REFINANCING
CREDIT AGREEMENT
DATED AS OF
NOVEMBER 19, 1996
AMONG
▇▇▇▇▇-ILLINOIS, INC.,
THE LENDERS LISTED HEREIN,
BANQUE NATIONALE DE PARIS, CITIBANK, N.A., CAISSE NATIONALE DE
CREDIT AGRICOLE, THE FUJI BANK, LIMITED, THE LONG-TERM CREDIT BANK
OF JAPAN, LTD., MELLON BANK, N.A., THE SANWA BANK, LIMITED,CHICAGO
BRANCH
AND
UNITED STATES NATIONAL BANK OF OREGON,
AS LEAD MANAGERS,
ABN AMRO BANK N.V., BANK OF MONTREAL, THE BANK OF NEW YORK, THE
BANK OF NOVA SCOTIA, CIBC, INC., CREDIT LYONNAIS, THE FIRST
NATIONAL BANK OF CHICAGO, THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NATIONSBANK, N.A., SOCIETE GENERALE, THE SUMITOMO BANK, LIMITED,
AND
TORONTO DOMINION (TEXAS), INC.,
AS CO-AGENTS,
AND
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
AS DOCUMENTATION AGENT,
AND
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
▇▇▇▇▇-ILLINOIS, INC.
REFINANCING CREDIT AGREEMENT
DATED AS OF NOVEMBER 19, 1996
TABLE OF CONTENTS
Section Heading Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1
DEFINITIONS
1.1 Certain Defined Terms. . . . . . . . . . . . . . . . . . 2
1.2 Accounting Terms; Utilization of GAAP for Purposes
of Calculations Under Agreement; Change in
Accounting Principles. . . . . . . . . . . . . . . . . . 28
1.3 Other Definitional Provisions; Anniversaries . . . . . . 29
SECTION 2
AMOUNT AND TERMS OF REVOLVING LOAN COMMITMENTS AND LOANS; NOTES
2.1 Revolving Loans; Overdraft Account . . . . . . . . . . . 29
2.2 Interest on the Revolving Loans. . . . . . . . . . . . . 35
2.3 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2.4 Prepayments and Payments; Reductions in Revolving
Loan Commitments . . . . . . . . . . . . . . . . . . . . 38
2.5 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . 41
2.6 Special Provisions Governing Eurodollar Rate Loans . . . 42
2.7 Capital Adequacy Adjustment; Increased Costs; Taxes. . . 46
2.8 Letters of Credit. . . . . . . . . . . . . . . . . . . . 50
2.9 Bid Rate Loans . . . . . . . . . . . . . . . . . . . . . 60
SECTION 3
CONDITIONS TO LOANS AND LETTERS OF CREDIT
3.1 Conditions to Initial Loans. . . . . . . . . . . . . . . 65
3.2 Conditions to All Loans. . . . . . . . . . . . . . . . . 68
3.3 Conditions to All Letters of Credit. . . . . . . . . . . 70
3.4 Conditions to Utilization of Genie Acquisition Sub-
Facility . . . . . . . . . . . . . . . . . . . . . . . . 70
i
SECTION 4
COMPANY'S REPRESENTATIONS AND WARRANTIES
4.1 Organization, Powers, Good Standing, Business and
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 71
4.2 Authorization of Borrowing, Etc. . . . . . . . . . . . . 72
4.3 Financial Condition. . . . . . . . . . . . . . . . . . . 73
4.4 No Adverse Material Change; No Stock Payments. . . . . . 74
4.5 Title to Properties; Liens . . . . . . . . . . . . . . . 74
4.6 Litigation; Adverse Facts. . . . . . . . . . . . . . . . 74
4.7 Payment of Taxes . . . . . . . . . . . . . . . . . . . . 74
4.8 Governmental Regulation. . . . . . . . . . . . . . . . . 75
4.9 Securities Activities. . . . . . . . . . . . . . . . . . 75
4.10 Employee Benefit Plans . . . . . . . . . . . . . . . . . 75
4.11 Disclosure . . . . . . . . . . . . . . . . . . . . . . . 76
4.12 Environmental Protection . . . . . . . . . . . . . . . . 76
SECTION 5
COMPANY'S AFFIRMATIVE COVENANTS
5.1 Financial Statements and Other Reports . . . . . . . . . 78
5.2 Corporate Existence, Etc.. . . . . . . . . . . . . . . . 82
5.3 Payment of Taxes and Claims; Tax Consolidation . . . . . 82
5.4 Maintenance of Properties; Insurance . . . . . . . . . . 83
5.5 Inspection . . . . . . . . . . . . . . . . . . . . . . . 83
5.6 Equal Security for Loans and Notes; No Further
Negative Pledges . . . . . . . . . . . . . . . . . . . . 83
5.7 Compliance with Laws, Etc. . . . . . . . . . . . . . . . 84
5.8 Environmental Disclosure and Inspection. . . . . . . . . 84
5.9 Company's Remedial Action Regarding Hazardous
Materials. . . . . . . . . . . . . . . . . . . . . . . . 85
5.10 Further Assurances as to Future Guarantor
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 6
COMPANY'S NEGATIVE COVENANTS
6.1 Indebtedness . . . . . . . . . . . . . . . . . . . . . . 86
6.2 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . 88
6.3 Investments; Joint Ventures. . . . . . . . . . . . . . . 89
6.4 Contingent Obligations . . . . . . . . . . . . . . . . . 90
6.5 Restricted Junior Payments . . . . . . . . . . . . . . . 92
6.6 Financial Covenants. . . . . . . . . . . . . . . . . . . 92
6.7 Restriction on Fundamental Changes . . . . . . . . . . . 93
6.8 Sale or Discount of Receivables. . . . . . . . . . . . . 94
6.9 Transactions with Shareholders and Affiliates. . . . . . 94
ii
6.10 Disposal of Subsidiary Stock . . . . . . . . . . . . . . 95
6.11 Conduct of Business. . . . . . . . . . . . . . . . . . . 95
6.12 Amendments or Waivers of Certain Documents . . . . . . . 95
SECTION 7
EVENTS OF DEFAULT
7.1 Failure to Make Payments When Due. . . . . . . . . . . . 96
7.2 Default in Other Agreements. . . . . . . . . . . . . . . 96
7.3 Breach of Certain Covenants. . . . . . . . . . . . . . . 97
7.4 Breach of Warranty . . . . . . . . . . . . . . . . . . . 97
7.5 Other Defaults under Agreement or Loan Documents . . . . 97
7.6 Involuntary Bankruptcy; Appointment of Receiver,
Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 97
7.7 Voluntary Bankruptcy; Appointment of Receiver, Etc.. . . 98
7.8 Judgments and Attachments. . . . . . . . . . . . . . . . 98
7.9 Dissolution. . . . . . . . . . . . . . . . . . . . . . . 98
7.10 Invalidity of Company Guaranty or O-I Subsidiary
Guaranty . . . . . . . . . . . . . . . . . . . . . . . . 98
7.11 Failure of Security. . . . . . . . . . . . . . . . . . . 98
7.12 Change of Control. . . . . . . . . . . . . . . . . . . . 99
7.13 Employee Benefit Plans . . . . . . . . . . . . . . . . . 99
SECTION 8
AGENTS
8.1 Appointment. . . . . . . . . . . . . . . . . . . . . . .101
8.2 Powers; General Immunity . . . . . . . . . . . . . . . .102
8.3 Representations and Warranties; No Responsibility
for Appraisal of Creditworthiness. . . . . . . . . . . .103
8.4 Right to Indemnity . . . . . . . . . . . . . . . . . . .104
8.5 Registered Persons Treated as Owners . . . . . . . . . .104
8.6 Successor Administrative Agent and Overdraft Account
Provider . . . . . . . . . . . . . . . . . . . . . . . .104
8.7 Intercreditor Agreement, O-I Subsidiary Guaranty and
Collateral Documents; Release of Collateral. . . . . . .105
SECTION 9
MISCELLANEOUS
9.1 Representation of Lenders. . . . . . . . . . . . . . . .106
9.2 Assignments and Participations in Loans, Notes and
Letters of Credit. . . . . . . . . . . . . . . . . . . .106
9.3 Expenses . . . . . . . . . . . . . . . . . . . . . . . .109
9.4 Indemnity. . . . . . . . . . . . . . . . . . . . . . . .110
9.5 Set Off. . . . . . . . . . . . . . . . . . . . . . . . .110
iii
9.6 Ratable Sharing. . . . . . . . . . . . . . . . . . . . .111
9.7 Amendments and Waivers . . . . . . . . . . . . . . . . .111
9.8 Independence of Covenants. . . . . . . . . . . . . . . .114
9.9 Change in Accounting Principles, Fiscal Year or Tax
Laws . . . . . . . . . . . . . . . . . . . . . . . . . .114
9.10 Notices. . . . . . . . . . . . . . . . . . . . . . . . .115
9.11 Survival of Warranties and Certain Agreements. . . . . .115
9.12 Failure or Indulgence Not Waiver; Remedies
Cumulative . . . . . . . . . . . . . . . . . . . . . . .115
9.13 Severability . . . . . . . . . . . . . . . . . . . . . .116
9.14 Obligations Several; Independent Nature of Lenders'
Rights . . . . . . . . . . . . . . . . . . . . . . . . .116
9.15 Headings . . . . . . . . . . . . . . . . . . . . . . . .116
9.16 Applicable Law . . . . . . . . . . . . . . . . . . . . .116
9.17 Successors and Assigns . . . . . . . . . . . . . . . . .116
9.18 Consent to Jurisdiction and Service of Process . . . . .117
9.19 Waiver of Jury Trial . . . . . . . . . . . . . . . . . .117
9.20 Confidentiality. . . . . . . . . . . . . . . . . . . . .118
9.21 Counterparts; Effectiveness. . . . . . . . . . . . . . .118
iv
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
III FORM OF NOTICE OF CONVERSION/CONTINUATION
IV FORM OF BID RATE LOAN QUOTE REQUEST
V FORM OF INVITATION FOR BID RATE LOAN QUOTES
VI FORM OF BID RATE LOAN QUOTE
VII FORM OF REVOLVING NOTE
VIII FORM OF BID RATE LOAN NOTE
IX FORM OF OVERDRAFT AGREEMENT
X FORM OF COMPLIANCE CERTIFICATE
XI FORM OF ASSIGNMENT AND ACCEPTANCE
XII-A FORM OF COLLATERAL ACCOUNT AGREEMENT
XII-B FORM OF ACQUISITION NEWCO COLLATERAL ACCOUNT AGREEMENT
XIII FORM OF COMPANY GUARANTY
XIV FORM OF O-I SUBSIDIARY GUARANTY
XV FORM OF COMPANY PLEDGE AGREEMENT
XVI FORM OF O-I SUBSIDIARY PLEDGE AGREEMENT
XVII FORM OF INTERCREDITOR AGREEMENT
XVIII FORM OF OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
XIX FORM OF OPINION OF ASSOCIATE GENERAL COUNSEL FOR
COMPANY
XX FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇
v
Schedules
A SUBSIDIARIES AND FOREIGN SUBSIDIARIES
B REVOLVING LOAN COMMITMENTS; PRO RATA
SHARES; FACILITY FEES
C EXISTING INDEBTEDNESS
D EXISTING LIENS
E EXISTING INVESTMENTS
F EXISTING CONTINGENT OBLIGATIONS
G REPORTING UNITS
H EMPLOYEE BENEFIT MATTERS
I ENVIRONMENTAL MATTERS
J EXISTING LETTERS OF CREDIT
vi
▇▇▇▇▇-ILLINOIS, INC.
REFINANCING CREDIT AGREEMENT
DATED AS OF NOVEMBER 19, 1996
This Refinancing Credit Agreement is dated as of November
19, 1996 (this "AGREEMENT"), and entered into by and among ▇▇▇▇▇-
ILLINOIS, INC., a Delaware corporation ("COMPANY"), THE LENDERS
LISTED ON THE SIGNATURE PAGES HEREOF (individually a "LENDER" and
collectively, "LENDERS"), BANQUE NATIONALE DE PARIS, CITIBANK,
N.A., CAISSE NATIONALE DE CREDIT AGRICOLE, THE FUJI BANK, LIMITED,
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., MELLON BANK, N.A., THE
SANWA BANK, LIMITED, and UNITED STATES NATIONAL BANK OF OREGON, as
Lead Managers for Lenders (individually referred to herein as a
"LEAD MANAGER" and collectively as "LEAD MANAGERS"), ABN AMRO BANK
N.V., BANK OF MONTREAL, THE BANK OF NEW YORK, THE BANK OF NOVA
SCOTIA, CIBC, INC., CREDIT LYONNAIS, THE FIRST NATIONAL BANK OF
CHICAGO, THE INDUSTRIAL BANK OF JAPAN, LIMITED, NATIONSBANK OF
NORTH CAROLINA, N.A., SOCIETE GENERALE, THE SUMITOMO BANK, LIMITED,
and TORONTO DOMINION (TEXAS), INC., as Co-Agents for Lenders
(individually referred to herein as a "CO-AGENT" and collectively
as "CO-AGENTS"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION ("BOFA"), as Documentation Agent for Lenders
("DOCUMENTATION AGENT"), and BANKERS TRUST COMPANY ("BANKERS"), as
Administrative Agent for Lenders ("ADMINISTRATIVE AGENT"; together
with Documentation Agent, "AGENTS").
RECITALS
WHEREAS, Company desires to refinance all of the
Indebtedness currently outstanding and all commitments under the
Refinancing Credit Agreement dated as of December 15, 1993, as
amended to the date hereof (as so amended, the "EXISTING CREDIT
AGREEMENT") among Company, the lenders, lead managers and co-agents
listed therein, and Bankers, as agent;
WHEREAS, Company desires that Lenders extend credit
facilities to Company and Acquisition Newcos (i) to fund the
refinancing of all amounts owing under the Existing Credit
Agreement, (ii) to finance the acquisition of Genie, (iii) to pay
certain fees and expenses associated with the Loans and the related
transactions described herein, (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;
WHEREAS, to induce Lenders to make available to Company
and Acquisition Newcos the credit facilities provided for in this
Agreement, Company will (i) guaranty any Obligations of Acquisition
1
Newcos in respect of Foreign Letters of Credit and (ii) cause
certain of its Subsidiaries to guaranty all Obligations of Company
and Acquisition Newcos; and
WHEREAS, Company has agreed to secure its obligations
under this Agreement and the Company Guaranty by pledging for the
benefit of Lenders certain Intercompany Indebtedness owing to it
and the capital stock of Group, and certain of Company's
Subsidiaries have agreed to secure their obligations under the O-I
Subsidiary Guaranty by pledging certain Intercompany Indebtedness
owing to them and the capital stock of certain of their
Subsidiaries;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company,
Lenders, Co-Agents and Agents agree as follows:
SECTION 1
DEFINITIONS
1.1 CERTAIN DEFINED TERMS
The following terms used in this Agreement shall have the
following meanings:
"ACQUISITION NEWCO COLLATERAL ACCOUNT AGREEMENT" means
the Acquisition Newco Collateral Account Agreement, in sub-
stantially the form of Exhibit XII-B annexed hereto, to be entered
into between each Acquisition Newco that is an Applicable Account
Party, Administrative Agent and Collateral Agent, as such
Acquisition Newco Collateral Account Agreement may hereafter be
amended, supplemented or otherwise modified from time to time.
"ACQUISITION NEWCOS" means two or more indirect wholly-
owned Foreign Subsidiaries of Company that are within the
definition of Foreign Subsidiary other than as a result of being
listed on Schedule A annexed hereto and that will participate in
the Genie Acquisition.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate
Determination Date with respect to a Eurodollar Rate Loan, the rate
obtained by dividing (i) the arithmetic average (rounded upward to
the nearest 1/100 of one percent) of the offered quotation, if any,
to first class banks in the interbank Eurodollar market by each of
the Reference Lenders for U.S. dollar deposits of amounts in same
day funds comparable to the principal amount of the Eurodollar Rate
Loan of that Reference Lender for which the Adjusted Eurodollar
Rate is then being determined with maturities comparable to the
Interest Period for which such Adjusted Eurodollar Rate will apply
as of approximately 10:00 A.M. (New York time) on such Interest
Rate Determination Date by (ii) a percentage equal to 100% minus
the stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special
2
or other reserves) applicable to any member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" as defined
in Regulation D (or any successor category of liabilities under
Regulation D); provided that if any Reference Lender fails to
provide Administrative Agent with its aforementioned quotation then
the Adjusted Eurodollar Rate shall be determined based on the
quotation(s) provided to Administrative Agent by the other
Reference Lender(s).
"ADMINISTRATIVE AGENT" has the meaning assigned to that
term in the introduction to this Agreement.
"AFFECTED LENDER" means any Lender affected by any of the
events described in subsection 2.6B or 2.6C.
"AFFECTED SUBSIDIARY" has the meaning assigned to that
term in subsection 6.7.
"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.
"AGGREGATE AMOUNTS DUE" has the meaning assigned to that
term in subsection 9.6.
"AGREEMENT" means this Refinancing Credit Agreement dated
as of November 19, 1996, as it may be amended, supplemented or
otherwise modified from time to time.
"APPLICABLE ACCOUNT PARTY" means, (i) with respect to any
Letter of Credit other than a Foreign Letter of Credit, Company,
and (ii) with respect to any Foreign Letter of Credit, one or more
Acquisition Newcos; provided that no Acquisition Newco shall be an
Applicable Account Party unless and until such Acquisition Newco
(a) executes and delivers to Administrative Agent counterparts of
this Agreement and the Acquisition Newco Collateral Account
Agreement and (b) delivers to Administrative Agent the documents
(other than the O-I Subsidiary Guaranty) required to be delivered
by Subsidiary Guarantors pursuant to subsection 3.1B together with
an opinion of counsel satisfactory to Agents, satisfactory in form
and substance to Agents and their counsel, with respect to the
enforceability of this Agreement and the Acquisition Newco
Collateral Account Agreement against such Acquisition Newco and
such other matters as Agents may reasonably request.
3
"APPLICABLE EURODOLLAR MARGIN" means, as at any date of
determination, a rate per annum equal to the percentage set forth
below opposite the Applicable Leverage Ratio in effect as of such
date of determination, any change in the Applicable Eurodollar
Margin to be effective on the date of any corresponding change in
the Applicable Leverage Ratio:
Applicable
Applicable Leverage Ratio Eurodollar Margin
------------------------- ---------------------
4.00:1.00 or greater 0.625%
3.50:1.00 or greater, but
less than 4.00:1.00 0.50%
3.00:1.00 or greater, but
less than 3.50:1.00 0.425%
2.50:1.00 or greater, but
less than 3.00:1.00 0.325%
2.00:1.00 or greater, but
less than 2.50:1.00 0.30%
less than 2.00:1.00 0.275%
"APPLICABLE FACILITY FEE PERCENTAGE" means, as at any
date of determination, a rate per annum equal to the percentage set
forth below opposite the Applicable Leverage Ratio in effect as of
such date of determination, any change in the Applicable Facility
Fee Percentage to be effective on the date of any corresponding
change in the Applicable Leverage Ratio:
Applicable Leverage Ratio Applicable Facility Fee Percentage
------------------------- ----------------------------------
4.00:1.00 or greater 0.375%
3.50:1.00 or greater, but
less than 4.00:1.00 0.25%
3.00:1.00 or greater, but
less than 3.50:1.00 0.20%
2.50:1.00 or greater, but
less than 3.00:1.00 0.175%
2.00:1.00 or greater, but
less than 2.50:1.00 0.15%
less than 2.00:1.00 0.125%
"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 Closing Date to but excluding the date of
commencement of the first Pricing Period shall be deemed to be the
pro forma Consolidated Leverage Ratio set forth in the Officers'
Certificate delivered pursuant to subsection 3.1N. For purposes of
this definition, (i) "PRICING CERTIFICATE" means an Officers'
4
Certificate of Company delivered (a) in the case of any of the
first three Fiscal Quarters of any Fiscal Year, within 45 days
after the end of such Fiscal Quarter, and (b) in the case of the
fourth Fiscal Quarter of any Fiscal Year, within 90 days after the
end of such Fiscal Quarter, in each case certifying as to the
Consolidated Leverage Ratio as of the last day of such Fiscal
Quarter and setting forth the calculation of such Consolidated
Leverage Ratio in reasonable detail, and (ii) "PRICING PERIOD"
means each period commencing on the first Business Day after the
delivery (or deemed delivery as provided below) to Administrative
Agent of a Pricing Certificate (the "EFFECTIVE PRICING CERTIFICATE"
in respect of such Pricing Period) and ending on the first Business
Day after the next Pricing Certificate is delivered (or deemed to
be delivered as provided below) to Administrative Agent; provided
that, in the event Company fails to deliver to Administrative Agent
a Pricing Certificate on or before the 45th day after the end of
any of the first three Fiscal Quarters of any Fiscal Year or the
90th day after the end of the fourth Fiscal Quarter of any Fiscal
Year (the "CUTOFF DATE" with respect to any such Fiscal Quarter),
Company shall be deemed to have delivered to Administrative Agent,
on the Cutoff Date, a Pricing Certificate which establishes that
the Consolidated Leverage Ratio as of the last day of such Fiscal
Quarter was 4.00:1.00.
"ASSET SALE" means the sale, transfer or other dis-
position 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 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, and excluding only for
purposes of this clause (iii) the assets of the Foreign Subsidi-
aries) of Company or any of its Subsidiaries having a value in
excess of $1,000,000 or more; provided that any asset sale de-
scribed 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
$10,000,000; 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 XI annexed hereto.
"BANKERS" has the meaning assigned to that term in the
introduction to this Agreement.
5
"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 subsec-
tion 2.2A.
"BID RATE LOANS" means Loans made by Lenders to Company
pursuant to subsection 2.9.
"BID RATE LOAN AGENT" means Administrative Agent acting
in the capacity of agent with respect to the Bid Rate Loans hereun-
der.
"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 In-
terest Period for any Bid Rate Loans shall have a duration of less
than 30 days and, if the Bid Rate Loan Interest Period for any Bid
Rate Loans would otherwise be a shorter period, such Bid Rate Loans
shall not be available hereunder.
"BID RATE LOAN NOTES" means the promissory notes of
Company, substantially in the form of Exhibit VIII annexed hereto,
issued in favor of one or more Lenders pursuant to subsection 2.9K
to evidence the Bid Rate Loans.
"BID RATE LOAN QUOTE" means an offer by a Lender to make
Bid Rate Loans, substantially in the form of Exhibit VI annexed
hereto, delivered to Administrative Agent by such Lender pursuant
to subsection 2.9D.
"BID RATE LOAN QUOTE REQUEST" means a request by Company
to each Lender to submit Bid Rate Loan Quotes, substantially in the
form of Exhibit IV annexed hereto, delivered by Company to
Administrative Agent pursuant to subsection 2.9B.
6
"BID RATE LOAN SHORTFALL AMOUNT" means the amount, if
any, by which the amount of Bid Rate Loans requested in a Bid Rate
Loan Quote Request exceeds the amount equal to (i) the aggregate
amount of Bid Rate Loans offered in any Bid Rate Loan Quotes
delivered by Lenders relating to such Bid Rate Loan Quote Request
minus (ii) the amount of Bid Rate Loans so offered which are
rejected in good faith by Company.
"BID RATE LOAN SHORTFALL DATE" means a proposed Funding
Date of Bid Rate Loans in respect of which a Bid Rate Loan
Shortfall Amount exists.
"BUSINESS DAY" means (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday
and any day which is a legal holiday under the laws of the States
of New York or Ohio or is a day on which banking institutions
located in such states are authorized or required by law or other
governmental action to close and (ii) with respect to all notices,
determinations, fundings and payments in connection with the
Adjusted Eurodollar Rate, any day which is a Business Day described
in clause (i) and which is also a day for trading by and between
banks in Dollar deposits in the applicable interbank Eurodollar
market.
"CAPITAL LEASE", as applied to any Person, means any
lease of any property (whether real, personal or mixed) by that
Person as lessee which, in conformity with GAAP (subject to
subsection 1.2 hereof), is accounted for as a capital lease on the
balance sheet of that Person.
"CASH" means money, currency or a credit balance in a
Deposit Account.
"CASH EQUIVALENTS" means (i) marketable direct ob-
ligations issued or unconditionally guarantied by the United States
Government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within
one year from the date of acquisition thereof; (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 ▇▇▇▇▇'▇;
(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 ▇▇▇▇▇'▇;
(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 date of acquisition thereof; and (vii) shares of any money
7
market mutual fund that (a) has at least 95% of its assets invested
continuously in the types of investments referred to in clauses (i)
and (ii) above, (b) has net assets of not less than $500,000,000,
and (c) has the highest rating obtainable from either S&P or
▇▇▇▇▇'▇.
"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.
"CLOSING DATE" means the date on or before November 21,
1996 on which the initial Loans are made.
"CO-AGENT" and "CO-AGENTS" have the meanings assigned to
those terms in the introduction to this Agreement.
"COLLATERAL" means, collectively, the "Pledged
Collateral" (as defined in the Pledge Agreements) and the
"Collateral" (as defined in the Collateral Account Agreements).
"COLLATERAL ACCOUNT AGREEMENT" means the Collateral
Account Agreement, in substantially the form of Exhibit XII-A
annexed hereto, dated as of the Closing Date, between Company,
Administrative Agent and Collateral Agent, as such Collateral
Account Agreement may hereafter be amended, supplemented or
otherwise modified from time to time.
"COLLATERAL ACCOUNT AGREEMENTS" means the Collateral
Account Agreement and the Acquisition Newco Collateral Account
Agreement.
"COLLATERAL AGENT" means Bankers acting in the capacity
of collateral agent on behalf of the holders from time to time of
any outstanding Commercial Paper, Lenders and the other Persons
(other than Company or its Subsidiaries) who have executed
counterparts to the Intercreditor Agreement, including Lenders
party to Interest Rate Agreements and Currency Agreements
contemplated by subsection 6.4(vii), Foreign Lenders party to
Foreign Loan Agreements contemplated by subsection 6.4(xi), the
Senior Debenture Trustee and the Senior Subordinated Debt Trustee,
in each case under the applicable Collateral Documents, the
Intercreditor Agreement and, if applicable, the O-I Subsidiary
Guaranty.
"COLLATERAL DOCUMENTS" means the Pledge Agreements, the
Collateral Account Agreements and all other instruments or
documents delivered by Company or any of its Subsidiaries in order
to grant to Collateral Agent Liens on any Collateral.
8
"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.
"COMMERCIAL PAPER" means Indebtedness of Company
permitted under subsection 6.1(viii).
"COMMERCIAL PAPER USAGE" means, as at any date of
determination, the aggregate face amount of outstanding Commercial
Paper.
"COMMODITIES AGREEMENT" means any forward contract,
option, futures contract, futures option, or similar agreement or
arrangement designed to protect Company or any of its Subsidiaries
from fluctuations in the price of commodities.
"COMMON STOCK" means the common stock of Company, par
value $.01 per share.
"COMPANY" has the meaning assigned to that term in the
introduction to this Agreement.
"COMPANY GUARANTY" means the Company Guaranty executed by
Company pursuant to subsection 3.1A5, in substantially the form of
Exhibit XIII annexed hereto, pursuant to which Company guaranties
any Obligations of Acquisition Newcos in respect of Foreign Letters
of Credit, as such Company Guaranty may hereafter be amended, sup-
plemented or otherwise modified from time to time.
"COMPANY PLEDGE AGREEMENT" means the Fifth Amended and
Restated Company Pledge Agreement executed by Company pursuant to
subsection 3.1A5, in substantially the form of Exhibit XV annexed
hereto, pursuant to which the capital stock of Group and the O-I
Subsidiary Debt Obligations owed by Group to Company have been
pledged to Collateral Agent, as such Company Pledge Agreement may
hereafter be amended, supplemented or otherwise modified from time
to time.
"COMPLIANCE CERTIFICATE" means a certificate sub-
stantially in the form annexed hereto as Exhibit X 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.
9
"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 last
day of the most recent Fiscal Quarter in respect of which Company
has delivered (or is then required to have (but has not yet)
delivered) to Administrative Agent the financial statements
required to be delivered pursuant to subsection 5.1(i) or (in the
case of the last Fiscal Quarter of any Fiscal Year) subsection
5.1(ii) to (ii) Consolidated Pro Forma EBITDA (as hereinafter
defined) for the four-Fiscal Quarter period ending on the last day
of the applicable Fiscal Quarter under clause (i) above. As used
in this definition, the term "CONSOLIDATED PRO FORMA EBITDA" means,
for purposes of calculating the Consolidated Leverage Ratio in
respect of any four Fiscal-Quarter period, Consolidated Adjusted
EBITDA for such period calculated on a pro forma basis after giving
effect to any acquisitions of new Subsidiaries by Company or any of
its Subsidiaries during such period as if such acquisitions had
been consummated on the first day of such period.
"CONSOLIDATED NET INCOME" means, for any period, the net
income (or loss), before extraordinary items, of Company and its
Subsidiaries on a consolidated basis for such period taken as a
single accounting period determined in conformity with GAAP.
"CONSOLIDATED SUBSIDIARIES" means all Subsidiaries of
Company other than the Foreign Subsidiaries.
"CONSOLIDATED TOTAL DEBT" means, as at any date of
determination, the aggregate stated balance sheet amount of all
Indebtedness of Company and its Subsidiaries, determined on a
consolidated basis in conformity with GAAP.
"CONTINGENT OBLIGATION", as applied to any Person, means
any direct or indirect liability, contingent or otherwise, of that
Person (i) with respect to any indebtedness, lease, dividend,
letter of credit or other obligation of another if the primary
purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such
obligation of another that such obligation of another will be paid
or discharged, or that any agreements relating thereto will be
complied with, or that the holders of such obligation will be
protected (in whole or in part) against loss in respect thereof,
(ii) under any letter of credit issued for the account of or for
which that Person is otherwise liable for reimbursement thereof, or
(iii) under Currency Agreements or Interest Rate Agreements.
Contingent Obligations shall include, without limitation, (a) the
direct or indirect guaranty, endorsement (otherwise than for
collection or deposit in the ordinary course of business), co-mak-
ing, discounting with recourse or sale with recourse by such Person
of the obligation of another, and (b) any liability of such Person
for the obligations of another through any agreement (contingent or
otherwise) (i) to purchase, repurchase or otherwise acquire such
obligation or any security therefor, or to provide funds for the
10
payment or discharge of such obligation (whether in the form of
loans, advances, stock purchases, capital contributions or
otherwise), (ii) to maintain the solvency or any balance sheet
item, level of income or financial condition of another, or
(iii) to make take-or-pay or similar payments if required
regardless of non-performance by any other party or parties to an
agreement, if in the case of any agreement described under
subclauses (i) or (ii) of this sentence the primary purpose or
intent thereof is as described in the preceding sentence. The
amount of any Contingent Obligation shall be equal to the amount of
the obligation so guarantied or otherwise supported.
"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
designed to protect Company or any of its Subsidiaries against
fluctuations in currency values.
"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" has the meaning assigned to that
term in the introduction to this Agreement.
"DOLLARS" or the sign "$" means the lawful money of the
United States of America.
"DOMESTIC LETTER OF CREDIT" means a Letter of Credit
other than a Foreign Letter of Credit.
"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
11
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.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan"
as defined in Section 3(3) of ERISA (a) which is, or was within the
past six years, maintained or contributed to by Company or any
ERISA Affiliate of Company or (b) with respect to which Company or
any ERISA Affiliate of Company retains any liability.
"ENVIRONMENTAL CLAIM" means any accusation, allegation,
notice of violation, claim, demand, abatement order or other order
(conditional or otherwise) by any governmental authority or any
Person for any damage, including, without limitation, personal
injury (including sickness, disease or death), tangible property
damage, contribution, indemnity, indirect or consequential damages,
damage to the environment, nuisance, pollution, contamination or
other adverse effects on the environment, or for fines, penalties
or restrictions, in each case relating to, resulting from or in
connection with Hazardous Materials and relating to Company, any of
its Subsidiaries, any of their respective Affiliates or any
Facility.
"ENVIRONMENTAL LAWS" means all statutes, ordinances,
orders, rules, regulations, plans or decrees relating to
(i) environmental matters, including, without limitation, those
relating to fines, injunctions, penalties, damages, contribution,
cost recovery compensation, losses or injuries resulting from the
Release or threatened Release of Hazardous Materials, (ii) the
generation, use, storage, transportation or disposal of Hazardous
Materials, or (iii) occupational safety and health, industrial
hygiene, land use or the protection of human, plant or animal
health or welfare, in any manner applicable to Company or any of
its Subsidiaries or any of their respective properties, including,
without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9601 et seq.),
the Hazardous Materials Transportation Act (49 U.S.C. Section 1801
et seq.), the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.), the Federal Water Pollution Control Act (
33 U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C.
Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
Section 2601 et seq.), the Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. Section 136 et seq.), the Occupational
Safety and Health Act (29 U.S.C. Section 651 et seq.) and the
Emergency Planning and Community Right-to-Know Act (42 U.S.C.
Section 11001 et seq.), each as amended or supplemented, and any
analogous future or present local, state and federal statutes and
regulations promulgated pursuant thereto, each as in effect as of
the date of determination.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time and any successor statute.
"ERISA AFFILIATE", as applied to any Person, means
(i) any corporation which is, or was at any time, a member of a
controlled group of corporations within the meaning of Section
414(b) of the Internal Revenue Code of which that Person is, or was
at any time, a member; (ii) any trade or business (whether or not
incorporated) which is, or was at any time, a member of a group of
trades or businesses under common control within the meaning of
12
Section 414(c) of the Internal Revenue Code of which that Person
is, or was at any time, a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or
(o) of the Internal Revenue Code of which that Person, any
corporation described in clause (i) above or any trade or business
described in clause (ii) above is, or was at any time, a member.
"ERISA EVENT" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued
thereunder with respect to any Pension Plan (excluding those for
which the provision for 30-day notice to the PBGC has been waived
by regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect
to any Pension Plan (whether or not waived in accordance with
Section 412(d) of the Internal Revenue Code) or the failure to make
by its due date a material required installment under Section
412(m) of the Internal Revenue Code with respect to any Pension
Plan or the failure to make any material required contribution to
a Multiemployer Plan; (iii) the provision by the administrator of
any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a
notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by
Company or any of its ERISA Affiliates from any Pension Plan with
two or more contributing sponsors or the termination of any such
Pension Plan resulting in material liability pursuant to Sections
4063 or 4064 of ERISA; (v) the institution by the PBGC of
proceedings to terminate any Pension Plan, or the occurrence of any
event or condition which would reasonably be expected to constitute
grounds under ERISA for the termination of, or the appointment of
a trustee to administer, any Pension Plan; (vi) the imposition of
material liability on Company or any of its ERISA Affiliates
pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal by
Company or any of its ERISA Affiliates in a complete or partial
withdrawal (within the meaning of Sections 4203 and 4205 of ERISA)
from any Multiemployer Plan, or the receipt by Company or any of
its ERISA Affiliates of notice from any Multiemployer Plan that it
is in reorganization or insolvency pursuant to Section 4241 or 4245
of ERISA, or that it intends to terminate or has terminated under
Section 4041A or 4042 of ERISA, in any such case if such event
would reasonably be expected to result in material liability to
Company or its ERISA Affiliates; (viii) the occurrence of an act or
omission which could give rise to the imposition on Company or any
of its ERISA Affiliates of material fines, penalties, taxes or
related charges under Chapter 43 of the Internal Revenue Code or
under Section 409 or 502(c), (i) or (l) or 4071 of ERISA in respect
of any Employee Benefit Plan; (ix) the assertion of a material
claim (other than routine claims for benefits) against any Employee
Benefit Plan other than a Multiemployer Plan or the assets thereof,
or against Company or any of its ERISA Affiliates in connection
with any such Employee Benefit Plan; (x) receipt from the Internal
Revenue Service of notice of the failure of any Pension Plan (or
any other Employee Benefit Plan intended to be qualified 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 Pension Plan to qualify for exemption
from taxation under Section 501(a) of the Internal Revenue Code; or
(xi) 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.
13
"EURODOLLAR RATE LOANS" means Loans bearing interest at
rates determined by reference to the Adjusted Eurodollar Rate as
provided in subsection 2.2A.
"EVENT OF DEFAULT" means each of the events set forth in
Section 7.
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute.
"EXCHANGE RATE" means, on any date when an amount
expressed in any currency is to be determined with respect to any
Foreign Letter of Credit, the nominal rate of exchange of BofA in
the New York foreign exchange market for the purchase by BofA (by
cable transfer) of such currency in exchange for Dollars at 9:00
a.m. (New York time) one Business Day prior to such date, expressed
as a number of units of such currency per one Dollar.
"EXCLUDED TAX" means any of the following taxes, levies,
imposts, duties, deductions, withholdings or charges, and all
liabilities (including without limitation all penalties, interest
and other additions to tax) with respect thereto: (i) Taxes
imposed on the net income of a Lender, Agent, Co-Agent or Tax
Transferee (including without limitation branch profits taxes,
minimum taxes and taxes computed under alternative methods, at
least one of which is based on net income (collectively referred to
as "net income taxes")) by (A) the jurisdiction under the laws of
which such Lender, Agent, Co-Agent or Tax Transferee is organized
or any political subdivision thereof or (B) the jurisdiction of
such Lender's, Tax Transferee's, Co-Agent's or Agent's applicable
lending office or any political subdivision thereof or (C) any
jurisdiction in which the Lender, Agent, Co-Agent or Tax Transferee
is doing business (other than solely by virtue of being a Lender
under this Agreement), (ii) any Taxes to the extent that they are
in effect and would apply to a payment to such Lender, Agent or Co-
Agent, as applicable, as of the Closing Date, or as of the date
such Person becomes a Lender, in the case of any assignee pursuant
to subsection 9.2, (iii) any Taxes that are in effect and would
apply to a payment to a Tax Transferee as of the date of
acquisition of any Loans by such Tax Transferee or the date of the
change of lending office of such Tax Transferee, as the case may be
(provided, however, that a Person shall not be considered a Tax
Transferee for purposes of this clause (iii) as a result of a
change of its lending office or the taking of any other steps
pursuant to subsection 2.6J), (iv) with respect to any Taxes for
which any credit or other Tax benefit, in the reasonable good faith
judgment of such Lender, Tax Transferee, Co-Agent or Agent, as the
case may be, is available to such Lender, Tax Transferee, Co-Agent
or Agent, as applicable, as a result thereof and is allocable to
the transactions contemplated by this Agreement, the amount of such
credit or other Tax benefit or (v) any Taxes that would not have
been imposed but for (A) the failure by such Agent, Co-Agent,
Lender or Tax Transferee, as applicable, to provide and keep
current any certification or other documentation required to
qualify for an exemption from or reduced rate of any Tax (unless
such failure results from a change in applicable law after the
Closing Date or the date of the applicable Assignment and
Acceptance, as the case may be, which precludes such Agent, Co-
Agent, Lender or Tax Transferee, as applicable, from qualifying for
14
such exemption or reduced rate) or (B) the gross negligence or
willful misconduct of such Agent, Co-Agent, Lender or Tax
Transferee.
