDGOR, FOR ITSELF
XXI-15
<PAGE>
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 SUCH PLEDGOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION
19;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH PLEDGOR IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT;
(V) AGREES THAT THE COLLATERAL AGENT RETAINS THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST
SUCH PLEDGOR IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION 22 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.
SECTION 23. Security Interest Absolute. All rights of the
Collateral Agent and security interests hereunder, and all obligations of each
Pledgor hereunder, shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of any of the Credit
Agreements, the Notes, the Subsidiary Guaranty, any Interest Rate Agreement,
any Currency Agreement, the Senior Notes, the Senior Note Indentures or any
other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from any of the Credit
Agreements, the Notes, the Subsidiary Guaranty, any Interest Rate Agreement,
any Currency Agreement, the Senior Notes or the Senior Note Indentures;
XXI-16
<PAGE>
(iii) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to any
departure from any guaranty, for all or any of the Secured Obligations; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any Pledgor.
SECTION 24. Secured Obligations Limitation. Anything contained
in this Agreement to the contrary notwithstanding (but without limiting the
obligations of any Pledgor under the Subsidiary Guaranty), if any Fraudulent
Transfer Law (as hereinafter defined) is determined by a court of competent
jurisdiction to be applicable to the obligations of any Pledgor under this
Agreement, (i) the amount of the Secured Obligations with respect to the
Pledged Collateral pledged by such Pledgor (such Pledgor's "Secured Amount")
shall be limited to a maximum aggregate amount equal to the largest amount
that would not render its obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title 11 of the United
States Code or any applicable provisions of comparable state law
(collectively, the "Fraudulent Transfer Laws"), in each case after giving
effect to all other liabilities of such Pledgor, contingent or otherwise, that
are relevant under the Fraudulent Transfer Laws (specifically excluding,
however, any liabilities of such Pledgor in respect of intercompany
indebtedness to Company or other affiliates of Company to the extent that such
indebtedness would be discharged in an amount equal to the amount paid by such
Pledgor hereunder) and after giving effect as assets to the value (as
determined under the applicable provisions of the Fraudulent Transfer Laws) of
any rights to subrogation, reimbursement, indemnification or contribution of
such Pledgor pursuant to applicable law or pursuant to the terms of any
agreement (including any such right of contribution under the Subsidiary
Guaranty), and (ii) in the event that such Pledgor's Secured Amount is, as of
any date of determination, reduced as a result of the application of clause
(i) above, the amount of such reduction shall be applied to reduce such
Pledgor's obligations hereunder in respect of all Secured Obligations ratably
in accordance with the respective amounts of all Secured Obligations
outstanding as of such date of determination.
SECTION 25. Additional Pledgors; Counterparts. (a) The initial
Pledgors hereunder shall be such of the Subsidiaries of Company as are
signatories hereto on the date hereof. From time to time subsequent to the
date hereof, additional Subsidiaries of Company may become parties hereto, as
additional Pledgors (each an "Additional Pledgor"), by executing a counterpart
of this Agreement. Upon delivery of any such counterpart to Collateral Agent,
notice of which is hereby waived by Pledgors, each such Additional Pledgor
shall be a Pledgor and shall be as fully a party hereto as if such Additional
Pledgor were an original signatory hereof. Each Pledgor expressly agrees that
its obligations arising hereunder shall not be affected or diminished by the
addition or release of any other Pledgor hereunder, nor by any election of
Lenders not to cause any Subsidiary of Company to become an Additional Pledgor
hereunder. This Agreement shall be fully effective as to any Pledgor that is
or becomes a party hereto regardless of whether any other Person becomes or
fails to become or ceases to be a Pledgor hereunder.
XXI-17
<PAGE>
(b) This Agreement may be executed in any number of counterparts
and by the different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original for all
purposes; but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective as to each Pledgor
upon the execution of a counterpart hereof by such Pledgor (whether or not a
counterpart hereof shall have been executed by any other Pledgor) and receipt
by Collateral Agent of written or telephonic notification of such execution
and authorization of delivery thereof.
[Remainder of page intentionally left blank]
XXI-18
<PAGE>
IN WITNESS WHEREOF, each Pledgor has caused this Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
Pledgors:
[NAMES OF SUBSIDIARY GUARANTORS OTHER THAN
SECOND-TIER SUBSIDIARIES]
By: _________________________________
Title:
IN WITNESS WHEREOF, the undersigned Additional Pledgor has caused
this Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of __________, 199__.
Additional Pledgor: ___________________
By: ______________________________
Name: _____________________________
Title: ______________________________
XXI-S-1
<PAGE>
Collateral Agent:
BANKERS TRUST COMPANY
By: ________________________________
Title: _____________________________
Notice Address:
Bankers Trust Company
130 Liberty Street, 14th Floor
New York, New York 10006
Attention: Mary Jo Jolly
with a copy to:
Bankers Trust Company
300 South Grand Avenue, 41st Floor
Los Angeles, California 90071
Attention: Robert G. Kolb
XXI-S-2
<PAGE>
SCHEDULE I
Attached to and forming a part of that certain Subsidiary Pledge
Agreement dated as of ____________, 1999 by the Pledgors named on the
signature pages thereof, as Pledgors, to Bankers Trust Company, as Collateral
Agent.
PART I
Class Stock Number Percentage
Name of Issuer of Stock of Certif. Par of of All Capital
Pledgor Owned by Pledgor Stock No(s). Value Shares Stock Owned
PART II
The Pledged Debt of each of the Debt Issuers identified in this
Part II of Schedule I shall include all outstanding Indebtedness of such Debt
Issuer from time to time owing to the applicable Pledgor identified opposite
such Debt Issuer which indebtedness shall be evidenced by the promissory note
or notes referenced below, as amended or supplemented from time to time, and
by the records of such Pledgor relating to the amounts outstanding from time
to time under such promissory note or notes or by any replacement or successor
promissory notes issued by such Debt Issuer in favor of such Pledgor.
Amount of Date of
Indebtedness Promissory
Issuer of Promissory Note as of Note Evidencing
Name of Pledgor Held by Pledgor _________, 1999 the Pledged Debt
XXI-I-1
<PAGE>
SCHEDULE II
To the
Subsidiary Pledge Agreement
PLEDGE AMENDMENT
This Pledge Amendment, dated as of ___________, 19__, is delivered
pursuant to Section 5 of the Pledge Agreement referred to below. The
undersigned hereby agrees that this Pledge Amendment may be attached to the
Subsidiary Pledge Agreement dated as of ____________, 1999, among the
undersigned, the other Pledgors listed on the signature pages thereof and
Bankers Trust Company, as Collateral Agent (the "Pledge Agreement";
capitalized terms defined therein being used herein as therein defined) and
that the Pledged Shares listed on this Pledge Amendment shall be deemed to be
part of the Pledged Shares and shall become part of the Pledged Collateral and
shall secure all Secured Obligations as provided in the Pledge Agreement.
Pledgor:
By __________________________
Title _______________________
Class Stock Number
of Certificate Par of
Stock Issuer Stock No(s). Value Shares
XXI-II-1
<PAGE>
ANNEX 1
to
SUBSIDIARY PLEDGE AGREEMENT
INDEX OF TERMS
Additional Pledgor...........................Section 25(a)
Agreement....................................Introduction
Bankers......................................Introduction
Borrowers....................................Recital 2
Code.........................................Section 11A
Collateral Agent.............................Introduction
Company......................................Recital 2
Credit Agents................................Recital 3
Credit Agreements............................Recital 3
Currency Exchangers..........................Recital 4
Currency Obligations.........................Recital 4
Current Credit Agent.........................Recital 2
Current Credit Agreement.....................Recital 2
Current Lenders..............................Recital 2
Event of Default.............................Section 11A
Intercreditor Agreement......................Recital 6
Interest Rate Exchangers.....................Recital 4
Interest Rate Obligations....................Recital 4
Lenders......................................Recital 3
Obligations..................................Section 11A
Paying Indemnifying Parties..................Intercreditor Agreement
Pledge Amendment.............................Section 5
Pledged Collateral...........................Section 1
Pledged Debt.................................Recital 1
Pledged Shares...............................Recital 1
Pledgor......................................Introduction
Pledgors.....................................Introduction
Proceeds.....................................Section 12
Secured Obligations..........................Section 2
Secured Parties..............................Section 1
Securities Act...............................Section 11A
Senior Note Indentures.......................Recital 5
Senior Note Trustees.........................Introduction
Senior Notes.................................Recital 5
Subsidiary Guaranty..........................Recital 5
Successor Credit Agents......................Recital 3
Successor Credit Agreements..................Recital 3
Successor Lenders............................Recital 3
ANNEX 1-1
<PAGE>
ANNEX 1-2
<PAGE>
EXHIBIT XXII
[FORM OF]
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (as amended, amended and restated or
otherwise modified from time to time in accordance with the terms hereof,
herein called this "Agreement") is dated as of ____________, 1999 among
BANKERS TRUST COMPANY ("Bankers"), as administrative agent (the "Current
Credit Agent") for the lenders (the "Current Lenders") from time to time party
to the Current Credit Agreement (as hereinafter defined), THE BANK OF NEW YORK
and [NAME OF SENIOR NOTE TRUSTEE], as trustees (together with their respective
successors in such capacities, the "Senior Note Trustees") under the Senior
Note Indentures (as hereinafter defined), BANKERS TRUST COMPANY, as Collateral
Agent (as hereinafter defined), and the other persons who may become parties
to this Agreement from time to time pursuant to and in accordance with Section
5 of this Agreement. Certain defined terms used in this Agreement are indexed
in Annex 1 to this Agreement.