"EXISTING CREDIT AGREEMENT" has the meaning assigned to
that term in the Recitals to this Agreement.
"EXISTING INDEBTEDNESS" means Indebtedness of Company and
its Consolidated Subsidiaries listed in Schedule C annexed hereto.
"FACILITIES" means any and all real property (including,
without limitation, all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased,
operated or used by Company or any of its Subsidiaries or any of
their respective predecessors or Affiliates.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a
fluctuating interest rate equal for each day during such period to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by
Administrative Agent from three Federal funds brokers of recognized
standing selected by Administrative Agent.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal
Year.
"FISCAL YEAR" means the fiscal year of Company and its
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.
"FOREIGN LENDERS" means the Lenders to which the Foreign
Lender Debt is owed.
"FOREIGN LENDER DEBT" means the indebtedness owed by
certain Foreign Subsidiaries to certain Lenders which has been
guarantied by Company and is listed under the caption "Amount
Related to Foreign Lender Debt" in Schedule F annexed hereto and
any other indebtedness owed by any Foreign Subsidiary to any Lender
which is guarantied by Company and which guarantee is permitted
under subsection 6.4(xi).
"FOREIGN LENDER GUARANTIES" means any guaranties by
Company of any Foreign Lender Debt.
15
"FOREIGN LETTER OF CREDIT" means a standby letter of
credit (or a bank guarantee or similar instrument issued outside
the United States and serving the same function as a standby letter
of credit) that is denominated in French francs or Italian lire or
another European currency acceptable to BofA in its sole discretion
and that is issued by BofA for the account of one or more
Acquisition Newcos pursuant to subsection 2.8 to support payment of
an individual Seller Note Tranche, and "FOREIGN LETTERS OF CREDIT"
means all such standby letters of credit, collectively.
"FOREIGN LOAN AGREEMENTS" means those certain loan and
other credit agreements pursuant to which Foreign Lender Debt is
incurred.
"FOREIGN SUBSIDIARY" means any Subsidiary or Joint
Venture of Company identified as such on Schedule A annexed hereto
and, in addition, any Subsidiary or Joint Venture acquired,
incorporated or otherwise established by Company after the Closing
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 AND PAYMENT OFFICE" means the office of
Administrative Agent located at One Bankers Trust Plaza, New York,
New York.
"FUNDING DATE" means the date of the funding of a Loan.
"GAAP" means, subject to the provisions of subsection
1.2, generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession,
which are applicable to the circumstances as of the date of
determination.
"GENIE" means Avir Finanziaria S.p.A. (the name of which
will be changed to Aziende Vetrarie Industriali ▇▇▇▇▇▇▇▇▇-AVIR
S.p.A. after the Closing Date), an Italian corporation.
"GENIE ACQUISITION" means the acquisition by Acquisition
Newcos, either directly or through the acquisition of Genie
Holdings Shares, of up to 100% of the Genie Shares.
"GENIE ACQUISITION COMMENCEMENT DATE" has the meaning
assigned to that term in subsection 3.4.
"GENIE ACQUISITION SUB-FACILITY" means a portion of the
Revolving Loan Commitments which (i) is equal to $600,000,000 and
(ii) in any event includes the commitment of BofA to issue the
Foreign Letters of Credit.
▇▇
"▇▇▇▇▇ ▇▇▇▇▇▇▇▇" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & C. S.a.p.a. (the
name of which will be changed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & C. S.r.l. after
the Closing Date), an Italian corporation that, as of the date
hereof and as of the Genie Acquisition Commencement Date, owns a
majority of the Genie Shares.
"GENIE HOLDINGS SHARES" means all of the outstanding
capital stock of Genie Holdings, consisting of 100,300,000 shares
of common stock as of the Closing Date.
"GENIE SHARES" means all of the outstanding capital stock
of Genie, consisting of approximately 41,987,312 shares of common
stock as of the Closing Date.
"GENIE TENDER OFFER" means the tender for approximately
8,867,902 Genie Shares currently held by public shareholders of
Genie.
"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 ▇▇▇▇▇-Illinois Group, Inc., a Delaware
corporation.
"GUARANTOR SUBSIDIARIES" means, at any time of
determination, each O-I Subsidiary which is identified as a
"Guarantor Subsidiary" in Schedule A annexed hereto and each other
Consolidated Subsidiary which becomes a first-tier or second-tier
Subsidiary of Group and (i) remains such a first-tier or second-
tier Subsidiary for a period of longer than 90 days and/or (ii)
executes and delivers to Collateral Agent a counterpart of the O-I
Subsidiary Guaranty, but excluding, however, any Consolidated
Subsidiary which was a party to the O-I Subsidiary Guaranty but has
been released therefrom in accordance with its terms.
"HAZARDOUS MATERIALS" means (i) any chemical, material or
substance at any time defined as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous materials",
"extremely hazardous waste", "restricted hazardous waste",
"infectious waste", "toxic substances" or any other formulations
intended to define, list or classify substances by reason of
deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, toxicity, reproductive toxicity, "TCLP
toxicity" or "EP toxicity" or words of similar import under any
applicable Environmental Laws; (ii) any oil, petroleum, petroleum
fraction or petroleum derived substance; (iii) any drilling fluids,
produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal
resources; (iv) any flammable substances or explosives; (v) any
radioactive materials; (vi) asbestos in any form; (vii) urea
formaldehyde foam insulation; (viii) electrical equipment which
contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of fifty parts per million; and
(ix) pesticides.
"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
17
subsection 1.2 hereof), (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing
obligations for borrowed money, (iv) 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 (v) 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.
"INTERCOMPANY INDEBTEDNESS" means any Indebtedness of
Company or any Consolidated Subsidiary which, in the case of
Company, is owing to any Consolidated Subsidiary and which, in the
case of any Consolidated Subsidiary, is owing to Company or any
other Consolidated Subsidiary.
"INTERCREDITOR AGREEMENT" means the Sixth Amended and
Restated Intercreditor Agreement among Collateral Agent, Bankers,
as Administrative Agent hereunder, the Senior Debenture Trustee and
the Senior Subordinated Debt Trustee and, upon execution of
counterparts to the Intercreditor Agreement by any Lenders party to
Interest Rate Agreements or Currency Agreements contemplated by
subsection 6.4(vii) or by any Foreign Lenders, such Lenders or
Foreign Lenders, as the case may be, 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 XVII annexed hereto, as such Intercreditor
Agreement may hereafter be amended, supplemented or modified from
time to time.
"INTEREST PAYMENT DATE" means, with respect to any
Eurodollar Rate Loan, the last day of each Interest Period
applicable to such Loan; provided that in the case of each Interest
Period of six months or longer, "Interest Payment Date" shall also
include each three-month anniversary of the commencement of that
Interest Period.
"INTEREST PERIOD" means any interest period applicable to
a Eurodollar Rate Loan as determined pursuant to subsection 2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar
agreement or other similar agreement or arrangement designed to
protect Company or any of its Subsidiaries against fluctuations in
interest rates.
"INTEREST RATE DETERMINATION DATE" means each date for
calculating the Adjusted Eurodollar Rate for purposes of
determining the interest rate in respect of an Interest Period.
The Interest Rate Determination Date shall be the second Business
Day prior to the first day of the related Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code
of 1986, as amended to the date hereof and from time to time
hereafter.
18
"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 In-
vestment shall be the original cost (which shall not include (i)
the amount of any Indebtedness of the Person that is the subject of
such Investment that is assumed by the Person making such
Investment or (ii) the value of any Common Stock issued as all or
a portion of the consideration payable in connection with such
Investment) or, in the case of an Investment consisting of non-cash
consideration received in connection with an Asset Sale or other
sale of assets, the original value of such Investment plus the cost
of all additions thereto, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.
"INVITATION FOR BID RATE LOAN QUOTES" means an invitation
to each Lender to submit a Bid Rate Loan Quote, substantially in
the form of Exhibit V annexed hereto, delivered by Administrative
Agent to such Lender pursuant to subsection 2.9C with respect to a
Bid Rate Loan Quote Request.
"ISSUING LENDER" means (i) with respect to any Foreign
Letter of Credit, BofA, and (ii) with respect to any Domestic
Letter of Credit, the Lender which agrees or is otherwise obligated
to issue such Letter of Credit, determined as provided in
subsection 2.8C.
"JOINT VENTURE" means a joint venture, partnership or
other similar arrangement, whether in corporate, partnership or
other legal form; provided that, as to any such arrangement in
corporate form, such corporation shall not, as to any Person of
which such corporation is a Subsidiary, be considered to be a Joint
Venture to which such Person is a party.
"KKR" means Kohlberg Kravis ▇▇▇▇▇▇▇ & Co., L.P., a
Delaware limited partnership.
"LENDER" and "LENDERS" have the meanings assigned to
those terms in the introduction to this Agreement and shall include
each Agent and each Co-Agent in their respective individual
capacities; provided that "Lender" and "Lenders" shall also include
the successors and permitted assigns of Lenders pursuant to
subsection 9.2B.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means (i)
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 and (ii) Foreign Letters of Credit.
19
"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 the Applicable Account
Party. For purposes of this definition, any amount described in
clause (i) or (ii) of the preceding sentence which is denominated
in a currency other than Dollars shall be valued based on the
applicable Exchange Rate for such currency as of the applicable
date of determination.
"LIEN" means any lien, mortgage, pledge, security
interest, charge or encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in
the nature thereof, and any agreement to give any security
interest) and any other agreement intended to create any of the
foregoing.
"LOAN" or "LOANS" means one or more of the Revolving
Loans or the Bid Rate Loans or any combination thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the
Overdraft Agreement, the Letters of Credit, the Company Guaranty,
the O-I Subsidiary Guaranty, the Collateral Documents and the
Intercreditor Agreement.
"LOAN PARTIES" means Company and each Subsidiary of
Company which is or becomes a party to a Loan Document,
collectively.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve
System as in effect from time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse
effect upon the business, operations, properties, assets or
condition (financial or otherwise) of Company and its Subsidiaries,
taken as a whole, or (ii) a material adverse effect on the ability
of Company and its Subsidiaries, taken as a whole, to perform, or
of any Agent, any Co-Agent or Lenders 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 ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as
defined in Section 3(37) of ERISA (a) to which Company or any of
its ERISA Affiliates is contributing, or within the past six years
has contributed, (b) to which Company or any of its ERISA
Affiliates has, or within the past six years has had, an obligation
20
to contribute or (c) with respect to which Company or any of its
ERISA Affiliates retains any liability.
"NET CASH PROCEEDS" means, with respect to any Asset
Sale, cash payments received (including any cash payments received
by way of deferred payment of principal pursuant to, or
monetization of, a note or installment receivable or otherwise, but
only as and when received, and including any payments of principal
received in respect of any Intercompany Indebtedness in connection
with such Asset Sale, 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, commis-
sions and other fees and expenses incurred, and all federal, state,
provincial, foreign and local taxes payable as a consequence of
such Asset Sale, and in each case net of a reasonable reserve for
the after-tax cost 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 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 ap-
plicable law be repaid out of the proceeds from such Asset Sale,
and net of all distributions and other payments made to minority
interest holders in Subsidiaries as a result of such Asset Sale.
"NOTES" means one or more of the Revolving Notes or the
Bid Rate Loan Notes or any combination thereof.
"NOTICE OF BID RATE LOAN BORROWING" has the meaning
assigned to that term in subsection 2.9F.
"NOTICE OF BORROWING" means a notice substantially in the
form of Exhibit I annexed hereto with respect to a proposed
borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice
substantially in the form of Exhibit III annexed hereto with
respect to a proposed conversion or continuation.
"NOTICE OF ISSUANCE OF LETTER OF CREDIT" means a notice
substantially in the form of Exhibit II annexed hereto with respect
to the proposed issuance of a Letter of Credit.
"OBLIGATIONS" means all obligations of every nature of
Company and its Subsidiaries from time to time owed to Agents,
Collateral Agent, Co-Agents or Lenders or any of them under or in
respect of this Agreement, the Notes, the Letters of Credit or the
other Loan Documents.
"OFFICERS' CERTIFICATE" means, as applied to any
corporation, a certificate executed on behalf of such corporation
by its Chairman of the Board (if an officer) or its President or
one of its Vice Presidents, and by its Chief Financial Officer, its
Treasurer or its Assistant Treasurer; provided, that any Officers'
21
Certificate required to be delivered by Company on the Closing Date
may be executed on behalf of Company by any one of the foregoing
officers; provided, further, that every Officers' Certificate with
respect to the compliance with a condition precedent to the making
of any Loans hereunder shall include (i) a statement that the
officer or officers making or giving such Officers' Certificate
have read such condition and any definitions or other provisions
contained in this Agreement relating thereto, (ii) a statement
that, in the opinion of the signers, they have made or have caused
to be made such examination or investigation as is necessary to
enable them to express an informed opinion as to whether or not
such condition has been complied with, and (iii) a statement as to
whether, in the opinion of the signers, such condition has been
complied with.
"O-I SUBSIDIARY" means each of the wholly-owned
Subsidiaries of Company identified as such on Schedule A annexed
hereto.
"O-I SUBSIDIARY DEBT OBLIGATIONS" means the obligations
evidenced by promissory notes issued by each Guarantor Subsidiary
to the Persons owning such Guarantor Subsidiary to evidence all
Intercompany Indebtedness of such Guarantor Subsidiary to such
Persons.
"O-I SUBSIDIARY GUARANTY" means the O-I SUBSIDIARY
GUARANTY executed and delivered by each Guarantor Subsidiary
pursuant to subsection 3.1B5, in substantially the form of Exhibit
XIV annexed hereto, as such guaranty agreement may hereafter be
amended, supplemented or otherwise modified from time to time.
"O-I SUBSIDIARY PLEDGE AGREEMENT" means the Fourth
Amended and Restated Intermediate Subsidiary Pledge Agreement
executed pursuant to subsection 3.1B5 by Group and the O-I
Subsidiaries identified as "First Tier Subsidiaries" on Schedule A
annexed hereto, in substantially the form of Exhibit XVI annexed
hereto, as such O-I Subsidiary Pledge Agreement may hereafter be
amended, supplemented or otherwise modified from time to time.
"OVERDRAFT ACCOUNT" means the account established by
Company with Administrative Agent and referenced in the Overdraft
Agreement.
"OVERDRAFT AGREEMENT" means the Overdraft Agreement
executed and delivered by Company and Administrative Agent, in
substantially the form of Exhibit IX annexed hereto, and any
successor Overdraft Agreement executed and delivered by Company and
any successor Administrative Agent pursuant to subsection 8.6, as
any such Overdraft Agreement may hereafter be amended, amended and
restated, supplemented or otherwise modified from time to time.
"OVERDRAFT AMOUNT" means, as at any date of
determination, the aggregate amount of outstanding overdrafts
charged to the Overdraft Account.
22
"PBGC" means the Pension Benefit Guaranty Corporation (or
any successor thereto).
"PENSION PLAN" means any Employee Benefit Plan, other
than a Multiemployer Plan, which is subject to Section 412 of the
Internal Revenue Code or Section 302 of ERISA.
"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 car-
riers, warehousemen, mechanics, materialmen and other liens
imposed by law incurred in the ordinary course of business for
sums not yet delinquent or being contested in good faith, if
such reserve or other appropriate provision, if any, as shall
be required by GAAP (subject to subsection 1.2) shall have
been made therefor;
(iii) Liens (other than any Lien imposed 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 in excess
of $20,000,000 (exclusive of any amount adequately covered by
insurance as to which the insurance company has acknowledged
coverage) and any other attachment or judgment lien unless the
judgment it secures shall, within 60 days after the entry
thereof, not have been discharged or execution thereof stayed
pending appeal, or shall not have been discharged within 60
days after the expiration of any such stay;
(v) Leases or subleases granted to others not in-
terfering in any material respect with the business of Company
or any of its Subsidiaries;
(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 or any of its
Subsidiaries;
(vii) Any interest or title of a lessor under any
lease;
(viii) Liens arising from UCC financing statements
regarding leases permitted by this Agreement; and
(ix) Liens in favor of customs and revenue authori-
ties arising as a matter of law to secure payment of customs
duties in connection with the importation of goods.
23
"PERSON" means and includes natural persons, corpo-
rations, limited partnerships, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts, banks,
trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments and
agencies and political subdivisions thereof.
"PLEDGE AGREEMENTS" means the Company Pledge Agreement
and the O-I 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.
"PRELIMINARY GENIE ACQUISITION" means the acquisition by
one or more Acquisition Newcos from Seller of (i) a majority of the
Genie Holdings Shares, (ii) irrevocable rights to acquire a
majority of the Genie Holdings Shares, (iii) a majority of the
Genie Shares, or (iv) irrevocable rights to acquire a majority of
the Genie Shares.
"PRIME RATE" means the rate which Bankers announces from
time to time as its prime lending rate, as in effect from time to
time. The Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer.
Bankers may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.
"PRO RATA SHARE" means, with respect to each Lender, the
percentage designated as such Lender's Pro Rata Share set forth
opposite the name of such Lender on Part II of Schedule B annexed
hereto, as such percentages shall be adjusted from time to time to
give effect to any assignments permitted pursuant to subsection
9.2. The sum of the Pro Rata Shares of all Lenders at any date of
determination shall equal 100%.
"REFERENCE LENDERS" means Bankers and BofA.
"REGISTER" has the meaning assigned to that term in
subsection 2.1E.
"REGULATION D" means Regulation D of the Board of
Governors of the Federal Reserve System as in effect from time to
time.
"RELEASE" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal,
discharge, dispersal, dumping, leaching or migration of Hazardous
Materials into the indoor or outdoor environment (including,
without limitation, the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous
Materials), or into or out of any Facility, including the movement
of any Hazardous Material through the air, soil, surface water,
groundwater or property.
24
"REPORTING UNIT" means each of the units of the
operations of Company, as set forth on Schedule G annexed hereto,
as such Schedule G may hereafter be amended, supplemented or
modified from time to time by Company.
"REQUISITE LENDERS" means Lenders having more than 50% of
the aggregate Revolving Loan Commitments or, if the Revolving Loan
Commitments have been terminated, Lenders holding more than 50% of
the sum of (i) the aggregate outstanding principal amount of the
Revolving Loans plus (ii) the aggregate outstanding principal
amount of the Bid Rate Loans plus (iii) the aggregate Pro Rata
Shares of the Letter of Credit Usage.
"RESPONSIBLE OFFICER" means any of the chief executive
officer, the president, any vice president, the chief financial
officer, the comptroller, the treasurer or any assistant treasurer
of Company.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or
other distribution, direct or indirect, on account of any shares of
any class of stock of Company now or hereafter outstanding, except
a dividend payable solely in shares of that class of stock to the
holders of that class, (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value,
direct or indirect, of any shares of any class of stock of Company
now or hereafter outstanding, and (iii) any payment made to retire,
or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of stock of Company now
or hereafter outstanding.
"REVOLVING LOAN COMMITMENT" or "REVOLVING LOAN COM-
MITMENTS" means the commitment or commitments of a Lender or
Lenders to make Revolving Loans as set forth in subsection 2.1A.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means
December 31, 2001.
"REVOLVING LOANS" means the Loans made by Lenders to
Company pursuant to subsection 2.1A.
"REVOLVING NOTES" means the promissory notes of Company
substantially in the form of Exhibit VII annexed hereto, issued in
favor of Lenders pursuant to subsection 2.1E(iv) to evidence the
Revolving Loans, as they may be amended, supplemented or otherwise
modified from time to time.
"S&P" means Standard & Poor's Ratings Group.
"SECURED OBLIGATIONS" means the Obligations and, to the
extent the holders of such obligations are subject to the
provisions of the Intercreditor Agreement, the obligations owing
under Interest Rate Agreements and Currency Agreements contemplated
by subsection 6.4(vii), the obligations owing to the holders from
time to time of any outstanding Commercial Paper and the
obligations owing to Foreign Lenders under the Foreign Lender
Guaranties issued to support the Foreign Lender Debt.
25
"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, collectively, the shareholders of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & C. S.a.p.a. and the members of the Maderna and ▇▇▇▇▇▇▇▇▇
families which are shareholders of Avir Finanziaria S.p.A.
"SELLER NOTES" means, collectively, all five of the
Seller Note Tranches.
"SELLER NOTE TRANCHE" means each of the five series of
promissory notes to be issued by one or more Acquisition Newcos to
Seller as a portion of the purchase price paid to Seller in respect
of the Genie Acquisition, each such promissory note (i) to be
unsecured, (ii) to bear interest at a rate per annum not to exceed
(a) the applicable rate, as in effect on the date of issuance of
the Seller Notes, on debt securities of the same tenor issued by
the government of Italy minus (b) the sum of (1) the Applicable
Eurodollar Margin in effect on the date of issuance of the Seller
Notes plus (2) the Applicable Facility Fee Percentage in effect on
the date of issuance of the Seller Notes plus (3) 0.125%, (iii) to
contain no restrictions on the ability of Genie and its
Subsidiaries to make loans or advances, pay dividends, or otherwise
make any payments to Company and its Subsidiaries, and (iv) to have
such other terms (including without limitation covenants and events
of default) as may be satisfactory to Agents, and each such series
of promissory notes (X) to be in an aggregate principal amount
equal to 20% of the aggregate principal amount of the Seller Notes
and (Y) to mature on the first, second, third, fourth or fifth
anniversary, respectively, of the date of issuance of the Seller
Notes (or earlier, in the case of any Seller Note Tranche, if the
Foreign Letter of Credit supporting payment of such Seller Note
Tranche has a stated expiration date prior to the maturity of such
Seller Note Tranche and is not renewed prior to such expiration
date), and "SELLER NOTE TRANCHES" means all five of such series of
promissory notes, collectively.
"SENIOR DEBENTURES" means the 11% Senior Debentures due
2003 of Company in an aggregate original principal amount of
$1,000,000,000 issued pursuant to the Senior Debenture Indenture,
as such Senior Debentures may be amended, supplemented or otherwise
modified from time to time after the Closing Date to the extent
permitted under this Agreement.
"SENIOR DEBENTURE INDENTURE" means the Indenture dated as
of December 15, 1991 among Company, as issuer, Group, as guarantor,
and the Senior Debenture Trustee, as such Indenture may be amended,
26
supplemented or otherwise modified from time to time after the
Closing Date to the extent permitted under this Agreement.
"SENIOR DEBENTURE TRUSTEE" means The Bank of New York, as
indenture trustee for the Senior Debentures, and its successors.
"SENIOR SUBORDINATED DEBT" means each of Company's (i)
10-1/4% Senior Subordinated Notes Due April 1, 1999 in the
aggregate principal amount of $250,000,000, (ii) 10-1/2% Senior
Subordinated Notes Due June 15, 2002 in the aggregate principal
amount of $150,000,000, (iii) 10% Senior Subordinated Notes Due
August 1, 2002 in the aggregate principal amount of $250,000,000,
(iv) 9-3/4% Senior Subordinated Notes Due August 15, 2004 in the
aggregate principal amount of $200,000,000 and (v) 9.95% Senior
Subordinated Notes Due October 15, 2004 in the aggregate principal
amount of $100,000,000, in each case issued pursuant to the Senior
Subordinated Debt Indenture, as such Senior Subordinated Debt may
be amended, supplemented or otherwise modified from time to time
after the Closing Date to the extent permitted under this
Agreement.
"SENIOR SUBORDINATED DEBT INDENTURE" means the Indenture
dated as of April 1, 1992 among Company, as issuer, and the Senior
Subordinated Debt Trustee, as supplemented to the date hereof and
as such indenture may be amended, supplemented or otherwise
modified from time to time after the Closing Date to the extent
permitted under this Agreement.
"SENIOR SUBORDINATED DEBT TRUSTEE" means ▇▇▇▇▇▇ Trust and
Savings Bank, as indenture trustee for the Senior Subordinated
Debt, and its successors.
"STANDBY LETTER OF CREDIT" means any standby letter of
credit or similar instrument (other than a Foreign Letter of
Credit) 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) Indebtedness of Company or any of
its Consolidated Subsidiaries in respect of financings listed under
the caption "Letters of Credit" on Schedule F annexed hereto,
27
(ix) obligations of ▇▇▇▇▇ Insurance Limited with respect to certain
self insurance and reinsurance programs, including obligations
under insurance treaties, or (x) other obligations of Company for
which letter of credit support would be used in the ordinary course
of Company's business consistent with its past practices or
otherwise consistent with custom and practice in the industry.
"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.
"TAX" or "TAXES" means any present or future tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature
and whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed; provided that
"TAX ON THE OVERALL NET INCOME" of a Person shall be construed as
a reference to a tax imposed by the jurisdiction in which that
Person's principal office (and/or, in the case of a Lender, its
lending office) is located on all or part of the net income,
profits or gains of that Person (whether worldwide, or only insofar
as such income, profits or gains are considered to arise in or to
relate to a particular jurisdiction, or otherwise).
"TAX TRANSFEREE" means any Person who acquires any
interest in the Loans (whether or not by operation of law) or the
office to which a Lender, Agent or Co-Agent has transferred its
Loans for purposes of determining where the Loans are made,
accounted for or booked.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means,
as at any date of determination, the sum of (i) the aggregate
principal amount of all outstanding Revolving Loans plus (ii) the
aggregate principal amount of all outstanding Bid Rate Loans plus
(iii) the Commercial Paper Usage plus (iv) the Letter of Credit
Usage plus (v) the Overdraft Amount.
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
28
to clauses (i), (ii) and (x) of subsection 5.1 shall be prepared in
accordance with GAAP as in effect at the time of such preparation
(and, if necessary, delivered together with the written statements
provided for in subsection 5.1(iv)).
1.3 OTHER DEFINITIONAL PROVISIONS; ANNIVERSARIES
References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement unless
otherwise specifically provided. Any of the terms defined in
subsection 1.1 may, unless the context otherwise requires, be used
in the singular or the plural depending on the reference. For
purposes of this Agreement, a monthly anniversary of a specified
date shall occur on the same day of the applicable month as the day
of the month on which such date occurred; provided that if there is
no numerically corresponding day in the applicable month to the day
of the month on which such date occurred, the monthly anniversary
of such date shall be the last day of the applicable month.
SECTION 2
AMOUNT AND TERMS OF REVOLVING LOAN COMMITMENTS AND LOANS; NOTES
2.1 REVOLVING LOANS; OVERDRAFT ACCOUNT
A. Revolving Loan Commitments. Subject to the terms and
conditions of this Agreement and in reliance upon the
representations and warranties of Company herein set forth, 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 and with respect to
the availability of the Genie Acquisition Sub-Facility, to make
Revolving Loans to Company from time to time during the period from
the Closing Date to but excluding the Revolving Loan Commitment
Termination Date, in an amount not exceeding its Pro Rata Share of
the aggregate Revolving Loan Commitments (as defined below) to be
used for the purposes identified in subsection 2.5A. Each Lender's
commitment to make Revolving Loans to Company pursuant to this
subsection 2.1A is herein called its "REVOLVING LOAN COMMITMENT"
and such commitments of all Lenders in the aggregate are herein
called the "REVOLVING LOAN COMMITMENTS". The initial amount of
each Lender's Revolving Loan Commitment is set forth on Schedule B
annexed hereto and the aggregate initial amount of the Revolving
Loan Commitments is $1,800,000,000. Each Lender's Revolving Loan
Commitment shall expire on the Revolving Loan Commitment
Termination Date and all Revolving Loans and all other amounts owed
hereunder with respect to the Revolving Loans shall be paid in full
no later than that date. The amount of the Revolving Loan
Commitments shall be reduced by the amount of all reductions
thereof made pursuant to subsections 2.4F and 2.4G through the date
of determination. 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.
29
Notwithstanding the foregoing provisions of this
subsection 2.1A and the provisions of subsection 2.1B, (i) the
amount otherwise available to be borrowed or maintained as
Revolving Loans under the Revolving Loan Commitments as of any time
of determination (other than (w) to repay Bid Rate Loans and
accrued and unpaid interest thereon, (x) to reimburse any Issuing
Lender for the amount of any drawings under any Letters of Credit
honored by such Issuing Lender and not theretofore reimbursed by
the Applicable Account Party, (y) to repay overdrafts charged to
the Overdraft Account, and (z) to repay at maturity any outstanding
Commercial Paper) shall be reduced by an amount equal to the sum of
(a) the principal amount of all outstanding Bid Rate Loans plus
(b) the Letter of Credit Usage plus (c) the Commercial Paper Usage
plus (d) the Overdraft Amount as of such time of determination, and
(ii) prior to the Genie Acquisition Commencement Date the Total
Utilization of Revolving Loan Commitments shall at no time exceed
$1,200,000,000.
Subject to subsection 2.6D, all Revolving Loans under
this Agreement shall be made by Lenders simultaneously and
proportionately to their Pro Rata Shares, it being understood that
no Lender shall be responsible for any default by any other Lender
in that other Lender's obligation to make Revolving Loans hereunder
nor shall the Revolving Loan Commitment of any Lender be increased
or decreased as a result of the default by any other Lender in that
other Lender's obligation to make Revolving Loans hereunder.
Subject to the limitations set forth in this Agreement, amounts
borrowed by Company under this subsection 2.1A may be repaid and,
to but excluding the Revolving Loan Commitment Termination Date,
reborrowed. Revolving Loans (other than Revolving Loans in respect
of a Bid Rate Loan Shortfall Amount, which shall be in the amount
of such Bid Rate Loan Shortfall Amount) made on any Funding Date
shall be in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount.
B. Overdraft Account. Lenders agree that Company and
Administrative Agent may establish and maintain the Overdraft
Account to be established pursuant to the Overdraft Agreement;
provided that (i) the aggregate amount of extensions of credit
outstanding with respect to the Overdraft Account shall not exceed
at any time $50,000,000 and (ii) the aggregate amount of extensions
of credit outstanding with respect to the Overdraft Account at any
time shall not exceed the Revolving Loan Commitments reduced by the
sum of the aggregate principal amount of Revolving Loans and Bid
Rate Loans, the Commercial Paper Usage and the Letter of Credit
Usage at such time. Notwithstanding anything contained in this
Agreement to the contrary (but subject, however, to the limitations
set forth in subsection 2.1A with respect to the making of
Revolving Loans), Lenders and Company further agree that
Administrative Agent at any time in its sole and absolute
discretion may, upon notice to Company and Lenders, require each
Lender (including Administrative Agent) on one Business Day's
notice to make a Revolving Loan in an amount equal to that Lender's
Pro Rata Share of the Overdraft Amount and all accrued and unpaid
interest thereon or, in the sole and absolute discretion of
Administrative Agent, require each other Lender to purchase a
participation in amounts due with respect to the Overdraft Account
in an amount equal to that Lender's Pro Rata Share of the Overdraft
Amount and all accrued and unpaid interest thereon; provided,
however, that the obligation of each Lender to make each such
30
Revolving Loan or to purchase each such participation with respect
to any extension of credit included in the Overdraft Amount is
subject to the condition that at the time such extension of credit
under the Overdraft Agreement was made (A) the duly authorized
officer of Administrative Agent responsible for the administration
of Administrative Agent's credit relationship with Company believed
in good faith that (i) no Event of Default had occurred and was
continuing or (ii) any Event of Default that had occurred and was
continuing had been waived by Requisite Lenders (or, if applicable
under subsection 9.7, all Lenders) at the time such extension of
credit under the Overdraft Agreement was made or (B) such Lender
had actual knowledge, by receipt of the statements required
pursuant to subsection 5.1 or otherwise, that an Event of Default
had occurred and was continuing and remained unwaived by Requisite
Lenders (or, if applicable under subsection 9.7, all Lenders) at
the time such extension of credit under the Overdraft Agreement was
made and failed to notify Administrative Agent in writing on or
prior to the date of such extension of credit (which notice shall
be effective as of the date of receipt by Administrative Agent).
In the case of Revolving Loans made by Lenders other than
Administrative Agent under the immediately preceding sentence, each
such Lender shall make the amount of its Revolving Loan available
to Administrative Agent, in same day funds, at the Funding and
Payment Office not later than 1:00 P.M. (New York time) on the
Business Day next succeeding the date such notice is given. The
proceeds of such Revolving Loans shall be immediately delivered to
Administrative Agent (and not to Company) and applied to repay the
Overdraft Amount. On the day such Revolving Loans are made,
Administrative Agent's Pro Rata Share of the Overdraft Amount being
refunded shall be deemed to be paid with the proceeds of a
Revolving Loan made by Administrative Agent and such portion of the
Overdraft Amount deemed to be so paid shall no longer be
outstanding. Company authorizes Administrative Agent to charge
Company's accounts with Administrative Agent (up to the amount
available in each such account) in order to immediately pay
Administrative Agent the amount of the Overdraft Amount to be
refunded to the extent amounts received from Lenders, including
amounts deemed to be received from Administrative Agent, are not
sufficient to repay in full the Overdraft Amount to be refunded.
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
amounts due with respect to the Overdraft Account, payment for such
participations shall be made directly to Administrative Agent at
the Funding and Payment Office not later than 1:00 P.M. (New York
time) on the Business Day next succeeding the date notice to
purchase such participations is given. Except as provided above in
this subsection 2.1B and except for the satisfaction of the
conditions specified in subsection 3.1, each Lender's obligation to
make Revolving Loans pursuant to this subsection 2.1B and to
purchase participations in amounts due with respect to the
Overdraft Account pursuant to this subsection 2.1B shall be
absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender
may have against Administrative Agent, Company or any other Person
for any reason whatsoever; (ii) the occurrence or continuance of an
31
Event of Default or a Potential Event of Default; (iii) any adverse
change in the condition (financial or otherwise) of Company;
(iv) any breach of this Agreement by Company or any other Lender;
or (v) any other circumstance, happening, or event whatsoever,
whether or not similar to any of the foregoing; provided that in
the event that the obligations of Lenders to make Revolving Loans
are terminated in accordance with Section 7, Lenders shall
thereafter only be obligated to purchase participations in amounts
due with respect to the Overdraft Account as provided in this
subsection 2.1B. In the event that any Lender fails to make avail-
able to Administrative Agent the amount of any of such Lender's
Revolving Loans required to be made pursuant to this subsection
2.1B or the amount of any participations in amounts due with
respect to the Overdraft Account which are required to be purchased
from Administrative Agent by such Lender pursuant to this
subsection 2.1B, Administrative Agent shall be entitled to recover
such amount on demand from such Lender together with interest at
the customary rate set by Administrative Agent for the correction
of errors among banks for three Business Days and thereafter at the
Base Rate. Nothing in this subsection 2.1B shall be deemed to
prejudice the right of any Lender to recover from Administrative
Agent any amounts made available by such Lender to Administrative
Agent pursuant to this subsection 2.1B in respect of any extension
of credit by Administrative Agent under the Overdraft Agreement in
the event that it is determined by a court of competent 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. Notice of Borrowing. Whenever Company desires that
Lenders make Revolving Loans under subsection 2.1A, it shall
deliver to Administrative Agent a Notice of Borrowing no later than
12:00 Noon (New York time) on the proposed Funding Date in the case
of Base Rate Loans to be made on a Bid Rate Loan Shortfall Date in
an aggregate amount not to exceed the applicable Bid Rate Loan
Shortfall Amount or at least one Business Day in advance of the
proposed Funding Date in the case of any other Base Rate Loan or
three Business Days in advance of the proposed Funding Date in the
case of a Eurodollar Rate Loan. The Notice of Borrowing shall
specify (i) the proposed Funding Date (which shall be a Business
Day), (ii) the amount of the proposed Loans ; provided that in the
case of a Notice of Borrowing delivered on a Bid Rate Loan
Shortfall Date requesting Base Rate Loans to be made as Revolving
Loans on such Bid Rate Loan Shortfall Date, the amount of such
proposed Revolving Loans may not exceed the Bid Rate Loan Shortfall
Amount in respect of such Bid Rate Loan Shortfall Date,
(iii) whether such Revolving Loans are initially to consist of Base
Rate Loans or Eurodollar Rate Loans or a combination thereof, and
(iv) if such Revolving Loans, or any portion thereof, are initially
to be Eurodollar Rate Loans, the amounts thereof and the initial
Interest Periods therefor; provided that in the case of Revolving
Loans requested to be made during the first 30 days following the
Closing Date as Eurodollar Rate Loans, the initial Interest Period
applicable to such Loans shall be one month unless Administrative
Agent permits otherwise, in its sole discretion; and such Notice of
32
Borrowing shall further certify that subsection 3.2B is satisfied
on and as of that Funding Date; provided that the minimum amount
of Eurodollar Rate Loans with a particular Interest Period included
as a portion of any such combination, if any, shall be $10,000,000
and integral multiples of $1,000,000 in excess of that amount.
Revolving Loans may be continued as or converted into Base Rate
Loans and Eurodollar Rate Loans in the manner provided in
subsection 2.2D. In lieu of delivering the above-described Notice
of Borrowing, Company may give Administrative Agent telephonic
notice by the required time of any proposed borrowing under this
subsection 2.1; provided that such notice shall be promptly
confirmed in writing by delivery of a Notice of Borrowing to
Administrative Agent on or prior to the Funding Date of the
requested Revolving Loans.
Neither Administrative Agent nor any Lender shall incur
any liability to Company in acting upon any telephonic notice re-
ferred to above which Administrative Agent believes in good faith
to have been given by a duly authorized officer or other person au-
thorized to borrow on behalf of Company or for otherwise acting in
good faith under this subsection 2.1C and upon funding of Revolving
Loans by any Lender in accordance with this Agreement pursuant to
any such telephonic notice Company shall have effected Revolving
Loans hereunder.
Except as provided in subsection 2.6D, a Notice of
Borrowing for a Eurodollar Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest
Rate Determination Date, and Company shall be bound to make a
borrowing in accordance therewith, unless Company pays to Lenders
such amounts as may be due under subsection 2.6E for failure of a
borrowing of a Eurodollar Rate Loan to occur on the date specified
therefor in a Notice of Borrowing (or telephonic notice in lieu
thereof).
D. Disbursement of Funds. Promptly after receipt of a
Notice of Borrowing pursuant to subsection 2.1C (or telephonic
notice in lieu thereof) or the deemed receipt of a Notice of
Borrowing pursuant to subsection 2.8D, Administrative Agent shall
notify each Lender of the proposed borrowing if the Loan to be made
pursuant to such proposed borrowing will be a Revolving Loan. Each
Lender shall make the amount of its Revolving Loan available to
Administrative Agent, in same day funds, at the Funding and Payment
Office not later than 12:00 noon (New York time) on the Funding
Date. Except as provided in subsection 2.1B with respect to the
repayment of the Overdraft Amount and accrued and unpaid interest
thereon, and in subsection 2.8D with respect to the reimbursement
of amounts drawn under Letters of Credit, upon satisfaction or
waiver of the conditions precedent specified in subsections 3.1 and
3.2, Administrative Agent shall make the proceeds of such Loans
available to Company on such Funding Date by causing an amount of
same day funds equal to the proceeds of all such Loans received by
Administrative Agent to be credited to the account of Company at
such office of Administrative Agent.