R E C I T A L S
1. Current Lenders, the Managing Agents, Co-Agents, Lead
Managers and Arrangers named therein, The Bank of Nova Scotia and NationsBank,
N.A., as Documentation Agents, Bank of America National Trust and Savings
Association, as Syndication Agent for the Current Lenders, the Offshore
Administrative Agents named therein, and the Current Credit Agent have entered
into a Second Amended and Restated Credit Agreement dated as of April 30, 1998
with Owens-Illinois, Inc., a Delaware corporation (the "Company"), United
Glass Limited, a corporation organized under the laws of England and Wales,
United Glass Group Limited, a corporation organized under the laws of England
and Wales, Owens-Illinois (Australia) Pty Limited, a corporation organized
under the laws of Australia, and OI Italia S.r.l., a limited liability company
organized under the laws of Italy (the Company and each such Person being a
"Borrower" and collectively, the "Borrowers") (said Credit Agreement, as it
may hereafter be amended, amended and restated or otherwise modified from time
to time, being the "Current Credit Agreement"; capitalized terms defined
therein and not otherwise defined herein being used herein as therein defined
or as defined in the Successor Credit Agreement (as hereinafter defined) then
in effect), pursuant to which the Current Lenders have agreed, subject to the
terms and conditions set forth in the Current Credit Agreement, to extend
certain credit facilities to the Company and the other Borrowers for the
XXII-1
<PAGE>
purpose of, among other things, providing financing for the Applegate
Acquisition;
2. It is contemplated that, from time to time, the Current
Lenders or other Persons (collectively, the "Successor Lenders") may enter
into one or more agreements with the Company, the other Borrowers and other
Persons, including Subsidiaries of the Company, either extending the maturity
of, refinancing or otherwise restructuring (including, but not limited to, the
inclusion of additional borrowers thereunder which are Subsidiaries of the
Company) all or any portion of the Indebtedness under the Current Credit
Agreement or any Successor Credit Agreement (said agreements, as they may
exist from time to time (but, in the case of such a refinancing or
restructuring, only to the extent thereof), being the "Successor Credit
Agreements", which together with the Current Credit Agreement are referred to
herein as the "Credit Agreements"; provided that in no event shall any
amendment, amendment and restatement or other modification of the Current
Credit Agreement after the date hereof cause the Current Credit Agreement to
be deemed to be a Successor Credit Agreement or require the Current Credit
Agent to execute an acknowledgment to this Agreement in connection with such
amendment, amendment and restatement or other modification) (the Current
Lenders and any Successor Lenders being collectively referred to herein as the
"Lenders", and the Current Credit Agent and any agents under any Successor
Credit Agreements (collectively, the "Successor Credit Agents") being
collectively referred to herein as the "Credit Agents");
3. As required pursuant to subsection 5.8 of the Current Credit
Agreement, Subsidiary Guarantors (such term being used in this Agreement as
defined in the Current Credit Agreement) have executed and delivered to the
Collateral Agent a Subsidiary Guaranty dated as of ____________, 1999 (as
amended, amended and restated or otherwise modified from time to time, herein
called the "Subsidiary Guaranty"; a copy of the Subsidiary Guaranty as in
effect on the date this Agreement becomes effective is attached to this
Agreement as Annex 4) pursuant to which Subsidiary Guarantors have guarantied
the obligations of the Company and the Subsidiary Borrowers (and, in the case
of any Successor Credit Agreements, the obligations of any Subsidiaries of the
Company which are additional borrowers thereunder) under the Current Credit
Agreement and any Successor Credit Agreements and, in the event that Company
or any Subsidiary Borrower from time to time enters into any Interest Rate
Agreements and Currency Agreements with one or more Lenders or their
Affiliates (collectively, the "Interest Rate Exchangers" or the "Currency
Exchangers," as the case may be), the obligations of Company and such
Subsidiary Borrowers with respect to any such Interest Rate Agreements and
Currency Agreements, including the obligation to make payments in the event of
early termination under such Interest Rate Agreements and Currency Agreements
(all such obligations being the "Interest Rate Obligations" or the "Currency
Obligations," as the case may be); provided that any Interest Rate Exchanger
XXII-2
<PAGE>
or any Currency Exchanger desiring the benefit of the Subsidiary Guaranty
shall execute and deliver to the Collateral Agent an acknowledgment to this
Agreement, in the form attached hereto, acknowledged by each Subsidiary
Guarantor;
4. The Company has entered into (i) an Indenture dated as of
May 15, 1997 pursuant to which the Company has issued (a) $300,000,000 in
aggregate principal amount of 7.85% Senior Notes due 2004 and (b) $300,000,000
in aggregate principal amount of 8.10% Senior Notes due 2007 and (ii) an
Indenture dated as of __________, 199_ pursuant to which the Company has
issued [Insert description of any other publicly (or Rule 144A) issued senior
debt securities issued after the Effective Date that are not prohibited under
the Credit Agreement], in each case with the Senior Note Trustee named therein
(collectively, such indentures are referred to herein as the "Senior Note
Indentures" and such Senior Notes [Insert description of any such other
publicly (or Rule 144A) issued senior debt securities] are referred to herein
as the "Senior Notes"; the obligations of the Company under the Senior Note
Indentures and the Senior Notes being referred to herein as the "Senior Note
Obligations");
5. As required pursuant to subsection 5.8 of the Current Credit
Agreement, the Company has executed and delivered to the Collateral Agent a
Company Pledge Agreement dated as of ____________, 1999 (as amended, amended
and restated or otherwise modified from time to time in accordance with the
terms thereof and hereof, herein called the "Company Pledge Agreement"; a copy
of the Company Pledge Agreement as in effect on the date this Agreement
becomes effective is attached to this Agreement as Annex 2);
6. The Company has executed and delivered to the Collateral
Agent a Company Guaranty dated as of April 30, 1998 (as amended, amended and
restated or otherwise modified from time to time, herein called the "Company
Guaranty" (together with the Subsidiary Guaranty, collectively referred to
herein as the "Guaranties"); a copy of the Company Guaranty as in effect on
the date this Agreement becomes effective is attached to this Agreement as
Annex 5) pursuant to which the Company has guarantied the obligations of the
Subsidiary Borrowers (and, in the case of any Successor Credit Agreements, the
obligations of any other Subsidiaries of the Company which are additional
borrowers thereunder) under the Current Credit Agreement and any Successor
Credit Agreements and, in the event that any Subsidiary Borrower from time to
time enters into an Interest Rate Agreement or Currency Agreement with an
Interest Rate Exchanger or a Currency Exchanger, the Interest Rate Obligations
and Currency Obligations of such Subsidiary Borrowers with respect to such
Interest Rate Agreement or Currency Agreement (all such obligations being the
"Subsidiary Interest Rate Obligations" or the "Subsidiary Currency
Obligations," as the case may be); provided that any Interest Rate Exchanger
or any Currency Exchanger desiring the benefit of the Company Guaranty shall
XXII-3
<PAGE>
execute and deliver to the Collateral Agent an acknowledgment to this
Agreement, in the form attached hereto, acknowledged by the Company;
7. Subsidiary Guarantors have executed and delivered to the
Collateral Agent a Subsidiary Pledge Agreement dated as of ____________, 1999
(as amended, amended and restated or otherwise modified from time to time in
accordance with the terms thereof and hereof, herein called the "Subsidiary
Pledge Agreement"; a copy of the Subsidiary Pledge Agreement as in effect on
the date this Agreement becomes effective is attached to this Agreement as
Annex 3);
8. The Company and the Subsidiary Guarantors have delivered to
the Collateral Agent the Pledged Shares (as defined in each of the Company
Pledge Agreement and the Subsidiary Pledge Agreement (collectively referred to
herein as the "Pledge Agreements")) and the Pledged Debt (as defined in each
Pledge Agreement; the Pledged Shares and the Pledged Debt under the Pledge
Agreements being collectively referred to herein as the "Pledged Collateral")
as security for (i) in the case of the Pledged Collateral under the Company
Pledge Agreement, all Obligations of the Company under and in respect of the
Company Guaranty, the Credit Agreements, all Interest Rate Obligations, all
Currency Obligations and all Senior Note Obligations, in each case as
described therein, and (ii) in the case of the Pledged Collateral under the
Subsidiary Pledge Agreement, all obligations of each Subsidiary Guarantor
under and in respect of the Subsidiary Guaranty and all Senior Note
Obligations, in each case as described therein; provided that (a) any Interest
Rate Exchanger or any Currency Exchanger desiring the benefit of the Pledged
Collateral shall execute and deliver to the Collateral Agent an acknowledgment
to this Agreement, in the form attached hereto, acknowledged by the Company
and each Subsidiary Guarantor, and (b) as a condition to the Senior Note
Obligations being secured by the Pledged Collateral, the Senior Note Trustees
shall execute and deliver to the Collateral Agent a counterpart of this
Agreement;
9. The Current Credit Agent, the Senior Note Trustees, and, in
the event any Successor Credit Agreement is to be guarantied under the
Guaranties and secured by the Pledge Agreements, the Successor Credit Agent
thereunder, and, in the event any Interest Rate Obligations are to be
guarantied under the Guaranties and secured by the Pledge Agreements, the
Interest Rate Exchanger party to the relevant Interest Rate Agreement, and, in
the event any Currency Obligations are to be guarantied under the Guaranties
and secured by the Pledge Agreements, the Currency Exchanger party to the
relevant Currency Agreement, and the Collateral Agent (collectively, the
"Parties") desire to set forth certain provisions regarding the appointment,
duties and responsibilities of the Collateral Agent and to set forth certain
other provisions concerning the obligations of the Company, the Subsidiary
Borrowers and the Subsidiary Guarantors (collectively, the "Loan Parties") to
the Parties and to the Lenders and the holders of the Senior Notes
(collectively, together with the Parties, the "Secured Parties") under the
XXII-4
<PAGE>
agreements referred to in the foregoing recitals;
10. The Parties wish to set forth their agreement as to
decisions relating to the exercise of remedies under the Pledge Agreements and
certain limitations on the exercise of such remedies; and
11. Certain of the Parties wish to set forth their mutual
intentions as to certain matters relating to the exercise of remedies under
the Guaranties and payments by the applicable Loan Parties thereunder:
NOW, THEREFORE, the Parties hereby agree as follows:
SECTION 1. Appointment As Collateral Agent. The Current Credit
Agent and the Senior Note Trustees, and each Credit Agent, Lender, Interest
Rate Exchanger and Currency Exchanger signing an acknowledgment hereto, by
such signing appoints Bankers Trust Company to serve as collateral agent and
representative of each such Party (to the extent applicable) under each of the
Pledge Agreements and each of the Guaranties (in such capacity, together with
its successors in such capacity, the "Collateral Agent") and authorizes the
Collateral Agent to act as agent for the Secured Parties (a) for the purpose
of executing and delivering, on behalf of all such Parties and the Secured
Parties, the Pledge Agreements and, subject to the provisions of this
Agreement, for the purpose of enforcing the Secured Parties' rights in respect
of the Pledged Collateral and the obligations of the Company and each
Subsidiary Guarantor (collectively, the "Pledgors") under the Pledge
Agreements and (b) in addition, with respect to the foregoing appointment and
authorization by the Current Credit Agent and by each Credit Agent, Lender,
Interest Rate Exchanger and Currency Exchanger signing an acknowledgment
hereto (collectively, the "Guarantied Parties"), for the purpose of enforcing
the Guarantied Parties' rights under each of the Guaranties and the
obligations of the Company and the Subsidiary Guarantors under each of the
Guaranties.
SECTION 2. Decisions Relating to Exercise of Remedies Vested in
Requisite Obligees Under the Credit Agreements, Interest Rate Agreements,
Currency Agreements and Senior Note Indentures.
(a) The Collateral Agent agrees to make such demands and give
such notices under the Guaranties and the Pledge Agreements as Requisite
Obligees may request, and to take such action to enforce the Guaranties and
the Pledge Agreements and to foreclose upon, collect and dispose of the
Pledged Collateral or any portion thereof as may be directed by Requisite
Obligees. For purposes of this Agreement, "Requisite Obligees" means (i) for
purposes of directing the Collateral Agent with respect to any of the
foregoing actions to be taken under or in respect of the Pledge Agreements,
Secured Parties holding 51% or more of the aggregate amount of the sum of (A)
XXII-5
<PAGE>
the aggregate principal amount of the sum of all Loans outstanding, all other
credit facilities utilized (including the stated amount of all letters of
credit and the face amount of all unmatured discounted bankers' acceptances,
if any) and all unused commitments under the Credit Agreements, and (B) the
aggregate outstanding principal amount of the Senior Notes; provided that, if
the Obligations (such term being used herein as defined in the Credit
Agreements) and the Senior Note Obligations have been paid in full and all
commitments under the Credit Agreements have been cancelled or terminated,
"Requisite Obligees" shall mean Secured Parties holding 51% or more of 20% of
the notional amount under all Interest Rate Agreements and Currency Agreements
or, if an Interest Rate Agreement or Currency Agreement has been terminated in
accordance with its terms, the amount then due and payable (exclusive of
expenses and similar payments but including any early termination payments
then due) under such Interest Rate Agreement or Currency Agreement, as the
case may be; provided, that if the Collateral Agent requests instruction as to
any such action to be taken at the direction of Requisite Obligees from any of
the Senior Note Trustees (on behalf of the holders of the Senior Notes for
which such Senior Note Trustee serves as trustee) and such Senior Note Trustee
declines or otherwise fails to give directions to the Collateral Agent within
45 days, the applicable Senior Note Obligations shall not be counted or
otherwise deemed to be outstanding by Collateral Agent solely for purposes of
determining the action to be directed by Requisite Obligees or whether the
consent of Requisite Obligees has been obtained; and (ii) for purposes of
directing the Collateral Agent with respect to any of the foregoing actions to
be taken under or in respect of the Guaranties (but excluding any such actions
to be taken under or in respect of the Pledge Agreement), Requisite Lenders
under the Credit Agreement, or, if the Obligations have been paid in full and
all commitments under the Credit Agreements have been cancelled or terminated,
Guarantied Parties holding 51% or more of 20% of the notional amount under all
Interest Rate Agreements and Currency Agreements or, if an Interest Rate
Agreement or Currency Agreement has been terminated in accordance with its
terms, the amount then due and payable (exclusive of expenses and similar
payments but including any early termination payments then due) under such
Interest Rate Agreement or Currency Agreement, as the case may be. The
Collateral Agent shall not be required to take any action that is in its
opinion contrary to law or to the terms of this Agreement or any or all of the
Guaranties or the Pledge Agreements, or which would in its opinion subject it
or any of its officers, employees or directors to liability, and the
Collateral Agent shall not be required to take any action under this Agreement
or any or all of the Guaranties or the Pledge Agreements unless and until the
Collateral Agent shall be indemnified to its satisfaction by the Parties
against any and all losses, costs, expenses or liabilities in connection
therewith; provided that any such indemnification required by the Collateral
Agent with respect to any such action under the Guaranties shall be provided
by the Guarantied Parties.
XXII-6
<PAGE>
(b) Each Party executing this Agreement or an acknowledgment
hereto which is entitled to give directions to the Collateral Agent pursuant
to Section 2(a) with respect to the Pledge Agreements or the Guaranties
(collectively, the "Directing Parties") and each Party executing this
Agreement or an acknowledgment hereto which is not entitled to give directions
to the Collateral Agent pursuant to Section 2(a) with respect to the Pledge
Agreements or the Guaranties (collectively, the "Non-Directing Parties")
agrees that the Collateral Agent may act as Requisite Obligees may request
(regardless of whether any individual Directing Party, Non-Directing Party or
any other Secured Party (including the holders of the Senior Notes) agrees,
disagrees or abstains with respect to such request), that the Collateral Agent
shall have no liability for acting in accordance with such request (provided
such action does not conflict with the express terms of this Agreement) and
that no Directing Party, Secured Party or Guarantied Party shall have any
liability to any other Directing Party, Non-Directing Party, Secured Party or
Guarantied Party for any such request. The Collateral Agent shall give prompt
notice to all Parties of actions taken pursuant to the instructions of
Requisite Obligees; provided, however, that the failure to give any such
notice shall not impair the right of the Collateral Agent to take any such
action or the validity or enforceability under this Agreement and the
applicable Pledge Agreement or Guaranty of the action so taken.
(c) The Non-Directing Parties with respect to the Pledge
Agreements and this Agreement agree that the only right of such Non-Directing
Parties under the Pledge Agreements is for the Interest Rate Obligations and
the Currency Obligations to be secured by the Pledged Collateral, in each case
for the period and to the extent (but only to the extent) provided for in the
Pledge Agreements and to receive a share of the proceeds of the Pledged
Collateral, if any, to the extent and at the times provided in Section 12 of
the Pledge Agreements. The Non-Directing Parties with respect to the
Guaranties agree that the only right of such Non-Directing Parties under the
Guaranties is for the Interest Rate Obligations and the Currency Obligations
to be guarantied by the Guaranties for the period and to the extent provided
in the Guaranties and to receive a share of any payments received on account
of the Guaranties as provided in the Guaranties.
(d) The Collateral Agent may at any time request directions from
the Requisite Obligees with respect to the Pledge Agreements or the Guaranties
as to any course of action or other matter relating hereto or to such Pledge
Agreements or Guaranties, as the case may be. Except as otherwise provided in
the Pledge Agreements and the Guaranties, directions given by Requisite
Obligees to the Collateral Agent hereunder shall be binding on all Directing
Parties, Non-Directing Parties, Secured Parties and Guarantied Parties for all
purposes.
(e) Each Directing Party and Non-Directing Party agrees, on
behalf of the Secured Parties and the Guarantied Parties, respectively, not to
take any action whatsoever to enforce any term or provision of the Pledge
XXII-7
<PAGE>
Agreements or the Guaranties or to enforce any of its rights in respect of the
Pledged Collateral, in each case except through the Collateral Agent in
accordance with this Agreement.
SECTION 3. Application of Proceeds of Security, Guaranty
Payments, Etc.
(a) Any and all amounts actually received or held by the
Collateral Agent in connection with the enforcement of the Pledge Agreements
or in connection with any bankruptcy proceeding, including the proceeds of any
collection, sale or other disposition of the Pledged Collateral or any portion
thereof, or any cash or Cash Equivalents held as Pledged Collateral
(collectively, "Proceeds"), shall be applied promptly by the Collateral Agent
as provided for in Section 12 of the Pledge Agreements. Any and all amounts
(other than Proceeds) actually received or held by the Collateral Agent in
connection with the enforcement of the Guaranties (collectively, "Guaranty
Payments") shall be applied promptly by the Collateral Agent as provided in
the Guaranties. Until Proceeds and Guaranty Payments are so applied, the
Collateral Agent shall hold such Proceeds and Guaranty Payments in its custody
in accordance with its regular procedures for handling deposited funds.
(b) Any Proceeds received by the Collateral Agent relating to the
Secured Obligations shall be applied so that each Secured Party with respect
thereto shall receive payment of the same proportionate amount of all such
Secured Obligations (after giving effect to any amounts not distributable due
to any applicable withholding tax requirements). Any Guaranty Payments
received by the Collateral Agent relating to the Obligations, the Interest
Rate Obligations or the Currency Obligations (collectively, the "Guarantied
Obligations") shall be applied so that each Guarantied Party with respect
thereto shall receive payment of the same proportionate amount of all such
Guarantied Obligations (after giving effect to any amounts not distributable
due to any applicable withholding tax requirements). For purposes of
determining the proportionate amounts of all Secured Obligations or Guarantied
Obligations at the time any Proceeds or Guaranty Payments are to be
distributed under this Section 3, the amount of the outstanding Obligations
and Senior Note Obligations, respectively, shall be deemed to be the principal
and interest or face amount, as applicable, then outstanding under the Credit
Agreements and the Senior Note Indentures, and the amount of the outstanding
Interest Rate Obligations and Currency Obligations of any Interest Rate
Exchanger or Currency Exchanger shall be deemed to be the amount of the
Company's or the applicable Subsidiary Borrower's obligations then outstanding
(exclusive of expenses or similar liabilities but including any early
termination payments then due) under the applicable Interest Rate Agreements
or Currency Agreements (it being understood that the amount of Secured
Obligations shall not include the amount of any guaranty of indebtedness to
the extent that the amount of such indebtedness is otherwise included in the
amount of such Secured Obligations).
XXII-8
<PAGE>
(c) Payments by the Collateral Agent to the Lenders in respect of
the Obligations shall be made to the Credit Agents for distribution to the
Lenders in accordance with the Credit Agreements; any payments in respect of
Interest Rate Obligations and Currency Obligations shall be made as directed
by the Lender to which such Interest Rate Obligations or Currency Obligations
are owed; and any payments in respect of any Senior Note Obligations shall be
paid to the Senior Note Trustees for the benefit of the holders of such Senior
Note Obligations.
(d) For purposes of determining the amount of any distribution
to be made in any currency (the "Payment Currency") with respect to Secured
Obligations or Guarantied Obligations at the time any Proceeds or Guaranty
Payments are to be distributed under this Section 3, the amount of any
Guarantied Obligation or Secured Obligation denominated in a currency other
than the Payment Currency shall be measured at the equivalent amount thereof
in the Payment Currency as determined by the Collateral Agent on the basis of
the Spot Rate for the purchase of the Payment Currency with such other
currency on the Business Day immediately preceding the date of such
distribution.