Unless Administrative Agent shall have been notified by
any Lender prior to any Funding Date that such Lender does not
intend to make available to Administrative Agent such Lender's Loan
on such Funding Date, Administrative Agent may assume that such
Lender has made such amount available to Administrative Agent on
such Funding Date and Administrative Agent in its sole discretion
33
may, but shall not be obligated to, make available to Company a
corresponding amount on such Funding Date. If such corresponding
amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with
interest thereon, for each day from such Funding Date until the
date such amount is paid to Administrative Agent, at the customary
rate set by Administrative Agent for the correction of errors among
banks for three Business Days and thereafter at the Base Rate. If
such Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall
promptly notify Company, and Company shall immediately pay such
corresponding amount to Administrative Agent. Nothing in this
subsection 2.1D shall be deemed to relieve any Lender from its
obligation to fulfill its Revolving Loan Commitment hereunder or to
prejudice any rights which Company may have against any Lender as
a result of any default by such Lender hereunder.
E. The Register; Notes.
(i) Administrative Agent shall maintain, at its address
referred to in subsection 9.10, a register for the recordation
of the names and addresses of Lenders and the Revolving Loan
Commitments and Loans of each Lender from time to time (the
"REGISTER"). Company, Agents, Co-Agents and Lenders may treat
each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register
shall be available for inspection by Company, Documentation
Agent, Co-Agents or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(ii) Administrative Agent shall record in the
Register the Revolving Loan Commitments and the Loans from
time to time of each Lender and each repayment or prepayment
in respect of the principal amount of the Loans of each
Lender. Any such recordation shall be conclusive and binding
on Company and each Lender, absent manifest or demonstrable
error; provided that failure to make any such recordation, or
any error in such recordation, shall not affect Company's
Obligations in respect of the applicable Loans.
(iii) Each Lender shall record on its internal records
(including, without limitation, any promissory note described
in subsection 2.1E(iv)) the amount of each Loan made by it and
each payment in respect thereof; provided that in the event of
any inconsistency between the Register and any Lender's
records, the recordations in the Register shall govern, absent
manifest or demonstrable error.
(iv) If so requested by any Lender by written notice
to Company (with a copy to Administrative Agent) at least two
Business Days' prior to the Closing 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 Closing Date (or, if such notice is delivered after the
Closing Date, promptly after Company's receipt of such notice)
a promissory note or promissory notes to evidence such
34
Lender's Revolving Loans or Bid Rate Loans, substantially in
the form of Exhibit VII or Exhibit VIII hereto, respectively.
2.2 INTEREST ON THE REVOLVING LOANS
A. Rate of Interest.
The Revolving Loans shall bear interest on the unpaid
principal amount thereof from the date made through maturity
(whether by acceleration or otherwise) at a rate determined by
reference to the Base Rate or the Adjusted Eurodollar Rate. The
Bid Rate Loans shall bear interest as provided in subsection 2.9.
Except to the extent that this Agreement specifically provides that
certain Revolving Loans must be made at the Base Rate, the
applicable basis for determining the rate of interest with respect
to Revolving Loans shall be selected by Company at the time a
Notice of Borrowing is given pursuant to subsection 2.1C (or is
deemed to be given pursuant to subsection 2.8D) or at the time a
Notice of Conversion/Continuation is given pursuant to subsection
2.2D. If on any day a Revolving Loan is outstanding with respect
to which notice has not been delivered to Administrative Agent in
accordance with the terms of this Agreement specifying the basis
for determining the rate of interest, then for that day that
Revolving Loan shall bear interest determined by reference to the
Base Rate.
Revolving Loans shall bear interest through maturity as
follows:
(i) if a Base Rate Loan, then at the Base Rate per
annum; or
(ii) if a Eurodollar Rate Loan, then at the sum of
the Adjusted Eurodollar Rate plus the Applicable Eurodollar
Margin per annum.
B. Interest Periods.
In connection with each Eurodollar Rate Loan, Company
shall elect an interest period (each an "INTEREST PERIOD") to be
applicable to such Loan, which Interest Period shall be either a
one, two, three, six, nine or twelve month period; provided that:
(i) the Interest Period for any Loan shall commence on
the date of such Loan;
(ii) if an Interest Period would otherwise expire on
a day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day; provided that if
any Interest Period would otherwise expire on a day which is
not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest
Period shall expire on the next preceding Business Day;
(iii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
35
the end of such Interest Period) shall end on the last
Business Day of a calendar month;
(iv) no Interest Period shall extend beyond the
Revolving Loan Commitment Termination Date;
(v) there shall be no more than 20 Interest Periods
outstanding at any time;
(vi) 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
(vii) there shall be no Interest Period of nine or
twelve months unless Administrative Agent, after consultation
with Lenders, has determined in good faith based on prevailing
conditions in the Eurodollar market on any date of
determination that U.S. dollar deposits are offered by each
Lender to first class banks in the Eurodollar market for a
comparable maturity.
C. Interest Payments. Subject to subsection 2.2E,
interest shall be payable on the Loans (other than Bid Rate Loans,
interest on which shall be payable as provided in subsection 2.9J)
as follows:
(i) interest on each Base Rate Loan shall be payable in
arrears on and to each March 15, June 15, September 15, and
December 15 of each year, commencing December 15, 1996, and at
maturity; and
(ii) interest on each Eurodollar Rate Loan shall be
payable in arrears on and to each Interest Payment Date
applicable to that Loan, upon any prepayment of that Loan (to
the extent accrued on the amount being prepaid) and at
maturity.
D. Conversion or Continuation. Subject to the
provisions of subsection 2.6, Company shall have the option (i) to
convert at any time all or any part of its outstanding Revolving
Loans equal to $10,000,000 and integral multiples of $1,000,000 in
excess of that amount from Loans bearing interest at a rate deter-
mined by reference to one basis to Loans bearing interest at a rate
determined by reference to an alternative basis or (ii) upon the
expiration of any Interest Period applicable to a Eurodollar Rate
Loan, to continue all or any portion of its outstanding Revolving
Loans equal to $10,000,000 and integral multiples of $1,000,000 in
excess of that amount as a Eurodollar Rate Loan, and the succeeding
Interest Period(s) of such continued Loan shall commence on the
last day of the Interest Period of the Loan to be continued;
provided, however, that a Eurodollar Rate Loan may only be
converted into a Base Rate Loan on the expiration date of an
Interest Period applicable thereto; and provided, further, that,
unless Requisite Lenders otherwise agree, no outstanding Loan may
be continued as, or be converted into, a Eurodollar Rate Loan when
any Event of Default or Potential Event of Default has occurred and
is continuing; and provided, still further, that no Loan may be
made as or converted into a Base Rate Loan during the period from
36
December 24 of any year to and including January 7 of the
immediately succeeding year for the purpose of investing in
securities bearing interest at a rate determined by reference to
any other basis for the purpose of arbitrage or speculation.
Company shall deliver a Notice of Conversion/Continuation
to Administrative Agent no later than 12:00 Noon (New York time) at
least one Business Day in advance of the proposed conversion/
continuation date (in the case of a conversion to a Base Rate Loan)
or three Business Days in advance of the proposed conversion/
continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). A Notice of Conversion/
Continuation shall specify (i) the proposed conversion/continuation
date (which shall be a Business Day), (ii) the amount of the Loan
to be converted/continued, (iii) the nature of the proposed
conversion/continuation and (iv) in the case of a conversion to, or
a continuation of, a Eurodollar Rate Loan, the requested Interest
Period. In lieu of delivering the above described Notice of
Conversion/Continuation, Company may give Administrative Agent
telephonic notice by the required time of any proposed conversion/
continuation under this subsection 2.2D; provided that such notice
shall be promptly confirmed in writing by delivery of a Notice of
Conversion/Continuation to Administrative Agent on or before the
proposed conversion/continuation date.
Administrative Agent shall incur no liability to Company
in acting upon any telephonic notice referred to above which
Administrative Agent believes in good faith to have been given by
a duly authorized officer or other person authorized to act on
behalf of Company or for otherwise acting in good faith under this
subsection 2.2D and upon conversion/continuation by Administrative
Agent in accordance with this Agreement pursuant to any telephonic
notice, Company shall have effected Loans hereunder.
Except as provided in subsection 2.6D, a Notice of
Conversion/Continuation for conversion to, or continuation of, a
Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall
be irrevocable on and after the related Interest Rate Determination
Date, and upon delivering a Notice of Conversion/Continuation
Company shall be bound to convert or continue in accordance
therewith, unless Company pays to Lenders such amounts as may be
due under subsection 2.6E for failure of a conversion to or
continuation of any Eurodollar Rate Loan to occur on the date
specified therefor in a Notice of Conversion/Continuation (or
telephonic notice in lieu thereof).
E. Post-Maturity Interest. Any principal payments on
the Loans not paid when due and, to the extent permitted by
applicable law, any interest payments on the Loans not paid when
due, in each case whether at stated maturity, by notice of
prepayment, by acceleration or otherwise, shall thereafter bear
interest payable upon demand at a rate equal to the sum of the Base
Rate plus 2.00% per annum.
F. Computation of Interest. Interest on the Loans shall
be computed on the basis of a 360-day year and the actual number of
days elapsed in the period during which it accrues. In computing
interest on any Loan, the date of the making of the Loan or the
first day of an Interest Period, as the case may be, shall be
included and the date of payment or the expiration date of an
37
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 to
Administrative Agent, for distribution to each Lender, such
Lender's Pro Rata Share of the facility fees with respect to the
Revolving Loan Commitments for the period from and including the
Closing Date to and excluding the Revolving Loan Commitment
Termination Date, equal to the daily average amount of the
Revolving Loan Commitments (without regard to the Total Utilization
of Revolving Loan Commitments at any time or from time to time)
multiplied by the Applicable Facility Fee Percentage, such facility
fees to be computed on the basis of a 360-day year and to be pay-
able in arrears on but excluding March 15, June 15, September 15
and December 15 of each year for the quarter ending on such date,
commencing on the first such date to occur after the Closing Date,
and on the Revolving Loan Commitment Termination Date.
B. Other Fees. Company agrees to pay an annual
administrative fee to Administrative Agent and such other fees to
Agents, in each case in the amounts and at the times agreed upon
between Company and the applicable Agent.
2.4 PREPAYMENTS AND PAYMENTS; REDUCTIONS IN REVOLVING
LOAN COMMITMENTS
A. Prepayments.
(i) Voluntary Prepayments. Company may not prepay any
Bid Rate Loan without the prior consent of the applicable
Lender; provided that in the event the applicable Lender so
consents to the prepayment of a Bid Rate Loan, Company shall
deliver to Administrative Agent a notice of such prepayment on
or prior to the date of such prepayment. Subject to the
foregoing provisions of this subsection 2.4A(i), Company may,
upon written or telephonic notice to Administrative Agent on
or prior to 12:00 Noon (New York time) on the date of
prepayment (in the case of Base Rate Loans) or three Business
Days' prior written or telephonic notice (in the case of
Eurodollar Rate Loans), which notice, if telephonic, shall be
promptly confirmed in writing to Administrative Agent and
which notice Administrative Agent will promptly transmit by
telegram, telex or telephone to each Lender, at any time and
from time to time prepay any Revolving Loan in whole or in
part in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount; provided,
however, that if a Eurodollar Rate Loan is prepaid on a date
other than the last day of the Interest Period applicable
thereto, Company shall be liable for any payments required by
subsection 2.6E. Notice of prepayment having been given as
aforesaid, the principal amount of the Loans specified in such
notice shall become due and payable on the prepayment date.
38
(ii) Mandatory Prepayments. Company shall make
prepayments of Revolving Loans to the extent necessary so that
the aggregate outstanding principal amount of Revolving Loans
at any time does not exceed the Revolving Loan Commitments
then in effect. Company shall also make prepayments of the
Revolving Loans and Bid Rate Loans to the extent necessary so
that the Total Utilization of Revolving Loan Commitments at no
time exceeds (a) prior to the Genie Acquisition Commencement
Date, the lesser of (1) $1,200,000,000 and (2) the Revolving
Loan Commitments, and (b) thereafter, the Revolving Loan
Commitments.
(iii) Application of Prepayments. Any mandatory
prepayment of Revolving Loans shall be applied first to Base
Rate Loans to the full extent thereof before application to
Eurodollar Rate Loans as determined by Administrative Agent.
All prepayments of Eurodollar Rate Loans shall include payment
of accrued interest on the principal amount so prepaid and
shall be applied to payment of interest before application to
principal.
B. Manner and Time of Payment. Except as provided in
subsection 2.8E, all payments of principal, interest and fees
hereunder and under the Notes by Company shall be made without
defense, setoff and counterclaim and in same day funds and
delivered to Administrative Agent not later than 12:00 Noon (New
York time) on the date due at the Funding and Payment Office for
the account of Lenders; funds received by Administrative Agent
after that time shall be deemed to have been paid by Company on the
next succeeding Business Day. Company hereby authorizes
Administrative Agent to charge its accounts with Administrative
Agent in order to cause timely payment to be made to Administrative
Agent of all principal, interest and fees due hereunder (subject to
sufficient funds being available in its accounts for that purpose);
provided that Administrative Agent shall give Company notice of
such charges prior thereto or as soon as reasonably practicable
thereafter.
C. Apportionment of Payments. Aggregate principal and
interest payments in respect of Revolving Loans and, to the extent
payments are made by Company after payments have been made by
Lenders pursuant to subsection 2.8E, payments in respect of Letters
of Credit, shall be apportioned among the Revolving Loans and
Letters of Credit to which such payments relate, and payments of
the aggregate facility fees and Letter of Credit commissions shall
be apportioned ratably among Lenders, in each case proportionally
to their respective Pro Rata Shares. All principal and interest
payments in respect of the Overdraft Account shall be transferred
to and retained by Administrative Agent; provided that
Administrative Agent shall distribute to each Lender that has
purchased a participation in amounts due with respect to the
Overdraft Account pursuant to subsection 2.1B such Lender's Pro
Rata Share of any payments subsequently received by Administrative
Agent in respect of such amounts due with respect to the Overdraft
Account. All principal and interest payments in respect of any Bid
Rate Loans shall be apportioned ratably among Lenders making such
Bid Rate Loans in accordance with the respective outstanding
amounts of such Bid Rate Loans. Subject to the last sentence of
subsection 2.8E, Administrative Agent (or, in the case of payments
received by any Issuing Lender from Company or Acquisition Newcos
after payments have been made to such Issuing Lender by Lenders
39
pursuant to subsection 2.8E, such Issuing Lender) shall promptly
distribute to each Lender, at its primary address set forth below
its name on the appropriate signature page hereof or at such other
address as any Lender may request, its share of all such payments
received by Administrative Agent (or such Issuing Lender) and the
facility fees of such Lender when received by Administrative Agent
pursuant to subsection 2.3A. Notwithstanding the foregoing
provisions of this subsection 2.4C, (i) if, pursuant to the
provisions of subsection 2.6D, any Notice of Borrowing or Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or
if any Affected Lender makes Base Rate Loans in lieu of its Pro
Rata Share of Eurodollar Rate Loans, Administrative Agent shall
give effect thereto in apportioning payments received thereafter
and (ii) after the occurrence of an Event of Default and
acceleration of the maturity of the Loans and amounts available for
drawing under Letters of Credit as provided in Section 7,
Administrative Agent shall apportion all payments received by it in
the manner specified in Section 7.
D. Payments on Non-Business Days. Whenever any payment
to be made hereunder or under the Notes shall be stated to be due
on a day which is not a Business Day, the payment shall be made on
the next succeeding Business Day and such extension of time shall
be included in the computation of the payment of interest hereunder
or under the Notes or of the facility fees and other fees
hereunder, as the case may be.
E. Notation of Payment. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than
by granting participations therein), that Lender will make a
notation thereon of all Loans and principal payments previously
made thereon and of the date to which interest thereon has been
paid and will notify Company and Administrative Agent of the name
and address of the transferee of that Note; provided that the
failure to make (or any error in the making of) a notation of any
Loan made under such Note or to notify Company or Administrative
Agent of the name and address of such transferee shall not limit or
otherwise affect the obligation of Company hereunder or under such
Note with respect to any Loan and payments of principal or interest
on any such Note.
F. Voluntary Reductions of Revolving Loan Commitments.
Company shall have the right, at any time and from time to time, to
terminate in whole or permanently reduce in part, without premium
or penalty, the Revolving Loan Commitments in an amount up to the
amount by which the Revolving Loan Commitments exceed the Total
Utilization of Revolving Loan Commitments at the time of such
proposed termination or reduction; provided that if at any time of
determination there are no Obligations or Letters of Credit
outstanding, then the Revolving Loan Commitments may be terminated
in whole notwithstanding the fact that the Commercial Paper Usage
is greater than zero.
Company shall give not less than three Business Days'
prior written notice to Administrative Agent designating the date
(which shall be a Business Day) of such termination or reduction
and the amount of any partial reduction. Promptly after receipt of
a notice of such termination or partial reduction, Administrative
Agent shall notify each Lender of the proposed termination or
partial reduction. Such termination or partial reduction of the
Revolving Loan Commitments shall be effective on the date specified
in the notice delivered by Company and shall reduce the Revolving
40
Loan Commitment of each Lender proportionately to its Pro Rata
Share. Any such partial reduction of the Revolving Loan
Commitments shall be in an aggregate minimum amount of $5,000,000,
and integral multiples of $1,000,000 in excess of that amount.
G. Termination of Genie Acquisition Sub-Facility and
Mandatory Reduction of Revolving Loan Commitments.
(i) Anything contained in this Agreement to the contrary
notwithstanding, the Genie Acquisition Sub-Facility shall
terminate, and the Revolving Loan Commitments shall be
permanently reduced by the amount of $600,000,000
corresponding to the Genie Acquisition Sub-Facility, in each
case without further action on the part of Company,
Acquisition Newcos, Agents, Co-Agents or Lenders, on June 30,
1997 in the event the Genie Acquisition Commencement Date has
not occurred on or before that date.
(ii) Upon the cancellation or expiration of the
Foreign Letter of Credit supporting payment of any Seller Note
Tranche and the reimbursement of any drawings honored
thereunder, the Revolving Loan Commitments shall be
permanently reduced by an amount equal to the Dollar
equivalent amount of the original stated amount of such
Foreign Letter of Credit, calculated using the Exchange Rate
in effect on the date of original issuance of such Foreign
Letter of Credit, in each case without any further action on
the part of Company, Acquisition Newcos, Agents or Lenders and
without regard to the applicable Exchange Rate in effect at
the time of such reduction in the Revolving Loan Commitments.
2.5 USE OF PROCEEDS
A. Loans. The proceeds of the Loans shall be used, and
Company shall cause such proceeds to be used, only for general
corporate purposes, which may include the repayment of amounts
outstanding under the Existing Credit Agreement, the payment of the
Overdraft Amount pursuant to subsection 2.1B, the payment of the
Bid Rate Loans, the reimbursement to any Issuing Lender of any
amounts drawn under any Letters of Credit issued by such Issuing
Lender as provided in subsection 2.8D, the making of intercompany
loans to Company's Subsidiaries for their own general corporate
purposes, the payment of all or a portion of the cash consideration
for the Genie Shares and/or the Genie Holdings Shares, and the
payment of fees and expenses in connection with the Genie
Acquisition.
B. Letters of Credit. Domestic Letters of Credit shall
be issued solely for the purposes specified in the definitions of
Commercial Letter of Credit and Standby Letter of Credit. Each
Foreign Letter of Credit shall be issued solely for the purpose of
supporting payment of a Seller Note Tranche.
C. Benefits to Subsidiaries. In consideration for the
O-I Subsidiary Guaranty executed and delivered by the Guarantor
Subsidiaries, Company agrees to make the benefit of the extensions
41
of credit hereunder available to the Guarantor Subsidiaries and
their Subsidiaries in the amount and to the extent agreed from time
to time between Company and each Subsidiary.
D. Margin Regulations. No portion of the proceeds of
any borrowing under this Agreement shall be used by Company in any
manner which might cause the borrowing or the application of such
proceeds to violate Regulation G, Regulation U, Regulation T, or
Regulation X of the Board of Governors of the Federal Reserve
System or any other regulation of such Board or to violate the
Exchange Act, in each case as in effect on the date or dates of
such borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS
Notwithstanding other provisions of this Agreement, the
following provisions shall govern with respect to Eurodollar Rate
Loans as to the matters covered:
A. Determination of Interest Rate. As soon as
practicable after 10:00 A.M. (New York time) on each Interest Rate
Determination Date, Administrative Agent shall determine (which
determination shall, absent manifest or demonstrable error, be
final, conclusive and binding upon all parties) the interest rate
which shall apply to the Eurodollar Rate Loans for which an
interest rate is then being determined for the applicable Interest
Period (subject to any changes in the Applicable Eurodollar Margin
pursuant to the terms of the definition thereof) and shall promptly
give notice thereof (in writing or by telephone confirmed in
writing) to Company and to each Lender.
B. Substituted Rate of Borrowing. In the event that on
any Interest Rate Determination Date any Lender (including
Administrative Agent) shall have determined (which determination
shall be final and conclusive and binding upon all parties but,
with respect to the following clauses (i) and (ii)(b), shall be
made only after consultation with Company and Administrative Agent)
that:
(i) by reason of any changes arising after the date of
this Agreement affecting the Eurodollar market or affecting
the position of that Lender in such market, adequate and fair
means do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of Adjusted
Eurodollar Rate with respect to the Eurodollar Rate Loans as
to which an interest rate determination is then being made; or
(ii) by reason of (a) any change after the date
hereof in any applicable law or governmental rule, regulation
or order (or any interpretation thereof and including the
introduction of any new law or governmental rule, regulation
or order) or (b) other circumstances affecting that Lender or
the Eurodollar market or the position of that Lender in such
market (such as for example, but not limited to, official
reserve requirements required by Regulation D to the extent
not given effect in the Adjusted Eurodollar Rate), the
Adjusted Eurodollar Rate shall not represent the effective
42
pricing to that Lender for Dollar deposits of comparable
amounts for the relevant period;
then, and in any such event, that Lender shall be an Affected
Lender and it shall promptly (and in any event as soon as possible
after being notified of a borrowing, conversion or continuation)
give notice (by telephone confirmed in writing) to Company and
Administrative Agent (which notice Administrative Agent shall
promptly transmit to each other Lender) of such determination.
Thereafter, Company shall pay to the Affected Lender with respect
to Company's Eurodollar Rate Loans, upon written demand therefor,
such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as the
Affected Lender in its sole discretion shall reasonably determine)
as shall be required to cause the Affected Lender to receive
interest with respect to such Affected Lender's Eurodollar Rate
Loans for the Interest Period(s) following that Interest Rate
Determination Date at a rate per annum equal to the sum of the ef-
fective pricing to the Affected Lender for Dollar deposits to make
or maintain its Eurodollar Rate Loans plus the Applicable
Eurodollar Margin. A certificate as to additional amounts owed the
Affected Lender, showing in reasonable detail the basis for the
calculation thereof, submitted in good faith to Company and
Administrative Agent by the Affected Lender shall, absent manifest
or demonstrable error, be final and conclusive and binding upon all
of the parties hereto.
C. Required Termination and Prepayment. In the event
that on any date any Lender shall have reasonably determined (which
determination shall be final and conclusive and binding upon all
parties) that the making or continuation of its Eurodollar Rate
Loans has become unlawful by compliance by that Lender in good
faith with any law, governmental rule, regulation or order (whether
or not having the force of law and whether or not failure to comply
therewith would be unlawful), then, and in any such event, that
Lender shall be an Affected Lender and it shall promptly give
notice (by telephone confirmed in writing) to Company and
Administrative Agent (which notice Administrative Agent shall
promptly transmit to each Lender) of that determination. Subject
to the following subsection 2.6D, the obligation of the Affected
Lender to make or maintain its Eurodollar Rate Loans during any
such period shall be terminated at the earlier of the termination
of the Interest Period then in effect or when required by law and
Company shall, no later than the termination of the Interest Period
in effect at the time any such determination pursuant to this
subsection 2.6C is made, or earlier when required by law, repay the
Eurodollar Rate Loans of the Affected Lender, together with all
interest accrued thereon.
D. Options of Company. In lieu of paying an Affected
Lender such additional moneys as are required by subsection 2.6B or
the prepayment of an Affected Lender required by subsection 2.6C,
Company may exercise any one of the following options:
(i) If the determination by an Affected Lender relates
only to Eurodollar Rate Loans then being requested by Company
pursuant to a Notice of Borrowing or a Notice of Conversion/
Continuation, Company may by giving notice (by telephone
confirmed in writing) to Administrative Agent (who shall
promptly give similar notice to each Lender) no later than the
43
date immediately prior to the date on which such Eurodollar
Rate Loans are to be made, converted or continued, withdraw as
to the Affected Lender that Notice of Borrowing or such Notice
of Conversion/Continuation and such Affected Lender shall
thereupon make or maintain its Pro Rata Share of the
Eurodollar Rate Loan then being requested, converted or
continued as a Base Rate Loan; or
(ii) Upon written notice to Administrative Agent and
each Lender, Company may terminate the obligations of Lenders
to make or maintain Loans as, and to convert Loans into,
Eurodollar Rate Loans and in such event, Company shall, prior
to the time any payment pursuant to subsection 2.6C is
required to be made or, if the provisions of subsection 2.6B
are applicable, at the end of the then current Interest
Period, convert all of the Eurodollar Rate Loans into Base
Rate Loans in the manner contemplated by subsection 2.2D but
without satisfying the advance notice requirements therein; or
(iii) Company may give notice (by telephone confirmed in
writing) to the Affected Lender and Administrative Agent (who
shall promptly give similar notice to each Lender) and require
the Affected Lender to make the Eurodollar Rate Loan then
being requested as a Base Rate Loan or to continue to maintain
its outstanding Base Rate Loan then the subject of a Notice of
Conversion/ Continuation as a Base Rate Loan or to convert its
Eurodollar Rate Loans then outstanding that are so affected
into Base Rate Loans at the end of the then current Interest
Period (or at such earlier time as prepayment is otherwise
required to be made pursuant to subsection 2.6C) in the manner
contemplated by subsection 2.2D but without satisfying the
advance notice requirements therein, that notice to pertain
only to the Loans of the Affected Lender and to have no effect
on the obligations of the other Lenders to make or maintain
Eurodollar Rate Loans or to convert Base Rate Loans into
Eurodollar Rate Loans.
E. Compensation. Company shall compensate each Lender,
upon written request by that Lender (which request shall set forth
in reasonable detail the basis for requesting such amounts), for
all reasonable losses, expenses and liabilities (including, without
limitation, any interest paid by that Lender to lenders of funds
borrowed by it to make or carry its Eurodollar Rate Loans and any
loss sustained by that Lender in connection with the re-employment
of such funds), which that Lender may sustain with respect to
Company's Eurodollar Rate Loans: (i) if for any reason (other than
a default by that Lender) a borrowing of any Eurodollar Rate Loan
does not occur on a date specified therefor in a Notice of
Borrowing, a Notice of Conversion/Continuation or a telephonic
request for borrowing or conversion/continuation or a successive
Interest Period does not commence after notice therefor is given
pursuant to subsection 2.2D, (ii) if any prepayment or other
principal payment of any of its Eurodollar Rate Loans occurs on a
date prior to the last day of the Interest Period applicable to
that Loan, (iii) if any prepayment of any of such Lender's
Eurodollar Rate Loans is not made on any date specified in a notice
of prepayment given by Company, or (iv) as a consequence of any
44
other default by Company to repay such Lender's Eurodollar Rate
Loans when required by the terms of this Agreement.
F. Quotation of Adjusted Eurodollar Rate. Anything
herein to the contrary notwithstanding, if on any Interest Rate De-
termination Date no Adjusted Eurodollar Rate is available by reason
of the failure of all Reference Lenders to provide offered quo-
tations to Administrative Agent in accordance with the definition
of "Adjusted Eurodollar Rate," Administrative Agent shall give
Company and each Lender prompt notice thereof and the Loans
requested shall be made as Base Rate Loans.
G. Booking of Eurodollar Rate Loans. Any Lender may
make, carry or transfer Eurodollar Rate Loans at, to, or for the
account of, any of its branch offices or the office of an Affiliate
of that Lender.
H. Assumptions Concerning Funding of Eurodollar Rate
Loans. Calculation of all amounts payable to a Lender under this
subsection 2.6 shall be made as though that Lender had actually
funded its relevant Eurodollar Rate Loan through the purchase of a
Eurodollar deposit bearing interest at the rate obtained pursuant
to clause (i) of the definition of Adjusted Eurodollar Rate in an
amount equal to the amount of that Eurodollar Rate Loan and having
a maturity comparable to the relevant Interest Period and through
the transfer of such Eurodollar deposit from an offshore office of
that Lender to a domestic office of that Lender in the United
States of America; provided, however, that each Lender may fund
each of its Eurodollar Rate Loans in any manner it sees fit and the
foregoing assumption shall be utilized only for the calculation of
amounts payable under this subsection 2.6.
I. Eurodollar Rate Loans After Default. Unless
Requisite Lenders shall otherwise agree, after the occurrence of
and during the continuance of a Potential Event of Default or Event
of Default, Company may not elect to have a Loan be made or
maintained as, or converted to, a Eurodollar Rate Loan after the
expiration of any Interest Period then in effect for that Loan.
J. Affected Lenders' Obligation to Mitigate. Each
Lender agrees that, as promptly as practicable after it becomes
aware of the occurrence of an event or the existence of a condition
that would cause it to be an Affected Lender under subsection 2.6B
or 2.6C, it will, to the extent not inconsistent with such Lender's
internal policies, use its best efforts to make, fund or maintain
the affected Eurodollar Rate Loans of such Lender through another
lending office of such Lender if as a result thereof the additional
moneys which would otherwise be required to be paid in respect of
such Loans pursuant to subsection 2.6B would be materially reduced
or the illegality or other adverse circumstances which would
otherwise require prepayment of such Loans pursuant to subsection
2.6C would cease to exist and if, as determined by such Lender, in
its sole discretion, the making, funding or maintaining of such
Loans through such other lending office would not otherwise
materially adversely affect such Loans or such Lender. Company
hereby agrees to pay all reasonable expenses incurred by any Lender
45
in utilizing another lending office of such Lender pursuant to this
subsection 2.6J.
K. Replacement of Lender. If Company receives a notice
pursuant to subsection 2.6B or 2.6C, so long as no Event of Default
shall have occurred and be continuing and Company has obtained a
commitment from another Lender or an Eligible Assignee to become a
Lender for all purposes under this Agreement and to assume all
obligations of the Lender to be replaced, Company may require the
Lender giving such notice to assign all of its Loans, its Revolving
Loan Commitment and its other Obligations to such other Lender or
Eligible Assignee, at par, pursuant to the provisions of subsection
9.2B; provided that, prior to or concurrently with such replacement
(i) Company has paid to the Lender giving such notice all
principal, interest, fees and other amounts due and owing to such
Lender hereunder through such date of replacement (including any
amounts payable under subsection 2.6E), (ii) Company has paid to
Administrative Agent the processing and recordation fee required to
be paid by subsection 9.2B(i), and (iii) all of the requirements
for such assignment contained in subsection 9.2B, including,
without limitation, the receipt by Administrative Agent of an
executed Assignment and Acceptance and other supporting documents,
have been fulfilled.
2.7 CAPITAL ADEQUACY ADJUSTMENT; INCREASED COSTS; TAXES
A. Capital Adequacy. If any Lender shall have
determined in good faith that the adoption, effectiveness, phase-in
or applicability (excluding any adoption, effectiveness, phase-in
or applicability published as of the Closing Date and currently
scheduled to take effect) after the date hereof of any law, rule or
regulation (or any provision thereof) regarding capital adequacy,
or any change therein or in the interpretation or administration
thereof after the date hereof by any governmental authority,
central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by any Lender (or its
applicable lending office) with any guideline, request or directive
regarding capital adequacy (whether or not having the force of law)
of any such governmental authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return
on the capital of such Lender or any corporation controlling such
Lender as a consequence of, or with reference to, such Lender's
Loans or Revolving Loan Commitment or Letters of Credit or
participations therein or other obligations hereunder to a level
below that which such Lender or such controlling corporation could
have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the
policies of such Lender or such controlling corporation with regard
to capital adequacy), then from time to time, within fifteen
Business Days after receipt by Company from such Lender of the
statement referred to in the next sentence, Company shall pay to
such Lender such additional amount or amounts as will compensate
such Lender or such controlling corporation on an after-tax basis
for such reduction; provided that a Lender shall not be entitled to
avail itself of the benefit of this subsection 2.7A to the extent
that any such reduction in return was incurred more than six months
prior to the time it first makes a demand therefor, unless the
circumstance giving rise to such reduced return arose or became
applicable retrospectively, in which case no time limit shall apply
(provided that such Lender has notified Company within six months
46
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 (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending
office) to any additional Tax (other than any Tax on the
overall net income of such Lender) with respect to this
Agreement or any of the Loans or any of its obligations
hereunder, or changes the basis of taxation of payments to
such Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder (except
for changes in the rate of Tax on the overall net income of
such Lender or its applicable lending office);
(ii) imposes, modifies or holds applicable any
reserve (including without limitation any marginal, emergency,
supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities in or for the
account of, or advances or loans by, or other credit extended
by, or any other acquisition of funds by, any office of such
Lender (other than any such reserve or other requirements with
respect to Eurodollar Rate Loans that are reflected in the
definition of Adjusted Eurodollar Rate); or
(iii) imposes any other condition on or affecting such
Lender (or its applicable lending office) or its obligations
hereunder or the interbank Eurodollar market, other than with
respect to Taxes;
and the result of any of the foregoing is to increase the cost to
such Lender of agreeing to make, making or maintaining Loans
hereunder or to reduce any amount received or receivable by such
Lender (or its applicable lending office) with respect thereto;
then, in any such case, Company shall promptly pay to such Lender,
upon written demand and receipt of the written notice referred to
below, such additional amount or amounts (in the form of an
increased rate of, or a different method of calculating, interest
or otherwise as such Lender in its sole discretion shall determine)
as may be necessary to compensate such Lender on an after-tax basis
for any such increased cost or reduction in amounts received or
receivable hereunder; provided that any increased cost arising as
47
a result of any of the foregoing other than in respect of Taxes
shall apply only to Eurodollar Rate Loans; provided further that a
Lender shall not be entitled to avail itself of the benefit of this
subsection 2.7B to the extent that any such increased cost or
reduction was 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. Such Lender shall deliver to Company a written notice,
setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Lender under this subsection 2.7B,
which statement shall be conclusive and binding upon all parties
hereto absent manifest or demonstrable error.
C. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable by
Company under this Agreement and the other Loan Documents
shall be paid free and clear of and (except to the extent
required by law) without any deduction or withholding on
account of any Covered Tax imposed, levied, collected,
withheld or assessed by or within the United States of America
or any political subdivision in or of the United States of
America or any other jurisdiction from or to which a payment
is made by or on behalf of Company or by any federation or
organization of which the United States of America or any such
jurisdiction is a member at the time of payment.
(ii) Withholding in respect of Payments. If Company
or any other Person is required by law to make any deduction
or withholding on account of any such Tax from any sum paid or
payable by Company to Administrative Agent or any Lender under
any of the Loan Documents:
(a) Company shall notify Administrative Agent of
any such requirement or any change in any such
requirement as soon as Company becomes aware of it;
(b) Company shall pay any such Tax before the date
on which penalties attach thereto, such payment to be
made (if the liability to pay is imposed on Company) for
its own account or (if that liability is imposed on
Administrative Agent or such Lender, as the case may be)
on behalf of and in the name of Administrative Agent or
such Lender;
(c) in the event such Tax is a Covered Tax, the sum
payable by Company in respect of which the relevant
deduction, withholding or payment is required shall be
increased to the extent necessary to ensure that, after
the making of that deduction, withholding or payment,
Administrative Agent or such Lender, as the case may be,
receives on the due date and retains (free from any
liability in respect of any such deduction, withholding
or payment) a net sum equal to what it would have
received and so retained had no such deduction,
48
withholding or payment in respect of Covered Taxes been
required or made; and
(d) within 30 days after paying any sum from which
it is required by law to make any deduction or
withholding, and within 30 days after the due date of
payment of any Tax which it is required by clause (b)
above to pay, Company shall deliver to Administrative
Agent evidence reasonably satisfactory to the other
affected parties of such deduction, withholding or
payment and of the remittance thereof to the relevant
taxing or other authority;
provided that no such additional amount shall be required to
be paid to any Lender under clause (c) above except to the
extent that any change after the date hereof in any such
requirement for a deduction, withholding or payment as is
mentioned in clause (c) above shall result in an increase in
the rate of such deduction, withholding or payment from that
in effect at the date of this Agreement in respect of payments
to such Lender.
(iii) Tax Refund. If Company determines in good faith
that a reasonable basis exists for contesting a Covered Tax,
the relevant Lender or Tax Transferee or Administrative Agent,
as applicable, shall cooperate with Company (but shall have no
obligation to disclose any confidential information, unless
arrangements satisfactory to the relevant Lender have been
made to preserve the confidential nature of such information)
in challenging such Tax at Company's expense if requested by
Company (it being understood and agreed that none of
Administrative Agent or any Lender shall have any obligation
to contest, or any responsibility for contesting, any Tax).
If any Lender, Tax Transferee or Administrative Agent, as
applicable, receives a refund (whether by way of a direct
payment or by offset) of any Covered Tax for which a payment
has been made pursuant to this subsection 2.7C which, in the
reasonable good faith judgment of such Lender, Tax Transferee
or Administrative Agent, as the case may be, is allocable to
such payment made under this subsection 2.7C, the amount of
such refund (together with any interest received thereon)
shall be paid to Company to the extent payment has been made
in full as and when required pursuant to this subsection 2.7C.