SECTION 4. Information. In the event the Collateral Agent
proceeds to foreclose upon, collect, sell or otherwise dispose of or take any
other action with respect to the Pledged Collateral, or any portion thereof,
or to enforce any Pledge Agreement or the Guaranties, or proposes to take any
other action pursuant to this Agreement or requests instructions from the
Secured Parties or Guarantied Parties as provided herein, upon the request of
the Collateral Agent, each of the following Parties agrees to promptly provide
to the Collateral Agent the information described below:
(a) The Current Credit Agent on behalf of the Current Lenders
agrees to promptly from time to time notify the Collateral Agent of (i) the
aggregate amount of principal of and interest on the Obligations as at such
date as the Collateral Agent may specify, (ii) the current Revolving Loan
Commitment of each Current Lender under the Current Credit Agreement, and
(iii) any payment received by the Current Credit Agent to be applied to the
principal of or interest on the Obligations. The Current Credit Agent shall
certify as to such amounts and the Collateral Agent shall be entitled to rely
conclusively upon such certification.
(b) Each Lender party to an Interest Rate Agreement benefited by
this Agreement, by signing an acknowledgment to this Agreement, agrees to
promptly from time to time notify the Collateral Agent of (i) the notional
amount under such Interest Rate Agreement and the amount payable by the
Company or the applicable Subsidiary Borrower upon early termination of such
Interest Rate Agreement at the date of termination as fixed by such Interest
Rate Agreement and (ii) any payment received by such Lender to be applied to
amounts due upon early termination of such Interest Rate Agreement. Such
XXII-9
<PAGE>
Lender shall certify as to such amounts and the Collateral Agent shall be
entitled to rely conclusively upon such certification.
(c) Each Lender party to a Currency Agreement benefited by this
Agreement, by signing an acknowledgment to this Agreement, agrees to promptly
from time to time notify the Collateral Agent of (i) the notional amount under
such Currency Agreement and the amount payable by the Company or the
applicable Subsidiary Borrower upon early termination of such Currency
Agreement at the date of termination as fixed by such Currency Agreement and
(ii) any payment received by such Lender to be applied to amounts due upon
early termination of such Currency Agreement. Such Lender shall certify as to
such amounts and the Collateral Agent shall be entitled to rely conclusively
upon such certification.
(d) The Senior Note Trustees agree to promptly from time to time
notify the Collateral Agent of the outstanding principal amount of the Senior
Notes and the amount of accrued but unpaid interest thereon, at such date as
the Collateral Agent may specify. The Senior Note Trustees shall, or shall
cause the registrars for the Senior Notes to, certify as to such amount as
reflected in the register maintained for such purpose by the Senior Note
Trustees or such registrars, as the case may be, and the Collateral Agent
shall be entitled to rely conclusively upon such certification.
(e) Each Successor Lender entering into a Successor Credit
Agreement, or the Successor Credit Agent thereunder, by signing an
acknowledgment to this Agreement, agrees that such Successor Lender or
Successor Credit Agent, as the case may be, will promptly from time to time
notify the Collateral Agent of (i) the aggregate amount of principal of and
interest on the Obligations outstanding to such Successor Lender in the case
of such Successor Lender, or the aggregate amount of principal of and interest
on all of the Obligations in the case of such Successor Credit Agent, as at
such date as the Collateral Agent may specify, (ii) the current commitments of
such Successor Lender under such Successor Credit Agreement in the case of
such Successor Lender, or all of the current commitments of all Successor
Lenders under such Successor Credit Agreement in the case of such Successor
Credit Agent, and (iii) any payment received by the Successor Lender or
Successor Credit Agent, as the case may be, to be applied to the principal of
or interest on the Obligations. Such Successor Lender and Successor Credit
Agent shall certify as to such amounts and the Collateral Agent shall be
entitled to rely conclusively upon such certification.
SECTION 5. Successor Credit Agreements; Interest Rate Agreements;
Currency Agreements.
(a) Each lender becoming party to a Successor Credit Agreement,
or the agent for such lender, may cause the Obligations thereunder to be
secured by the Pledge Agreements and guarantied by the Guaranties by executing
XXII-10
<PAGE>
an acknowledgment in the form contained on the signature pages hereof, and by
delivering such executed acknowledgment (which must be acknowledged by the
Pledgors and the Subsidiary Guarantors) to the Collateral Agent, by which each
such lender or such agent for such lender, as the case may be, agrees to be
bound by the terms of this Agreement.
(b) Each Lender may cause Interest Rate Obligations and Currency
Obligations to be secured by the Pledge Agreements and guarantied under the
Guaranties by executing an acknowledgment in the form contained on the
signature pages hereof, and by delivering such executed acknowledgment (which
must be acknowledged by the Pledgors and the Subsidiary Guarantors) to the
Collateral Agent, by which such Lender agrees to be bound by the terms of this
Agreement.
SECTION 6. Disclaimers, Indemnity, Etc.
(a) The Collateral Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement, the Pledge Agreements or
the Guaranties, and the Collateral Agent shall not by reason of this
Agreement, the Pledge Agreements or the Guaranties be a trustee for any
Secured Party or Guarantied Party or have any other fiduciary obligation to
any Secured Party or Guarantied Party (including any obligation under the
Trust Indenture Act of 1939, as amended). The Collateral Agent shall not be
responsible to any Secured Party or Guarantied Party for any recitals,
statements, representations or warranties contained in this Agreement, the
Credit Agreements, the notes evidencing Indebtedness under the Credit
Agreements, the Interest Rate Agreements, the Currency Agreements, the Senior
Note Indentures, the Senior Notes, the Pledge Agreements or the Guaranties
(collectively, the "Financing Agreements") or in any certificate or other
document referred to or provided for in, or received by any of them under, any
of the Financing Agreements, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of any of the Financing Agreements
or any other document referred to or provided for therein or any Lien under
the Pledge Agreements or the perfection or priority of any such Lien or for
any failure by any Loan Party to perform any of its respective obligations
under any of the Financing Agreements. The Collateral Agent may employ agents
and attorneys-in-fact and shall not be responsible, except as to money or
securities received by it or its authorized agents, for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. Neither the Collateral Agent nor any of its directors,
officers, employees or agents shall be liable or responsible for any action
taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful misconduct.
(b) The Collateral Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by telex,
telecopy, telegram or cable) believed by it to be genuine and correct and to
have been signed or sent by or on behalf of the proper Person or Persons, and
XXII-11
<PAGE>
upon advice and statements of legal counsel (including counsel to the Company
or any Subsidiary of the Company), independent accountants and other experts
selected by the Collateral Agent. As to any matters not expressly provided
for by this Agreement, the Collateral Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder in accordance
with instructions signed by Requisite Obligees, and such instructions of
Requisite Obligees, and any action taken or failure to act pursuant thereto,
shall be binding on all of the Secured Parties and Guarantied Parties.
(c) Subject to the proviso contained in the last sentence of
Section 2(a), each Credit Agent on behalf of the Lenders for which it serves
as agent, each Interest Rate Exchanger and each Currency Exchanger
(collectively, the "Paying Indemnifying Parties") agrees that the Secured
Parties represented by it shall indemnify the Collateral Agent, ratably in
accordance with the amount of the obligations held by such Secured Parties
secured by the Pledge Agreements, to the extent neither reimbursed by the
Company or any Pledgor under any Pledge Agreement nor reimbursed out of any
Proceeds pursuant to clause First of Section 12 of any Pledge Agreement, for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the
Collateral Agent in any way relating to or arising out of any of the Financing
Agreements or any other documents contemplated by or referred to therein or
the transactions contemplated thereby or the enforcement of any of the terms
of any thereof; provided, however, that no such Party or Secured Party shall
be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Collateral Agent. Each of the Senior
Note Trustees (on behalf of the holders of the Senior Note Obligations on
behalf of which it is entering into this Agreement) agrees that, as provided
in Section 12 of the Company Pledge Agreement or Section 12 of the Subsidiary
Pledge Agreement, deductions from distributions otherwise due such holders of
Senior Note Obligations will be made so that such holders of Senior Note
Obligations shall share with the Paying Indemnifying Parties, ratably in
accordance with the amount (without duplication) of such Senior Note
Obligations secured by the Pledge Agreements, the payment of the amounts due
under the preceding sentence.
(d) Except for action expressly required of the Collateral Agent
hereunder, the Collateral Agent shall, notwithstanding anything to the
contrary in Section 6(c) hereof, in all cases be fully justified in failing or
refusing to act hereunder unless it shall be further indemnified to its
satisfaction by the Parties against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action.
(e) The Collateral Agent may deem and treat the payee of any
promissory note or other evidence of indebtedness relating to the Secured
Obligations or Guarantied Obligations as the owner thereof for all purposes
XXII-12
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hereof unless and until a written notice of the assignment or transfer
thereof, signed by such payee and in form satisfactory to the Collateral
Agent, shall have been filed with the Collateral Agent. Any request,
authority or consent of any Person who at the time of making such request or
giving such authority or consent is the holder of any such note or other
evidence of indebtedness shall be conclusive and binding on any subsequent
holder, transferee or assignee of such note or other evidence of indebtedness
and of any note or notes or other evidences of indebtedness issued in exchange
therefor.
(f) Except as expressly provided herein and in the Pledge
Agreements, the Collateral Agent shall have no duty to take any affirmative
steps with respect to the collection of amounts payable in respect of the
Pledged Collateral. The Collateral Agent shall incur no liability to any
Secured Party as a result of any sale of any Pledged Collateral at any private
sale.
(g) (i) Until such time as the Obligations, the Interest Rate
Obligations and the Currency Obligations secured by the Pledged Collateral
shall have been paid in full, the Collateral Agent may resign at any time by
giving at least 30 days' notice thereof to the Parties (such resignation to
take effect as hereinafter provided) and the Collateral Agent may be removed
as Collateral Agent at any time by Requisite Obligees. In the event of such
resignation or removal of the Collateral Agent, Requisite Obligees shall
thereupon have the right to appoint a successor Collateral Agent. If no
successor Collateral Agent shall have been so appointed by Requisite Obligees
and shall have accepted such appointment within 30 days after the notice of
the intent of the Collateral Agent to resign, then the retiring Collateral
Agent may, on behalf of the other Parties, appoint a successor Collateral
Agent. Any successor Collateral Agent appointed pursuant to this clause (i)
(A) shall be a commercial bank organized under the laws of the United States
of America or any state thereof and having a combined capital and surplus of
at least $500,000,000 and (B) shall be approved by Company, which approval
shall not be unreasonably withheld or delayed.