(iv) U.S. Tax Certificates. Each Lender that is
organized under the laws of any jurisdiction other than the
United States or any state or other political subdivision
thereof shall deliver to Administrative Agent for transmission
to Company, on or prior to the Closing 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
49
successor thereto) to establish that such Lender is not
subject to deduction or withholding of United States federal
income tax under Section 1441 or 1442 of the Internal Revenue
Code or otherwise (or under any comparable provisions of any
successor statute) with respect to any payments to such Lender
of principal, interest, fees or other amounts payable under
any of the Loan Documents. Company shall not be required to
pay any additional amount to any such Lender under subsection
2.7C(ii) if such Lender shall have failed to satisfy the
requirements of the immediately preceding sentence; provided
that if such Lender shall have satisfied such requirements on
the Closing Date (in the case of each Lender listed on the
signature pages hereof) or on the date of the Assignment and
Acceptance pursuant to which it became a Lender (in the case
of each other Lender), nothing in this subsection 2.7C(iv)
shall relieve Company of its obligation to pay any additional
amounts pursuant to clause (c) of subsection 2.7C(ii) in the
event that, as a result of any change in applicable law after
the Closing Date or the date of the applicable Assignment and
Acceptance, as the case may be, such Lender is no longer
properly entitled to deliver certificates, documents or other
evidence at a subsequent date establishing the fact that such
Lender is not subject to withholding as described in the
immediately preceding sentence.
D. Replacement of Lender. If Company receives a notice
pursuant to subsections 2.7A, 2.7B or 2.7C, so long as no Event of
Default shall have occurred and be continuing and Company has
obtained a commitment from another Lender or an Eligible Assignee
to become a Lender for all purposes under this Agreement and to
assume all obligations of the Lender to be replaced, Company may
require the Lender giving such notice to assign all of its Loans,
its Revolving Loan Commitment and its other Obligations to such
other Lender or Eligible Assignee, at par, pursuant to the
provisions of subsection 9.2B; provided that, prior to or
concurrently with such replacement (i) Company has paid 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 repre-
sentations 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 Closing Date (x) one
or more Issuing Lenders issue, and one or more Issuing Lenders will
issue, subject to the terms and conditions hereof, Dollar-
denominated Standby Letters of Credit and Commercial Letters of
Credit for the account of Company and (y) BofA issue, and BofA will
50
issue, Foreign Letters of Credit for the account of one or more
Acquisition Newcos. Issuances of Letters of Credit shall be
subject to the following limitations:
(i) No Applicable Account Party shall request that any
Lender issue any Letter of Credit if, after giving effect to
such issuance, the Total Utilization of Revolving Loan
Commitments would exceed the Revolving Loan Commitments then
in effect;
(ii) In no event shall any Issuing Lender issue
(w) any Domestic Letter of Credit having an expiration date
later than the Revolving Loan Commitment Termination Date;
(x) subject to the foregoing clause (w), any Standby Letter of
Credit having an expiration date more than one year after its
date of issuance; provided that, subject to the foregoing
clause (w) and to subsection 2.8A(iii), this clause (x) shall
not prevent any Issuing Lender from issuing a Standby Letter
of Credit having an expiration date up to two years after its
date of issuance if such Standby Letter of Credit will be used
by Company in connection with, or in lieu of, posting an
appeal bond; provided, further that, subject to the foregoing
clause (w), this clause (x) shall not prevent any Issuing
Lender from agreeing that a Standby Letter of Credit will
automatically be extended annually for a period not to exceed
one year unless such Issuing Lender gives notice that it will
not extend; provided, further that such Issuing Lender shall
deliver a written notice to Administrative Agent setting forth
the last day on which such Issuing Lender may give notice that
it will not extend (the "NOTIFICATION DATE" with respect to
such Standby Letter of Credit) at least ten Business Days
prior to such Notification Date; 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;
(iv) In no event shall BofA issue (x) any Foreign
Letter of Credit having an expiration date later than the
Revolving Loan Commitment Termination Date; provided that
nothing in this clause (x) shall prevent BofA from issuing a
Foreign Letter of Credit supporting payment of the last
maturing Seller Note Tranche that has an expiration date on or
before July 31, 2002 so long as arrangements satisfactory to
BofA are made for the cash collateralization of all
Obligations in respect of such Foreign Letter of Credit after
the Revolving Loan Commitment Termination Date; or (y) any
51
Foreign Letter of Credit having an expiration date later than
15 days after the maturity date of the Seller Note Tranche
supported thereby; and
(v) Company shall not request that (x) any Issuing
Lender issue any Standby Letter of Credit described in clause
(i) of the definition of Standby Letter of Credit for the
purpose of supporting any Indebtedness incurred by Acquisition
Newcos in connection with the Genie Acquisition unless the
Genie Acquisition Commencement Date has occurred, (y) any
Issuing Lender issue any Domestic Letter of Credit (other than
any Standby Letter of Credit described in the immediately
preceding clause (x)) if, after giving effect to such issu-
ance, the Letter of Credit Usage in respect of Domestic
Letters of Credit (other than such Standby Letters of Credit)
would exceed $300,000,000 or (z) BofA issue any Foreign Letter
of Credit if, after giving effect to such issuance, the Letter
of Credit Usage in respect of Foreign Letters of Credit would
exceed $300,000,000 (calculated using the Exchange Rate in
effect on the date of original issuance of the Foreign Letters
of Credit).
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, 3.3 and, in the case of any Foreign Letter of
Credit, 3.4.
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 Closing Date shall for all
purposes of this Agreement be deemed to have been issued as a
Standby Letter of Credit as of the Closing Date under and pursuant
to the terms of this Agreement, and all fees payable under
subsection 2.8F with respect to such Standby Letters of Credit
shall accrue from and after the Closing Date. All Standby Letters
of Credit originally issued pursuant to the Existing Credit
Agreement are described in Schedule J annexed hereto.
Immediately upon the issuance of each Letter of Credit,
each Lender shall be deemed to, and hereby agrees to, have
irrevocably purchased from the Issuing Lender a participation in
such Letter of Credit and drawings thereunder in an amount equal to
such Lender's Pro Rata Share of the maximum amount which is or at
any time may become available to be drawn thereunder.
Each Letter of Credit may provide that the Issuing Lender
may (but shall not be required to) pay the beneficiary thereof upon
the occurrence of an Event of Default and the acceleration of the
maturity of the Loans or, if payment is not then due to the
beneficiary, provide for the deposit of funds in an account to
secure payment to the beneficiary and that any funds so deposited
shall be paid to the beneficiary of the Letter of Credit if
conditions to such payment are satisfied or returned to the Issuing
Lender for distribution to Lenders (or, if all Obligations shall
have been indefeasibly paid in full, to Company) if no payment to
the beneficiary has been made and the final date available for
drawings under the Letter of Credit has passed. Each payment or
deposit of funds by an Issuing Lender as provided in this paragraph
52
shall be treated for all purposes of this Agreement as a drawing
duly honored by such Issuing Lender under the related Letter of
Credit.
B. Notice of Issuance. Whenever an Applicable Account
Party desires the issuance of a Letter of Credit, it shall deliver
to Administrative Agent and (x) in the case of a Commercial Letter
of Credit, the Lender which Company has requested to issue such
Commercial Letter of Credit and (y) in the case of a Foreign Letter
of Credit, BofA, a Notice of Issuance of Letter of Credit no later
than 1:00 P.M. (New York time) at least five Business Days, or such
shorter period as may be agreed to by an Issuing Lender in any
particular instance, in advance of the proposed date of issuance.
The Notice of Issuance of Letter of Credit shall specify (i) the
Applicable Account Party, (ii) the proposed date of issuance (which
shall be a business day under the laws of the jurisdiction of the
Issuing Lender), (iii) the face amount of the Letter of Credit,
(iv) in the case of a Foreign Letter of Credit, the currency in
which the Applicable Account Party requests such Foreign Letter of
Credit to be denominated, (v) the expiration date of the Letter of
Credit, (vi) the name and address of the beneficiary, and (vii) in
the case of a Commercial Letter of Credit, the Lender which Company
has requested to issue such Commercial Letter of Credit; and such
Notice of Issuance of Letter of Credit shall further certify that
subsection 3.2B is satisfied on and as of the date of issuance of
such Letter of Credit. As soon as practicable after delivery of
such notice with respect to any Domestic Letter of Credit, the
Issuing Lender for such Domestic Letter of Credit shall be
determined as provided in subsection 2.8C(ii). Prior to the date
of issuance, the Applicable Account Party 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) BofA shall be the Issuing Lender in respect of all
Foreign Letters of Credit.
(ii) Company may request any Lender to issue a
Commercial Letter of Credit and, upon receipt by a Lender of
a notice from Company pursuant to subsection 2.8B requesting
the issuance of a Commercial 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
53
Commercial Letter of Credit. If such Lender elects to issue
such Commercial Letter of Credit, such Lender shall be the
Issuing Lender with respect thereto. If such Lender declines
to issue such Commercial Letter of Credit, the Company may
request any other Lender to issue such Commercial 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 Commercial Letter of Credit,
notwithstanding the prior election of Administrative Agent not
to issue such Commercial Letter of Credit, Administrative
Agent shall be obligated to issue the Commercial Letter of
Credit requested by Company and shall be the Issuing Lender
with respect to such Commercial Letter of Credit.
(iii) Upon receipt by Administrative Agent of a notice
from Company pursuant to subsection 2.8B requesting the
issuance of a Standby Letter of Credit, in the event
Administrative Agent elects to issue such Standby Letter of
Credit, Administrative Agent shall so notify Company and
Administrative Agent shall be the Issuing Lender with respect
thereto. In the event that Administrative Agent, in its sole
discretion, elects not to issue such Standby Letter of Credit,
Administrative Agent shall promptly so notify Company and
Administrative Agent, on behalf of Company, shall request each
other Lender to issue such Standby Letter of Credit. Each
such Lender so requested to issue such Standby Letter of
Credit shall promptly notify Company and Administrative Agent
whether or not, in its sole discretion, it has elected to
issue such Standby Letter of Credit. If more than one other
Lender elects to issue such Standby Letter of Credit, Company
shall select the Issuing Lender with respect thereto. In the
event that Administrative Agent and all other Lenders shall
have declined to issue such Standby Letter of Credit,
notwithstanding the prior election of Administrative Agent not
to issue such Standby Letter of Credit, Administrative Agent
shall be obligated to issue such Standby Letter of Credit and
shall be an Issuing Lender with respect to such Standby Letter
of Credit.
(iv) Each Issuing Lender which elects to issue a
Domestic Letter of Credit shall promptly give written notice
to Administrative Agent and each other Lender of the
information required under clauses (i), (ii), (iv) and (v) of
subsection 2.8B relating to such Letter of Credit and shall
provide a copy of such Domestic 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.
(v) On March 10, June 10, September 10 and December 10
of each year, each Issuing Lender in respect of any Letter of
Credit that was outstanding during all or any portion of the
period since the immediately preceding December 10, March 10,
June 10 or September 10, as the case may be, shall deliver to
each other Lender a report setting forth for such period the
daily aggregate amount available to be drawn under each such
Letter of Credit issued by such Issuing Lender.
54
D. Payment of Amounts Drawn Under Letters of Credit.
In the event of any request for drawing under any Letter of Credit
by the beneficiary thereof, the Issuing Lender shall notify the
Applicable Account Party (and Company, if Company is not the
Applicable Account Party) and Administrative Agent on or before the
date which is (X) in the case of a drawing under a Domestic Letter
of Credit, 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 on or before the date on which such Issuing
Lender intends to honor such drawing), and (Y) in the case of a
drawing under a Foreign Letter of Credit, three Business Days prior
to the date on which such Issuing Lender intends to honor such
drawing, and the Applicable Account Party shall reimburse such
Issuing Lender on the date on which such drawing is honored, in
each case in an amount, in the currency in which such drawing was
honored and in same day funds, equal to the amount of such drawing;
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 the Applicable Account Party intends to
reimburse such Issuing Lender for the amount of such drawing with
funds other than the proceeds of Revolving Loans, Company shall be
deemed to have given a Notice of Borrowing to Administrative Agent
requesting Lenders to make Revolving Loans which are Base Rate
Loans, on the date on which such drawing is honored, in an amount
in Dollars (which amount, in the case of a drawing under a Foreign
Letter of Credit, shall be calculated by reference to the
applicable Exchange Rate) equal to the amount of such honored
drawing, 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, the Applicable Account
Party 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 Dollars
(calculated as provided above in the case of a drawing under a
Foreign Letter of Credit) and 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 the Applicable Account Party (and Company, in the
case of a drawing under a Foreign Letter of Credit in respect of
which it is not the Applicable Account Party) shall fail to
reimburse an Issuing Lender as provided in subsection 2.8D in an
amount 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
55
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 (calculated as provided above in the case
of a drawing under a Foreign Letter of Credit) and in same day
funds, at the office of such Issuing Lender specified in such
notice, not later than 1:00 P.M. (New York time) on the business
day (under the laws of the jurisdiction of such Issuing Lender)
after the date notified by such Issuing Lender. In the event that
any Lender fails to make available to such Issuing Lender the
amount of such Lender's participation in such Letter of Credit as
provided in this subsection 2.8E, such Issuing Lender shall be
entitled to recover such amount on demand from such Lender together
with interest at the customary rate set by such Issuing Lender for
the correction of errors among banks for three Business Days and
thereafter at the Base Rate. Nothing in this subsection 2.8 shall
be deemed to prejudice the right of any Lender to recover from such
Issuing Lender any amounts made available by such Lender to such
Issuing Lender pursuant to this subsection 2.8E in the event that
it is determined by a court of competent jurisdiction that the
payment with respect to a Letter of Credit by such Issuing Lender
in respect of which payment was made by such Lender constituted
gross negligence or willful misconduct on the part of such Issuing
Lender. Any reimbursement by the Applicable Account Party (or
Company as provided above) of the amount of any drawing under a
Foreign Letter of Credit subsequent to the funding by Lenders of
their respective participations in the amount of such drawing as
provided above shall be made in Dollars in the amount calculated as
provided above, and 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 the Applicable Account Party
or Company in reimbursement of drawings honored by such Issuing
Lender under such Letter of Credit when such payments are received.
F. Compensation. The Applicable Account Party 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), (4) and (6) below) and to Administrative
Agent for the account of each Lender (with respect to paragraphs
(2), (3) and (5) below) with respect to all Letters of Credit:
(1) with respect to each Letter of Credit other than a
Commercial 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 (such fee to be
denominated in the same currency as such Letter of Credit),
payable in arrears on and through the last day of each Fiscal
Quarter and calculated on the basis of a 360-day year and the
actual number of days elapsed;
(2) with respect to each Standby Letter of Credit, a
commission equal to, on a per annum basis, (a) the Applicable
Eurodollar Margin as in effect from time to time multiplied by
(b) the maximum amount available from time to time to be drawn
under such Standby Letter of Credit, payable in arrears on and
through the last day of each Fiscal Quarter and calculated on
56
the basis of a 360-day year and the actual number of days
elapsed;
(3) with respect to each Foreign 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 Foreign Letter of Credit in the currency in which
such Foreign Letter of Credit is denominated, payable in
arrears on and through the last day of each Fiscal Quarter and
calculated on the basis of a 360-day year and the actual
number of days elapsed; provided that prior to payment of such
commission the amount thereof shall be converted into (and
such commission shall be paid in) Dollars (calculated on the
basis of the Exchange Rate in effect for the date on which
payment of such fee is due);
(4) 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;
(5) with respect to drawings made under any Letter of
Credit, interest, payable on demand, on the amount paid by
such Issuing Lender in respect of each such drawing from the
date of payment of the drawing through the date such amount is
reimbursed by the Applicable Account Party (or Company, if
Company is not the Applicable Account Party) (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
(6) 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.
Promptly upon receipt by Administrative Agent of any
amount described in clause (2), (3), (4) or (5) of this subsection
2.8F, Administrative Agent shall distribute to each Lender its Pro
Rata Share of such amount.
57
G. Obligations Absolute. The obligation of Applicable
Account Parties (and of Company under the Company Guaranty) 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 or the Applicable Account Party 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 the Applicable Account Party or Company or one of its
Subsidiaries and the beneficiary for which the Letter of
Credit was procured);
(3) any draft, demand, certificate or any other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(4) payment by such Issuing Lender under any Letter of
Credit against presentation of a demand, draft or certificate
or other document which does not comply with the terms of such
Letter of Credit, provided that such payment does not
constitute gross negligence or willful misconduct of such
Issuing Lender;
(5) any other circumstance or happening whatsoever,
which is similar to any of the foregoing; or
(6) the fact that an Event of Default or a Potential
Event of Default shall have occurred and be continuing.
H. Additional Payments. If by reason of (a) any change
after the date hereof in applicable law, regulation, rule, decree
or regulatory requirement or any change after the date hereof in
the interpretation or application by any judicial or regulatory
authority of any law, regulation, rule, decree or regulatory
requirement (in each case other than any law, regulation, rule,
decree or regulatory requirement regarding capital adequacy) or
(b) compliance by any Issuing Lender or any Lender with any
direction, request or requirement (whether or not having the force
of law) of any governmental or monetary authority imposed after the
date hereof including, without limitation, Regulation D (but
excluding, however, any direction, request or requirement regarding
capital adequacy):
(i) such Issuing Lender or any Lender shall be subject
to any tax, levy, charge or withholding of any nature or to
any variation thereof or to any penalty with respect to the
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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 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 the Applicable Account Party (and Company
under the Company Guaranty) and each Issuing Lender, Company and
the Applicable Account Party 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,
59
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 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 or, if different, the
Applicable Account Party.
Notwithstanding anything to the contrary contained in
this subsection 2.8I, neither Company nor any Applicable Account
Party shall have any obligation to indemnify any Issuing Lender in
respect of any liability incurred by such Issuing Lender arising
solely out of the gross negligence or willful misconduct of such
Issuing Lender, as determined by a court of competent jurisdiction,
or out of the wrongful dishonor by such Issuing Lender of proper
demand for payment made under the Letters of Credit issued by it.
J. Computation of Interest. Interest payable pursuant
to this subsection 2.8 shall be computed on the basis of a 360-day
year and the actual number of days elapsed in the period during
which it accrues.
2.9 BID RATE LOANS
A. The Bid Rate Option. Subject to the terms and
conditions of this Agreement and in reliance upon the repre-
sentations and warranties of Company set forth herein, in addition
to Company requesting that Lenders make Revolving Loans pursuant to
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subsection 2.1, Company may, as set forth in this subsection 2.9,
request Lenders during the period from and including the Closing
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, when added to the Commercial
Paper Usage at such time, exceed $450,000,000, (ii) the aggregate
principal amount of Bid Rate Loans outstanding at any time shall
not, when added to the aggregate principal amount of all
outstanding Revolving Loans plus the Letter of Credit Usage plus
the Commercial Paper Usage plus the Overdraft Amount, exceed the
Revolving Loan Commitments then in effect and (iii) the aggregate
principal amount of Bid Rate Loans of any Lender outstanding at any
time shall not exceed $100,000,000. 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 requested, which shall be in a minimum principal amount of
$5,000,000 and in integral multiples of $1,000,000 in excess of
that amount and (iii) the duration of the Bid Rate Loan Interest
Period applicable thereto, subject to the provisions set forth in
the definition of Bid Rate Loan Interest Period; and such Bid Rate
Loan Quote Request shall further certify that subsection 3.2B is
satisfied on and as of the date of such Bid Rate Loan Quote Request
and on and as of the date of the making of such Bid Rate Loans. No
Bid Rate Loan Quote Request shall be given within five Business
Days of any other Bid Rate Loan Quote Request.
C. Invitation for Bid Rate Loan Quotes. Promptly upon
any request by Company for Bid Rate Loan Quotes pursuant to the
delivery of a Bid Rate Loan Quote Request in accordance with the
provisions of subsection 2.9B, but in no event later than the close
of business on the date of receipt thereof, Bid Rate Loan Agent
shall send to Lenders by telecopy an Invitation for Bid Rate Loan
Quotes substantially in the form of Exhibit V annexed hereto, which
shall constitute an invitation by Company to each Lender to submit
Bid Rate Loan Quotes offering to make Bid Rate Loans to which such
Bid Rate Loan Quote Request relates in accordance with this
subsection 2.9.
D. Submission and Contents of Bid Rate Loan Quotes.
(i) Each Lender may, in its sole discretion, submit a
Bid Rate Loan Quote containing an offer or offers to make Bid
Rate Loans in response to any Invitation for Bid Rate Loan
Quotes. Each Bid Rate Loan Quote must comply with the
requirements of this subsection 2.9D and must be received by
Bid Rate Loan Agent by telecopy no later than 10:00 A.M. (New
York time) on the proposed Funding Date of such Bid Rate
Loans; provided that Bid Rate Loan Quotes submitted by
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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 substan-
tially 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).
(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
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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 Lend-
ers 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 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
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Loan Quotes accepted by Company and the range of interest rates
applicable to such Bid Rate Loan Quotes.
I. Funding of Bid Rate Loans. Not later than 12:00 Noon
(New York time) on the proposed Funding Date specified for each Bid
Rate Loan hereunder, each Lender participating therein shall make
the amount of its Bid Rate Loan available to Administrative Agent,
in same day funds, at the Funding and Payment Office. Upon
satisfaction or waiver of the conditions precedent specified in
subsection 3.2, Administrative Agent shall make the proceeds of all
such Bid Rate Loans available to Company on such Funding Date by
causing an amount of same day funds equal to the proceeds of all
such Bid Rate Loans received by Administrative Agent to be credited
to the account of Company at such office of Administrative Agent.
Unless Administrative Agent shall have received notice
from a Lender participating in a Bid Rate Loan prior to the Funding
Date of such Bid Rate Loan that such Lender will not make available
to Administrative Agent such Lender's Bid Rate Loan, Administrative
Agent may (but shall not be obligated to) assume that such Lender
has made such Bid Rate Loan available to Administrative Agent on
the Funding Date of such Bid Rate Loan in accordance with this
subsection 2.9I and Administrative Agent may, in reliance upon such
assumption, make available to Company a corresponding amount on
such Funding Date. If and to the extent such Lender shall not have
so made such Bid Rate Loan available to Administrative Agent, then
Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with
interest thereon, for each day from such Funding Date until the
date such amount is paid to Administrative Agent, at the customary
rate set by Administrative Agent for the correction of errors among
banks for three Business Days and thereafter at the Base Rate. If
such Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall
promptly notify Company of the amount of such Bid Rate Loan not
funded by such Lender and Company shall immediately pay such
corresponding amount to Administrative Agent. Nothing in this
subsection 2.9I shall be deemed to relieve any Lender from its
obligation to fulfill its commitment hereunder or to prejudice any
rights which Company may have against any Lender as a result of any
default by such Lender hereunder.
J. Payment of Interest. Interest with respect to each
outstanding Bid Rate Loan shall be payable in arrears on and to
each Bid Rate Loan Interest Payment Date applicable to that Bid
Rate Loan, upon any prepayment of such Bid Rate Loan (to the extent
accrued on the amount being prepaid) and at maturity.
K. Bid Rate Loan Notes. Upon the request of any Lender
in accordance with subsection 2.1E(iv), Company shall execute and
deliver to each Lender (or to Administrative Agent for that Lender)
a Bid Rate Loan Note, substantially in the form of Exhibit VIII
annexed hereto with appropriate insertions, to evidence that
Lender's Bid Rate Loans.
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L. Compensation. Company shall compensate each Lender,
upon written request by that Lender (which request shall set forth
in reasonable detail the basis for requesting such amounts), for
all reasonable losses, expenses and liabilities (including, without
limitation, any interest paid by that Lender to lenders of funds
borrowed by it to make or carry its Bid Rate Loans and any loss
sustained by that Lender in connection with re-employment of such
funds), which that Lender may sustain with respect to Bid Rate
Loans: (i) if for any reason (other than a default or error by that
Lender) a borrowing of any Bid Rate Loan does not occur on the date
specified therefor in a Notice of Bid Rate Loan Borrowing, (ii) if
any prepayment or other principal payment of any of such Lender's
Bid Rate Loans occurs on a date prior to the last day of the Bid
Rate Loan Interest Period applicable to that Bid Rate Loan,
(iii) if any prepayment of any of such Lender's Bid Rate Loans is
not made on any date specified in a notice of prepayment given by
Company and consented to by such Lender, or (iv) as a consequence
of any other default by Company to repay such Lender's Bid Rate
Loans when required by the terms of this Agreement.
SECTION 3
CONDITIONS TO LOANS AND LETTERS OF CREDIT
3.1 CONDITIONS TO INITIAL LOANS
The obligations of Lenders to make any Loans to be made
on the Closing Date are, in addition to the conditions precedent
specified in subsection 3.2, subject to prior or concurrent
satisfaction of all of the following conditions:
A. On or before the Closing Date, Company shall deliver
to Lenders (or to Administrative Agent for Lenders with sufficient
originally executed copies, where appropriate, for each Lender and
its counsel) each, unless otherwise noted, dated the Closing Date:
1. Certified copies of its Certificate of Incorpo-
ration, 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 Closing Date;
2. Copies of its Bylaws, certified as of the Closing
Date by its corporate secretary or an assistant secretary;
3. Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this
Agreement, the Company Pledge Agreement, the Company Guaranty,
the Overdraft Agreement and the Collateral Account Agreement,
approving and authorizing the execution and delivery of the
Intercreditor Agreement and approving and authorizing the
execution, delivery and payment of the Revolving Notes and Bid
Rate Loan Notes, each certified as of the Closing Date by its
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corporate secretary or an assistant secretary as being in full
force and effect without modification or amendment;
4. Signature and incumbency certificates of its
officers executing this Agreement and the other Loan Documents
to which it is a party;
5. Executed copies of this Agreement and the other Loan
Documents to which it is a party; and
6. Such other documents as Administrative Agent may
reasonably request.
B. On or before the Closing Date, Company shall deliver,
or cause to be delivered, to Lenders (or to Administrative Agent
for Lenders with sufficient originally executed copies, where
appropriate, for each Lender and its counsel) with respect to each
Guarantor Subsidiary, each, unless otherwise noted, dated the
Closing Date:
1. Certified copies of its Certificate of Incorporation
together with evidence of good standing from the Secretary of
State of the State of Delaware, each to be dated a recent date
prior to the Closing Date;
2. Copies of its Bylaws certified as of the Closing
Date by its corporate secretary or an assistant secretary;
3. Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of the
Loan Documents to which it is a party, certified as of the
Closing Date by its corporate secretary or an assistant
secretary as being in full force and effect without mod-
ification or amendment;
4. Signature and incumbency certificates of its
officers executing the Loan Documents to which it is a party;
5. Executed copies of the Loan Documents to which it is
a party; and
6. Such other documents as Administrative Agent may
reasonably request.
C. On or before the Closing Date, (i) Administrative
Agent shall have received (A) an Officers' Certificate from Company
to the effect that all such consents, waivers, amendments and
approvals as may be required to be obtained by Company or any of
its Subsidiaries as of the Closing Date under its existing
Contractual Obligations, including, without limitation, the Senior
Debenture Indenture and the Senior Subordinated Debt Indenture, to
permit the borrowings under this Agreement and the Liens created
pursuant to the Collateral Documents have been obtained by such
Person and all such consents, waivers, amendments and approvals are
in full force and effect and (B) executed copies of all such
consents, waivers, amendments and approvals and (ii) each of
Company and each of its Subsidiaries shall otherwise be in
66
compliance with all such contracts and agreements to which it is a
party.
D. The corporate, capital and ownership structure of
Company and its Subsidiaries as a result of the transactions
contemplated hereby shall be satisfactory to Administrative Agent
in all respects.
E. Concurrently with the initial borrowing hereunder,
Company shall have repaid in full all of the outstanding loans and
all other amounts owing under the Existing Credit Agreement,
including without limitation all accrued but unpaid fees in respect
of all Letters of Credit originally issued under the Existing
Credit Agreement and continuing to remain outstanding hereunder,
and the commitments thereunder shall have been terminated.
F. Lenders and their respective counsel shall have
received originally executed copies of one or more favorable
written opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for Company and the
O-I Subsidiaries, in substantially the form of Exhibit XVIII
annexed hereto 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, dated
as of the Closing Date.
G. Lenders and their respective counsel shall have
received originally executed copies of one or more favorable
written opinions of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Associate General Counsel for
Company, in substantially the form of Exhibit XIX annexed hereto
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, dated as of the Closing Date.
H. Lenders shall have received an originally executed
copy of one or more favorable written opinions of O'Melveny &
▇▇▇▇▇, counsel to Agents, dated as of the Closing Date,
substantially in the form of Exhibit XX annexed hereto and as to
such other matters as Administrative Agent on behalf of Lenders may
reasonably request.
I. Each of the Senior Debenture Trustee and the Senior
Subordinated Debt Trustee shall have executed and delivered to
Administrative Agent and Collateral Agent (i) any consents required
in connection with the Pledge Agreements and (ii) a counterpart of
the Intercreditor Agreement, and the Pledge Agreements and the
Intercreditor Agreement shall be in full force and effect.
J. As of the Closing Date, Administrative Agent and its
counsel shall be satisfied that the relative priority of the Liens
and other rights with respect to the Collateral securing the
Obligations is the same in all substantive respects as the relative
priority of the corresponding Liens and other rights granted to the
lenders under the Existing Credit Agreement, in each case as
compared to the relative priority of the corresponding Liens and
other rights granted with respect to the Senior Debentures and the
Senior Subordinated Debt and any other obligations secured by such
Collateral.
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K. Since December 31, 1995, 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.
L. As of the Closing Date, there shall have been no
material adverse change since October 7, 1996 to the syndication
markets for credit facilities similar in nature to the credit
facilities provided herein, and there shall not have occurred and
be continuing a material disruption of or material adverse change
in financial, banking or capital markets that would have an adverse
effect on such syndication market, in each case as determined by
Agents in their sole discretion.
M. On or before the Closing Date, Company shall have
paid to Agents, for distribution (as appropriate) to Lenders, the
fees payable on the Closing Date referred to in subsection 2.3.
N. On or before the Closing Date, Company shall have
delivered to Administrative Agent an Officers' Certificate setting
forth in reasonable detail a calculation of the Consolidated
Leverage Ratio as of the last day of the Fiscal Quarter most
recently ended prior to the Closing Date in respect of which
consolidated financial statements of Company and its Subsidiaries
are available, such calculation to be made on a pro forma basis as
if the transactions which this Agreement contemplates will be
consummated on the Closing Date had been consummated as of the last
day of such Fiscal Quarter.
O. Administrative Agent shall have received an Officers'
Certificate from Company, dated the Closing Date, to the effect
that, as of the Closing Date, there exists no "Event of Default" or
"Potential Event of Default" under and as defined in the Existing
Credit Agreement.
P. On or before the Closing 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.
Q. On or before the Closing Date, each of the Loan
Parties shall have performed in all material respects all
agreements which this Agreement provides shall be performed on or
before the Closing 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 2.8D, the
obligations of Lenders to make all Loans are subject to the
following further conditions precedent:
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A. Administrative Agent shall have received, in
accordance with the provisions of subsection 2.1C or 2.9B, as the
case may be, on or before any Funding Date, an originally executed
Notice of Borrowing or Bid Rate Loan Quote Request, as the case may
be, signed by the chief executive officer, the chief financial
officer, the treasurer or an assistant treasurer of Company or by
any executive officer of Company designated by any of the above-
described officers on behalf of Company in writing delivered to
Administrative Agent.
B. As of that Funding Date:
1. The representations and warranties contained herein
shall be true, correct and complete in all material respects
on and as of that Funding Date to the 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 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
Company threatened, any action, suit, proceeding, governmental
investigation or arbitration against or affecting any Loan
Party or any of its Subsidiaries or any property of any Loan
Party or any of its Subsidiaries, which has not been disclosed
by Company in writing pursuant to subsection 4.6 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
69
Administrative Agent to Company), would reasonably be expected
to have a Material Adverse Effect.
C. Each borrowing by Company hereunder shall constitute
a representation and warranty by Company hereunder as of the ap-
plicable 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 the initial
Letter of Credit pursuant to this Agreement, each of the conditions
set forth in subsection 3.1 shall have been satisfied.
B. On or before the date of issuance of such Letter of
Credit, Administrative Agent (and the Issuing Lender, if
Administrative Agent is not the Issuing Lender) shall have
received, in accordance with the provisions of subsection 2.8B, an
originally executed Notice of Issuance of Letter of Credit
requesting the issuance of such Letter of Credit, all other
information specified in subsection 2.8B, and such other documents
as the Issuing Lender may reasonably require in connection with the
issuance of such Letter of Credit.
C. 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.
3.4 CONDITIONS TO UTILIZATION OF GENIE ACQUISITION SUB-
FACILITY
The making of any Loans pursuant to the Genie Acquisition
Sub-Facility and/or the issuance of any Foreign Letter of Credit
and/or the issuance of any Standby Letter of Credit described in
clause (i) of the definition of Standby Letter of Credit for the
purpose of supporting any Indebtedness incurred by Acquisition
Newcos in connection with the Genie Acquisition are each subject to
prior or concurrent satisfaction of all of the following further
conditions precedent:
A. On or before the date of the making of such Loans or
the issuance of such Foreign Letter of Credit or Standby Letter of
Credit (the "GENIE ACQUISITION COMMENCEMENT DATE"), each of the
conditions set forth in subsection 3.1 shall have been satisfied.
B. On or before the Genie Acquisition Commencement Date,
Company shall have delivered to Lenders copies of (i) audited
financial statements of Genie and its Subsidiaries, prepared in
accordance with generally accepted accounting principles as in
70
effect in Italy, for the fiscal years of Genie ended December 31,
1994 and December 31, 1995, (ii) a summary reconciliation of such
audited financial statements for the fiscal year of Genie ended
December 31, 1995, prepared by Ernst & Young and setting forth any
material differences which would result from preparation of such
financial statements in accordance with GAAP, and (iii) unaudited
financial statements of Genie and its subsidiaries, prepared by
Company, for the twelve-month period ended June 30, 1996.
C. On or before the Genie Acquisition Commencement Date,
the Preliminary Genie Acquisition shall have been consummated.
D. On or before the Genie Acquisition Commencement Date,
Agents shall have received evidence satisfactory to them that the
terms of the Seller Notes, if any, satisfy the requirements
therefor set forth in the definition of Seller Note Tranche.
SECTION 4
COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement
and to make the Loans, to induce Administrative Agent to make
overdrafts in respect of the Overdraft Account, to induce Issuing
Lenders to issue Letters of Credit and to induce Lenders to
purchase participations in Letters of Credit, Company represents
and warrants to each Lender that the following statements are true,
correct and complete:
4.1 ORGANIZATION, POWERS, GOOD STANDING, BUSINESS AND
SUBSIDIARIES
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 (which
jurisdiction is set forth on Schedule A annexed hereto). 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 Company, 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.
C. Conduct of Business. Company and its Subsidiaries
are engaged only in the businesses permitted to be engaged in under
subsection 6.11.
D. Subsidiaries. All of the Subsidiaries of each of the
Loan Parties as of the Closing Date are identified in Schedule A
annexed hereto. As of the Closing Date, the capital stock of each
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of the Subsidiaries identified in Schedule A annexed hereto is duly
authorized, validly issued, fully paid and nonassessable. The
capital stock of each Person identified on Schedule A annexed
hereto as a direct or indirect Subsidiary of Company which
continues to be, as of the time of determination, a Subsidiary of
Company is not Margin Stock. Each of the Subsidiaries identified
on Schedule A annexed hereto which continues to be, as of the time
of determination, a Subsidiary of Company is validly existing and
in good standing under the laws of its respective jurisdiction of
incorporation and has full corporate power and authority to own its
assets and properties and to operate its business as presently
owned and conducted except where failure to be in good standing or
a lack of corporate power and authority has not had and will not
have a material adverse effect on Company and its Subsidiaries
taken as a whole. As of the Closing Date, Schedule A annexed
hereto correctly sets forth the ownership interest of each of the
Loan Parties in each of its Subsidiaries identified therein.
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 each Loan Document to which it is
respectively a party and the issuance, delivery and performance of
the Notes, the Senior Debentures and the Senior Subordinated Debt
did not, do not and will not (i) violate any provision of law
applicable to any Loan Party, the Certificates of Incorporation or
Bylaws of any Loan Party, or any order, judgment or decree of any
court or other agency of government binding on any Loan Party,
(ii) conflict with, result in a material breach of or constitute
(with due notice or lapse of time or both) a material default under
the indentures pursuant to which the Senior Debentures or the
Senior Subordinated Debt has been issued or any Contractual
Obligation of any Loan Party, (iii) result in or require the
creation or imposition of any Lien upon any of their properties or
assets (other than Liens in favor of the Collateral Agent), or
(iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of any Loan
Party.
C. Governmental Consents. The execution, delivery and
performance by each Loan Party of the Loan Documents to which it is
a party and application of the proceeds of the Loans and the
issuance, delivery and performance of the Notes 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 required by federal or state securities laws,
which filings, consents or notices have been or will be made during
the period in which they are required to be made.
D. Binding Obligations. This Agreement and the other
Loan Documents executed prior to the date of this Agreement are,
and the other Loan Documents and the Notes to be executed
72
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 limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
E. Obligations Constitute "Senior Indebtedness". All
monetary Obligations, including without limitation Company's
obligations to repay the Loans and the Overdraft Amount and to
reimburse any drawings under Letters of Credit, each Guarantor
Subsidiary's guaranty of the Obligations and the pledge of the
Collateral as security for the repayment of the Obligations, do not
and will not violate, or constitute (with due notice or lapse of
time or both) a default under, the Senior Debenture Indenture or
the Senior Subordinated Debt Indenture, and all Obligations of
Company do and will constitute "Senior Indebtedness" under the
Senior Subordinated Debt Indenture. All outstanding monetary
Obligations, including without limitation all of Company's monetary
Obligations with respect to the repayment of the Loans and the
Overdraft Amount, the reimbursement of any drawings under Letters
of Credit, and the payment of any Obligations of Company under the
Company Guaranty, each Guarantor Subsidiary's monetary Obligations
under the O-I Subsidiary Guaranty, and the pledge of the Collateral
as security for the repayment of all monetary Obligations hereunder
are within the definition of "Senior Secured Obligations" contained
in the Company Pledge Agreement, the definition of "Secured
Obligations" contained in the O-I Subsidiary Pledge Agreement and
the definition of "Guarantied Obligations" contained in the O-I
Subsidiary Guaranty.
4.3 FINANCIAL CONDITION
Company has heretofore delivered to Lenders, at Lenders'
request, the following financial statements and information: (i)
the audited consolidated balance sheet of Company and its
Subsidiaries as at December 31, 1995 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 unaudited consolidated balance sheet of Company and its
Subsidiaries as at September 30, 1996 and the related unaudited
consolidated statements of income, stockholders' equity and cash
flows of Company and its Subsidiaries for the six months 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 respective dates thereof and the consolidated results of
operations and changes in financial position of Company and its
Subsidiaries for each of the periods covered thereby, subject, in
the case of any unaudited interim financial statements, to changes
resulting from normal year-end adjustments. Neither Company nor
any of its Subsidiaries has any material Contingent Obligation,
contingent liability or liability for taxes, long-term lease or
unusual forward or long-term commitment, which is not reflected in
the foregoing financial statements or in the most recent
consolidated financial statements delivered pursuant to subsection
5.1 of this Agreement, except for those incurred since the date of
such financial statements that are not prohibited hereunder.