(ii) After the payment in full of the Obligations, the Interest
Rate Obligations and the Currency Obligations secured by the Pledged
Collateral and until such time as the Senior Note Obligations are paid in
full, the Collateral Agent may resign at any time by giving at least 30 days'
notice thereof to the Senior Note Trustees (such resignation to take effect as
hereinafter provided) and the Collateral Agent may be removed as Collateral
Agent at any time by the appropriate Requisite Obligees. In the event of any
such resignation or removal of the Collateral Agent, such Requisite Obligees
shall thereupon have the right to appoint a successor Collateral Agent. If no
successor Collateral Agent shall have been so appointed within 30 days after
the notice of the intent of the Collateral Agent to resign, then the retiring
Collateral Agent may, on behalf of the Requisite Obligees, appoint a successor
Collateral Agent. Any successor Collateral Agent appointed pursuant to this
clause (ii) (A) shall be a commercial bank organized under the laws of the
United States of America or any state thereof and having a combined capital
XXII-13
<PAGE>
and surplus of at least $500,000,000 and (B) shall be approved by Company,
which approval shall not be unreasonably withheld or delayed.
(iii) Upon the acceptance of any appointment as Collateral Agent
hereunder by a successor Collateral Agent, such successor Collateral Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Collateral Agent, and the
retiring or removed Collateral Agent shall thereupon be discharged from its
duties and obligations hereunder. After any retiring or removed Collateral
Agent's resignation or removal hereunder as Collateral Agent, the provisions
of this Section 6 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Collateral Agent.
(h) In no event shall Collateral Agent or any Party, Secured
Party or Guarantied Party be liable or responsible for any funds or
investments of funds held by Company.
SECTION 7. Miscellaneous.
(a) All notices and other communications provided for herein
shall be in writing and may be personally served, telecopied, telexed or sent
by United States mail and shall be deemed to have been given when delivered in
person, upon receipt of telecopy or telex or four Business Days after deposit
in the United States mail, registered or certified, with postage prepaid and
properly addressed. For the purposes hereof, the addresses of the parties
hereto (until notice of a change thereof is delivered as provided in this
Section 7(a)) shall be as set forth under each party's name on the signature
pages (including acknowledgments) hereof.
(b) This Agreement may be modified or waived only by an
instrument or instruments in writing signed by each Party; provided, however
that, notwithstanding the foregoing, the written consent of the Senior Note
Trustees shall not be required with respect to amendments, modifications or
waivers solely to permit the incurrence of additional Indebtedness secured by
the Pledged Collateral and entitled to the benefits of the Company Pledge
Agreement or the Subsidiary Pledge Agreement insofar as the foregoing is not
prohibited by the Senior Note Indentures, including without limitation any
amendments, modifications or waivers for the purpose of adding appropriate
references to additional parties in, and according such parties the benefits
of, any of the provisions hereof in connection with the incurrence of such
Indebtedness (provided, however, that no amendment, modification or waiver
described in this first proviso to this Section 7(b) shall (1) reduce or
otherwise adversely affect the right of the Senior Note Trustees to request or
direct the Collateral Agent to take action on the terms set forth in Section
2(a), or (2) subordinate the Senior Note Obligations or cause the holders of
the Senior Notes to hold a security interest junior to the security interest
held by any of the other Secured Parties, or (3) modify or otherwise alter in
XXII-14
<PAGE>
any manner adverse to the holders of the Senior Notes the right of such
holders to receive a proportionate share of Proceeds as provided in Section
3); and provided further, however that, notwithstanding the foregoing, this
Agreement may be amended from time to time by an instrument or instruments in
writing signed by the Current Credit Agent and the Collateral Agent with the
written acknowledgment of the Company but without the signature or written
consent of any other Party for the purpose of providing, with respect to any
Indebtedness proposed to be issued by the Company the proceeds of which may be
used to repay Loans, that, notwithstanding the fact that any agreement or
instrument related to such Indebtedness might otherwise be deemed to be a
Successor Credit Agreement, in no event shall any such agreement or instrument
be deemed to be a Successor Credit Agreement.
(c) This Agreement shall be binding upon and inure to the benefit
of the Collateral Agent, each other Party, each Secured Party and each
Guarantied Party and their respective successors and assigns.
(d) This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument, and
any of the parties hereto may execute this Agreement by signing any such
counterpart.
(e) This Agreement shall become effective as to the Current
Lenders, the Current Credit Agent, the Senior Note Trustees and the holders of
the Senior Notes, and the Collateral Agent upon the execution of this
Agreement by the Current Credit Agent and the Senior Note Trustees and the
Collateral Agent and the delivery of each such Person's counterparts to the
Collateral Agent and shall become effective as to each Interest Rate Exchanger
and each Currency Exchanger, respectively, upon the execution of an
acknowledgment by any such Person or its representative as contemplated by
Section 5 and delivery of such executed acknowledgment (which shall also be
acknowledged by the applicable Pledgors and Subsidiary Guarantors) to the
Collateral Agent.
(f) Each of the Senior Note Trustees, by its execution of this
Agreement, consents to and approves the execution and delivery of the Company
Pledge Agreement and the Subsidiary Pledge Agreement.
(g) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(h) Anything contained in this Agreement to the contrary
notwithstanding, no Senior Note Trustee shall be a Party from and after such
time as all of the Senior Notes issued under the Senior Note Indenture
pursuant to which such Senior Note Trustee serves as trustee, or the
instruments representing the same, shall have ceased to be outstanding by
XXII-15
<PAGE>
virtue of the payment thereof or the cancellation thereof or delivery for
cancellation thereof in accordance with the terms of such Senior Note
Indenture.
[Remainder of page intentionally left blank]
XXII-16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
BANKERS TRUST COMPANY,
as Administrative Agent for the Current Lenders
By: _______________________________
Title: ____________________________
Notice Address:
Bankers Trust Company
130 Liberty Street, 14th Floor
New York, New York 10006
Attention: Mary Jo Jolly
With a copy to:
Bankers Trust Company
300 South Grand Avenue, 41st Floor
Los Angeles, CA 90071
Attention: Robert G. Kolb
XXII-S-1
<PAGE>
THE BANK OF NEW YORK,
as trustee under [Name of Senior Note Indenture]
By: _______________________________
Title: ____________________________
Notice Address:
The Bank of New York
One Wall Street, 22nd Floor
New York, NY 10286
Attention: Corporate Trust
Trustee Administration
XXII-S-2
<PAGE>
[NAME OF SENIOR NOTE TRUSTEE],
as trustee under [Name of Senior Note Indenture]
By: _______________________________
Title: ____________________________
Notice Address:
XXII-S-3
<PAGE>
BANKERS TRUST COMPANY,
as Collateral Agent
By: _______________________________
Title: ____________________________
Notice Address:
Bankers Trust Company
130 Liberty Street, 14th Floor
New York, New York 10006
Attention: Mary Jo Jolly
With a copy to:
Bankers Trust Company
300 South Grand Avenue, 41st Floor
Los Angeles, California 90071
Attention: Robert G. Kolb
XXII-S-4
<PAGE>
ACKNOWLEDGMENT
Reference is hereby made to the Intercreditor Agreement dated as
of ____________, 1999, as amended to the date hereof (as so amended, this
"Agreement") among Bankers Trust Company, as Administrative Agent for the
lenders party to the Current Credit Agreement, the Senior Note Trustees, as
trustee for the holders of the Senior Notes, and Bankers Trust Company, as
Collateral Agent, in which this Acknowledgment is incorporated. The
undersigned Secured Party and Guarantied Party has entered into the Interest
Rate Agreement described below with [the Company] [Name of Subsidiary
Borrower] pursuant to which Interest Rate Obligations thereunder are to be
secured by certain of the Pledge Agreements and guarantied under certain of
the Guaranties. The undersigned Secured Party and Guarantied Party
acknowledges the terms of this Agreement and agrees to be bound hereby.
The Interest Rate Agreement described above is [Insert description
of Interest Rate Agreement.]
SECURED PARTY AND GUARANTIED PARTY:
[Insert Name of Lender]
By ______________________________
Date __________________________
Notice Address:
______________________________
______________________________
______________________________
Acknowledged and Agreed:
_________________________________
[Pledgors]
By ______________________________
Date __________________________
XXII-S-5
<PAGE>
_________________________________
[Subsidiary Guarantors]
By ______________________________
Date __________________________
XXII-S-6
<PAGE>
ACKNOWLEDGMENT
Reference is hereby made to the Intercreditor Agreement dated as
of ____________, 1999 as amended to the date hereof (as so amended, this
"Agreement") among Bankers Trust Company, as Administrative Agent for the
lenders party to the Current Credit Agreement, the Senior Note Trustees, as
trustee for the holders of the Senior Notes, and Bankers Trust Company, as
Collateral Agent, in which this Acknowledgment is incorporated. The
undersigned Secured Party and Guarantied Party has entered into the Currency
Agreement described below with [the Company] [Name of Subsidiary Borrower]
pursuant to which Currency Obligations thereunder are to be secured by certain
of the Pledge Agreements and guarantied under certain of the Guaranties. The
undersigned Secured Party and Guarantied Party acknowledges the terms of this
Agreement and agrees to be bound hereby.
The Currency Agreement referred to above is [Insert description of
Currency Agreement.]
SECURED PARTY AND GUARANTIED PARTY:
[Insert Name of Lender]
By ______________________________
Date __________________________
Notice Address:
______________________________
______________________________
______________________________
Acknowledged and Agreed:
________________________________
[Pledgors]
By ______________________________
Date __________________________
XXII-S-7
<PAGE>
_________________________________
[Subsidiary Guarantors]
By ______________________________
Date __________________________
XXII-S-8
<PAGE>
ACKNOWLEDGMENT
Reference is hereby made to the Intercreditor Agreement dated as
of ____________, 1999 as amended to the date hereof (as so amended, this
"Agreement") among Bankers Trust Company, as Administrative Agent for the
lenders party to the Current Credit Agreement, the Senior Note Trustees, as
trustee for the holders of the Senior Notes, and Bankers Trust Company, as
Collateral Agent, in which this Acknowledgment is incorporated. The
undersigned Secured Party and Guarantied Party has entered into a Successor
Credit Agreement with the Company pursuant to which Indebtedness thereunder is
to be secured by the Pledge Agreements and guarantied under the Guaranties.
The undersigned Secured Party and Guarantied Party acknowledges the terms of
this Agreement and agrees to be bound hereby.
SECURED PARTY AND GUARANTIED PARTY:
[Insert Name of Lender or
Credit Agent]
By ______________________________
Date __________________________
Notice Address:
______________________________
______________________________
______________________________
Acknowledged and Agreed:
_________________________________
[Pledgors]
By ______________________________
Date __________________________
XXII-S-9
<PAGE>
_________________________________
[Subsidiary Guarantors]
By ______________________________
Date __________________________
XXII-S-10
<PAGE>
EACH LOAN PARTY, by its execution of this Agreement in the space
provided below, HEREBY ACKNOWLEDGES AND AGREES to the foregoing provisions of
this Agreement including, without limitation, Section 3 hereof.
[NAMES OF BORROWERS AND SUBSIDIARY GUARANTORS]
By: ___________________________________
Title: ________________________________
XXII-S-11
<PAGE>
ANNEX 1
to
INTERCREDITOR AGREEMENT
INDEX OF TERMS
Agreement................................Introduction
Bankers..................................Introduction
Collateral Agent.........................Section 1
Company..................................Recital 1
Company Guaranty.........................Recital 6
Company Pledge Agreement.................Recital 5
Credit Agents............................Recital 2
Credit Agreements........................Recital 2
Currency Exchangers......................Recital 3
Currency Obligations.....................Recital 3
Current Credit Agent.....................Introduction
Current Credit Agreement.................Recital 1
Current Lenders..........................Introduction
Directing Parties........................Section 2(b)
Financing Agreements.....................Section 6(a)
Guarantied Obligations...................Section 3(b)
Guarantied Parties.......................Section 1
Guaranties...............................Recital 6
Guaranty Payments........................Section 3(a)
Interest Rate Exchangers.................Recital 3
Interest Rate Obligations................Recital 3
Lenders..................................Recital 2
Loan Parties.............................Recital 9
Non-Directing Parties....................Section 2(b)
Parties..................................Recital 9
Paying Indemnifying Parties..............Section 6(c)
Pledge Agreements........................Recital 8
Pledged Collateral.......................Recital 8
Pledgors.................................Section 1
Proceeds.................................Section 3(a)
Requisite Obligees.......................Section 2(a)
Secured Parties..........................Recital 9
Senior Note Indentures...................Recital 4
Senior Note Obligations..................Recital 4
Senior Note Trustees.....................Introduction
Senior Notes.............................Recital 4
Subsidiary Currency Obligations..........Recital 6
ANNEX 1-1
<PAGE>
Subsidiary Borrower......................Credit Agreement
Subsidiary Guarantor.....................Credit Agreement
Subsidiary Guaranty......................Recital 3
Subsidiary Interest Rate Obligations.....Recital 6
Subsidiary Pledge Agreement..............Recital 7
Successor Credit Agents..................Recital 2
Successor Credit Agreements..............Recital 2
Successor Lenders........................Recital 2
ANNEX 1-2
<PAGE>
EXHIBIT XXIII
[FORM OF INCREASED COMMITMENT ACCEPTANCE]
INCREASED COMMITMENT ACCEPTANCE
_____________, [199_] [200_]
Pursuant to that certain Credit Agreement dated as of April 30,
1998 (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, United Glass Limited, a
corporation organized under the laws of England and Wales, United Glass Group
Limited, a corporation organized under the laws of England and Wales, Owens-
Illinois (Australia) Pty Limited, a corporation organized under the laws of
Australia, and OI Italia S.r.l., a limited liability company organized under
the laws of Italy (each a "Borrower"), the Lenders, Managing Agents, Co-
Agents, Lead Managers and Arrangers named therein, The Bank of Nova Scotia and
NationsBank, N.A., as Documentation Agents, Bank of America National Trust and
Savings Association, as Syndication Agent, the Offshore Administrative Agents
named therein, and Bankers Trust Company, as Administrative Agent
("Administrative Agent"), the undersigned Lender hereby gives notice of the
following and makes the following agreements and undertakings pursuant to
subsection 2.1C(vi) of the Credit Agreement:
(1) The undersigned Lender hereby irrevocably commits to an increase
in its [UK/Australian/Italian] Loan Commitment of ____________ .
(2) The undersigned Lender (i) confirms that it has received such
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Increased Commitment Acceptance (this
"Acceptance"); (ii) agrees that it has made, independently and without
reliance upon Administrative Agent, the [UK/Australian/Italian] Administrative
Agent or any other Lender and, based on such documents and information as it
shall deem appropriate at the time, shall continue to make, independently and
without reliance upon Administrative Agent, the [UK/Australian/Italian]
Administrative Agent or any other Lender, its own credit decisions in taking
or not taking action under the Credit Agreement; (iii) confirms that it has
acquired the Accepted Increased Commitment (as hereinafter defined) 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 Accepted Increased Commitment or any interests therein
XXIII-1
<PAGE>
shall at all times remain within its exclusive control); and (iv) represents
and warrants that it has full power and authority to enter into this
Acceptance and to perform its obligations hereunder in accordance with the
provisions hereof, that this Acceptance has been duly authorized, executed and
delivered by it, and that this Acceptance constitutes its legal, valid and
binding obligation, enforceable against it 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.
(3) The effective date for this Acceptance shall be the Commitment
Increase Date related to this Acceptance (the "Effective Date"); provided that
this Acceptance has been fully executed and delivered to Administrative Agent
and the [UK/Australian/Italian] Administrative Agent on or prior to such
Commitment Increase Date.
(4) As of the Effective Date, the undersigned Lender's
[UK/Australian/Italian] Loan Commitment shall be ____________ (the "Accepted
Increased Commitment").
(5) From and after the Effective Date, Administrative Agent and the
[UK/Australian/Italian] Administrative Agent shall make all payments under the
Credit Agreement in respect of the Accepted Increased Commitment provided for
in this Acceptance (including, without limitation, all payments of principal,
interest and facility fees with respect thereto) to the undersigned Lender.
(6) This Acceptance 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 law principles.
[NAME OF LENDER]
By: _______________________
Name:
Title:
XXIII-2
<PAGE>
EXHIBIT XXIV
[FORM OF NEW COMMITMENT ACCEPTANCE]
NEW COMMITMENT ACCEPTANCE
_____________, [199_] [200_]
Pursuant to that certain Credit Agreement dated as of April 30,
1998 (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, United Glass Limited, a
corporation organized under the laws of England and Wales, United Glass Group
Limited, a corporation organized under the laws of England and Wales, Owens-
Illinois (Australia) Pty Limited, a corporation organized under the laws of
Australia, and OI Italia S.r.l., a limited liability company organized under
the laws of Italy (each a "Borrower"), the Lenders, Managing Agents, Co-
Agents, Lead Managers and Arrangers named therein, The Bank of Nova Scotia and
NationsBank, N.A., as Documentation Agents, Bank of America National Trust and
Savings Association, as Syndication Agent, the Offshore Administrative Agents
named therein, and Bankers Trust Company, as Administrative Agent
("Administrative Agent"), the undersigned Lender hereby gives notice of the
following and makes the following agreements and undertakings pursuant to
subsection 2.1C(vi) of the Credit Agreement:
(1) The undersigned [NAME OF NEW LENDER] (the "New Lender") represents
that it is a Lender with Revolving Loan Exposure under the Credit Agreement
and agrees (a) to have the rights and perform the obligations of a
[UK/Australian/Italian] Lender under the Credit Agreement and any other Loan
Documents, and (b) to be bound in all respects as a [UK/Australian/Italian]
Lender by the terms of the Credit Agreement and any other Loan Documents.
(2) The New Lender hereby agrees to a [UK/Australian/Italian] Loan
Commitment of ___________ (the "New Commitment").
(3) The New Lender (i) confirms that it has received a copy of the
Credit Agreement (including all Exhibits and Schedules thereto), together with
copies of the financial statements referred in subsection 4.3 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this New Commitment Acceptance
(this "Acceptance"); (ii) agrees that it has made, independently and without
reliance upon Administrative Agent, the [UK/Australian/Italian] Administrative
Agent or any other Lender and, based on such documents and information as it
shall deem appropriate at the time, shall continue to make, independently and
XXIV-1
<PAGE>
without reliance upon Administrative Agent, the [UK/Australian/Italian]
Administrative Agent or any other Lender, its own credit decisions in taking
or not taking action under the Credit Agreement; (iii) agrees that neither
Administrative Agent nor the [UK/Australian/Italian] Administrative Agent nor
any other Lender shall have any responsibility with respect to the accuracy or
the completeness of any information provided to it; (iv) confirms that it has
experience and expertise in the making of loans such as the
[UK/Australian/Italian] Loans; (v) confirms that it has acquired the New
Commitment 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 New Commitment or any interests therein
shall at all times remain within its exclusive control); (vi) appoints and
authorizes [UK/Australian/Italian] Administrative Agent to take such action on
its behalf and to exercise such powers under the Credit Agreement as are
delegated to [UK/Australian/Italian] Administrative Agent, by the terms
thereof, together with such powers as are reasonably incidental thereto; (vii)
represents and warrants that it has full power and authority to enter into
this Acceptance and to perform its obligations hereunder in accordance with
the provisions hereof, that this Acceptance has been duly authorized, executed
and delivered by it, and that this Acceptance constitutes its legal, valid and
binding obligation, enforceable against it 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; (viii) agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it as a
[UK/Australian/Italian] Lender; [and] (ix) specifies as its initial notice
address for purposes of subsection 9.10 of the Credit Agreement the addresses
set forth beneath its name on the signature page(s) hereof[; and (x) in the
event that it is a [Non-[Australian/Italian]] [non-UK Qualifying] Lender [(as
defined in subsection 2.7C(iv) of the Credit Agreement)], confirms that it has
delivered to the relevant Offshore Administrative Agent such forms,
certificates or other evidence with respect to income tax withholding matters
as it may be required to deliver to the relevant Offshore Administrative Agent
pursuant to subsection 2.7C(iv) of the Credit Agreement]. 1
(4) The effective date for this Acceptance shall be the Commitment
Increase Date related to this Acceptance (the "Effective Date"); provided that
this Acceptance has been fully executed and delivered to Administrative Agent
and the [UK/Australian/Italian] Administrative Agent and consented to by
Administrative Agent, the [UK/Australian/Italian] Administrative Agent and the
applicable Borrower on or prior to such Commitment Increase Date.
- ----------------------------------
1 If the New Lender is organized under the law of a jurisdiction other than
that of the applicable Subsidiary Borrower.
XXIV-2
<PAGE>
(5) As of the Effective Date, the New Lender shall have a
[UK/Australian/Italian] Loan Commitment equal to the New Commitment and, to
the extent provided in this Acceptance, have the rights and obligations of a
[UK/Australian/Italian] Lender thereunder.