73
4.4 NO ADVERSE MATERIAL CHANGE; NO STOCK PAYMENTS
Since December 31, 1995 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 Closing 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 6.5.
4.5 TITLE TO PROPERTIES; LIENS
Each Loan Party and each Subsidiary thereof has good,
sufficient and legal title to all its respective properties and
assets reflected in the most recent consolidated balance sheet
referred to in subsection 4.3 or in the most recent financial
statements delivered pursuant to subsection 5.1 of this Agreement,
except for assets acquired or disposed of in the ordinary course of
business or as otherwise not prohibited hereunder since the date of
such consolidated balance sheet and except for such defects that in
the aggregate do not materially adversely affect the business,
operations, properties, assets or condition (financial or
otherwise) of Company and its Subsidiaries, taken as a whole, and
would not materially adversely affect Company's ability or
obligation to perform, or Lenders' ability to enforce, the
Obligations. Except as permitted by this Agreement, all such
properties and assets are free and clear of Liens.
4.6 LITIGATION; ADVERSE FACTS
Except as disclosed in Company's quarterly report on Form
10-Q for the Fiscal Quarter ended September 30, 1996, there is no
action, suit, proceeding, governmental investigation of which
Company has knowledge or arbitration (whether or not purportedly on
behalf of any Loan Party or any respective Subsidiary thereof) 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 Loan
Party or any of their respective Subsidiaries or any property of
Company, any Loan Party or any Subsidiary thereof which would
reasonably be expected to result in a Material Adverse Effect.
4.7 PAYMENT OF TAXES
Except to the extent permitted by subsection 5.3, all
material tax returns and reports of each Loan Party and each
Subsidiary of each Loan Party required to be filed by any of them
have been timely filed, and all 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. Company knows of no proposed
tax assessment against any such Person that would be material to
the condition (financial or otherwise) of Company and its
Subsidiaries, taken as a whole, which is not being actively
74
contested in good faith by such Person to the extent affected
thereby in good faith and by appropriate proceedings provided that
such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided
therefor.
4.8 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.
4.9 SECURITIES ACTIVITIES
None of the Loan Parties and none of the Subsidiaries of
the Loan Parties 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.
4.10 EMPLOYEE BENEFIT PLANS
A. Company, each of its Subsidiaries and each of their
respective ERISA Affiliates are in compliance in all material
respects with any applicable provisions of ERISA and the
regulations and published interpretations thereunder with respect
to all Employee Benefit Plans and have performed all of their
respective material obligations under such Employee Benefit Plans.
B. Except as set forth on Schedule H annexed hereto, no
ERISA Event has occurred or is reasonably expected to occur.
C. Except to the extent required under Section 4980B of
the Internal Revenue Code or under applicable state law or any
collective bargaining agreement to which Company or any of its
ERISA Affiliates is a party, or except as described on Schedule H
annexed hereto, as of the Closing Date, no Employee Benefit Plan
provides health or welfare benefits (through the purchase of
insurance or otherwise) for any retired or former employees of
Company or any of its ERISA Affiliates.
D. As of the most recent valuation date for any Pension
Plan, the amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate for
all Pension Plans (excluding for purposes of such computation any
Pension Plans with respect to which assets exceed benefit
liabilities) as set forth in the most recent actuarial report
prepared for such Pension Plan, does not exceed $250,000,000.
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4.11 DISCLOSURE
No representation or warranty of Company or any other
Loan Party contained in this Agreement or any other document,
certificate or written statement furnished to Lenders by or on
behalf of any such Person 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 any such Person in the case of any document not furnished
by it) necessary in order to make the statements contained herein
or therein not misleading. The projections and pro forma financial
information contained in such materials are based upon good faith
estimates and assumptions believed by such Persons to be reasonable
at the time made, it being recognized by Lenders that such projec-
tions 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 any such Person (other than matters of a general
economic nature) which materially and adversely affects the
business, operations, property, assets or condition (financial or
otherwise) of any such Person and its respective 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.
4.12 ENVIRONMENTAL PROTECTION
Except as set forth in Schedule I annexed hereto:
(i) the operations of Company and each of its
Subsidiaries (including, without limitation, all operations
and conditions at or in the Facilities) comply in all material
respects with all Environmental Laws;
(ii) Company and each of its Material Subsidiaries
have obtained all Governmental Authorizations under
Environmental Laws necessary to their respective operations,
and all such Governmental Authorizations are in good standing,
and Company and each of its Material Subsidiaries are in
compliance with all material terms and conditions of such
Governmental Authorizations;
(iii) neither Company nor any of its Subsidiaries has
received (a) any written notice or claim to the effect that it
is or may be liable to any Person as a result of or in
connection with any Hazardous Materials or (b) any letter or
written request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9604) or comparable state
laws, and, to the best of Company's knowledge, none of the
operations of Company or any of its Subsidiaries is the
subject of any federal or state investigation relating to or
in connection with any Hazardous Materials at any Facility or
at any other location which, in each case, would reasonably be
expected to result in a Material Adverse Effect;
76
(iv) none of the operations of Company or any of its
Subsidiaries is subject to any judicial or administrative
proceeding alleging the violation of or liability under any
Environmental Laws which if adversely determined is reasonably
likely to have a Material Adverse Effect;
(v) neither Company nor any of its Subsidiaries nor any
of their respective Facilities or operations are subject to
any outstanding written order or agreement with any
governmental authority or private party relating to (a) any
Environmental Laws or (b) any Environmental Claims which, in
each case would reasonably be expected to result in a Material
Adverse Effect;
(vi) neither Company nor any of its Subsidiaries has
any contractual undertaking which would create a liability in
connection with any Release of any Hazardous Materials by
Company or any of its Subsidiaries which would reasonably be
expected to have a Material Adverse Effect;
(vii) neither Company nor any of its Subsidiaries nor,
to the best knowledge of Company, any predecessor of Company
or any of its Subsidiaries has filed any notice under any
Environmental Law indicating past or present treatment or
Release of Hazardous Materials at any Facility which would
reasonably be expected to result in a Material Adverse Effect;
(viii) no Hazardous Materials exist on, under or about
any Facility in a manner that would reasonably be expected to
result in an Environmental Claim having a Material Adverse
Effect, and neither Company nor any of its Subsidiaries has
filed any notice or report of a Release of any Hazardous
Materials that would reasonably be expected to result in an
Environmental Claim having a Material Adverse Effect;
(ix) neither Company nor any of its Subsidiaries nor,
to the best knowledge of Company, any of their respective
predecessors has disposed of any Hazardous Materials in a
manner that would reasonably be expected to result in an
Environmental Claim having a Material Adverse Effect;
(x) no underground storage tanks or surface impoundments
are on or at any Facility currently owned and/or operated by
Company or any of its Material Subsidiaries or, to the best of
the knowledge of Company or any of its Material Subsidiaries,
were on or at any facility previously owned and/or operated by
any of them during or prior to the period of such ownership or
operation, except, in each case, which would not reasonably be
expected to result in a material liability to Company or such
Material Subsidiary; and
(xi) to the best knowledge of Company or any of its
Material Subsidiaries, no Lien in favor of any Person relating
to or in connection with any Environmental Claim has been
filed or has been attached to any Facility which would
reasonably be expected to result in a Material Adverse Effect.
77
Notwithstanding anything in this subsection 4.12 to the contrary,
no event or condition has occurred with respect to Company or any
of its Subsidiaries relating to any Environmental Laws or Release
of Hazardous Materials at any Facility or any other location which,
individually, or in the aggregate, has had or would reasonably be
expected to have a Material Adverse Effect.
SECTION 5
COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the
Revolving Loan Commitments hereunder shall be in effect and until
payment in full of all of the Loans, the Notes and the Overdraft
Amount, the cancellation or expiration of all Letters of Credit and
the reimbursement of all amounts drawn thereunder, unless Requisite
Lenders shall otherwise give prior written consent, Company shall
perform all covenants in this Section 5.
5.1 FINANCIAL STATEMENTS AND OTHER REPORTS
Company will maintain, and cause each of its Subsidiaries
to maintain, a system of accounting established and administered in
accordance with sound business practices to permit preparation of
consolidated financial statements in conformity with GAAP. Company
will deliver to Lenders:
(i) as soon as practicable and in any event within 45
days after the end of each Fiscal Quarter, other than quarters
which are the last quarter in a Fiscal Year, (a) the
consolidated balance sheet of Company as at the end of such
period and the related consolidated statements of income and
cash flows of Company for the period from the beginning of the
then current Fiscal Year to the end of such Fiscal Quarter and
(b) a statement setting forth sales and operating income data
by Reporting Unit for the last month of such Fiscal Quarter
and for the period from the beginning of the then current
Fiscal Year to the end of such Fiscal Quarter, setting forth
in the case of the statements described in clauses (a) and (b)
above in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and, with
respect to the consolidated statements of income and the
statement of sales and operating income data by Reporting
Unit, the corresponding figures from the consolidated plan and
financial forecast for the current Fiscal Year delivered
pursuant to subsection 5.1(x), all in reasonable detail and
certified by the chief accounting officer, the chief financial
officer or treasurer of Company that they fairly present the
consolidated financial condition of Company and its Subsid-
iaries 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;
78
(ii) 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(x), all in
reasonable detail, (c) in the case of such consolidated
financial statements, accompanied by a report thereon of
independent certified public accountants of recognized
national standing selected by Company which report shall be
unqualified as to going concern and scope of audit and shall
state that such consolidated financial statements present
fairly the financial position of Company and its Subsidiaries
as at the dates indicated and the results of their operations
and cash flows for the periods indicated in conformity with
GAAP consistently applied and that the examination by such
accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted
auditing standards and (d) in the case of such financial
statements with respect to Reporting Units, certified by the
chief accounting officer, the chief financial officer or
treasurer of Company based on Company's normal accounting
procedures applied on a consistent basis;
(iii) together with each delivery of financial
statements of Company and its Subsidiaries pursuant to
subdivisions (i) and (ii) above, (a) an Officers' Certificate
of Company stating that the signers have reviewed the terms of
this Agreement and the Notes and have made, or caused to be
made under their supervision, a review in reasonable detail of
the transactions and condition of Company and its Subsidiaries
during the accounting period covered by such financial
statements and that such review has not disclosed the
existence during or at the end of such accounting period, and
that the signers do not have knowledge of the existence as at
the date of the Officers' Certificate, of any condition or
event which constitutes an Event of Default or Potential Event
of Default, or, if any such condition or event existed or
exists, specifying the nature and period of existence thereof
and what action Company has taken, is taking and proposes to
take with respect thereto; and (b) a Compliance Certificate
demonstrating compliance (as determined in accordance with
GAAP) during and at the end of such accounting periods with
the restrictions contained in subsections 6.1, 6.2, 6.3, 6.4,
6.6 and 6.7 and, in addition, a written statement of the chief
accounting officer or chief financial officer of Company
describing in reasonable detail the differences between the
financial information contained in such financial statements
and the information contained in the Compliance Certificate
relating to Company's compliance with subsection 6.6;
79
(iv) to the extent required pursuant to clause (a)
or (b) below, together with each delivery of financial
statements pursuant to subdivisions (i) or (ii) of this
subsection 5.1, a written statement from the chief accounting
officer or chief financial officer or treasurer of Company
setting forth (a) if necessary to explain any material changes
in the consolidated financial statements caused by the
adoption of new accounting principles, a comparison and
reconciliation of the consolidated financial statements with
pro forma consolidated financial statements prepared as if the
new accounting principles had not been adopted (it being
understood that, subject to the following clause (b), only one
such statement shall be required with respect to any
particular adoption of any new accounting principles) and
(b) during the pendency of any negotiations provided for in
subsection 9.9 resulting from any change in accounting
principles and policies, the differences which would have
resulted if such financial statements had been prepared
without giving effect to such change;
(v) promptly upon their becoming available, copies of
all financial statements, reports, notices 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, of
all regular and periodic reports and all registration
statements and prospectuses, if any, filed by Company or any
of its Subsidiaries with any securities exchange or with the
Securities and Exchange Commission and of all press releases
and other statements made available generally by Company or
any of its Subsidiaries to the public concerning material
developments in the business of Company or any of its
Subsidiaries;
(vi) 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, (c) of any condition or
event which would be required to be disclosed in a current
report filed by Company with the Securities and Exchange
Commission on Form 8-K (Items 1, 2, 4 and 5 of such Form as in
effect on the date hereof) if Company were required to file
such reports under the Exchange Act, or (d) of the occurrence
of any event or change that has caused or evidences, 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) 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
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or any of its Subsidiaries not previously disclosed by Company
to Lenders, or (b) any material development in any such
action, suit, proceeding, governmental investigation or
arbitration, which, in either case, if adversely determined,
would reasonably be expected to cause a Material Adverse
Effect, Company shall promptly give 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) promptly upon becoming aware of the occurrence
of or forthcoming occurrence of any ERISA Event (for purposes
of this subdivision (viii), the term "material" in the
definition of ERISA Event shall mean an amount which would
reasonably be expected to exceed $10,000,000), a written
notice specifying the nature thereof, what action Company or
any of its ERISA Affiliates has taken, is taking or proposes
to take with respect thereto, and, when known, any action
taken or threatened by the Internal Revenue Service, the
Department of Labor or the Pension Benefit Guaranty
Corporation with respect thereto;
(ix) with reasonable promptness copies of (a) all
notices received by Company or any of its ERISA Affiliates
from a Multiemployer Plan sponsor concerning an ERISA Event
(for purposes of this clause (x), the term "material" in the
definition of ERISA Event shall mean an amount which would
reasonably be expected to exceed $10,000,000); and (b) such
other documents or governmental reports or filings relating to
any Employee Benefit Plan as Administrative Agent shall
reasonably request;
(x) as soon as practicable and in any event within 90
days after the end of each Fiscal Year of Company, a
consolidated plan and financial forecast, prepared in
accordance with Company's normal accounting procedures applied
on a consistent basis, for such Fiscal Year of Company and its
Subsidiaries, including, without limitation, (a) a forecasted
consolidated balance sheet, consolidated statement of income
and consolidated statement of cash flow of Company for such
Fiscal Year, (b) forecasted consolidated balance sheets and
statements of income of Company and a statement setting forth
forecasted sales and operating income data for each Reporting
Unit for each Fiscal Quarter of such Fiscal Year, and (c) the
amount of forecasted capital expenditures and unallocated
overhead for such Fiscal Year;
(xi) together with each delivery of financial
statements of Company and its Subsidiaries pursuant to
subdivision (ii) above, an Officers' Certificate of Company
stating that the signers made, or caused to be made under
their supervision, a review of the terms of, and the records
relating to, all of the Intercompany Indebtedness of Company
and its Subsidiaries and stating the amount of all outstanding
Intercompany Indebtedness pledged as Collateral under any
Pledge Agreement, as of the date of such financial statements;
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(xii) (a) promptly and in any event within one Business
Day after any change in the Commercial Paper Usage has
occurred, a written statement of the chief accounting officer,
chief financial officer or treasurer of Company setting forth
the Commercial Paper Usage as of such date of change after
giving effect to such change and (b) on the last day in each
of Company's Fiscal Quarters, a written statement of the chief
accounting officer, chief financial officer or treasurer of
Company setting forth the Commercial Paper Usage as of each
day of such Fiscal Quarter; provided, however, that the
written statement referred to in clause (a) above need only be
delivered to Administrative Agent;
(xiii) together with each delivery of financial
statements of Company and its Subsidiaries pursuant to
subdivisions (i) and (ii) above after the date of issuance of
any Foreign Letter of Credit, an Officers' Certificate setting
forth in reasonable detail a calculation of the Total
Utilization of Revolving Loan Commitments as of a date not
more than five Business Days prior to the date of such
delivery, calculated on the basis of the applicable Exchange
Rate(s) in effect as of the date of such calculation; provided
that in the event the amount (the "EXCHANGE RATE CUSHION")
equal to the Revolving Loan Commitments in effect as of the
date of such calculation minus the Total Utilization of
Revolving Loan Commitments as of such date is less than 25% of
the Letter of Credit Usage in respect of Foreign Letters of
Credit as of such date, Company shall thereafter deliver to
Administrative Agent an Officers' Certificate meeting the
requirements set forth above within five Business Days after
the end of each month until such time as the Exchange Rate
Cushion set forth in any such Officers' Certificate is equal
to or greater than 50% of the Letter of Credit Usage in
respect of Foreign Letters of Credit; and
(xiv) with reasonable promptness, such other infor-
mation and data with respect to Company or any of its
Subsidiaries as from time to time may be reasonably requested
by any Lender.
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 those of each of its Subsidiaries;
provided, however, that the corporate existence of any such
Subsidiary may be terminated if such termination is in the best
interest of its parent, does not result in transfers of assets to
Company or to Group (other than temporary transfers of assets to
Company or Group in connection with transfers to other Subsidiaries
of Company) which, when combined with all previous such transfers,
have an aggregate value of more than $200,000,000 and is not
otherwise materially disadvantageous to any Lender.
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
82
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
their respective Subsidiaries or such other Person as may be
reasonably acceptable to Requisite Lenders).
5.4 MAINTENANCE OF PROPERTIES; INSURANCE
Company will maintain or cause to be maintained in good
repair, working order and condition all material properties used or
useful in the business of Company and its Subsidiaries and from
time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof. Company will maintain or cause
to be maintained, with financially sound and reputable insurers,
insurance with respect to its properties and business and the
properties and business of its Subsidiaries against loss or damage
of the kinds customarily insured against by corporations of
established reputation engaged in the same or similar businesses
and similarly situated, of such types and in such amounts as are
customarily carried under similar circumstances by such other
corporations ("INDUSTRY STANDARDS") and may self insure to the
extent, and only to the extent, consistent with Industry Standards.
5.5 INSPECTION
Company shall permit any authorized representatives
designated by any Lender, at the expense of that Lender, to visit
and inspect any of the properties of Company or any of its
Subsidiaries, including its and their financial and accounting
records, and to make copies and take extracts therefrom, and to
discuss its and their affairs, finances and accounts with its and
their officers and independent public accountants, all upon
reasonable notice and at such reasonable times during normal
business hours and as often as may be reasonably requested.
5.6 EQUAL SECURITY FOR LOANS AND NOTES; NO FURTHER
NEGATIVE PLEDGES
A. If Company or any of its Subsidiaries shall create
or assume any Lien upon any of its property or assets, whether now
owned or hereafter acquired, other than Liens not prohibited by the
provisions of subsection 6.2 (unless prior written consent to the
creation or assumption thereof shall have been obtained from
Requisite Lenders), it shall, at the request of Requisite Lenders,
83
make or cause to be made effective provision whereby the
Obligations will be secured by such Lien equally and ratably with
any and all other Indebtedness thereby secured as long as any such
Indebtedness shall be secured; provided that this covenant shall
not be construed as consent by Requisite Lenders to any violation
by Company of the provisions of subsection 6.2; provided further
that Company shall under no circumstances be required to make or
cause to be made effective provision whereby the Obligations will
be secured, directly or indirectly, by Margin Stock.
B. Except with respect to specific property encumbered
to secure payment of particular Indebtedness and Margin Stock and
except for the prohibitions on Liens contained in the Senior
Debenture Indenture or the Senior Subordinated Debt Indenture,
neither Company nor any of its Subsidiaries shall enter into any
agreement prohibiting the creation or assumption of any Lien upon
its properties or assets, whether now owned or hereafter acquired;
provided that, restrictions on the creation or assumption of any
Lien upon assets being sold pursuant to any definitive agreement
for the sale of such assets to which Company or any of its
Subsidiaries is a party are permitted if such sale of assets is not
prohibited hereunder.
5.7 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 of any governmental
authority, noncompliance with which in any case or in the aggregate
would reasonably be expected to cause a Material Adverse Effect.
5.8 ENVIRONMENTAL DISCLOSURE AND INSPECTION.
A. Company shall, and shall cause each of its
Subsidiaries to, exercise all due diligence in order to comply and
cause (i) all tenants under any leases or occupancy agreements
affecting any portion of the Facilities and (ii) all other Persons
on or occupying such property, to comply with all Environmental
Laws, except in each case where the failure to do so would not
reasonably be expected to have a Material Adverse Effect.
B. Except for the disclosure of matters as to which a
legal privilege is asserted in good faith by Company or any of its
Subsidiaries, Company shall promptly advise Lenders in writing and
in reasonable detail of (i) any material Release of any Hazardous
Materials required to be reported to any federal, state or local
governmental or regulatory agency under any applicable
Environmental Laws, (ii) any and all written communications with
respect to any Environmental Claims that would reasonably be
expected to result in a Material Adverse Effect or with respect to
any Release of Hazardous Materials which is material in nature and
is required to be reported to any federal, state or local
governmental or regulatory agency, (iii) any remedial action taken
by Company or any other Person in response to (x) any Hazardous
Materials on, under or about any Facility, the existence of which
would reasonably be expected to result in an Environmental Claim
having a Material Adverse Effect, or (y) any Environmental Claim
that would reasonably be expected to result in a Material Adverse
84
Effect, (iv) Company's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of any Facility that
is reasonably likely to cause such Facility or any part thereof to
be subject to any restrictions on the ownership, occupancy,
transferability or use thereof under any Environmental Laws and
which would reasonably be expected to have a Material Adverse
Effect, and (v) any request for information from any governmental
agency that indicates such agency is investigating whether Company
or any of its Subsidiaries may be potentially responsible for a
Release of Hazardous Materials that would reasonably be expected to
have a Material Adverse Effect.
C. Company shall promptly notify Lenders of any proposed
acquisition of stock, assets, or property by Company or any of its
Subsidiaries that would reasonably be expected to expose Company or
any of its Subsidiaries to, or result in, Environmental Claims that
would reasonably be expected to result in a Material Adverse Effect
or that would reasonably be expected to have a material adverse
effect on any material Governmental Authorization then held by
Company or any of its Subsidiaries.
D. Company shall, at its own expense, provide copies of
such documents or information as Administrative Agent may
reasonably request in relation to any matters disclosed pursuant to
this subsection 5.8.
5.9 COMPANY'S REMEDIAL ACTION REGARDING HAZARDOUS
MATERIALS
Company shall promptly take, and shall cause each of its
Subsidiaries promptly to take, any and all necessary remedial
action in connection with the presence, storage, use, disposal,
transportation or Release of any Hazardous Materials on, under or
about any Facility in order to comply with all applicable material
Environmental Laws and material Governmental Authorizations. In
the event Company or any of its Subsidiaries undertakes any
remedial action with respect to any Hazardous Materials on, under
or about any Facility, Company or such Subsidiary shall conduct and
complete such remedial action in material compliance with all
applicable material Environmental Laws, and in accordance with the
orders and directives of all federal, state and local governmental
authorities except when, and only to the extent that, Company's or
such Subsidiary's liability, including with respect to such
presence, storage, use, disposal, transportation or discharge of
any Hazardous Materials, is being contested in good faith by
Company or such Subsidiary.
5.10 FURTHER ASSURANCES AS TO FUTURE GUARANTOR
SUBSIDIARIES
Company will notify Administrative Agent promptly in the
event that any Subsidiary of Company becomes a first-tier or
second-tier Subsidiary of Group (either as a result of such
Subsidiary's acquisition or otherwise) for a period of time longer
than 90 days, and from and after the Closing Date Company will
cause each such Subsidiary, except for one or more such
Subsidiaries owning assets with an aggregate fair market value (as
determined in good faith by Company) for all such Subsidiaries of
less than $50,000,000, to execute counterparts of the O-I
Subsidiary Guaranty and, if such Subsidiary is a first-tier
Subsidiary of Group, the O-I Subsidiary Pledge Agreement, in each
case to the same extent and subject to the same limitations as
85
though such Subsidiary were a Guarantor Subsidiary and, if
applicable, such a first-tier Subsidiary of Group, as of the
Closing Date, and to take all such further action as may be
required to perfect any security interests granted by such
Subsidiary under the O-I Subsidiary Pledge Agreement as may be
required by Administrative Agent.
SECTION 6
COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the
Revolving Loan Commitments shall be in effect and until payment in
full of all of the Loans, the Notes and the Overdraft Amount, the
cancellation or expiration of all Letters of Credit and the
reimbursement of all amounts drawn thereunder, unless Requisite
Lenders shall otherwise give prior written consent, Company will
perform all covenants in this Section 6.
6.1 INDEBTEDNESS
Company and its Consolidated Subsidiaries shall not
directly or indirectly create, incur, assume, guaranty, or
otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(i) Company and its Consolidated Subsidiaries may become
and remain liable with respect to the Obligations;
(ii) Company may become and/or remain liable with
respect to (a) Indebtedness in an aggregate amount not to
exceed $1,000,000,000 evidenced by the Senior Debentures or
other debt securities of Company having terms (including
without limitation terms relating to guaranties, collateral
security, maturities, amortization or sinking fund schedules,
covenants, defaults, remedies and other material terms) no
less favorable to Company and Lenders than the terms of the
Senior Debentures and (b) Indebtedness in an aggregate amount
not to exceed $950,000,000 evidenced by the Senior
Subordinated Debt or other debt securities of Company having
terms (including without limitation terms relating to
guaranties, collateral security, maturities, amortization or
sinking fund schedules, covenants, defaults, remedies,
subordination provisions and other material terms) no less
favorable to Company and Lenders than the terms of the Senior
Subordinated Debt;
(iii) Company and its Consolidated Subsidiaries may
remain and may become and remain liable with respect to
Intercompany Indebtedness; provided that (a) all such
Intercompany Indebtedness shall be evidenced by promissory
notes, (b) any Intercompany Indebtedness owed by Company or
any Guarantor Subsidiary to any of their Consolidated
Subsidiaries shall, to the extent permitted by applicable law,
be subordinated pursuant to the terms of the promissory notes
evidencing such Intercompany Indebtedness in right of payment,
86
from and after such time as the Loans shall become due and
payable (whether at stated maturity, by acceleration or
otherwise), to the payment in full of the Obligations of
Company or the payment in full of the obligations of such
Guarantor Subsidiary under the O-I Subsidiary Guaranty and the
O-I Subsidiary Pledge Agreement, and (c) any payment by any of
Company's Consolidated Subsidiaries under any guaranty of the
Obligations shall result in a pro tanto reduction of the
amount of any Intercompany Indebtedness owed by such ▇▇▇▇▇▇▇-
dated Subsidiary to Company or any of its Consolidated
Subsidiaries for whose benefit the payment is made;
(iv) Company and its Consolidated Subsidiaries may
become and remain liable with respect to, and may refinance,
Existing Indebtedness which is described in Schedule C annexed
hereto;
(v) Company and its Consolidated Subsidiaries may become
and remain liable with respect to Indebtedness in respect of
Capital Leases;
(vi) Company and its Consolidated Subsidiaries may
become and remain and may remain liable with respect to
Contingent Obligations not prohibited by subsection 6.4 and,
upon any obligations actually arising pursuant thereto, the
Indebtedness corresponding to the Contingent Obligations so
extinguished;
(vii) Company and its Consolidated Subsidiaries may
become and remain liable with respect to (a) additional In-
debtedness incurred to refinance Indebtedness of Genie or
Indebtedness of Acquisition Newcos incurred in connection with
the Genie Acquisition in an aggregate amount not to exceed
$450,000,000 at any time outstanding and (b) additional
Indebtedness incurred to refinance Indebtedness of its Foreign
Subsidiaries (which may be Indebtedness of Genie or
Acquisition Newcos) in an aggregate amount not to exceed
$300,000,000 at any time outstanding;
(viii) Company may become and remain liable with re-
spect to short-term Indebtedness commonly known as commercial
paper in an aggregate face amount not to exceed at any time
the lesser of (a) $450,000,000 minus the aggregate principal
amount of outstanding Bid Rate Loans, and (b) the Revolving
Loan Commitments then in effect minus the sum of (1) the
principal amount of all outstanding Revolving Loans, (2) the
principal amount of all outstanding Bid Rate Loans, (3) the
Overdraft Amount, and (4) the Letter of Credit Usage as of
such time of determination;
(ix) Company and its Consolidated Subsidiaries may
become and remain liable with respect to Indebtedness secured
by Liens permitted under subsection 6.2(ix); and
(x) In addition to the Indebtedness permitted by clauses
(i)-(ix), Company and its Consolidated Subsidiaries may become
and remain liable with respect to Indebtedness not exceeding
$200,000,000 in the aggregate at any time outstanding.
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6.2 LIENS
Company will not, and will not permit any of its
Consolidated Subsidiaries to, directly or indirectly, create,
incur, assume or permit to exist any Lien on or with respect to any
property or asset (including any document or instrument in respect
of goods or accounts receivable) of Company or any of its
Consolidated Subsidiaries, whether now owned or hereafter acquired,
or any income or profits therefrom, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Docu-
ments;
(iii) Liens described in Schedule D annexed hereto;
(iv) Liens securing the Indebtedness described in
subsection 6.1(x);
(v) Liens securing reimbursement obligations of Company
and its Consolidated Subsidiaries with respect to Commercial
Letters of Credit and Standby Letters of Credit permitted by
subsection 6.4(vi), in each case which Liens encumber
documents or other property relating to such Standby Letters
of Credit or Commercial Letters of Credit and the products and
proceeds thereof;
(vi) Liens encumbering customary initial deposits and
margin deposits, and other Liens incurred in the ordinary
course of business and which are either within the general
parameters customary in the industry (as concurred in by
Administrative Agent) or are otherwise approved by Requisite
Lenders, in each case securing obligations under Commodities
Agreements entered into by Company and its Consolidated
Subsidiaries;
(vii) Liens encumbering deposits made to secure ob-
ligations arising from statutory, regulatory, contractual or
warranty requirements of Company or its Consolidated
Subsidiaries incurred in the ordinary course of business or as
a result of this Agreement or the incurrence, guarantying or
granting of security interests in respect of Indebtedness
pursuant to this Agreement or the other Loan Documents;
(viii) Liens securing Existing Indebtedness described
in subsection 6.1(iv) which has been refinanced so long as
(a) the principal amount of such Indebtedness which has been
refinanced is not increased and (b) such Indebtedness which
has been refinanced is not secured by any collateral which did
not secure such Indebtedness prior to such refinancing; and
(ix) 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
88
property or tangible personal property hereafter acquired or
constructed and not heretofore owned by Company or any of its
Subsidiaries, or from the acquiring hereafter of real property
or tangible personal property not heretofore owned by Company
or any of its Subsidiaries subject to any then-existing Lien
(whether or not assumed), or from the extension, renewal or
replacement of any Indebtedness secured by any of the
foregoing Liens so long as the aggregate principal amount
thereof and the security therefor is not thereby increased;
provided, however, that in each case (a) such Lien is limited
to such acquired or constructed real or tangible personal
property and fixed improvements, if any, then existing or
thereafter erected thereon, and (b) the principal amount of
the Indebtedness secured by such Lien, together (without
duplication) with the principal amount of all other
Indebtedness secured by liens on such property, shall not
exceed the cost (which shall be deemed to include, without
duplication, the amount of Indebtedness secured by Liens,
including existing Liens, on such property) of such property
to Company or any of its Subsidiaries.
6.3 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 E annexed
hereto;
(iii) Company and its Consolidated Subsidiaries may
continue to own and may make intercompany loans to the extent
permitted under subsection 6.1;
(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;
89
(vii) Company and its Consolidated Subsidiaries may
make and own Investments arising in connection with Com-
modities Agreements entered into in accordance with current
industry practice or the past practices of Company and its
Subsidiaries;
(viii) Company and its Consolidated Subsidiaries may
make and own Investments with respect to Contingent
Obligations which are not prohibited by subsection 6.4 and,
upon any Investment actually arising pursuant thereto, the
Investment corresponding to the Contingent Obligation so
extinguished;
(ix) Acquisition Newcos and Genie Holdings may make
and own the Investments in Genie and Genie Holdings
contemplated in connection with the Genie Acquisition; and
(x) In addition to Investments permitted by clauses (i)-
(ix) above, Company and its Consolidated Subsidiaries may make
and own Investments with an aggregate fair market value of not
more than $500,000,000; provided that, except as set forth in
this clause (x), neither Company nor any of its Consolidated
Subsidiaries may make or own Investments in any Margin Stock;
provided, further that the aggregate fair value of investments
in Margin Stock permitted under this subsection 6.3 shall not
at any time exceed $20,000,000.
6.4 CONTINGENT OBLIGATIONS
Company will not, and will not permit any of its
Consolidated Subsidiaries to, directly or indirectly, create or
become or be liable with respect to any Contingent Obligation
except:
(i) Guaranties resulting from endorsement of negotiable
instruments for collection in the ordinary course of business;
(ii) Obligations under the Company Guaranty and the
O-I Subsidiary Guaranty;
(iii) Guaranties by O-I Subsidiaries of Interest Rate
Agreements and Currency Agreements entered into by Company
which are permitted by subsection 6.4(vii);
(iv) Guaranties by the Guarantor Subsidiaries of the
Senior Debentures;
(v) Currency Agreements entered into by Company or any
Consolidated Subsidiary and any financial institution in the
ordinary course of business or in connection with Asset Sales;
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(vi) Contingent reimbursement obligations under the
Foreign Letters of Credit and under Commercial Letters of
Credit and Standby Letters of Credit (including any such
letters of credit in existence as of the date hereof);
(vii) Interest Rate Agreements and Currency Agreements
entered into by Company and any Lender or any Affiliate of any
Lender;
(viii) Contingent Obligations described in Schedule F
annexed hereto;
(ix) Contingent Obligations in respect of any obli-
gation of Company or one of its Consolidated Subsidiaries
permitted under this Agreement (other than any obligation with
respect to Indebtedness);
(x) Contingent Obligations relating to guaranties of the
obligations of suppliers, customers, franchisees and licensees
of Company and its Consolidated Subsidiaries; provided that
the maximum aggregate liability of Company and its
Consolidated Subsidiaries under all such Contingent
Obligations shall at no time exceed $50,000,000 (including any
Contingent Obligations in existence as of the date hereof);
(xi) Contingent Obligations relating to guaranties
by Company of indebtedness owed by any Foreign Subsidiary to
any lender (excluding the guaranties described in Schedule F
annexed hereto); provided that the maximum aggregate liability
of Company under all such guaranties shall at no time exceed
(a) $450,000,000 with respect to Indebtedness of Genie and
Indebtedness of Acquisition Newcos incurred in connection with
the Genie Acquisition and (b) an additional $300,000,000 with
respect to Indebtedness (which may include Indebtedness of
Genie or Acquisition Newcos) other than the Indebtedness of
Genie and Acquisition Newcos referred to in the immediately
preceding clause (a); provided, further that the sum of the
aggregate amount outstanding of (1) such Contingent
Obligations described in clause (a) above, (2) Indebtedness
permitted under subsection 6.1(vii)(a) (without duplication in
the case of any such Contingent Obligations consisting of
guaranties by Company of any such Indebtedness of any
Consolidated Subsidiary), and (3) the Letter of Credit Usage
in respect of any Standby Letters of Credit described in
clause (i) of the definition of Standby Letter of Credit that
are issued for the purpose of supporting Indebtedness incurred
by Genie or Acquisition Newcos shall not exceed $450,000,000;
and provided further that the sum of (1) the aggregate amount
outstanding of such Contingent Obligations described in clause
(b) above, (2) Indebtedness permitted under subsection
6.1(vii)(b) (without duplication in the case of any such
Contingent Obligations consisting of guaranties by Company of
any such Indebtedness of any Consolidated Subsidiary), and (3)
the Letter of Credit Usage in respect of any Standby Letters
of Credit described in clause (i) of the definition of Standby
Letter of Credit that are issued for the purpose of supporting
Indebtedness incurred by any Foreign Entity (other than any
such Standby Letters of Credit included in the calculation
made pursuant to the immediately preceding proviso) shall not
exceed $300,000,000;
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(xii) Contingent Obligations incurred pursuant to
agreements entered into by Company and its Consolidated
Subsidiaries in connection with Asset Sales which are of a
type, scope and amount customarily incurred by Company or its
Subsidiaries or similar businesses in connection with the sale
of similar assets, including, without limitation, undertakings
to indemnify a buyer of assets with respect to the status of
title or existing litigation relating to such assets; provided
that the amount of a Contingent Obligation with respect to a
particular Asset Sale shall not exceed the consideration
received in such Asset Sale; and
(xiii) In addition to the Contingent Obligations per-
mitted by clauses (i)-(xii), Company and its Consolidated
Subsidiaries may become and remain liable with respect to
other Contingent Obligations; provided that the maximum
aggregate liability of Company and its Consolidated
Subsidiaries in respect of all such Contingent Obligations
shall at no time exceed $150,000,000;
6.5 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 6.5) except that, so
long as no Event of Default, and no Potential Event of Default
under subsection 7.1, 7.6, 7.8 or 7.9, shall have occurred and be
continuing or shall be caused thereby, Company may (i) make
Restricted Junior Payments consisting of purchases of Common Stock
in connection with the administration of Company's employee
benefits program and (ii) make additional Restricted Junior
Payments in an aggregate amount not to exceed, as at any date of
determination, (a) the sum of (1) $125,000,000 plus (2) 50% of
Consolidated Net Income for the period from the Closing Date to
such date of determination minus (b) the aggregate amount of
Restricted Junior Payments (other than Restricted Junior Payments
permitted under clause (i) above) previously made during such
period.
6.6 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 Refer-
ence Date:
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MINIMUM INTEREST
PERIOD COVERAGE RATIO
------ ----------------
Closing Date - 12/31/99 2.25:1.00
Thereafter 2.50:1.00
B. Maximum Consolidated Leverage Ratio.
Company will not permit the Consolidated Leverage Ratio
at any time during each period indicated below to be more than the
correlative ratio indicated for such period:
MAXIMUM CONSOLIDATED
PERIOD LEVERAGE RATIO
------ --------------------
Closing Date - 12/31/99 4.50:1.00
Thereafter 4.00:1.00
6.7 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 wholly-owned
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 wholly-owned Subsidiary of Company; provided
that, in the case of such a merger or consolidation, Company
or such wholly-owned Subsidiary shall be the continuing or
surviving corporation; further provided that, in the case of
such a merger or consolidation or disposition of a majority of
the stock of a Subsidiary of, or substantially all of the
business, property or assets of such a Subsidiary (the
"AFFECTED SUBSIDIARY") of, Company which is a guarantor of any
of the Obligations, the continuing, surviving or transferee
corporation shall expressly assume the obligations of the
Affected Subsidiary under such guaranty; and still further
provided that, if required by the terms of any applicable
Collateral Document, in the case of such a merger or
consolidation or disposition of a majority of the stock of a
Subsidiary of, or substantially all of the business, property
or assets of such a Subsidiary of, Company the stock of which
is pledged to secure the Obligations, the stock of the
continuing, surviving or transferee corporation shall, at the
time of consummation of such merger, consolidation or
transfer, be pledged to secure the Obligations;
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(ii) Company and its Subsidiaries may convey, sell,
lease or otherwise dispose of in the ordinary course of
business any property or asset which is obsolete or no longer
useful in any of its businesses or is of de minimis value, as
determined in good faith by the Board of Directors of Company
or such Subsidiary, as the case may be;
(iii) so long as no Event of Default has occurred and
is continuing or shall be caused thereby, Company and its
Subsidiaries may convey, sell, lease or otherwise dispose of
any of their assets outside the ordinary course of business;
provided that (a) any such sale or other disposition is made
for at least the fair market value of such assets; (b) Company
and its Subsidiaries may not sell or otherwise dispose of, in
any one or more Asset Sales consummated after the date hereof,
an amount equal to or greater than an aggregate of
(i) $300,000,000 in fair market value of stock or other assets
pursuant to this subsection 6.7(iii) during any consecutive
12-month period or (ii) $600,000,000 in fair market value of
stock or other assets pursuant to this subsection 6.7(iii)
during the term of this Agreement; and (c) Company and its
Subsidiaries may not sell all or substantially all of the
assets of any Reporting Unit;
(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 or any of its Subsidiaries may convey, sell,
transfer or otherwise dispose of any Margin Stock (other than
any capital stock of any Subsidiaries of Company), whether now
owned or hereafter acquired; provided that such disposition is
for fair value; and
(vi) Company and its Consolidated Subsidiaries may
sell and discount notes and accounts receivable as permitted
under subsection 6.8.
6.8 SALE OR DISCOUNT OF RECEIVABLES
Company will not, and will not permit any of its
Consolidated Subsidiaries to, directly or indirectly, sell with
recourse, or discount or otherwise sell for less than the face
value thereof, notes or accounts receivable unless Company or such
Consolidated Subsidiary, as the case may be, receives fair value
for such notes or accounts receivable, as determined in good faith
by the Board of Directors of Company, and such notes or accounts
receivable are sold without recourse in the ordinary course of
business of Company or such Consolidated Subsidiary.
6.9 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
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that Subsidiary, as the case may be, than those which might be
obtained at the time from Persons who are not such a holder or
Affiliate; provided that the foregoing restriction shall not apply
to (i) any transaction between Company and any of its wholly-owned
Subsidiaries or between any of its wholly-owned Subsidiaries,
(ii) customary fees paid to members of the Board of Directors of
Company and its Subsidiaries, (iii) transactions approved by a
majority of the disinterested members of the Board of Directors of
Company or the applicable Subsidiary, (iv) purchases and sales of
goods from retailers and suppliers affiliated with KKR in the
ordinary course of business on terms not materially less favorable
than generally available from such retailers or suppliers, or (v)
the payment of an annual fee to KKR for rendering management and
consulting services to Company and the reimbursement of expenses in
connection therewith.
6.10 DISPOSAL OF SUBSIDIARY STOCK
Except as permitted by subsection 6.7 and except for Liens
created pursuant to the Collateral Documents, Company will not:
(i) directly or indirectly sell, assign, pledge or
otherwise encumber or dispose of any shares of capital stock
or other equity securities of (or warrants, rights or options
to acquire shares or other equity securities of) any of its
Subsidiaries, except to qualify directors if required by
applicable law; or
(ii) permit any of its Consolidated Subsidiaries
directly or indirectly to sell, assign, pledge or otherwise
encumber or dispose of any shares of capital stock or other
securities of (or warrants, rights or options to acquire
shares or other securities of) itself or any of its
Subsidiaries, except to Company, another wholly-owned
Subsidiary of Company or to qualify directors if required by
applicable law.
6.11 CONDUCT OF BUSINESS
From and after the Closing Date, Company will not permit
any of its Subsidiaries (other than Group) to engage in any
business other than (1) the business engaged in by Company and its
Subsidiaries on the Closing Date and similar or related businesses,
(2) the activities permitted under this subsection 6.11 and
(3) such other lines of business as may be consented to by
Requisite Lenders. Company will not engage in any type of business
activity other than the types of business activities engaged in by
Company on or before the Closing Date. Company will not permit
Group to engage in any type of business activity other than the
types of business activities engaged in by Group on or before the
Closing Date.
6.12 AMENDMENTS OR WAIVERS OF CERTAIN DOCUMENTS
Neither Company nor any of its Consolidated Subsidiaries
will amend or otherwise change the terms of any Senior Debentures
or Senior Subordinated Debt or any indenture or agreement in
respect thereof, or make any payment consistent with an amendment
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or change thereto, if the effect of such amendment or change is to
increase the interest rate on such Indebtedness, change the dates
upon which payments of principal or interest are due thereon,
change any event of default or condition to an event of default
with respect to such Indebtedness, change the redemption provisions
thereof, add any collateral security with respect thereto or, with
respect to the Senior Subordinated Debt, change the subordination
provisions thereof (or of any guaranty thereof) or which, together
with all other amendments or changes made, increase materially the
obligations of the obligor or confer additional rights on the
holder of such Indebtedness which would be adverse to Company or
Lenders.
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 (x) any principal or interest on any Indebtedness (other
than Indebtedness referred to in subsection 7.1) in an individual
principal amount of $50,000,000 or more or items of Indebtedness
with an aggregate principal amount of $100,000,000 or more or
(y) any Contingent Obligation in an individual principal amount of
$50,000,000 or more or Contingent Obligations 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 (x) any evidence of
any Indebtedness in an individual principal amount of $50,000,000
or more or items of Indebtedness with an aggregate principal amount
of $100,000,000 or more or any Contingent Obligation in an
individual principal amount of $50,000,000 or more or Contingent
Obligations with an aggregate principal amount of $100,000,000 or
more; or (y) 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
Contingent Obligation) to permit the holder or holders of that
Indebtedness or Contingent Obligation (or a trustee on behalf of
96
such holder or holders) then to cause, that Indebtedness or
Contingent Obligation to become or be declared due prior to its
stated maturity (or the stated maturity of any underlying
obligation, as the case may be); provided that such failure,
default or breach has not been waived by such holder or holders or
trustee on behalf of such holder or holders; or
7.3 BREACH OF CERTAIN COVENANTS
Failure of Company to perform or comply with any term or
condition contained in subsections 2.5, 5.2 or 5.6 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 such Person in writing pursuant hereto or thereto or in
connection herewith or therewith shall be false in any material
respect on the date as of which made; or
7.5 OTHER DEFAULTS UNDER AGREEMENT OR LOAN DOCUMENTS
Company or any other Loan Party shall default in the
performance of or compliance with any term contained in this
Agreement or the other Loan Documents other than those referred to
above in subsections 7.1, 7.3 or 7.4 and such default shall not
have been remedied or waived within 30 days after receipt of notice
from Administrative Agent or any Lender of such default; or
7.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(A) A court having jurisdiction in the premises shall
enter a decree or order for relief in respect of Company or any of
its Material Subsidiaries in an involuntary case under the
Bankruptcy Code or any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, which decree or order is
not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (B) an involuntary case is
commenced against Company or any of its Material Subsidiaries under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer
having similar powers over Company or any of its Material
Subsidiaries, or over all or a substantial part of its property,
shall have been entered; or the involuntary appointment of an
interim receiver, trustee or other custodian of Company or any of
its Material Subsidiaries for all or a substantial part of its
property; or the issuance of a warrant of attachment, execution or
similar process against any substantial part of the property of
Company or any of its Material Subsidiaries, and the continuance of
any such events in subpart (B) for 60 days unless dismissed, bonded
or discharged; or
97
7.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
Company or any of its Material Subsidiaries shall have an
order for relief entered with respect to it or commence a voluntary
case under the Bankruptcy Code or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all
or a substantial part of its property; the making by Company or any
of its Material Subsidiaries of any general assignment for the
benefit of creditors; or the inability or failure of Company or any
of its Material Subsidiaries, or the admission by Company or any of
its Material Subsidiaries in writing of its inability to pay its
debts as such debts become due; or the Board of Directors of
Company or any of its Material Subsidiaries (or any committee
thereof) adopts any resolution or otherwise authorizes action to
approve any of the foregoing; or
7.8 JUDGMENTS AND ATTACHMENTS
Any money judgment, writ or warrant of attachment, or
similar process involving (i) in any individual case an amount in
excess of $25,000,000 or (ii) in the aggregate at any time an
amount in excess of $50,000,000 (in either case not adequately
covered by insurance as to which the insurance company has
acknowledged coverage) shall be entered or filed against Company or
any of its Material Subsidiaries or any of their respective assets
and shall remain undischarged, unvacated, unbonded or unstayed for
a period of 60 days or in any event later than five days prior to
the date of any proposed sale thereunder; or
7.9 DISSOLUTION
Any order, judgment or decree shall be entered against
Company or any of its Material Subsidiaries decreeing the
dissolution or split up of Company or that Subsidiary and such
order shall remain undischarged or unstayed for a period in excess
of 30 days; or
7.10 INVALIDITY OF COMPANY GUARANTY OR O-I SUBSIDIARY
GUARANTY
The Company Guaranty or the O-I Subsidiary Guaranty for
any reason, other than the satisfaction in full of all Obligations
and termination of this Agreement, ceases to be in full force and
effect or is declared to be null and void, or any Company or
Guarantor Subsidiary denies that it has any further liability under
the Company Guaranty or the O-I Subsidiary Guaranty, as applicable,
or gives notice to such effect (in the case of a Guarantor
Subsidiary, prior to the time such Guarantor Subsidiary has been
released from its obligations under the O-I Subsidiary Guaranty in
accordance with the terms thereof); or
7.11 FAILURE OF SECURITY
Any Pledge Agreement or any other Collateral Document
shall, at any time after the execution and delivery thereof, cease
to be in full force and effect or shall be declared null and void,
98
or the validity, enforceability or priority thereof shall be
contested by any Loan Party or the Collateral Agent or, in the case
of the Collateral Account Agreements, Administrative Agent shall
not have or shall cease to have a valid and perfected first
priority security interest in the Collateral (other than Collateral
released in accordance with the terms of subsection 8.7B or any
applicable Collateral Document) pledged to Collateral Agent or to
Administrative Agent, as the case may be, in each case for any
reason other than the failure of Collateral Agent or, in the case
of the Collateral Account Agreements, Administrative Agent to take
any action within its control; or
7.12 CHANGE OF CONTROL
A Change of Control shall have occurred;
7.13 EMPLOYEE BENEFIT PLANS
There shall occur one or more ERISA Events which results
in or would reasonably be expected to result in liability of
Company or any of its ERISA Affiliates in an individual or an
aggregate amount in excess of $50,000,000 during the term of this
Agreement; or there shall exist an amount of unfunded benefit
liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding
for purposes of such computation any Pension Plans with respect to
which assets exceed benefit liabilities) as set forth in the most
recent actuarial report prepared for such Pension Plans, which
exceeds $250,000,000.
THEN (i) upon the occurrence of any Event of Default
described in the foregoing subsection 7.6 or 7.7, each of (x) the
unpaid principal amount of and accrued interest on the Loans, (y)
the Overdraft Amount and all accrued and unpaid interest thereon,
and (z) an amount equal to the maximum amount which may at any time
be drawn under all Letters of Credit then outstanding (whether or
not any beneficiary under any Letter of Credit shall have
presented, or shall be entitled at such time to present, the drafts
or other documents required to draw under such Letter of Credit)
shall automatically become immediately due and payable, without
presentment, demand, protest or other requirements of any kind, all
of which are hereby expressly waived by Company and each Applicable
Account Party, and the obligation of Administrative Agent to honor
any overdraft in respect of the Overdraft Account, the obligation
of each Lender to make any Loan, the obligation of Administrative
Agent to issue any Domestic Letter of Credit, the obligation of
BofA to issue any Foreign Letter of Credit and the right of any
other Lender to issue any Domestic Letter of Credit hereunder shall
thereupon terminate, and (ii) upon the occurrence of any other
Event of Default, Requisite Lenders (or Administrative Agent, at
the direction or with the consent of Requisite Lenders) may, by
written notice to Company and each Applicable Account Party,
declare an amount equal to the amounts described in clauses (x),
(y) and (z) above to be, and the same shall forthwith become, due
and payable, together with accrued interest thereon, and the
obligation of Administrative Agent to honor any overdraft in
respect of the Overdraft Account, the obligation of each Lender to
make any Loan, the obligation of BofA to issue any Foreign Letter
of Credit, the obligation of Administrative Agent to issue any
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Domestic Letter of Credit and the right of any other Lender to
issue any Domestic Letter of Credit hereunder shall thereupon
terminate; provided that the foregoing shall not affect in any way
(A) the right of Administrative Agent to cause Lenders to make
Revolving Loans in order to repay the then outstanding Overdraft
Amount as provided in (and subject to the conditions set forth in)
subsection 2.1B, (B) the obligations of Lenders to purchase from
Administrative Agent participations in the Overdraft Amount as
provided in subsection 2.1B, and (C) the obligations of Lenders to
purchase from Issuing Lenders participations in the unreimbursed
amount of any drawings under any Letters of Credit as provided in
subsection 2.8E. So long as any Letter of Credit shall remain
outstanding, any amounts described in clause (z) above with respect
to such Letter of Credit, when received by Administrative Agent,
shall be delivered to Collateral Agent under the Intercreditor
Agreement or be held by Administrative Agent pursuant to the terms
of the applicable Collateral Account Agreement as cash collateral
for the obligations of the Applicable Account Party to reimburse
the respective Issuing Lender in the event of any drawing under
such Letter of Credit, as required under such Collateral Account
Agreement, and upon any drawing under any outstanding Letter of
Credit in respect of which Administrative Agent has deposited in
the Collateral Account (as defined in the applicable Collateral
Account Agreement) any amounts described in clause (z) above,
Administrative Agent shall apply such amounts held by
Administrative Agent to reimburse the Issuing Lender for the amount
of such drawing. In the event any Letter of Credit in respect of
which Administrative Agent has deposited in any Collateral Account
any amounts described in clause (z) above is cancelled or expires
or in the event of any reduction in the maximum amount available at
any time for drawing under such Letter of Credit (the "MAXIMUM
AVAILABLE AMOUNT"), Administrative Agent shall apply the amount
then in such Collateral Account designated to reimburse the Issuing
Lender for any drawings under such Letter of Credit less the
Maximum Available Amount immediately after such cancellation,
expiration or reduction, if any, first to the cash
collateralization pursuant to the terms of the applicable
Collateral Account Agreement of any outstanding Letters of Credit
in respect of which the Applicable Account Party has failed to pay
all or a portion of the amounts described in clause (z) above,
second to the cash collateralization pursuant to the terms of the
applicable Acquisition Newco Collateral Account Agreement of any
outstanding Foreign Letters of Credit in respect of which any other
Applicable Account Party has failed to pay all or a portion of the
amounts described in clause (z) above, third in the case of amounts
on deposit in the Collateral Account pursuant to the Collateral
Account Agreement, to the payment in full of the outstanding
Obligations, fourth, to the extent of any excess of any such
amounts on deposit in the Collateral Account pursuant to the
Collateral Account Agreement, to the Collateral Agent under the
Intercreditor Agreement for application as provided in Section 3 of
the Intercreditor Agreement, and fifth, in the case of any excess
of any amounts on deposit in a Collateral Account pursuant to any
Acquisition Newco Collateral Account Agreement, to the applicable
Acquisition Newco or such other Person as may be lawfully entitled
thereto. Nevertheless, if at any time within 60 days after
acceleration of the maturity of any Loan, Company shall pay all
arrears of interest and all payments on account of principal which
shall have become due otherwise than by acceleration (with interest
on principal and, to the extent permitted by law, on overdue
interest, at the rates specified in this Agreement or the Notes)
and all Events of Default and Potential Events of Default (other
than non-payment of principal of and accrued interest on the Loans
100
and the Notes, and payments of amounts referred to in clause (z)
above, in each case which is due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to subsection
9.7, then Requisite Lenders by written notice to Company may
rescind and annul the acceleration and its consequences (and upon
such written notice all obligations of each Lender hereunder shall
be reinstated, in each case as in effect immediately prior to such
acceleration) and Administrative Agent shall return to the
Applicable Account Party any amounts held by Administrative Agent
pursuant to any Collateral Account Agreement as cash collateral in
respect of amounts described in clause (z) above; but such action
shall not affect any subsequent Event of Default or Potential Event
of Default or impair any right consequent thereon.
Anything contained in this Agreement to the contrary
notwithstanding, after the occurrence of an Event of Default and
the acceleration of the maturity of the Loans and the amounts
referred to in clauses (y) and (z) above, all payments relating to
the Loans and such amounts shall be made to Administrative Agent
for the account of Lenders and all amounts received by
Administrative Agent (whether received from Company or any
Guarantor Subsidiary or from Collateral Agent pursuant to the exer-
cise of any remedies pursuant to any of the Collateral Documents)
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 Collateral Documents, the Company Guaranty, the O-I
Subsidiary Guaranty and the Intercreditor Agreement) as its agent
hereunder and thereunder. Bankers agrees to act as such upon the
express conditions contained in this Section 8 and in the
Collateral Documents, the Company Guaranty, the O-I Subsidiary
Guaranty and the Intercreditor Agreement. BofA is hereby appointed
Documentation Agent hereunder by each Lender, and BofA agrees to
act as such upon the express conditions contained in this Section
8. The provisions of this Section 8 are solely for the benefit of
Agents and Lenders, and Company shall not have any rights as a
third party beneficiary of any of the provisions hereof. In
performing their functions and duties under this Agreement, Agents
shall act solely as agents of Lenders and do not assume and shall
not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for Company. Each Lender
named as a Lead Manager or Co-Agent hereunder shall have no
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liability under this Agreement to any Person, other than as a
Lender 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 Collateral Documents, the Company Guaranty, the O-I
Subsidiary Guaranty 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 Collateral Documents, the Company Guaranty, the O-I Subsidiary
Guaranty and the Intercreditor Agreement and it may perform such
duties by or through its agents or employees. Documentation 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 in-
tended 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 Collateral Documents, the
Company Guaranty, the O-I Subsidiary Guaranty and the Intercreditor
Agreement or the Notes issued hereunder, or for any
representations, warranties, recitals or statements made herein or
therein or made in any written or oral statement or in any
financial or other statements, instruments, reports, certificates
or any other documents in connection herewith or therewith
furnished or made by Administrative Agent to Lenders or by or on
behalf of Company to Administrative Agent or any Lender or be
required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants
or agreements contained herein or therein or as to the use of the
proceeds of the Loans or the use of Letters of Credit or of the
existence or possible existence of any Event of Default or
Potential Event of Default. Anything contained in this Agreement
to the contrary notwithstanding, Administrative Agent shall have no
liability arising from confirmations of the amount of outstanding
Loans or the Letter of Credit Usage or the component amounts there-
of.
C. Exculpatory Provisions. Neither 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 Intercreditor Agreement, the Company Guaranty,
the O-I Subsidiary Guaranty or the Collateral Documents) 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
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action) in connection with this Agreement, or the other instruments
and agreements referred to herein, Administrative Agent shall be
entitled to refrain from such act or taking such action unless and
until Administrative Agent shall have received instructions from
Requisite Lenders. Without prejudice to the generality of the
foregoing, (i) Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any communication,
instrument or document believed by it in good faith to be genuine
and correct and to have been signed or sent by the proper person or
persons, and shall be entitled to rely and shall be protected in
relying on opinions and judgments of attorneys (who may be
attorneys for Company), accountants, experts and other professional
advisors selected by it; and (ii) no Lender shall have any right of
action whatsoever against Administrative Agent as a result of
Administrative Agent acting or (where so instructed) refraining
from acting under this Agreement or the other instruments and
agreements referred to herein in accordance with the instructions
of Requisite Lenders. Administrative Agent shall be entitled to
refrain from exercising any power, discretion or authority vested
in it under this Agreement or the other instruments and agreements
referred to herein unless and until it has obtained the
instructions of Requisite Lenders.
D. Agents Entitled to Act as Lender. The agency hereby
created shall in no way impair or affect any of the rights and
powers of, or impose any duties or obligations upon, either Agent
in its individual capacity as a Lender hereunder. With respect to
its participation in the Loans and Letters of Credit, each Agent
shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not performing the
duties and functions delegated to it hereunder and the term
"Lender" or "Lenders" or any similar term shall, unless the context
clearly otherwise indicates, include each Agent in its individual
capacity. Each Agent and each of its Affiliates may accept
deposits from, lend money to and generally engage in any kind of
banking, trust, financial advisory or other business with Company
or any Affiliate of Company as if it were not performing the duties
specified herein, and may accept fees and other consideration from
Company for services in connection with this Agreement and
otherwise without having to account for the same to Lenders.
8.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY
FOR APPRAISAL OF CREDITWORTHINESS
Each Lender represents and warrants that it has made its
own independent investigation of the financial condition and
affairs of Company in connection with the making of the Loans and
the issuance of Letters of Credit hereunder and such Lender's
purchasing of participations in such Letters of Credit and has made
and shall continue to make its own appraisal of the
creditworthiness of Company. Neither 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 neither Agent shall further have any
responsibility with respect to the accuracy of or the completeness
of the information provided to Lenders.
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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
either Agent for any purpose shall, in the opinion of such Agent,
be insufficient or become impaired, such Agent may call for
additional indemnity and cease, or not commence, to do the acts
indemnified against until such additional indemnity is furnished.
8.5 REGISTERED PERSONS TREATED AS OWNERS
Administrative Agent may deem and treat the Persons listed
as Lenders in the Register as the owners of the corresponding Loans
listed therein for all purposes hereof unless and until an
Assignment and Acceptance effecting the assignment or transfer
thereof shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 9.2B(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 ADMINISTRATIVE AGENT AND OVERDRAFT ACCOUNT
PROVIDER
Administrative Agent may resign at any time by giving 30
days prior written notice thereof to Lenders and Company, and
Administrative Agent may be removed at any time with or without
cause by an instrument or concurrent instruments in writing
delivered to Company and Administrative Agent and signed by
Requisite Lenders. Upon any such notice of resignation or any such
removal, Requisite Lenders shall have the right, upon five days
notice to Company, to appoint a successor Administrative Agent;
provided that such appointment shall be subject to the consent of
Company, which consent shall not be unreasonably withheld. Upon
the acceptance of any appointment as an Administrative Agent
hereunder by a successor Administrative Agent, that successor
Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
or removed Administrative Agent, and the retiring or removed
Administrative Agent shall be discharged from its duties and
obligations as Administrative Agent under this Agreement. After
any retiring or removed Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of this
Section 8 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under
this Agreement.
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Any resignation or removal of Administrative Agent
pursuant to this subsection 8.6 shall also constitute the
resignation or removal of Administrative Agent as the provider of
the Overdraft Account, and any successor Administrative Agent
appointed pursuant to this subsection 8.6 shall, upon its
acceptance of such appointment, become the successor provider of
the Overdraft Account for all purposes hereunder. In such event
(i) Company shall repay in full the Overdraft Amount and all other
amounts owing to the retiring or removed Administrative Agent under
the Overdraft Agreement, and (ii) Company and the retiring or
removed Administrative Agent shall terminate the Overdraft
Agreement to which they are a party and Company and the successor
Administrative Agent shall enter into a successor Overdraft
Agreement.
8.7 INTERCREDITOR AGREEMENT, O-I SUBSIDIARY GUARANTY AND
COLLATERAL DOCUMENTS; RELEASE OF COLLATERAL
A. Each Lender hereby authorizes Administrative Agent
to enter into the Intercreditor Agreement and the Collateral
Account Agreements on behalf of and for the benefit of that Lender,
and agrees to be bound by the terms of the Intercreditor Agreement
and the Collateral Account Agreements. Each Lender hereby
authorizes the Collateral Agent to enter into the Collateral
Documents, the Company Guaranty, the O-I Subsidiary Guaranty and
the Intercreditor Agreement and to take all action contemplated by
the Intercreditor Agreement, the Collateral Documents, the Company
Guaranty and the O-I Subsidiary Guaranty; 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 O-I Subsidiary Guaranty or to realize upon the security
granted by any Collateral Document, 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 O-I
Subsidiary Guaranty, the Collateral Documents, and the
Intercreditor Agreement.
B. Anything contained in this Agreement or any of the
other Loan Documents to the contrary notwithstanding, all
Collateral under the Company Pledge Agreement and the O-I
Subsidiary Pledge Agreement shall be released, without further
action on the part of any Agent, Co-Agent or Lender, at such time,
if any, as (i) Company shall have attained a credit rating on the
Senior Debentures (or, in the event the Senior Debentures are no
longer outstanding, any other senior debt securities of Company)
that is either (a) equal to or better than BBB- from S&P or (b)
equal to or better than Baa3 from Moody's and (ii) in the event the
ratings then assigned to the Senior Debentures (or such other
senior debt securities, as the case may be) by S&P and Moody's are
not equivalent, the lower of such two ratings shall be (a) equal to
or better than BB+ from S&P (in the event the applicable rating
assigned by S&P is lower) or (b) Ba1 from Moody's (in the event the
applicable rating assigned by ▇▇▇▇▇'▇ is lower). Any release of
Collateral under either Pledge Agreement in accordance with the
provisions of this subsection 8.7B shall be deemed to be a release
of such Collateral upon the approval thereof by Requisite Lenders
for purposes of Section 7A of such Pledge Agreement. In connection
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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.
SECTION 9
MISCELLANEOUS
9.1 REPRESENTATION OF LENDERS
Each Lender hereby represents that it is a commercial
lender or financial institution which makes loans in the ordinary
course of its business and that it will make each Loan hereunder
for its own account in the ordinary course of such business;
provided, however, that, subject to subsection 9.2, the disposition
of the Notes or other evidences of Indebtedness held by that Lender
shall at all times be within its exclusive control.
9.2 ASSIGNMENTS AND PARTICIPATIONS IN LOANS, NOTES AND
LETTERS OF CREDIT
A. General. Each Lender shall, subject to the
provisions of this subsection 9.2, have the right at any time to
(i) sell, assign, transfer or negotiate to any Eligible Assignee,
or (ii) sell participations to any Person in, all or any part of
any Loan or Loans made by it or its Revolving Loan Commitment or
its Letters of Credit or participations therein or any other
interest herein or in any other Obligations owed to it; provided
that no such assignment or participation shall, without the consent
of Company, require Company to file a registration statement with
the Securities and Exchange Commission or apply to qualify such
assignment or participation of the Loans, Letters of Credit or
participations therein or the other Obligations under the
securities laws of any state. Except as otherwise provided in this
subsection 9.2, no Lender shall, as between Company and such
Lender, be relieved of any of its obligations hereunder as a result
of any sale, assignment, transfer or negotiation of, or any
granting of participations in, all or any part of the Loans,
Revolving Loan Commitment, Letters of Credit or participations
therein or the other Obligations owed to such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Loan,
Revolving Loan Commitment or other Obligation may (a) be
assigned in any amount (of a constant and not a varying
percentage) to another Lender, or to an Affiliate of the
assigning Lender or another Lender, with the giving of notice
to Company and Administrative Agent or (b) be assigned in an
amount (of a constant and not a varying percentage) of not
less than $10,000,000 (or such lesser amount (X) as shall
constitute the aggregate amount of all Loans, Revolving Loan
Commitment, Letters of Credit or participations therein and
other Obligations of the assigning Lender or (Y) so long as,
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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,
Revolving Loan Commitment or other Obligations assigned to it)
to any other Eligible Assignee with the giving of notice to
Company and Administrative Agent and with the consent of
Company and Administrative Agent, in the case of an assignment
made by a Lender other than Administrative Agent, or with the
consent of Company, in the case of an assignment made by
Administrative Agent (which consent of Company and
Administrative Agent shall not be unreasonably withheld;
provided that the inability of an Eligible Assignee to satisfy
the requirements set forth in subsection 2.7C(iv) of this
Agreement, if applicable, shall constitute reasonable grounds
for withholding such consent). To the extent of any such
assignment in accordance with either clause (a) or (b) above,
the assigning Lender shall be relieved of its obligations with
respect to its Loans, Revolving Loan Commitment, Letters of
Credit or participations therein or other Obligations or the
portion thereof so assigned. The parties to each such
assignment shall execute and deliver to Administrative Agent,
for its acceptance and recording in the Register, an
Assignment and Acceptance, together with, with respect to
assignments which occur following the Closing Date, a
processing and recordation fee of $3,500, and such
certificates, documents or other evidence, if any, with
respect to United States federal income tax withholding
matters as the assignee under such Assignment and Acceptance
may be required to deliver to Administrative Agent pursuant to
subsection 2.7C(iv). Upon such execution, delivery and
acceptance, from and after the effective date specified in
such Assignment and Acceptance, (y) the assignee thereunder
shall be a party hereto and a "Lender" hereunder and, to the
extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance,
shall have the rights and obligations of a Lender hereunder,
including, without limitation, the obligation in subsection
9.20 to maintain the confidentiality of all non-public
information received by it pursuant to this Agreement and
(z) the assigning Lender thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such assigning
Lender shall cease to be a party hereto); provided that, if
the assignee of the assigning Lender is an Affiliate of such
Lender, such assignee shall not be entitled to receive any
greater amount pursuant to subsections 2.6E or 2.7 than the
assigning Lender would have been entitled to receive in
respect of the amount of the assignment effected by such
assigning Lender to such Affiliate had no such assignment
occurred. The Revolving Loan Commitments hereunder shall be
modified to reflect the Revolving Loan Commitment of such
assignee and any remaining Revolving Loan Commitment of such
assigning Lender and, if any such assignment occurs after the
issuance of a Note to the assigning Lender hereunder, if
requested pursuant to subsection 2.1E(iv), new Notes shall,
upon surrender of the assigning Lender's Note, be issued upon
request to the assignee and to the assigning Lender,
substantially in the form of Exhibit VII or Exhibit VIII
annexed hereto, as the case may be, with appropriate
insertions, to reflect the new Revolving Loan Commitments
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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 Revolving Loans, Revolving Loan
Commitments and other Obligations and such Lender has any
outstanding Bid Rate Loans at the time of such assignment,
such Lender must also assign the full amount of such Bid Rate
Loans to an Eligible Assignee. Notwithstanding the foregoing
provisions of this subsection 9.2B(i), any Lender may pledge
or assign all or any portion of its rights under this
Agreement to a Federal Reserve Bank as security for borrowings
therefrom; provided that no such pledge or assignment shall
release any such Lender from its obligations hereunder.
(ii) Acceptance by Administrative Agent; Recordation
in Register. Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing
that it is an Eligible Assignee, together with the processing
and recordation fee referred to in subsection 9.2B(i) and any
certificates, documents or other evidence with respect to
United States federal income tax withholding matters that such
assignee may be required to deliver to Administrative Agent
pursuant to subsection 2.7C(iv), Administrative Agent shall,
if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit XI hereto and if
Administrative Agent and Company have consented to the
assignment evidenced thereby (in each case to the extent such
consent is required pursuant to subsection 9.2B(i)),
(a) accept such Assignment and Acceptance by executing a
counterpart thereof as provided therein (which acceptance
shall evidence any required consent of Administrative Agent to
such assignment), (b) record the information contained therein
in the Register, and (c) give prompt notice thereof to
Company. Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to and accepted by it as
provided in this subsection 9.2B(ii).
C. Participations. The holder of any participation, other
than an Affiliate of the Lender granting such participation, shall
not be entitled to require such Lender to take or omit to take any
action hereunder except action directly affecting (i) the extension
of the regularly scheduled maturity of any portion of the principal
amount of or interest on any Loan allocated to such participation
or (ii) a reduction of the principal amount of or the rate of
interest payable on any Loan or payments due in repayment of draws
under Letters of Credit allocated to such participation, and all
amounts payable by Company hereunder shall be determined as if such
Lender had not sold such participation. A Lender which has sold a
participation in its Loans or Revolving Loan Commitment shall
require the holder of such participation to agree in writing to
comply with the provisions of subsection 9.20 and if a Lender
desires to give any prospective participant a copy of any non-
public information obtained by Lenders pursuant to the requirements
of this Agreement which has been identified as such by Company,
such Lender shall require such prospective participant to agree in
writing to hold such information in accordance with such
prospective participant's customary procedures for handling
confidential information of this nature and in accordance with safe
and sound banking practices prior to its delivery of such material
to such prospective participant. Company hereby acknowledges and
agrees that, only for purposes of subsections 2.6E, 2.7, 9.5 and
9.6, any participation will give rise to a direct obligation of
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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.
D. Assignments to Federal Reserve Banks. In addition to the
assignments and participations permitted under the foregoing
provisions of this subsection 9.2, any Lender may assign and pledge
all or any portion of its Loans, the other Obligations owed to such
Lender, and its Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any operating circular issued by such
Federal Reserve Bank; provided that (i) no Lender shall, as between
Company and such Lender, be relieved of any of its obligations
hereunder as a result of any such assignment and pledge and (ii) in
no event shall such Federal Reserve Bank be considered to be a
"Lender" or be entitled to require the assigning Lender to take or
omit to take any action hereunder.
E. Information. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of that
Lender from time to time to assignees and participants (including
prospective assignees and participants), subject to subsection
9.20.
9.3 EXPENSES
Whether or not the transactions contemplated hereby shall
be consummated, Company agrees to promptly pay (i) all the actual
and reasonable costs and expenses of preparation of this Agreement
and the other Loan Documents and all the costs of furnishing all
opinions by counsel for Company and the other Loan Parties
(including without limitation any opinions requested by Lenders as
to any legal matters arising hereunder), and of Company's
performance of and compliance with all agreements and conditions
contained herein on their part to be performed or complied with;
(ii) the reasonable fees, expenses and disbursements of counsel to
Agents (including allocated costs of internal counsel) in
connection with the negotiation, preparation, execution and
administration of this Agreement, the other Loan Documents, the
Letters of Credit and the Loans hereunder, and any amendments and
waivers hereto or thereto; (iii) all the actual costs and expenses
of creating and perfecting Liens in favor of Lenders pursuant to
any Loan Document, including filing and recording fees and
expenses, fees and expenses of counsel for providing such opinions
as Lenders may reasonably request and reasonable fees and expenses
of legal counsel to Agents; and (iv) after the occurrence of an
Event of Default, all costs and expenses (including reasonable
attorneys' fees, including allocated costs of internal counsel, and
costs of settlement) incurred by Lenders in enforcing any
Obligations of or in collecting any payments due from Company
hereunder or under the Notes or any of the other Loan Documents by
reason of such Event of Default or in connection with any refi-
nancing or restructuring of the credit arrangements provided under
this Agreement in the nature of a "work-out" or of any insolvency
or bankruptcy proceedings.
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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, 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 Overdraft Agreement or the purchase of participations by
Lenders in the Overdraft Amount (the "INDEMNIFIED LIABILITIES");
provided that Company shall have no obligation to an Indemnitee
hereunder with respect to indemnified liabilities arising from the
gross negligence or willful misconduct of that Indemnitee. Company
also agrees to indemnify and hold harmless the Indemnitees from any
claim, demand or liability for broker's or finder's fees alleged to
have been incurred in connection with the offer, issuance and sale
of any Commercial Paper, or any other transactions contemplated by
this Agreement and any expenses, including reasonable legal fees,
arising in connection with any such claim, demand or liability. To
the extent that the undertaking to indemnify, pay and hold harmless
set forth in the preceding sentence may be unenforceable because it
is violative of any law or public policy, Company shall contribute
the maximum portion which it is permitted to pay and satisfy under
applicable law, to the payment and satisfaction of all indemnified
liabilities incurred by the Indemnitees or any of them.
9.5 SET OFF
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights,
upon the occurrence of any Event of Default, each Lender is hereby
authorized by Company at any time or from time to time, without
notice to Company, or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, including, but not
limited to, Indebtedness evidenced by certificates of deposit,
whether matured or unmatured but not including trust accounts) and
any other Indebtedness at any time held or owing by that Lender to
or for the credit or the account of Company against and on account
of the obligations and liabilities of Company to that Lender under
this Agreement, the Notes, the Overdraft Agreement and the Letters
of Credit, including, but not limited to, all claims of any nature
or description arising out of or connected with this Agreement, the
Letters of Credit or the Notes or the other Loan Documents,
irrespective of whether or not (a) that Lender shall have made any
demand hereunder or (b) that Lender shall have declared the
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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
Overdraft Amount or any Letter of Credit or any participation
therein, or any fees or commissions payable hereunder or under the
other Loan Documents (collectively, the "AGGREGATE AMOUNTS DUE" to
such Lender) which is greater than the proportion received by any
other Lender in respect to the Aggregate Amounts Due to such other
Lender, then the Lender receiving such proportionately greater
payment shall (y) notify each other Lender and Administrative
Agent of such receipt and (z) purchase participations (which it
shall be deemed to have done simultaneously upon the receipt of
such payment) in the Aggregate Amounts Due to the other Lenders so
that all such recoveries of Aggregate Amounts Due shall be shared
by the Lenders in proportion to the Aggregate Amounts Due them;
provided that if all or part of such proportionately greater
payment received by such purchasing Lender is thereafter recovered
from such Lender, those purchases shall be rescinded and the
purchase prices paid for such participations shall be returned to
that Lender to the extent of such recovery, but without interest.
Company expressly consents to the foregoing arrangement and agrees
that any holder of a participation so purchased and any other
subsequent holder of a participation in any Loan or Letter of
Credit or the Overdraft Amount otherwise acquired may exercise any
and all rights of banker's lien, setoff or counterclaim with
respect to any and all monies owing by Company to that holder as
fully as if that holder were a holder of such a Loan or Letter of
Credit or the Overdraft Amount in the amount of the participation
held by that holder.