(6) From and after the Effective Date, Administrative Agent and the
[UK/Australian/Italian] Administrative Agent shall make all payments under the
Credit Agreement in respect of the New Commitment provided for in this
Acceptance (including, without limitation, all payments of principal, interest
and facility fees with respect thereto) to the New Lender.
(7) This Acceptance 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 law principles.
XXIV-3
<PAGE>
(8) This Acceptance may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures were
upon the same instrument.
NEW LENDER:
[NAME OF NEW LENDER]
By: ________________________
Name:
Title:
Notice Address:
This Acceptance is hereby consented to by Administrative Agent, the
undersigned Offshore Administrative Agent and the undersigned Borrower as of
the date set forth above.
BANKERS TRUST COMPANY,
as Administrative Agent
By: ________________________________
Name:
Title:
[NAME OF OFFSHORE ADMINISTRATIVE AGENT],
as [UK/Australian/Italian] Administrative
Agent
By: ________________________________
Name:
Title:
XXIV-4
<PAGE>
[NAME OF APPLICABLE BORROWER]
By: ________________________________
Name:
Title:
XXIV-5
<PAGE>
EXHIBIT XXV
[FORM OF]
BORROWING SUBSIDIARY AGREEMENT
This BORROWING SUBSIDIARY AGREEMENT (this "Agreement") is dated as
of _____________, 1998 and entered into among [NAME OF SUBSIDIARY BORROWER], a
corporation organized under the laws of _______________ (the "Subsidiary"),
OWENS-ILLINOIS, INC., a Delaware corporation ("Company"), BANKERS TRUST
COMPANY ("Bankers"), as administrative agent (in such capacity,
"Administrative Agent") for the lenders party to that certain Second Amended
and Restated Credit Agreement dated as of April 30, 1998 (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 Company, United Glass
Group Limited, a corporation organized under the laws of England and Wales,
United Glass Limited, a corporation organized under the laws of England and
Wales, Owens-Illinois (Australia) Pty Limited, a corporation organized under
the laws of Australia, and OI Italia S.r.l., a limited liability company
organized under the laws of Italy (each a "Borrower"), the Lenders, Managing
Agents, Co-Agents, Lead Managers and Arrangers named therein, The Bank of Nova
Scotia and NationsBank, N.A., as Documentation Agents, Bank of America
National Trust and Savings Association, as Syndication Agent, the Offshore
Administrative Agents named therein, and Administrative Agent.
The parties hereto hereby agree as follows:
(1) Pursuant to subsection 9.22 of the Credit Agreement, Company
hereby designates the Subsidiary as an Australian Subsidiary Borrower and a
Subsidiary Borrower under the Credit Agreement.
(2) The Subsidiary hereby confirms that it has received a copy of, and
is fully familiar with, the Credit Agreement. Company and the Subsidiary
hereby enter into this Agreement in order to comply with subsection 9.22 of
the Credit Agreement and does so in consideration of the advances to be made
from time to time under the Credit Agreement to the Subsidiary.
(3) The Subsidiary, with respect to itself, and Company each
represents and warrants that all representations and warranties contained in
the Credit Agreement are true, correct and complete in all material respects
on and as of the date hereof to the same extent as though made on and as of
that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
XXV-1
<PAGE>
(4) As and from the date hereof, the Subsidiary shall be considered,
and deemed to be, for all purposes of the Credit Agreement, a Subsidiary
Borrower under the Credit Agreement as fully as though the Subsidiary had
executed and delivered the Credit Agreement as a "Subsidiary Borrower"
thereunder at the time originally executed and delivered and hereby ratifies
and confirms its obligations under the Credit Agreement, all in accordance
with the terms thereof.
(5) The Subsidiary hereby covenants and agrees with and in favor of
the parties hereto and each of the Agents and Lenders that as of the date
indicated above, it (i) shall be deemed to be an Australian Subsidiary
Borrower under the Credit Agreement to the same extent and with the same
effect as though it were a party thereto and named as an Australian Subsidiary
Borrower therein, (ii) will observe and perform at all times from and after
the date hereof all of the obligations contained in the Credit Agreement on
the part of an Australian Subsidiary Borrower to be observed and performed by
it with respect to any [UK/Australian/Italian] Loans or
[UK/Australian/Italian] Overdraft Amounts or other Obligations as a Subsidiary
Borrower under the terms of the Credit Agreement, and (iii) confirms for
itself all of the representations and warranties of Subsidiary Borrowers under
the Credit Agreement mutatis mutandis with respect to the execution, delivery
and performance of this Agreement (and the Credit Agreement as modified
hereby) by it and the enforceability of its obligations under the Credit
Agreement as modified by this Agreement.
(6) Any notice which may or is required to be given to the Subsidiary
pursuant to the Credit Agreement shall be given in accordance with the terms
thereof. For purposes of the Credit Agreement, the address of the Subsidiary
shall be as set forth under its name on the signature pages hereof.
(7) Each Borrower hereby consents to the modification of the Credit
Agreement effected pursuant hereto. Company hereby confirms that the Company
Guaranty will continue to guaranty, to the fullest extent possible the payment
and performance of all "Guarantied Obligations" (as such term is defined in
the Company Guaranty), including without limitation the payment and
performance of all "Guarantied Obligations" (as such term is defined in the
Company Guaranty) in respect of the obligations of the Subsidiary now or
hereafter existing under or in respect of the Credit Agreement (as modified
hereby) and any Notes issued by the Subsidiary. Without limiting the
generality of the foregoing, Company hereby acknowledges and confirms its
understanding and intent that, upon the effectiveness of this Agreement, and
as a result thereof, the "Guarantied Obligations" (as such term is defined in
the Company Guaranty) include the obligations of the Subsidiary under the
Credit Agreement and any such Notes. Company acknowledges and agrees that the
Company Guaranty shall continue in full force and effect and that all of its
obligations thereunder shall be valid and enforceable and shall not be
impaired or limited by the execution or effectiveness of this Agreement.
Company acknowledges and agrees that (i) Company is not required by the terms
of the Company Guaranty to consent to the modifications to the Note Agreement
XXV-2
<PAGE>
effected pursuant hereto and (ii) nothing in the Company Guaranty shall be
deemed to require the consent of Company to any future amendments to the
Credit Agreement.
(8) Upon execution of this Agreement by Company, the Subsidiary and
Administrative Agent, the Subsidiary shall be a party to the Credit Agreement
and shall be a "Subsidiary Borrower" and a "Borrower" for all purposes
thereof, and the Subsidiary hereby agrees to be bound by all provisions of the
Credit Agreement.
(9) 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 law principles.
(10) This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument, and any
of the parties hereto may execute this Agreement by signing any such
counterpart.
[Remainder of page intentionally left blank.]
XXV-3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
[NAME OF SUBSIDIARY]
By: ________________________________
Title: _____________________________
Notice Address:
XXV-S-1
<PAGE>
OWENS-ILLINOIS, INC.
By: ________________________________
Title: _____________________________
UNITED GLASS GROUP LIMITED
By: ________________________________
Title: _____________________________
UNITED GLASS LIMITED
By: ________________________________
Title: _____________________________
OWENS-ILLINOIS (AUSTRALIA) PTY LIMITED
By: ________________________________
Title: _____________________________
[NAMES OF ANY OTHER SUBSIDIARY BORROWERS]
By: ________________________________
Title: _____________________________
XXV-S-2
<PAGE>
BANKERS TRUST COMPANY,
as Administrative Agent
By: ________________________________
Title: _____________________________
XXV-S-3
<PAGE>
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Australian Administrative Agent
By: ________________________________
Title: _____________________________
XXV-S-4
<PAGE>
SCHEDULE B
EXISTING LIENS
OF
OWENS-ILLINOIS, INC. AND
CONSOLIDATED SUBSIDIARIES
Amount of
Encumbrance
Location Property encumbered ($M)
- ----------------------- ------------------------------- -----------
United Glass Limited Real estate, plant & equipment 9,648
Danville, VA and Tracy,
CA Real estate, plant & equipment 8,630
Commonwealth of PA Equipment 295
City of Erie, PA Equipment 185
(Loan Fund)
Precision Medical Molding Equipment 165
Various capital leases Real estate, plant & equipment 4,203
------
Total Existing Liens 23,126
======
B-1
<PAGE>
SCHEDULE C
INVESTMENTS
OF
OWENS-ILLINOIS, INC. 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
Continental PET Foreign Investments 22,179
------
Total investments and advances 54,479
Other investments
Cross City 423
Industrial Development Board of the City of Montgomery 1,332
Norman Hartzel/Don McCone (Castalia) 858
------
Total Other Investments 2,613
------
Total Investments 57,092
======
C-1
<PAGE>
SCHEDULE D
REPORTING UNITS OF OWENS-ILLINOIS, INC.