9.7 AMENDMENTS AND WAIVERS
A. No amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes, and no consent to any
departure by Company therefrom, shall in any event be effective
without the written concurrence of Requisite Lenders; provided that
no such amendment, modification, termination, waiver or consent
shall, without the consent of each Lender (with Obligations
directly affected in the case of the following clause (i)):
(i) extend the scheduled final maturity of any Loan or Note, or
extend the stated expiration date of any Letter of Credit (other
than any Foreign Letter of Credit to the extent permitted under
subsection 2.8A(iv)) 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,
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or reduce the principal amount of any of the Obligations,
(ii) amend, modify, terminate or waive any provision of this
subsection 9.7 or any other provision of this Agreement expressly
requiring the approval or concurrence of all Lenders, (iii) reduce
the percentage specified in the definition of Requisite Lenders or
change the definition of "PRO RATA SHARE" (it being understood
that, with the consent of Requisite Lenders, additional extensions
of credit pursuant to this Agreement may be included in determining
what constitutes Requisite Lenders and in determining the Pro Rata
Shares of Lenders, in each case on substantially the same basis as
the Revolving Loan Commitments and the Revolving Loans are included
in such determinations on the Closing Date), (iv) release Company
from its obligations under the Company Guaranty, or (v) consent to
the assignment or transfer by Company or any Acquisition Newco of
any of its respective rights and obligations under this Agreement
and the other Loan Documents; provided, further that no such
amendment, modification, termination or waiver shall (1) increase
the Revolving Loan Commitment of any Lender over the amount thereof
then in effect without the consent of such Lender (it being
understood that (A) amendments, modifications or waivers of
conditions precedent, covenants, Potential Events of Default or
Events of Default or of mandatory reductions in the Revolving Loan
Commitments shall not constitute an increase of the Revolving Loan
Commitment of any Lender and (B) an increase in the available
portion of the Revolving Loan Commitment of any Lender shall not
constitute an increase in the Revolving Loan Commitment of such
Lender); (2) amend, modify, terminate or waive any provision of
subsection 2.1B or any other provision of this Agreement relating
to the Overdraft Account or the Overdraft Amount (including any
provision relating to the repayment of the Overdraft Amount with
the proceeds of Revolving Loans or relating to the obligations of
Lenders to purchase participations in the Overdraft Amount) without
the consent of Administrative Agent; (3) amend, modify, terminate
or waive any provision of this Agreement relating to the
obligations of Lenders to purchase participations in Letters of
Credit without the written concurrence of BofA, Administrative
Agent and each other Issuing Lender which has a Letter of Credit
then outstanding or which has not been reimbursed for a drawing
under a Letter of Credit issued by it; or (4) amend, modify,
terminate or waive any provision of Section 8 applicable to either
Agent without the consent of such Agent.
B. If, in connection with any proposed amendment,
modification, termination, waiver or consent relating to any of the
provisions of this Agreement or the Notes as described in any of
clauses (i) through (v) of the first proviso to subsection 9.7A,
the consent of Requisite Lenders is obtained but the consent of one
or more of the other Lenders whose consent is also required is not
obtained, then Company shall have the right, so long as all such
non-consenting Lenders whose individual consent is required are
treated as described in either clause (i) or (ii) below, to (i)
replace each such non-consenting Lender with one or more
Replacement Lenders (as defined in subsection 9.7C) pursuant to
subsection 9.7C so long as at the time of such replacement each
such Replacement Lender consents to the proposed amendment,
modification, termination, waiver or consent and/or (ii) terminate
each such non-consenting Lender's Revolving Loan Commitment and
repay in full its outstanding Loans in accordance with subsection
2.4A(i); provided that unless the Revolving Loan Commitments that
are terminated and the Loans that are repaid pursuant to the
112
preceding clause (ii) are immediately replaced in full at such time
through the addition of new Lenders or the increase of the
Revolving Loan Commitments and/or outstanding Loans of existing
Lenders (who in each case must specifically consent thereto), then
in the case of any action pursuant to the preceding clause (ii),
Requisite Lenders (determined before giving effect to the proposed
action) shall specifically consent thereto; provided further that
Company shall not have the right to terminate any such non-
consenting Lender's Revolving Loan Commitment and repay in full its
outstanding Loans pursuant to clause (ii) of this subsection 9.7B
if, immediately after the termination of such Lender's Revolving
Loan Commitment, the Total Utilization of Revolving Loan
Commitments would exceed the Revolving Loan Commitments; provided
still further that Company shall not have the right to replace a
Lender solely as a result of the exercise of such Lender's rights
(and the withholding of any required consent by such Lender)
pursuant to the second proviso to subsection 9.7A.
C. (i) In the event of certain refusals by any Lender, as
provided in subsection 9.7B, to consent to certain proposed
amendments, modifications, terminations, waivers or consents
with respect to this Agreement which have been approved by
Requisite Lenders, Company may, upon five Business Days'
written notice to Administrative Agent (which notice
Administrative Agent shall promptly transmit to each Lender)
repay all Loans, together with accrued and unpaid interest,
fees and other amounts owing to such Lender (a "REPLACED
LENDER") in accordance with, and subject to the requirements
of, subsection 9.7B so long as (i) in the case of the
repayment of Loans of any Lender pursuant to this subsection
9.7C the Revolving Loan Commitment of such Lender is
terminated concurrently with such repayment (at which time
Schedule B shall be deemed modified to reflect the changed
Revolving Loan Commitments) and (ii) in the case of the
repayment of Loans of any Lender the consents required by
Section 9.7B in connection with the repayment pursuant to this
subsection 9.7C have been obtained.
(ii) At the time of any replacement pursuant to this
subsection 9.7C, the lender replacing such Replaced Lender
(the "REPLACEMENT LENDER") shall enter into one or more
assignment agreements, in form and substance satisfactory to
Administrative Agent, pursuant to which the Replacement Lender
shall acquire the Revolving Loan Commitment and outstanding
Loans of, and participations in the Overdraft Amount and
Letters of Credit by, the Replaced Lender and, in connection
therewith, shall pay to (x) the Replaced Lender in respect
thereof an amount equal to the sum of (A) an amount equal to
the principal of, and all accrued interest on, all outstanding
Loans of the Replaced Lender, (B) an amount equal to all
unpaid drawings with respect to Letters of Credit that have
been funded by (and not reimbursed to) such Replaced Lender,
together with all then unpaid interest with respect thereto at
such time, and (C) an amount equal to all accrued, but
theretofore unpaid, fees owing to the Replaced Lender and (y)
the appropriate Issuing Lender an amount equal to such
Replaced Lender's Pro Rata Share of any unpaid drawing with
respect to Letters of Credit (which at such time remains an
unpaid drawing), to the extent such amount was not theretofore
funded by such Replaced Lender; and
113
(iii) all obligations of Company owing to the Replaced
Lender (excluding those specifically described in clause (ii)
above in respect of which the assignment purchase price has
been, or is concurrently being, paid, but including, however,
any amounts that would have been payable by Company pursuant
to subsection 2.6E if Company had directly prepaid the Loans
of such Replaced Lender) shall be paid in full by Company to
such Replaced Lender concurrently with such replacement.
(iv) Upon the execution of the respective assignment
documentation, the payment of amounts referred to in clauses
(ii) and (iii) above and, if so requested by the Replacement
Lender, delivery to the Replacement Lender of the appropriate
Note or Notes executed by Company, the Replacement Lender
shall become a Lender hereunder and the Replaced Lender shall
cease to constitute a Lender hereunder, except with respect to
Company's obligations regarding indemnification provisions
under this Agreement, which shall survive for the benefit of
such Replaced Lender. Notwithstanding anything to the
contrary contained above, no Issuing Lender may be replaced
hereunder at any time while it has Letters of Credit
outstanding hereunder unless arrangements satisfactory to such
Issuing Lender (including the furnishing of a standby letter
of credit in form and substance, and issued by an issuer,
satisfactory to such Issuing Lender or the furnishing of cash
collateral in amounts and pursuant to arrangements
satisfactory to such Issuing Lender) have been made with
respect to such outstanding Letters of Credit.
D. Administrative Agent may, but shall have no obligation to,
with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender. Any
waiver or consent shall be effective only in the specific instance
and for the specific purpose for which it was given. No notice to
or demand on Company in any case shall entitle Company to any other
or further notice or demand in similar or other circumstances. Any
amendment, modification, termination, waiver or consent effected in
accordance with this subsection 9.7 shall be binding upon each
Lender at the time outstanding, each future Lender and, if signed
by Company, on Company.
9.8 INDEPENDENCE OF COVENANTS
All covenants hereunder shall be given independent effect
so that if a particular action or condition is not permitted by any
of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another
covenant shall not avoid the occurrence of an Event of Default or
Potential Event of Default if such action is taken or condition
exists.
9.9 CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX
LAWS
If (i) any changes in accounting principles and policies
from those used in the preparation of the financial statements
referred to in subsection 4.3 hereafter occasioned by the
promulgation of rules, regulations, pronouncements and opinions by
or required by the Financial Accounting Standards Board or the
American Institute of Certified Public Accountants (or successors
114
thereto or agencies with similar functions) would result in a
change in the method of calculation of financial covenants,
standards or terms found in Sections 1, 5 and 6 hereof, (ii) there
is any change in Company's Fiscal Quarter or Fiscal Year, or
(iii) there is a material change in federal tax laws which
materially affects Company's ability to comply with the financial
covenants, standards or terms found in Sections 1, 5 or 6 hereof,
the parties hereto agree to enter into negotiations in order to
amend such provisions (in accordance with subsection 9.7) so as to
equitably reflect such changes with the desired result that the
criteria for evaluating Company's financial condition shall be the
same after such changes as if such changes had not been made.
9.10 NOTICES
Unless otherwise specifically provided herein, any notice
or other communication herein required or permitted to be given
shall be in writing and may be personally served, telecopied,
telexed or sent by United States mail or by courier service and
shall be deemed to have been given when delivered in person or by
courier service, by receipt of telecopy or telex or four Business
Days after depositing it in the United States mail, registered or
certified, with postage prepaid and properly addressed; provided
that notices to Administrative Agent or Company shall not be
effective until received. For the purposes hereof, the addresses
of the parties hereto (until notice of a change thereof is
delivered as provided in this subsection 9.10) shall be as set
forth under each party's name on the signature pages hereof or in
the applicable Assignment and Acceptance.
9.11 SURVIVAL OF WARRANTIES AND CERTAIN AGREEMENTS
A. All agreements, representations and warranties made
herein shall survive the execution and delivery of this Agreement,
the making of the Loans hereunder, the execution and delivery of
the Notes and the issuance of the Letters of Credit.
B. Notwithstanding anything in this Agreement or implied
by law to the contrary, the agreements of Company set forth in
subsections 2.6E, 2.7, 9.3 and 9.4 and the agreements of Lenders
set forth in subsections 8.2C, 8.4, 9.5 and 9.6 shall survive the
payment of the Loans, the Notes and the Overdraft Amount, the
cancellation or expiration of the Letters of Credit and the
termination of this Agreement.
9.12 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES
CUMULATIVE
No failure or delay on the part of Administrative Agent
or any Lender in the exercise of any power, right or privilege
hereunder or under the other Loan Documents shall impair such pow-
er, 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.
115
9.13 SEVERABILITY
In case any provision in or obligation under this
Agreement or the Notes shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
9.14 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF
LENDERS' RIGHTS
The obligation of each Lender hereunder is several, and
no Lender shall be responsible for the obligation or commitment of
any other Lender hereunder. Nothing contained in this Agreement
and no action taken by Lenders pursuant hereto shall be deemed to
constitute Lenders to be a partnership, an association, a joint
venture or any other kind of entity. The amounts payable at any
time hereunder to each Lender shall be a separate and independent
debt, and each Lender shall, subject to Section 7, be entitled to
protect and enforce its rights arising out of this Agreement and it
shall not be necessary for any other Lender to be joined as an
additional party in any proceeding for such purpose.
9.15 HEADINGS
Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be
given any substantive effect.
9.16 APPLICABLE LAW
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. EACH LETTER OF
CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM
CUSTOMS AND PRACTICES FOR DOCUMENTARY CREDITS (1993 REVISION),
INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500 OR ANY
SUCCESSOR PUBLICATIONS (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS
NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW
YORK.
9.17 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the parties hereto
and their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns of
Lenders. Neither Company's rights or obligations under the Loan
Documents or any interest therein may be assigned without the
116
written consent of all Lenders. Lenders' rights of assignment are
subject to subsection 9.2.
9.18 CONSENT TO JURISDICTION AND SERVICE OF PROCESS
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR
ANY OBLIGATIONS THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇. BY EXECUTING AND DELIVERING THIS AGREEMENT, COMPANY, FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO COMPANY AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 9.10;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III)
ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER
COMPANY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST COMPANY IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION
9.18 RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND
ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK
GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
9.19 WAIVER OF JURY TRIAL
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER
117
RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may
be filed in any court and that relate to the subject matter of this
transaction, including without limitation contract claims, tort
claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver
is a material inducement to enter into a business relationship,
that each has already relied on this waiver in entering into this
Agreement, and that each will continue to rely on this waiver in
their related future dealings. Each party hereto further warrants
and represents that it has reviewed this waiver with its legal
counsel and that it knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR
IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In
the event of litigation, this Agreement may be filed as a written
consent to a trial by the court.
9.20 CONFIDENTIALITY
Lenders shall hold all non-public information obtained
pursuant to the requirements of this Agreement which has been
identified as such by Company in accordance with their customary
procedures for handling confidential information of this nature and
in accordance with safe and sound banking practices and in any
event (i) subject to subsection 9.2, may make disclosure reasonably
required by any bona fide transferee or participant in connection
with the contemplated transfer of any Revolving Loan Commitment,
any Loan or any participation therein and (ii) may make disclosure
as required or requested by any governmental agency or
representative thereof or pursuant to legal process; provided that,
unless specifically prohibited by applicable law or court order,
each Lender shall notify Company of any request by any governmental
agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such
Lender by such governmental agency) for disclosure of any such non-
public information prior to disclosure of such information; and
further provided that in no event shall any Lender be obligated or
required to return any materials furnished by Company.
9.21 COUNTERPARTS; EFFECTIVENESS
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 of the parties hereto and
receipt by Company and Administrative Agent of written or
telephonic notification of such execution and authorization of
delivery thereof.
118
WITNESS the due execution hereof by the respective duly
authorized officers of the undersigned as of the date first written
above.
COMPANY:
▇▇▇▇▇-ILLINOIS, INC.,
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Exec. V.P.
Notice Address:
▇▇▇▇▇-Illinois, Inc.
One ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
with a copy to:
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________
[NAME OF ACQUISITION NEWCO]
By:
Name:
Title:
Notice Address:
____________________
____________________
____________________
Attention: ________
S-1
LENDERS:
BANKERS TRUST COMPANY,
individually and as
Administrative Agent
By: C. ▇▇▇▇▇▇ ▇▇▇▇
Name: C. ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
Notice Address:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇ ▇▇▇▇▇
Telex: 126642
with a copy to:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telex: 4720048
S-2
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
individually and as
Documentation Agent
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Notice Address:
Bank of America National Trust
and Savings Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bank of America National Trust
and Savings Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-3
ABN AMRO BANK N.V.,
individually and as Co-Agent
BY: ABN AMRO NORTH AMERICA, INC., its agent
By: ▇.▇. ▇▇▇▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Group V.P. and Director
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Group V.P. and Operational Manager
Notice Address:
ABN Amro Bank N.V.
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 6734601
Answerback: BANCOLANDO
with a copy to:
ABN Amro Bank N.V.
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Letter of Credit Contact:
ABN Amro Bank N.V.
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-4
BANK OF MONTREAL,
individually and as Co-Agent
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
Notice Address:
Bank of Montreal
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-5
THE BANK OF NEW YORK,
individually and as Co-Agent
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
Notice Address:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
with a copy to:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Letter of Credit Contact:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
S-6
THE BANK OF NOVA SCOTIA,
individually and as Co-Agent
By: M.D. ▇▇▇▇▇
Name: M.D. ▇▇▇▇▇
Title: Agent
Notice Address:
The Bank of Nova Scotia
Atlanta Agency
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
The Bank of Nova Scotia
Chicago Representative ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
S-7
CIBC, INC.,
individually and as Co-Agent
By: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
Notice Address:
Base Rate and Eurodollar Rate Loans
Canadian Imperial Bank of Commerce
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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Attention: Ava Cool
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 54-2413
Answerback: CANBANK ATL
Bid Rate Loans
Canadian Imperial Bank of Commerce
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 426-504
Answerback: CIMM
S-8
CREDIT LYONNAIS,
individually and as Co-Agent
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Notice Address:
Credit Lyonnais
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Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-9
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Co-Agent
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Notice Address:
The First National Bank of Chicago
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The First National Bank of Chicago
14th Floor, Suite 0364
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇
S-10
THE INDUSTRIAL BANK OF JAPAN,
LIMITED,
individually and as Co-Agent
By: ▇▇▇▇▇ ▇▇▇
Name: ▇▇▇▇▇ ▇▇▇
Title: Senior Vice President and Senior Manager
Notice Address:
The Industrial Bank of Japan, Limited
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mikihide Katsumata
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Industrial Bank of Japan, Limited
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Attention: ▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Letter of Credit Contact:
The Industrial Bank of Japan, Limited
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Credit Administration
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-11
NATIONSBANK, N.A.,
individually and as Co-Agent
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sr. Vice President
Notice Address:
NationsBank
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Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
NationsBank
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-12
SOCIETE GENERALE,
individually and as Co-Agent
By: ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: V.P.
By:
Name:
Title:
Notice Address:
Societe Generale
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Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 190130
Answerback: SGCHI UT
S-13
THE SUMITOMO BANK, LIMITED,
individually and as Co-Agent
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Joint General Manager
Notice Address:
The Sumitomo Bank, Ltd.
Chicago Branch
Sears Tower, Suite 4800
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telex: 25-3734
Answerback: SUMIT CGO
With a copy to:
The Sumitomo Bank, Ltd.
Chicago Branch
Sears Tower, Suite 4800
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Attention: ▇▇▇ ▇▇▇▇▇▇
Telex: 25-3734
Answerback: SUMIT CGO
Letter of Credit contact:
The Sumitomo Bank, Ltd.
Chicago Branch
Sears Tower, Suite 4800
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Attention: ▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇), INC.,
individually and as Co-Agent
By: ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
The Toronto-Dominion Bank,
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Senior Associate
Corporate Finance
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Toronto-Dominion Bank,
Houston Branch
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-15
BANQUE NATIONALE DE PARIS,
individually and as Lead Manager
By: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Notice Address:
Banque Nationale de Paris
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇▇▇▇▇▇, N.A.,
individually and as Lead Manager
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Attorney-in-Fact
Notice Address:
Citibank, N.A.
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Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-17
CAISSE NATIONALE DE CREDIT AGRICOLE,
individually and as Lead Manager
By: ▇▇▇▇▇ ▇▇▇▇▇, F.V.P.
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Head of Corporate Banking - Chicago
Notice Address:
Caisse Nationale de Credit Agricole
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Telex: 283594
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-18
THE FUJI BANK, LIMITED,
individually and as Lead
Manager
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Joint General Manager
Notice Address:
The Fuji Bank, Limited
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telex: 253114
Answerback: FUJI CGO
Letter of Credit Contact:
The Fuji Bank, Limited
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telex: 253114
Answerback: FUJI CGO
S-19
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
individually and as Lead Manager
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & Deputy General Manager
Notice Address:
The Long-Term Credit Bank of Japan, Ltd.
Chicago Branch
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Long-Term Credit Bank of Japan, Ltd.
Chicago Branch
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Attention: Loan Administration
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Letter of Credit Contact:
The Long-Term Credit Bank of Japan, Ltd.
Chicago Branch
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Attention: Loan Administration
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇, N.A.,
individually and as Lead Manager
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: AVP
Notice Address:
Mellon Bank, N.A.
Three Mellon Bank Center
Room 2305
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Attention: ▇▇▇▇ ▇▇▇▇▇
Letter of Credit Contact:
Mellon Bank, N.A.
Three Mellon Bank Center
Room 2329
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Attention: ▇▇▇ ▇▇▇▇▇
S-21
THE SANWA BANK, LIMITED,
CHICAGO BRANCH
individually and as Lead Manager
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
Notice Address:
The Sanwa Bank, Limited
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Sanwa Bank, Limited
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ Building, 29th Floor
Suite 3400
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Letter of Credit Contact:
The Sanwa Bank, Limited
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ NATIONAL BANK OF
OREGON,
individually and as Lead Manager
By: ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Notice Address:
United States National Bank of Oregon
National Corporate Banking
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President
Telex: 360549
Answerback: USNATLBANK
PTL
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
United States National Bank of Oregon
National Corporate Banking
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ A.G. Wynde
Senior Vice President
S-23
THE MITSUBISHI TRUST AND BANKING
CORP.,
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
Title: Senior Vice President
Notice Address:
The Mitsubishi Trust and Banking Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Manager of Loan
Administration
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ or 846-0970
Letter of Credit Contact:
The Mitsubishi Trust and Banking Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Manager of Loan
Administration
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
National City Bank
Locator #2102
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telex: 212637 NCBUR
Answerback: NCBUR
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▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇. LTD.,
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Deputy General Manager
Notice Address:
Yasuda Trust and Banking Co., Ltd.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-26
ARAB BANKING CORPORATION,
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
Arab Banking Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇/0922
Letter of Credit Contact:
Arab Banking Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Supervisor
Loan Administration
Fax: (▇▇▇) ▇▇▇-▇▇▇▇/0922
S-27
BANQUE PARIBAS,
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Vice President
Notice Address:
Banque Paribas
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-28
COMMERZBANK AKTIENGESELLSCHAFT
By: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
Notice Address:
Commerzbank Aktiengesellschaft
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Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-29
DAI-ICHI KANGYO BANK, LIMITED
By: Seiichiro Ino
Name: Seiichiro Ino
Title: Vice President
Notice Address:
Dai-Ichi Kangyo Bank, Limited
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Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Manager
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-30
KEYBANK NATIONAL ASSOCIATIONS,
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
KeyBank National Associations
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop OH-01-27-0606
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-31
KREDIETBANK, N.V.
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Notice Address:
Kredietbank N.V.
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Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-32
THE NORTHERN TRUST COMPANY,
By: S. ▇▇▇▇ ▇▇▇▇▇▇
Name: S. ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Notice Address:
The Northern Trust Company
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Attention: ▇▇▇▇ ▇▇▇▇▇▇
Vice President
Telex: 433-0397
Answerback: NT CI CGO
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-33
SAKURA BANK,
By: ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Manager
Notice Address:
Sakura Bank
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-34
THE TOKAI BANK, LTD., CHICAGO BRANCH
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Manager
Notice Address:
The Tokai Bank, Ltd., Chicago Branch
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Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.,
By: Nan Bursati ▇▇▇▇
Name: Nan Bursati ▇▇▇▇
Title: Vice President and Division Manager
Notice Address:
Union Bank of California, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ BRANCH
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: ▇▇▇▇▇ ▇. Hoploch
Name: ▇▇▇▇▇ ▇. Hoploch
Title: Vice President
Notice Address:
Westdeutsche Landesbank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-37
BANK OF HAWAII,
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Vice President
Notice Address:
Bank of Hawaii
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Letter of Credit Contact:
Bank of Hawaii
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
S-38
EXHIBIT I
[FORM OF]
NOTICE OF BORROWING
Pursuant to that certain Refinancing Credit Agreement
dated as of November 19, 1996 (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
▇▇▇▇▇-Illinois, Inc., a Delaware corporation ("COMPANY"), the
Lenders named therein, the Lenders named as Lead Managers and Co-
Agents, Bank of America National Trust and Savings Association,
as Documentation Agent, and Bankers Trust Company, as
Administrative Agent, this represents Company's request to borrow
on __________, ____ from Lenders on a pro rata basis $________ as
[Prime Rate/Eurodollar Rate] Revolving Loans. [The Interest
Period for such Loans is requested to be a ________-month
period.] The proceeds of such Loans are to be deposited in
Company's account at Administrative Agent.
The undersigned officer, to the best of his/her
knowledge as an officer of Company, and Company do hereby certify
that (i) the undersigned is the [insert title of undersigned
officer] of Company; (ii) the undersigned has read the conditions
precedent to the making of any Loans set forth in subsection 3.2B
of the Credit Agreement, and any definitions or other provisions
in the Credit Agreement relating thereto with respect to the
statements contained herein, and the undersigned has made or
caused to be made such examination or investigation as is
necessary to enable him/her to express an informed opinion as to
whether or not such conditions have been complied with; and
(iii) each of the conditions set forth in subsection 3.2B of the
Credit Agreement has been satisfied on and as of the date hereof
and will be satisfied on and as of the date of the proposed
borrowing.
DATED: ___________________
▇▇▇▇▇-ILLINOIS, INC.
By____________________________
Title_________________________
I-1
EXHIBIT II
[FORM OF]
NOTICE OF ISSUANCE OF LETTER OF CREDIT
Pursuant to that certain Refinancing Credit Agreement
dated as of November 19, 1996 (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
▇▇▇▇▇-Illinois, Inc., a Delaware corporation ("COMPANY"), the
Lenders named therein, the Lenders named as Lead Managers and Co-
Agents, Bank of America National Trust and Savings Association,
as Documentation Agent, and Bankers Trust Company, as
Administrative Agent, this represents _________'s request to
have [BofA] [Administrative Agent/__________] issue a [Foreign]
[Commercial/Standby] Letter of Credit on __________, ____ in the
face amount of [$___________] [_____________ [Francs] [Lire]
[_________]] with an expiration date of __________, ____ for the
benefit of .
The undersigned officer, to the best of his/her
knowledge as an officer of the Applicable Account Party, and the
Applicable Account Party 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 3.3C 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 condi-
tions set forth in subsection 3.2B of the Credit Agreement has
been satisfied on and as of the date hereof and will be satisfied
on and as of the date of the proposed issuance of such Letter of
Credit, in each case to the same extent as though the issuance of
II-1
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: ___________________
______________________________
[Applicable Account Party]
By____________________________
Title_________________________
II-2
EXHIBIT III
[FORM OF]
NOTICE OF CONVERSION/CONTINUATION
Pursuant to that certain Refinancing Credit Agreement
dated as of November 19, 1996 (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
▇▇▇▇▇-Illinois, Inc., a Delaware corporation ("COMPANY"), the
Lenders named therein, the Lenders named as Lead Managers and Co-
Agents, Bank of America National Trust and Savings Association,
as Documentation Agent, and Bankers Trust Company, as
Administrative Agent, this represents Company's request [A: to
convert $_______ in principal amount of presently outstanding
[Prime Rate/Eurodollar Rate] Revolving Loans [with a final
Interest Payment Date of _________, ____] to [Prime Rate/
Eurodollar Rate] Loans on _________, ____. [The Interest Period
for such Eurodollar Rate Loans is requested to be a _______-month
period.]] [B: to continue as Eurodollar Rate Loans $_______ in
principal amount of presently outstanding Eurodollar Rate Loans
with a final Interest Payment Date of _________, ____. The
Interest Period for such Eurodollar Rate Loans commencing on such
Interest Payment Date is requested to be a _______-month period.]
The undersigned officer, to the best of his/her
knowledge as an officer of Company, and Company certify that no
Event of Default or Potential Event of Default has occurred and
is continuing under the Credit Agreement.
DATED:_____________________
▇▇▇▇▇-ILLINOIS, INC.
By____________________________
Title_________________________
III-1
EXHIBIT IV
[FORM OF]
BID RATE LOAN QUOTE REQUEST
To: Bankers Trust Company ("ADMINISTRATIVE AGENT")
From: ▇▇▇▇▇-Illinois, Inc. ("COMPANY")
Re: Refinancing Credit Agreement dated as of November
19, 1996 (as amended, amended and restated,
supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT") among Company, the
Lenders listed therein, the Lenders named as Lead
Managers and Co-Agents, Bank of America National
Trust and Savings Association, as Documentation
Agent, and Administrative Agent
Company hereby gives notice pursuant to subsection 2.9B
of the Credit Agreement that it requests Bid Rate Loan Quotes for
the following proposed Bid Rate Loan(s):
Proposed Funding Date of Bid Rate Loan: ________________
Duration of Bid Rate
Principal Amount 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 as to
IV-1
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.
▇▇▇▇▇-ILLINOIS, INC.
By __________________________
Title _______________________
IV-2
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
▇▇▇▇▇-Illinois, Inc. ("COMPANY")
Pursuant to subsection 2.9C of that certain Refinancing
Credit Agreement dated as of November 19, 1996 (as amended,
amended and restated, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT"; capitalized terms used
herein without definition having the meanings assigned to such
terms in the Credit Agreement) among Company, the Lenders listed
therein, the Lenders named as Lead Managers and Co-Agents, Bank
of America National Trust and Savings Association, as
Documentation Agent, and Administrative Agent, we are pleased on
behalf of Company to invite you to submit Bid Rate Loan Quotes to
Company for the following proposed Bid Rate Loan(s):
Proposed Funding Date of Bid Rate Loan: _________________
Duration of Bid Rate
Principal Amount Loan Interest Period
$ ______________
Please respond to this invitation by no later than
10:00 a.m. (New York time) on the proposed Funding Date.
BANKERS TRUST COMPANY,
as Administrative Agent
By: _________________________
Title: ______________________
V-1
EXHIBIT VI
[FORM OF]
BID RATE LOAN QUOTE
Bankers Trust Company
[P.O. Box ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇]
Telecopy No.: _______________
Attention: _____________
Re: Bid Rate Loan Quote to ▇▇▇▇▇-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):
_____________________________________________________
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:
VI-1
Duration
of Bid
Rate Loan
Principal Interest
Amount Period Interest Rate
$_____________
$_____________
Provided that the aggregate principal amount of Bid Rate
Loans for which this offer may be accepted shall not exceed
$_______________.
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable conditions
set forth in the Refinancing Credit Agreement dated as of
November 19, 1996 (as amended, amended and restated, supplemented
or otherwise modified from time to time, the "CREDIT AGREEMENT";
capitalized terms used herein without definition having the
meanings assigned to such terms in the Credit Agreement) among
Company, the Lenders listed therein, the Lenders named as Lead
Managers and Co-Agents, Bank of America National Trust and
Savings Association, as Documentation Agent, and Bankers Trust
Company, as Administrative Agent, irrevocably obligate us to make
the Bid Rate Loan(s) for which any offer(s) are accepted, in
whole or in part.
Very truly yours,
[NAME OF LENDER]
Date: ____________________ By: _________________________
Title: ______________________
VI-2
EXHIBIT VII
[FORM OF REVOLVING NOTE]
▇▇▇▇▇-ILLINOIS, INC.
PROMISSORY NOTE DUE DECEMBER 31, 2001
(REVOLVING LOANS)
November __, 1996
$
FOR VALUE RECEIVED, ▇▇▇▇▇-ILLINOIS, INC., a Delaware
corporation ("COMPANY"), promises to pay to the order of
("PAYEE"), on or before the Revolving Loan Commitment Termination
Date, the lesser of (x) ($1) and (y) the unpaid principal amount
of all advances made by Payee to Company as Revolving Loans under
the Credit Agreement referred to below.
Company also promises to pay interest on the unpaid
principal amount hereof from the date hereof until paid in full,
at the rates and at the times which shall be determined in
accordance with the provisions of the Refinancing Credit
Agreement dated as of November 19, 1996 among Company, the
Lenders named therein, the Lenders named as Lead Managers and Co-
Agents, Bank of America National Trust and Savings Association,
as Documentation Agent, and Bankers Trust Company, as
Administrative Agent, as amended, amended and restated,
supplemented or otherwise modified from time to time (said
Refinancing 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 $1,800,000,000 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.
All payments of principal and interest in respect of
this Note shall be made in lawful money of the United States of
America in same day funds at the Funding and Payment Office, or
VII-1
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
VII-2
law, the right to plead any statute of limitations as a defense
to any demand hereunder.
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.
▇▇▇▇▇-ILLINOIS, INC.
By____________________________
Title_________________________
VII-3
TRANSACTIONS ON REVOLVING NOTE
Amount of
Principal Outstanding
Type of Amount of or Interest Principal
Loan Made Loan Made Paid Balance Notation
Date This Date This Date This Date This Date Made By
VII-4
EXHIBIT VIII
[FORM OF BID RATE LOAN NOTE]
▇▇▇▇▇-ILLINOIS, INC.
PROMISSORY NOTE DUE DECEMBER 31, 2001
(BID RATE LOANS)
November __, 1996
FOR VALUE RECEIVED, ▇▇▇▇▇-ILLINOIS, INC., a Delaware
corporation ("COMPANY"), hereby promises to pay to the order of
("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 Refinancing Credit Agreement dated as of November 19, 1996
among Company, the Lenders named therein, the Lenders named as
Lead Managers and Co-Agents, Bank of America National Trust and
Savings Association, as Documentation Agent, and Bankers Trust
Company, as Administrative Agent, as amended, amended and
restated, supplemented or otherwise modified from time to time
(said Refinancing Credit Agreement, as so amended, amended and
restated, supplemented or otherwise modified from time to time,
being the "CREDIT AGREEMENT"). Capitalized terms used herein
without definition shall have the meanings set forth in the
Credit Agreement.
This Note is one of Company's Bid Rate Loan Notes and is
issued pursuant to and entitled to the benefits of the Credit
Agreement to which reference is hereby made for a more complete
statement of the terms and conditions under which the Bid Rate
Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of
this Note shall be made in lawful money of the United States of
America in same day funds at the Funding and Payment Office, or
at such other place as shall be designated in writing for such
purpose in accordance with the terms of the Credit Agreement.
Until notified in writing of the transfer of this Note, Company
and Administrative Agent shall be entitled to deem Payee or such
person who has been so identified by the transferor in writing to
Company and Administrative Agent as the holder of this Note, as
VIII-1
the owner and holder of this Note. Each of Payee and any
subsequent holder of this Note agrees, by its acceptance hereof,
that before disposing of this Note or any part hereof it will
make a notation hereon of all principal payments previously made
hereunder and of the date to which interest hereon has been paid;
provided, however, that the failure to make a notation of any
payment made on this Note shall not limit or otherwise affect the
obligation of Company hereunder with respect to payments of
principal or interest on this Note.
Whenever any payment on this Note shall be stated to be
due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day and such extension of
time shall be included in the computation of the payment of
interest on this Note.
This Note is subject to mandatory prepayment as provided
in subsection 2.4A(ii) of the Credit Agreement and to prepayment
at the option of Company with the consent of Payee as provided in
subsection 2.4A(i) of the Credit Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid
balance of the principal amount of this Note, together with all
accrued but unpaid interest thereon, may become, or may be
declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in
the manner provided in the Credit Agreement.
No reference herein to the Credit Agreement and no
provision of this Note or the Credit Agreement shall alter or
impair the obligation of Company, which is absolute and
unconditional, to pay the principal of and interest on this Note
at the place, at the respective times, and in the currency herein
prescribed.
Company promises to pay all costs and expenses,
including reasonable attorneys' fees, all as provided in
subsection 9.3 of the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and endorsers
of this Note hereby consent to renewals and extensions of time at
or after the maturity hereof, without notice, and hereby waive
diligence, presentment, protest, demand and notice of every kind
and, to the full extent permitted by law, the right to plead any
statute of limitations as a defense to any demand hereunder.
VIII-2
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.
▇▇▇▇▇-ILLINOIS, INC.
By___________________________
Title________________________
VII-3
TRANSACTIONS ON BID RATE LOAN NOTE
Amount of
Principal Outstanding
Amount of or Interest Principal
Loan Made Paid Balance Notation
Date This Date This Date This Date Made By
VIII-4
EXHIBIT IX
[FORM OF]
OVERDRAFT AGREEMENT
This OVERDRAFT AGREEMENT is dated as of November 19,
1996 and entered into by and between ▇▇▇▇▇-ILLINOIS, INC., a
Delaware corporation ("COMPANY"), and BANKERS TRUST COMPANY
("BANK").
RECITALS
WHEREAS, Company and Bank are parties to that certain
Refinancing Credit Agreement dated as of November 19, 1996 among
Company, the Lenders listed therein, the Lead Managers and Co-
Agents listed therein, Bank of America National Trust and Savings
Association, as Documentation Agent, and Bank, as Administrative
Agent (as it may be amended, amended and restated, supplemented
or otherwise modified from time to time, the "CREDIT AGREEMENT";
capitalized terms used herein without definition having the
meanings assigned to such terms in the Credit Agreement); and
WHEREAS, pursuant to and subject to the limitations set
forth in subsection 2.1B of the Credit Agreement, Company and
Bank are permitted to establish and maintain an overdraft
facility to facilitate Company's cash management practices.
NOW, THEREFORE, in consideration of the premises and the
terms and conditions stated herein, the parties hereby agree as
follows:
1. Upon presentment to Bank for payment of an item
drawn by Company on Company's account ________ (the "ACCOUNT")
with Bank in an amount that, when charged against the Account,
creates an overdraft in the Account, Bank shall pay such item;
provided that Bank elects to do so as provided herein; and
provided, further that after giving effect to such overdraft (i)
the Overdraft Amount shall not exceed $50,000,000, and (ii) the
Overdraft Amount shall not at any time exceed the amount of the
Revolving Loan Commitments minus the sum of (x) the aggregate
principal amount of all outstanding Revolving Loans and Bid Rate
Loans plus (y) the Commercial Paper Usage plus (z) the Letter of
Credit Usage at such time.
2. Bank may elect not to pay any item that would
create an overdraft, with or without notice to Company, if Bank,
in its sole discretion, believes that it will not be able,
IX-1
pursuant to subsection 2.1B of the Credit Agreement, to require
each other Lender to make a Revolving Loan or to purchase a
participation, in each case for the purpose of refunding Bank in
the amount of such overdraft.
3. Company shall pay to Bank on demand, and in any
event not more than three Business Days from the date of creation
of any overdraft in the Account, an amount equal to the Overdraft
Amount then outstanding. In addition, Company shall pay, on
demand or, if no demand is made, on the last Business Day of each
month, interest on the Overdraft Amount from time to time
outstanding at a fluctuating rate per annum (calculated on the
basis of a 360-day year and the actual number of days elapsed)
equal to the Base Rate minus the Applicable Facility Fee
Percentage; provided that if the Overdraft Amount or interest
thereon is not paid when due, the Overdraft Amount and, to the
extent permitted by applicable law, any interest thereon not paid
when due shall thereafter bear interest payable on demand at a
rate per annum equal to the Prime Rate plus 2.00% per annum; and
provided, further that, unless demand is otherwise made, the
interest payable on the last Business Day of any month shall be
that which is accrued and unpaid through such Business Day. Bank
may, at its option, request Lenders to make Revolving Loans as
provided in subsection 2.1B of the Credit Agreement and apply the
proceeds of such Revolving Loans to effect payment of the
Overdraft Amount as set forth above.
4. Company shall make each payment hereunder to Bank
in lawful money of the United States of America and in same day
funds at the office of Bank located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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
confirm to Company any such charge promptly thereafter.
7. Notwithstanding anything to the contrary contained
herein, Bank shall not be obligated to pay any item which would
create an overdraft in the Account if such payment would be an
extension of credit to Company in violation of any limitation or
prohibition provided by any applicable statute or regulation.
8. This Agreement shall terminate upon the termination
of the Revolving Loan Commitments. In addition, at any time
prior to the termination of the Revolving Loan Commitments, Bank
or Company may, upon at least five Business Day's written notice
IX-2
to the other party, terminate this Agreement; provided that no
such termination shall affect Company's obligations with respect
to overdrafts created on or prior to such termination or Bank's
rights with respect to such overdrafts. This Agreement is not
for the benefit of any party other than Company and Bank.
9. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
10. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall
be deemed an original, but all such counterparts together shall
constitute but one and the same instrument.