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 12,977,900.00 05/01/89 06/16/98 BOA 133809 1/3 090
California
-------------
12,977,900.00 = Bank of America
LOC00014 Aetna Life 1,537,324.00 07/01/87 06/30/98 BTC S-01760 2/3 090
Insurance
LOC00015 NJDEP- 3,149,459.00 03/13/87 03/12/99 BTC S-01120 1/3 090
Bridgeton
LOC00016 NJDEP- 213,285.00 05/24/90 05/24/98 BTC S-07039 1/3 090
OI/Schott
LOC00017 Old Republic 500,000.00 01/31/92 01/31/99 BTC S-08285 1/3 090
Insurance
LOC00018 Ohio Dept. 55,000.00 07/01/94 06/30/98 BTC S-09998 1/3 090
Commerce
LOC00019 OK Workers 2,500,000.00 01/31/91 01/31/99 BTC S-07585 1/3 090
Comp
LOC00020 National 3,659,000.00 11/08/89 09/01/98 BTC S-06176 1/3 090
Union Fire
LOC00021 Peoples Gas 100,000.00 11/18/89 11/18/98 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 12/31/98 BTC S-08333 2/3 090
CA/Amador
LOC00024 CIT Group/ 4,611,589.04 08/14/91 07/31/98 BTC S-07930 1/3 090
Equip
LOC00025 NHW/ 6,000,000.00 11/09/90 11/09/98 BTC S-07378 1/3 090
Hibernia
Bank
LOC00026 NJDEP- 3,124,250.00 03/13/87 03/12/99 BTC S-01121 1/3 090
Glassboro
LOC00027 Industrial 2,975,000.00 08/11/87 06/30/98 BTC S-02026 1/3 090
Comm OH
LOC00028 Liberty 138,890.00 10/06/93 10/06/98 BTC S-09537 1/3/ 090
Mutual SAC 4
LOC00030 Continental 9,712,000.00 06/18/92 06/18/98 BTC S-08571 1/3 090
Casualty
LOC00031 Banc- 14,473,891.00 08/14/91 07/31/98 BTC S-70929 1/3 090
Ireland/
First
LOC00032 NY Workers 2,269,000.00 10/06/89 10/06/98 BTC S-05934 1/3 090
Comp
LOC00033 Liberty 110,244.00 10/30/92 03/31/99 BTC S-08831 1/3/ 090
Mutual SPPI 4
LOC00052 NY Gas Wells 60,000.00 09/09/96 09/09/98 BTC S-11510 1/3 090
LOC00036 Texas 50,000.00 12/31/87 12/31/98 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 12/31/98 BTC S-06578 1/3 301
Insurance
LOC00038 Allstate 534.00 12/31/89 12/31/98 BTC S-06557 1/3 301
Insurance
LOC00039 Paladin, 3,422.37 12/31/89 12/31/98 BTC S-06571 1/3 301
Heartland
LOC00040 Liberty 310.00 12/31/89 12/31/98 BTC S-06555 1/3 301
National
LOC00041 Farmers 1,300.00 12/31/89 12/31/98 BTC S-06563 1/3 301
Alliance
LOC00042 Fremont 2,585.26 12/31/89 12/31/98 BTC S-06556 1/3 301
Reinsurance
LOC00044 Mutual 213,423.97 12/31/89 12/31/98 BTC S-06551 1/3 301
Marine
LOC00045 American 40,390.00 12/31/89 12/31/98 BTC S-06574 1/3 301
Eagle
LOC00056 County Sani- 295,594.34 05/27/97 05/27/98 BTC S-11895 1/3 090
tation LA
--------------
56,865,736.98 = Bankers Trust
LOC00007 Self- 6,000,000.00 10/19/94 09/01/98 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
--------------
77,343,636.98
==============
E-2
<PAGE>
SCHEDULE F
RESERVE ASSET RATIO CALCULATIONS
(1) The additional cost (the "Additional Cost") relative to any
Offshore Loan or overdue amount denominated in Sterling in respect of the
mandatory liquid asset requirements, if any, of the Bank of England, will be,
subject as hereinafter provided, for the Relevant Period (as defined below),
the percentage rate supplied by the relevant Offshore Administrative Agent and
arrived at by applying the following formula:
Additional Cost =BY+L(Y-X)+S(Y-Z)% per annum
-----------------
100-(B+S)
Where:
B = The percentage of the relevant Offshore Administrative Agent's
eligible liabilities then required to be held on a
non-interest-bearing deposit account with the Bank of England
pursuant to the cash ratio requirements of the Bank of England.
Y = The rate at which Sterling deposits are offered by the relevant
Offshore Administrative Agent to lending banks in the London
interbank market at or about 11:00 A.M. on the first day of, and
for a period comparable to the Relevant Period, in relation to such
Loan or overdue amount.
L = The percentage of eligible liabilities which the Bank of England
from time to time requires the relevant Offshore Administrative
Agent to maintain as secured money with members of the Loan
Discount Market Association and/or as secured call money with those
money brokers and gilt-edged market markers recognized by the Bank
of England.
X = The rate at which secured Sterling deposits may be placed by the
relevant Offshore Administrative Agent with members of the London
Discount Market Association and/or as secured call money with money
brokers and gilt-edged market makers at or about 11:00 A.M. on the
first day of, and for a period comparable to, the Relevant Period
in relation to such Loan or overdue amount.
S = The percentage of the relevant Offshore Administrative Agent's
eligible liabilities then required to be placed as a special
deposit with the Bank of England.
Z = The percentage interest rate per annum allowed by the Bank of
England on special deposits.
F-1
<PAGE>
For purposes of this paragraph "eligible liabilities" and "special
deposits" shall bear the meanings ascribed to them from time to time by
the Bank of England or any successor thereto. For purposes of this
Schedule F, the term "Relevant Period" shall mean (i) with respect to
any Offshore Loan denominated in Sterling, the Interest Period of such
Offshore Loan, or, if such Interest Period is longer than three months,
each consecutive period of three months within such Interest Period and
any balance of such Interest Period, and (ii) with respect to any
overdue amount denominated in Sterling, successive interest periods
(including overnight) of such duration of up to three months as the
relevant Offshore Administrative Agent may determine from time to time.
(2) In the application of the above formula, B, Y, L, X, S and Z will
be included in the formula as figures and not as percentages, e.g., if B =
0.5% and Y = 15%, BY will be calculated as 0.5 x 15 and not as 0.5% x 15%.
(3) The Additional Cost computed by the relevant Offshore
Administrative Agent in accordance with this Schedule F shall be rounded
upward, if necessary, to four decimal places.
(4) The calculation in respect of the Additional Cost for any Offshore
Loan or overdue amount denominated in Sterling will be made by the relevant
Offshore Administrative Agent on the first day of each Relevant Period.
(5) Calculations will be made on the basis of a year of 365 or 366
days, as the case may be, and the actual number of days elapsed.
(6) In the event of a change in circumstances (including the imposition
of alternative or additional official requirements, excluding capital adequacy
requirements) which renders the above formula inappropriate in the reasonable
opinion of the relevant Offshore Administrative Agent, such Offshore
Administrative Agent shall promptly notify Borrowers and Lenders and shall
notify Borrowers and Lenders of the manner in which the Additional Cost shall
thereafter be determined (which manner shall be determined in a good faith
bona fide manner and shall provide a fair assessment of the Additional Cost)
and Borrowers and Lenders shall be bound thereby.
F-2
<PAGE>
SCHEDULE G
FOREIGN SUBSIDIARIES
COMPANY COUNTRY
Owens-Illinois (Australia) Pty Ltd Australia
Fabrica Boliviana de Vidrios, S.A. Bolivia
Comphania Industrial Sao Paulo e Rio Brazil
Sao Raimundo Brazil
Wuhan Owens Glass Container Company, Ltd. China
Cristaleria Peldar, S.A. Colombia
Avirunion, a.s. Czech Republic
Cristaleria del Ecuador, S.A. Ecuador
A/S Jarvakandi Klaas Estonia
Karhulan Lasi Oy Finland
OI Finnish Holdings Oy Finland
Oroshaza Glass Manufacturing and Trading, Kft. Hungary
Owens-Brockway (India) Limited India
OI Finance Limited Ireland
AVIR S.p.A. Italy
OI Italia S.r.l. Italy
Specialty Packaging Products de Mexico, S.A. de C.V. Mexico
Owens-Illinois International, B.V. Netherlands
Vidrios Industriales, S.A. Peru
Huta Szkla Jaroslaw S.A. Poland
Owens-Illinois de Puerto Rico Puerto Rico
OI Specialty Products Puerto Rico, Inc. Puerto Rico
Vidrieria Rovira, S.A. Spain
United Glass Group Limited United Kingdom
United Glass Limited United Kingdom
Centro Vidriero de Venezuela, C.A. Venezuela
Manufacturera de Vidrios Planos, C.A. Venezuela
Owens-Brockway Venezuelan Holding Venezuela
Owens-Illinois de Venezuela, C.A. Venezuela
Produvisa Venezuela
G-1
<PAGE>
Exhibit 12
OWENS-ILLINOIS, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(Millions of dollars, except ratios)
Three Months ended March 31,
----------------------------
1998 1997
------ ------
Earnings from continuing operations before
income taxes, minority share owners'
interests, extraordinary items and
cumulative effect of accounting changes . . $117.1 $ 84.4
Less: Equity earnings . . . . . . . . . . . (4.7) (8.8)
Add: Total fixed charges deducted from
earnings . . . . . . . . . . . . . . 70.3 91.5
Proportional share of pretax earnings
(loss) of 50% owned associates . . . 1.2 (0.4)
------ ------
Earnings available for payment of
fixed charges . . . . . . . . . . . . $183.9 $166.7
====== ======
Fixed charges (including the Company's
proportional share of 50% owned
associates):
Interest expense . . . . . . . . . . . $ 64.5 $ 84.6
Portion of operating lease rental
deemed to be interest . . . . . . . . 5.1 5.6
Amortization of deferred financing
costs and debt discount expense . . . .7 1.3
------ ------
Total fixed charges deducted from
earnings and total fixed charges . . 70.3 91.5
Preferred stock dividends (increased to
assumed pre-tax amount) . . . . . . . . . . .5 .5
------ ------
Combined fixed charges and preferred stock
dividends . . . . . . . . . . . . . . . . . $ 70.8 $ 92.0
====== ======
Ratio of earnings to fixed charges . . . . . 2.6 1.8
Ratio of earnings to combined fixed charges
and preferred stock dividends 2.6 1.8
<PAGE>
EXHIBIT 23
CONSENT OF MCCARTER & ENGLISH, LLP
May 13, 1998
Ladies and Gentlemen:
We consent to the incorporation by reference in this Quarterly Report on
Form 10-Q of Owens-Illinois, Inc. for the quarter ended March 31, 1998, of the
reference to our firm under the caption "Legal Proceedings."
Very truly yours,
/s/McCarter & English, LLP
--------------------------
McCarter & English, LLP
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
March 31, 1998 condensed consolidated balance sheet, and the condensed
consolidated results of operations for the three-month period then ended
and is qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> MAR-31-1998
<CASH> 253,100,000
<SECURITIES> 0
<RECEIVABLES> 708,000,000
<ALLOWANCES> 46,500,000
<INVENTORY> 618,600,000
<CURRENT-ASSETS> 1,719,900,000
<PP&E> 4,175,700,000
<DEPRECIATION> 1,755,200,000
<TOTAL-ASSETS> 6,895,200,000
<CURRENT-LIABILITIES> 1,003,000,000
<BONDS> 3,260,600,000
0
20,100,000
<COMMON> 1,400,000
<OTHER-SE> 1,363,800,000
<TOTAL-LIABILITY-AND-EQUITY> 6,895,200,000
<SALES> 1,098,500,000
<TOTAL-REVENUES> 1,158,200,000
<CGS> 861,100,000
<TOTAL-COSTS> 861,100,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 65,200,000
<INCOME-PRETAX> 117,100,000
<INCOME-TAX> 28,800,000
<INCOME-CONTINUING> 80,400,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 80,400,000
<EPS-PRIMARY> 0.57
<EPS-DILUTED> 0.56
</TABLE>