11. Company hereby submits to the jurisdiction of any
state or federal court in the State of New York with respect to
any action or proceeding in connection with this Agreement to the
full extent provided in subsection 9.18 of the Credit Agreement
and such subsection 9.18 of the Credit Agreement is hereby
incorporated herein by this reference.
12. The parties hereto agree to waive their respective
rights to a jury trial with respect to any action or proceeding
in connection with this Agreement to the full extent provided in
subsection 9.19 of the Credit Agreement and such subsection 9.19
of the Credit Agreement is hereby incorporated herein by this
reference.
[Remainder of page intentionally left blank]
IX-3
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: _________________________
▇▇▇▇▇-ILLINOIS, INC.
By: ___________________________
Title: _________________________
IX-S-1
EXHIBIT X
[FORM OF]
COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFY THAT:
(1) We are the duly elected [Title] and [Title] of
▇▇▇▇▇-Illinois, Inc., a Delaware corporation ("COMPANY");
(2) We have reviewed the terms of the Refinancing
Credit Agreement dated as of November 19, 1996 among
Company, the Lenders named therein, the Lenders named as
Lead Managers and Co-Agents, Bank of America National Trust
and Savings Association, as Documentation Agent, and Bankers
Trust Company, as Administrative Agent (as amended, amended
and restated, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"; capitalized terms used
herein and in Attachment No. 1 annexed hereto and not
otherwise defined herein or in such Attachment No. 1 having
the meanings assigned to such terms in the Credit
Agreement), and we have made, or have caused to be made
under our supervision, a review in reasonable detail of the
transactions and condition of Company and its Subsidiaries
during the accounting period covered by the attached
financial statements; and
(3) The examination described in paragraph (2) did not
disclose and we have no knowledge of the existence of any
condition or event which constitutes an Event of Default or
Potential Event of Default during or at the end of the
accounting period covered by the attached financial
statements or as of the date of this Certificate, except as
set forth below.
Describe below (or in a separate attachment to this
Certificate) the exceptions, if any, to paragraph (3) by listing,
in detail, the nature of the condition or event, the period
during which it has existed and the action which Company has
taken, is taking, or proposes to take with respect to each such
condition or event:
-----------------------------------------------------------------
-----------------------------------------------------------------
X-1
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.
▇▇▇▇▇-ILLINOIS, INC.
By____________________________
Title_________________________
By____________________________
Title_________________________
X-2
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. Indebtedness
1. Indebtedness incurred to refinance debt of Genie
permitted under subsection 6.1(vii)(a) $__________
2. Maximum permitted under subsection 6.1(vii)(a) at any
time. . . . . . . . . . . . . . . . . . . . $450,000,000
3. Additional Indebtedness incurred to refinance debt of
Foreign Subsidiaries permitted under subsection
6.1(vii)(b) . . . . . . . . . . . . . . . . $__________
4. Maximum permitted under subsection 6.1(vii)(b) at any
time. . . . . . . . . . . . . . . . . . . . $300,000,000
5. Indebtedness with respect to Commercial Paper permitted
under subsection 6.1(viii). . . . . . . . . $__________
6. Maximum permitted under subsection 6.1(viii) $450,000,000
7. Indebtedness permitted under subsection 6.1(x) $__________
8. Maximum permitted under subsection 6.1(x) $200,000,000
B. Investments
1. Aggregate amount of Investments in Margin Stock
permitted under subsection 6.3(x) . . . . . $__________
2. Maximum permitted under subsection 6.3(x) . . . . $20,000,000
3. Aggregate fair market value of all Investments
permitted under subsection 6.3(x) . . . . . $__________
4. Maximum permitted under subsection 6.3(x) $500,000,000
X-3
C. Contingent Obligations
1. Guaranties of obligations of suppliers, customers,
franchisees and licensees permitted under subsection
6.4(x). . . . . . . . . . . . . . . . . . . $__________
2. Maximum permitted under subsection 6.4(x) $50,000,000
3. Guaranties of indebtedness owed by Genie and
Acquisition Newcos to any lender permitted under
subsection 6.4(xi). . . . . . . . . . . . . $__________
4. Maximum permitted under subsection 6.4(xi) (clause (a)
of first proviso) . . . . . . . . . . . . . $450,000,000
5. Guaranties of other indebtedness owed by any Foreign
Subsidiary to any lender permitted under subsection
6.4(xi) . . . . . . . . . . . . . . . . . . $__________
6. Maximum permitted under subsection 6.4(xi) (clause (b)
of first proviso) . . . . . . . . . . . . . $300,000,000
7. Aggregate amount of Contingent Obligations described in
C.3 plus aggregate amount of Indebtedness described in
A.1 (without duplication as described in subsection
6.4(xi)) plus Letter of Credit Usage in respect of
Standby Letters of Credit supporting Indebtedness of
Genie or Acquisition Newcos . . . . . . . . . . . $__________
8. Maximum permitted under subsection 6.4(xi) (second
proviso). . . . . . . . . . . . . . . . . . $450,000,000
9. Aggregate amount of Contingent Obligations described in
C.5 plus aggregate amount of Indebtedness described in
A.3 (without duplication as described in subsection
6.4(xi)) plus Letter of Credit Usage in respect of
Standby Letters of Credit supporting other Indebtedness
of Foreign Entities . . . . . . . . . . . . . . . $__________
10. Maximum permitted under subsection 6.4(xi)
(third proviso). . . . . . . . . . . . . . . . . . $300,000,000
11. Other Contingent Obligations permitted under
subsection 6.4(xiii). . . . . . . . . . . . . . . . $__________
X-4
12. Maximum permitted under subsection 6.4(xiii) . . . . $150,000,000
D. Restricted Junior Payments
1. Consolidated Net Income for period from Closing Date
until ______, ____ . . . . . . . . . . . . $__________
2. Aggregate amount of Restricted Junior Payments (other
than Restricted Junior Payments in respect of Common
Stock purchases in connection with Company's employee
benefits program) made during period described
in D.1 $__________
3. Maximum permitted under subsection 6.5 (sum of
$125,000,000 plus 50% of D.1) . . . . . . . $__________
E. 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 6.6A _______:1.00
F. Maximum Consolidated Leverage Ratio as of __________, ____
1. Consolidated Total Debt . . . . . . . . . . $__________
2. Consolidated Adjusted EBITDA (E.7). . . . . $__________
X-5
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 6.6B. . . . . . . . . . . . . . . _______:1.00
G. Fundamental Changes
1. Aggregate fair market value of stock or other assets
sold in any one or more Asset Sales during consecutive
12-month period in one or more transactions permitted
under subsection 6.7(iii)(b)(i) . . . . . . $__________
2. Maximum permitted during consecutive 12-month period
under subsection 6.7(iii)(b)(i) before consent of
Requisite Lenders required. . . . . . . . . $300,000,000
3. Aggregate fair market value of stock or other assets
sold in any one or more Asset Sales after Closing Date
in one or more transactions permitted under subsection
6.7(iii)(b)(ii) . . . . . . . . . . . . . . $__________
4. Maximum permitted under subsection 6.7(iii)(b)(ii)
before consent of Requisite Lenders required $600,000,000
X-6
EXHIBIT XI
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE (this "AGREEMENT") is
entered into by and between the parties designated as Assignor
("ASSIGNOR") and Assignee ("ASSIGNEE") above the signatures of
such parties on the Schedule of Terms attached hereto and hereby
made an integral part hereof (the "SCHEDULE OF TERMS") and
relates to that certain Credit Agreement described in the
Schedule of Terms (said Credit Agreement, as amended,
supplemented or otherwise modified to the date hereof and as it
may hereafter be amended, supplemented or otherwise modified from
time to time, being the "CREDIT AGREEMENT", the terms defined
therein and not otherwise defined herein being used herein as
therein defined).
IN CONSIDERATION of the agreements, provisions and
covenants herein contained, the parties hereto hereby agree as
follows:
SECTION 1. ASSIGNMENT AND ASSUMPTION.
(a) Effective upon the Settlement Date specified in
Item 4 of the Schedule of Terms (the "SETTLEMENT DATE"), Assignor
hereby sells and assigns to Assignee, without recourse,
representation or warranty (except as expressly set forth
herein), and Assignee hereby purchases and assumes from Assignor,
that percentage interest in all of Assignor's rights and
obligations as a Lender arising under the Credit Agreement and
the other Loan Documents with respect to Assignor's Revolving
Loan Commitment and outstanding Loans, if any, which represents,
as of the Settlement Date, the percentage interest specified in
Item 3 of the Schedule of Terms of all rights and obligations of
Lenders arising under the Credit Agreement and the other Loan
Documents with respect to the Revolving Loan Commitments and any
outstanding Loans (the "ASSIGNED SHARE"). Without limiting the
generality of the foregoing, the parties hereto hereby expressly
acknowledge and agree that any assignment of all or any portion
of Assignor's rights and obligations relating to Assignor's
Revolving Loan Commitment shall include (i) in the event Assignor
is an Issuing Lender with respect to any outstanding Letters of
Credit (any such Letters of Credit being "ASSIGNOR LETTERS OF
CREDIT"), the sale to Assignee of a participation in the Assignor
Letters of Credit and any drawings thereunder as contemplated by
subsection 2.8A of the Credit Agreement and (ii) the sale to
Assignee of a ratable portion of any participations previously
purchased by Assignor pursuant to said subsection 2.8A with
respect to any Letters of Credit other than the Assignor Letters
of Credit.
(b) In consideration of the assignment described above,
Assignee hereby agrees to pay to Assignor, on the Settlement
Date, the principal amount of any outstanding Loans included
XI-1
within the Assigned Share, such payment to be made by wire
transfer of immediately available funds in accordance with the
applicable payment instructions set forth in Item 5 of the
Schedule of Terms.
(c) Assignor hereby represents and warrants that Item 3
of the Schedule of Terms correctly sets forth the amount of the
Revolving Loan Commitment and the Pro Rata Share corresponding to
the Assigned Share.
(d) Assignor and Assignee hereby agree that, upon
giving effect to the assignment and assumption described above,
(i) Assignee shall be a party to, and a "Lender" under, the
Credit Agreement and shall have all of the rights and obligations
under the Loan Documents, and shall be deemed to have made all of
the covenants and agreements contained in the Loan Documents,
arising out of or otherwise related to the Assigned Share, and
(ii) Assignor shall be absolutely released from any of such
obligations, covenants and agreements assumed or made by Assignee
in respect of the Assigned Share. Assignee hereby acknowledges
and agrees that the agreement set forth in this Section 1(d) is
expressly made for the benefit of Company, Administrative Agent,
Assignor and the other Lenders and their respective successors
and permitted assigns.
(e) Assignor and Assignee hereby acknowledge and
confirm their understanding and intent that (i) this Agreement
shall effect the assignment by Assignor and the assumption by
Assignee of Assignor's rights and obligations with respect to the
Assigned Share, (ii) any other assignments by Assignor of a
portion of its rights and obligations with respect to the
Revolving Loan Commitments and any outstanding Loans shall have
no effect on the Revolving Loan Commitment and the Pro Rata Share
corresponding to the Assigned Share as set forth in Item 3 of the
Schedule of Terms or on the interest of Assignee in any
outstanding Loans corresponding thereto, and (iii) from and after
the Settlement Date, Administrative Agent shall make all payments
under the Credit Agreement in respect of the Assigned Share
(including without limitation all payments of principal and
accrued but unpaid interest, commitment fees and letter of credit
fees with respect thereto) (A) in the case of any such interest
and fees that shall have accrued prior to the Settlement Date, to
Assignor, and (B) in all other cases, to Assignee; provided that
Assignor and Assignee shall make payments directly to each other
to the extent necessary to effect any appropriate adjustments in
any amounts distributed to Assignor and/or Assignee by
Administrative Agent under the Loan Documents in respect of the
Assigned Share in the event that, for any reason whatsoever, the
payment of consideration contemplated by Section 1(b) occurs on a
date other than the Settlement Date.
SECTION 2. CERTAIN REPRESENTATIONS, WARRANTIES AND
AGREEMENTS.
(a) Assignor represents and warrants that it is the
legal and beneficial owner of the Assigned Share, free and clear
of any adverse claim.
XI-2
(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 obligation of such party, enforceable
against such party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
XI-3
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.
XI-4
(g) This Agreement may be executed in one or more
counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall
be deemed an original, but all such counterparts together shall
constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a
single counterpart so that all signature pages are physically
attached to the same document.
(h) This Agreement shall become effective upon the date
(the "EFFECTIVE DATE") upon which all of the following conditions
are satisfied: (i) the execution of a counterpart hereof by each
of Assignor and Assignee, (ii) the execution of a counterpart
hereof by Company as evidence of its consent hereto to the extent
required under subsection 9.2B(i) of the Credit Agreement,
(iii) the receipt by Administrative Agent of the processing and
recordation fee referred to in subsection 9.2B(i) of the Credit
Agreement, (iv) the delivery by Assignee to Administrative Agent
of such forms, certificates or other evidence with respect to
United States federal income tax withholding matters as Assignee
may be required to deliver to Administrative Agent pursuant to
subsection 2.7C(iv), (v) the execution of a counterpart hereof by
Administrative Agent as evidence of its acceptance hereof in
accordance with subsection 9.2B(ii) of the Credit Agreement,
(vi) the receipt by Administrative Agent of originals or
telefacsimiles of the counterparts described above and
authorization of delivery thereof, and (vii) 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.
[Remainder of page intentionally left blank]
XI-5
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized, such execution being made as
of the Effective Date in the applicable spaces provided on the
Schedule of Terms.
XI-6
SCHEDULE OF TERMS
1. Borrower: ▇▇▇▇▇-Illinois, Inc.
2. Name and Date of Credit Agreement: Refinancing Credit
Agreement dated as of November 19, 1996 by and among ▇▇▇▇▇-
Illinois, Inc., the financial institutions listed therein as
Lenders, Lead Managers and Co-Agents, Bank of America
National Trust and Savings Association, as Documentation
Agent, and Bankers Trust Company, as Administrative Agent.
3. Amounts:
(a) Aggregate Revolving Loan Commitments of all Lenders: $________
(b) Assigned Share/Pro Rata Share: _____%
(c) Amount of Assigned Share of Revolving Loan Commitments: $________
4. Settlement Date: ____________, 199_
5. Payment Instructions:
ASSIGNOR: ASSIGNEE:
____________________________ ____________________________
____________________________ ____________________________
____________________________ ____________________________
Attention: __________________ Attention:__________________
Reference: _________________ Reference:_________________
6. Notice Addresses:
ASSIGNOR: ASSIGNEE:
____________________________ ____________________________
____________________________ ____________________________
____________________________ ____________________________
____________________________ ____________________________
7. Signatures:
[NAME OF ASSIGNOR], [NAME OF ASSIGNEE],
as Assignor as Assignee
By: By:
Title: Title:
[Consented to in accordance with subsection Accepted in accordance with
9.2B(i) of the Credit Agreement subsection 9.2B (ii) of the
Credit Agreement
[COMPANY] [NAME OF ADMINISTRATIVE AGENT],
as Administrative Agent
By: By:
Title: ] Title:
XI-7
EXHIBIT XII-A
[FORM OF]
COLLATERAL ACCOUNT AGREEMENT
This COLLATERAL ACCOUNT AGREEMENT (this "AGREEMENT") is
dated as of November 19, 1996 and entered into by and between
▇▇▇▇▇-ILLINOIS, INC., a Delaware corporation ("PLEDGOR"), and
BANKERS TRUST COMPANY, as administrative agent for and
representative of (in such capacity, "ADMINISTRATIVE AGENT") the
financial institutions ("LENDERS") party to the Credit Agreement
(as hereinafter defined) and as collateral agent (in such
capacity, "COLLATERAL AGENT") under the Intercreditor Agreement
(as defined in the Credit Agreement).
PRELIMINARY STATEMENTS
A. Lenders, the Lenders named as Lead Managers and Co-
Agents therein, Bank of America National Trust and Savings
Association, as Documentation Agent, and Administrative Agent
have entered into the Refinancing Credit Agreement dated as of
November 19, 1996 (said Refinancing Credit Agreement, as it may
hereafter be amended, amended and restated, 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) with Pledgor
pursuant to which Agents and Lenders have made certain
commitments, subject to the terms and conditions set forth in the
Credit Agreement, to extend certain credit facilities to Pledgor.
B. It is a condition precedent to the initial
extensions of credit by Agents and Lenders under the Credit
Agreement that Pledgor shall have executed and delivered to
Administrative Agent a copy of this Agreement.
NOW, THEREFORE, in consideration of the premises and in
order to induce Agents and Lenders to make Loans and other
extensions of credit under the Credit Agreement and for other
good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Pledgor hereby agrees with
Administrative Agent and Collateral Agent as follows:
SECTION 1. DEFINITIONS. The following terms used in
this Agreement shall have the following meanings:
"CASH EQUIVALENTS" means, as at any date of
determination, (i) marketable securities issued or directly and
unconditionally guaranteed 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 thirty
(30) days from such date; (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 thirty (30) days from
such date and, at the time of acquisition thereof, having the
highest rating obtainable from either S&P or Moody's; (iii)
commercial paper maturing no more than thirty (30) days from such
date and, at the time of acquisition thereof, having the highest
XII-A-1
rating obtainable from either S&P or Moody's; and (iv)
certificates of deposit or bankers' acceptances maturing within
thirty (30) days from such date issued by any Lender.
"COLLATERAL" means (i) the Collateral Account and all
amounts from time to time on deposit therein, (ii) all
Investments, including all certificates and instruments from time
to time representing or evidencing such Investments and any
account or accounts in which such Investments may be held by, or
in the name of, Administrative Agent or Collateral Agent for or
on behalf of Pledgor, (iii) all notes, certificates of deposit,
checks and other instruments and all deposits and uncertificated
securities from time to time hereafter transferred to or
otherwise possessed by, or held in the name of, Administrative
Agent or Collateral Agent for or on behalf of Pledgor in
substitution for or in addition to any or all of the Collateral,
(iv) all interest, dividends, 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
Collateral, and (v) to the extent not covered by clauses (i)
through (iv) above, all proceeds of any or all of the foregoing
Collateral. Without limiting the foregoing, the term
"Collateral" shall include all Transferred Collateral.
"COLLATERAL ACCOUNT" means the deposit account
established and maintained by Pledgor with Administrative Agent
pursuant to Section 2.
"INVESTMENTS" means those investments, if any, made by
Administrative Agent pursuant to Section 5.
"SECURED OBLIGATIONS" means the Obligations (other than
any Obligations of Acquisition Newcos under or in respect of any
Foreign Letters of Credit), all obligations of every nature of
Company now or hereafter existing under this Agreement, and the
Senior Secured Obligations (as defined in the Intercreditor
Agreement) but excluding obligations under or in respect of the
Senior Debenture Indenture or any Senior Debentures or any Senior
Debenture Guaranty (as defined in the Intercreditor Agreement).
"SECURED PARTIES" means the Secured Parties (as defined
in the Intercreditor Agreement) but excluding the Senior
Debenture Trustee, the holders of the Senior Debentures, the
Senior Subordinated Debt Trustee and the holders of any Senior
Subordinated Debt.
"TRANSFERRED COLLATERAL" means Collateral delivered to
the Collateral Agent pursuant to Section 2 hereof.
SECTION 2. COLLATERAL ACCOUNT.
(a) Pledgor hereby authorizes and directs
Administrative Agent to establish and maintain at its office at
One Bankers Trust Plaza, New York, New York, as a blocked account
in the name of Pledgor but under the sole dominion and control of
Administrative Agent, a deposit account (account number 99091)
designated as "BT Co., as Administrative Agent for ▇▇▇▇▇-
Illinois, Inc. Cash Collateral Account".
(b) In accordance with Section 7 of the Credit
Agreement, if an Event of Default has occurred and is continuing
and Pledgor is required to pay to Administrative Agent an amount
(the "AGGREGATE AVAILABLE AMOUNT") equal to the maximum amount
that may at any time be drawn under all Domestic Letters of
XII-A-2
Credit then outstanding, Administrative Agent shall, upon receipt
(whether from Pledgor or from Collateral Agent pursuant to
Section 3 of the Intercreditor Agreement) of any amounts which
are allocable to the amounts then due under the Credit Agreement
which are described above, deposit such amounts in the Collateral
Account; provided that, if the aggregate amount delivered by
Pledgor and/or Collateral Agent to Administrative Agent for
deposit in the Collateral Account as aforesaid is less than the
Aggregate Available Amount, the aggregate amount so delivered by
Pledgor and/or Collateral Agent to Administrative Agent shall be
apportioned among all outstanding Domestic Letters of Credit for
purposes of this Section 2(b) in accordance with the ratio of the
maximum amount available for drawing under each such Domestic
Letter of Credit (as to such Domestic Letter of Credit, the
"MAXIMUM AVAILABLE AMOUNT") to the Aggregate Available Amount.
Upon any drawing under any outstanding Domestic Letter of Credit
in respect of which Administrative Agent has deposited in the
Collateral Account any amounts described above, Administrative
Agent shall apply such amounts to reimburse the respective
Issuing Lender for the amount of such drawing. In the event of
cancellation or expiration of any Domestic Letter of Credit in
respect of which Administrative Agent has deposited in the
Collateral Account any amounts described above, or in the event
of any reduction in the Maximum Available Amount under such
Domestic Letter of Credit, Administrative Agent shall apply the
amount then on deposit in the Collateral Account in respect of
such Domestic Letter of Credit less such Maximum Available Amount
immediately after such cancellation, expiration or reduction
first, to the cash collateralization pursuant to the terms of
this Agreement of any outstanding Domestic Letters of Credit in
respect of which all or a portion of the amounts described above
have not been deposited in the Collateral Account, second, to the
extent of any excess, to the payment of any outstanding
Obligations (other than any Obligations of Acquisition Newcos
under or in respect of any Foreign Letters of Credit), and third,
to the extent of any further excess, to Collateral Agent who
shall apply the proceeds as provided in Section 3 of the
Intercreditor Agreement.
(c) Anything contained in this Agreement to the
contrary notwithstanding, any interest received in respect of
Investments of any amounts deposited in the Collateral Account
pursuant to Section 2(b) shall be delivered by Administrative
Agent to Pledgor on the last Business Day of each calendar month
or, if earlier, upon cancellation or expiration of or drawing
under all Domestic Letters of Credit in respect of which such
amounts were deposited in the Collateral Account hereunder;
provided that Administrative Agent shall not deliver to Pledgor
any such interest received in respect of Investments of any
amounts deposited in the Collateral Account pursuant to Section
2(b) unless all outstanding Secured Obligations and all other
obligations referenced in Section 12 of the O-I Subsidiary Pledge
Agreement have been indefeasibly paid in full or cash
collateralized pursuant to the terms of this Agreement.
SECTION 3. PLEDGE OF SECURITY FOR SECURED OBLIGATIONS.
Pledgor hereby pledges and assigns to Administrative Agent and
Collateral Agent for the benefit of Lenders and the other Secured
Parties, and hereby grants to Administrative Agent and Collateral
Agent for the benefit of Lenders and the other Secured Parties a
security interest in, all of Pledgor's right, title and interest
in and to the Collateral as collateral security for the prompt
payment or performance in full when due, whether at stated
maturity, by acceleration or otherwise, of all Secured
Obligations.
SECTION 4. DELIVERY OF PLEDGED COLLATERAL. All
certificates or instruments, if any, representing or evidencing
the Collateral shall be delivered to and held by or on behalf of
XII-A-3
Administrative Agent or Collateral Agent pursuant hereto and
shall be in suitable form for transfer by delivery or, as
applicable, shall be accompanied by Pledgor's endorsement, where
necessary, or duly executed instruments of transfer or assignment
in blank, all in form and substance reasonably satisfactory to
Administrative Agent or Collateral Agent, as the case may be. In
the event any Collateral is not evidenced by a certificate, a
notation reflecting title in the name of Administrative Agent or
Collateral Agent, as appropriate, or the security interest of
Administrative Agent or Collateral Agent, as appropriate, shall
be made in the records of the issuer of such Collateral or in
such other appropriate records as Administrative Agent or
Collateral Agent, as the case may be, may require, all in form
and substance reasonably satisfactory to Administrative Agent or
Collateral Agent, as the case may be. Administrative Agent or
Collateral Agent shall have the right, at any time without notice
to Pledgor, to transfer to or to register in the name of
Administrative Agent or Collateral Agent, as the case may be, or
any of their respective nominees any or all of the Collateral.
In addition, Administrative Agent or Collateral Agent shall have
the right at any time to exchange certificates or instruments
representing or evidencing Collateral for certificates or
instruments of smaller or larger denominations.
SECTION 5. INVESTMENT OF AMOUNTS IN THE COLLATERAL
ACCOUNT. Cash held by Administrative Agent in the Collateral
Account shall not be invested or reinvested except as provided in
this Section 5. Transferred Collateral shall be held and applied
by Collateral Agent in accordance with Section 3 of the
Intercreditor Agreement.
(a) Except as otherwise provided in Section 13, any
funds on deposit in the Collateral Account shall be invested by
Administrative Agent in its own name (i) in call deposits of
Lenders that shall be available in the London interbank market or
(ii) in Cash Equivalents.
(b) Administrative Agent is hereby authorized to sell,
and shall sell, all or any designated part of the securities
constituting part of the Collateral if such sale is necessary to
permit Administrative Agent to perform its duties hereunder.
Administrative Agent shall have no responsibility for any loss
resulting from a fluctuation in interest rates or otherwise.
Subject to the provisions of Section 2(c), any interest received
in respect of securities constituting part of the Collateral and
the net proceeds of the sale or payment of any such securities
shall be held in the Collateral Account by Administrative Agent
pending investment thereof pursuant to Section 5(a).
(c) The Collateral Account shall be subject to such
applicable laws, and such applicable regulations of the Board of
Governors of the Federal Reserve System and of any other
appropriate banking or governmental authority, as may now or
hereafter be in effect.
SECTION 6. REPRESENTATIONS AND WARRANTIES. Pledgor
represents and warrants as follows:
(a) Ownership of Collateral. Pledgor is (or at the
time of transfer to Administrative Agent or Collateral Agent
thereof will be) the legal and beneficial owner of the Collateral
from time to time transferred by Pledgor to Administrative Agent
or Collateral Agent, free and clear of any Lien except for the
security interest created by this Agreement.
XII-A-4
(b) Perfection. The pledge and assignment of the
Collateral pursuant to this Agreement creates a valid and
perfected first priority security interest in the Collateral,
securing the payment of the Secured Obligations.
(c) Other Information. All information heretofore,
herein or hereafter supplied to Administrative Agent or
Collateral Agent by or on behalf of Pledgor with respect to the
Collateral is accurate and complete in all respects.
SECTION 7. FURTHER ASSURANCES. Pledgor agrees that
from time to time, at the expense of Pledgor, Pledgor will
promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary, or
that Administrative Agent or Collateral Agent may reasonably
request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable
Administrative Agent or Collateral Agent to exercise and enforce
its rights and remedies hereunder with respect to any Collateral.
Without limiting the generality of the foregoing, Pledgor will:
(i) execute and file such financing or continuation statements,
or amendments thereto, and such other instruments or notices, as
may be necessary, or as Administrative Agent or Collateral Agent
may reasonably request, in order to perfect and preserve the
security interests granted or purported to be granted hereby and
(ii) at Administrative Agent's or Collateral Agent's request,
appear in and defend any action or proceeding that may affect
Pledgor's title to or Administrative Agent's or Collateral
Agent's security interest in all or any part of the Collateral.
SECTION 8. TRANSFERS AND OTHER LIENS. Pledgor agrees
that it will not (a) sell, assign (by operation of law or
otherwise) or otherwise dispose of any of the Collateral or (b)
create or suffer to exist any Lien upon or with respect to any of
the Collateral, except for the security interest under this
Agreement.
SECTION 9. ADMINISTRATIVE AGENT AND COLLATERAL AGENT
APPOINTED ATTORNEY-IN-FACT. Pledgor hereby irrevocably appoints
Administrative Agent and Collateral Agent as Pledgor's
attorneys-in-fact, with full authority in the place and stead of
Pledgor and in the name of Pledgor or otherwise, from time to
time in Administrative Agent's or Collateral Agent's reasonable
discretion to take any action and to execute any instrument that
Administrative Agent or Collateral Agent may deem necessary or
advisable to accomplish the purposes of this Agreement, including
without limitation (a) if Pledgor fails to do so following
Collateral Agent's request pursuant to Section 7 hereof, to file
one or more financing or continuation statements, or amendments
thereto, relative to all or any part of the Collateral without
the signature of Pledgor and (b) to receive, endorse and collect
any instruments made payable to Pledgor representing any
dividend, principal or interest payment or other distribution in
respect of the Collateral or any part thereof and to give full
discharge for the same.
SECTION 10. ADMINISTRATIVE AGENT AND COLLATERAL AGENT
MAY PERFORM. If Pledgor fails to perform any agreement contained
herein, after notice to Pledgor, Administrative Agent or
Collateral Agent may itself perform, or cause performance of,
such agreement, and the expenses of Administrative Agent or
Collateral Agent, as the case may be, incurred in connection
therewith shall be payable by Pledgor under Section 14.
Administrative Agent and Collateral Agent shall cooperate with
each other in order to perform and comply with the provisions of
this Agreement and the Intercreditor Agreement.
XII-A-5
SECTION 11. STANDARD OF CARE. The powers conferred on
Administrative Agent and Collateral Agent hereunder are solely to
protect their interests in the Collateral and shall not impose
any duty upon either of them to exercise any such powers. Except
for the exercise of reasonable care in the custody of any
Collateral in its possession and the accounting for moneys
actually received by it hereunder, Administrative Agent or
Collateral Agent, as the case may be, shall have no duty as to
any Collateral, it being understood that Administrative Agent and
Collateral Agent shall have no responsibility for
(a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters
relating to any Collateral, whether or not Administrative Agent
or Collateral Agent, as the case may be, has or is deemed to have
knowledge of such matters, (b) taking any necessary steps (other
than steps taken in accordance with the standard of care set
forth above to maintain possession of the Collateral) to preserve
rights against any parties with respect to any Collateral,
(c) taking any necessary steps to collect or realize upon the
Secured Obligations or any guarantee therefor, or any part
thereof, or any of the Collateral, (d) initiating any action to
protect the Collateral against the possibility of a decline in
market value, (e) any loss resulting from Investments made
pursuant to Section 5, except for a loss resulting from
Administrative Agent's or Collateral Agent's, as the case may be,
gross negligence or willful misconduct in complying with Section
5, or (f) determining whether any deposit in the Collateral
Account is proper. Each of Administrative Agent and Collateral
Agent shall be deemed to have exercised reasonable care in the
custody and preservation of Collateral in its possession if such
Collateral is accorded treatment substantially equal to that
which Administrative Agent or Collateral Agent, as the case may
be, accords its own property consisting of negotiable securities.
Administrative Agent shall have no responsibility for Collateral
in the possession of Collateral Agent and Collateral Agent shall
have no responsibility for Collateral in the possession of
Administrative Agent.
SECTION 12. REMEDIES. If any Event of Default shall
have occurred and be continuing, Administrative Agent and
Collateral Agent may exercise in respect of the Collateral, in
addition to all other rights and remedies provided for herein or
otherwise available to them, all the rights and remedies of a
secured party on default under the Uniform Commercial Code as in
effect in any relevant jurisdiction (the "CODE") (whether or not
the Code applies to the affected Collateral), and Administrative
Agent and Collateral Agent may also, without notice except as
specified below, sell the Collateral or any part thereof in one
or more parcels at public or private sale, at any exchange or
broker's board or at any of Administrative Agent's or Collateral
Agent's offices or elsewhere, for cash, on credit or for future
delivery, at such time or times and at such price or prices and
upon such other terms as Administrative Agent or Collateral
Agent, as the case may be, may deem commercially reasonable,
irrespective of the impact of any such sales on the market price
of the Collateral. Each purchaser at any such sale shall hold
the property sold absolutely free from any claim or right on the
part of Pledgor, and Pledgor hereby waives (to the extent
permitted by applicable 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. Pledgor agrees that, to the extent notice of
sale shall be required by law, at least ten days' notice to
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. Neither Administrative Agent nor
Collateral Agent shall be obligated to make any sale of
Collateral regardless of notice of sale having been given.
Administrative Agent or 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.
XII-A-6
SECTION 13. APPLICATION OF PROCEEDS.
(a) Subject to the provisions of Section 2(b), any cash
held by Administrative Agent and all cash proceeds received by
Administrative Agent in respect of any sale of, collection from,
or other realization upon all or any part of the Collateral shall
be applied (after payment of any amounts payable to Collateral
Agent or Administrative Agent pursuant to Section 14) by
Administrative Agent to pay the Obligations or shall be paid to
Collateral Agent, in each case as provided in Section 2(b) of
this Agreement. Any surplus of such cash or cash proceeds held
by Administrative Agent and remaining after payment in full of
all Obligations shall be paid to Collateral Agent as provided in
said Section 2(b) or, after payment in full of all Secured
Obligations, shall be paid over to Pledgor or to whomever may be
lawfully entitled to receive such surplus.
(b) Subject to the provisions of Section 2(b), any cash
held by Collateral Agent as Collateral and all cash proceeds
received by Collateral Agent in respect of any sale of, collec-
tion from, or other realization upon all or any part of the
Collateral shall be applied (after payment of any amounts payable
to Collateral Agent or Administrative Agent pursuant to
Section 14) by Collateral Agent to pay the Secured Obligations as
provided in Section 3 of the Intercreditor Agreement. Any
surplus of such cash or cash proceeds held by Collateral Agent
and remaining after payment in full of all Secured Obligations
shall be paid over to whomsoever may be lawfully entitled to
receive such surplus.
SECTION 14. EXPENSES. Pledgor will pay to
Administrative Agent and Collateral Agent upon demand the amount
of any and all costs and expenses, including the reasonable fees
and expenses of its counsel and of any experts and agents, that
Administrative Agent or Collateral Agent, as the case may be, may
incur in connection with (i) the custody or preservation of, or
the sale of, collection from, or other realization upon, any of
the Collateral, (ii) the exercise or enforcement of any of the
rights of Administrative Agent and Collateral Agent hereunder, or
(iii) the failure by Pledgor to perform or observe any of the
provisions hereof.
SECTION 15. CONTINUING SECURITY INTEREST; TRANSFER OF
NOTES. This Agreement shall create a continuing security
interest in the Collateral and shall (a) remain in full force and
effect until the indefeasible payment in full of the Secured
Obligations, the cancellation or termination of the Revolving
Loan Commitments and the cancellation or expiration of all
outstanding Domestic Letters of Credit, (b) be binding upon
Pledgor, its successors and assigns, and (c) inure, together with
the rights and remedies of Administrative Agent and Collateral
Agent hereunder, to the benefit of each of Administrative Agent,
Collateral Agent, Lenders and the other Secured Parties and its
successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), but subject to the
provisions of subsections 9.2 and 9.17 of the Credit Agreement,
any Lender may assign or otherwise transfer any Notes held by it
to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to
Lenders herein or otherwise. Upon the indefeasible payment in
full of all Secured Obligations, the cancellation or termination
of the Revolving Loan Commitments and the cancellation or
expiration of all outstanding Domestic Letters of Credit, the
security interest granted hereby shall terminate and all rights
to the Collateral shall revert to Pledgor. Upon any such
termination Administrative Agent and Collateral Agent will, at
Pledgor's expense, execute and deliver to Pledgor such documents
as Pledgor shall reasonably request to evidence such termination
and Pledgor shall be entitled to the return, upon its request and
XII-A-7
at its expense, against receipt and without recourse to
Administrative Agent or Collateral Agent, of such of the
Collateral as shall not have been sold or otherwise applied
pursuant to the terms hereof.
SECTION 16. RESIGNATION OR REMOVAL. Administrative
Agent shall, at all times, be the same Person which is
Administrative Agent under the Credit Agreement and Collateral
Agent shall, at all times, be the same Person which is Collateral
Agent under the Intercreditor Agreement. Written notice of
resignation by Administrative Agent pursuant to subsection 8.6 of
the Credit Agreement shall also constitute notice of resignation
under this Agreement; removal of Administrative Agent pursuant to
subsection 8.6 of the Credit Agreement shall also constitute
removal under this Agreement; and appointment of a successor
Administrative Agent pursuant to subsection 8.6 of the Credit
Agreement shall also constitute appointment of a successor
Administrative Agent under this Agreement. Written notice of
resignation by Collateral Agent pursuant to the terms of the
Intercreditor Agreement shall also constitute notice of
resignation under this Agreement; removal of Collateral Agent
pursuant to the terms of the Intercreditor Agreement shall also
constitute removal under this Agreement; and appointment of a
successor Collateral Agent pursuant to the Intercreditor
Agreement shall also constitute appointment of a successor
Collateral Agent under this Agreement. Upon the acceptance of
any appointment as Administrative Agent under subsection 8.6 of
the Credit Agreement by a successor Administrative Agent, or as
Collateral Agent under the Intercreditor Agreement by a successor
Collateral Agent, that successor Administrative Agent or
Collateral Agent, as the case may be, shall thereupon succeed to
and become vested with all the rights, powers, privileges and
duties of the retiring or removed Administrative Agent or
Collateral Agent under this Agreement, and the retiring or
removed Administrative Agent or Collateral Agent under this
Agreement shall promptly deliver to such successor Administrative
Agent or Collateral Agent, as the case may be, all sums and
securities held hereunder, together with all records and other
documents necessary or appropriate in connection with the
performance of the duties of the successor Administrative Agent
or Collateral Agent as depository under this Agreement, whereupon
such retiring or removed Administrative Agent or Collateral
Agent, as the case may be, shall be discharged from its duties
and obligations under this Agreement. After any retiring or
removed Administrative Agent's or Collateral Agent's resignation
or removal hereunder as Administrative Agent or Collateral Agent,
as the case may be, the provisions of Sections 11 and 14 hereof
shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent or Collateral
Agent under this Agreement.
SECTION 17. AMENDMENTS; ETC. No amendment or waiver of
any provision of this Agreement, or consent to any departure by
Pledgor herefrom, shall in any event be effective unless the same
shall be in writing and signed by Administrative Agent and
Collateral Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which it was given.
SECTION 18. NOTICES. 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 courier service and shall be deemed to have been
given when delivered in person or by courier service, upon
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. For the purposes
hereof, the address of each party hereto shall be as set forth
under such party's name on the signature pages hereof or, as to
XII-A-8
either party, such other address as shall be designated by such
party in a written notice delivered to the other party hereto.
SECTION 19. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES
CUMULATIVE. No failure or delay on the part of Administrative
Agent or Collateral Agent in the exercise of any power, right or
privilege hereunder 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 any other or further exercise
thereof or of any other power, right or privilege. All rights
and remedies existing under this Agreement are cumulative to, and
not exclusive of, any rights or remedies otherwise available.
SECTION 20. SEVERABILITY. 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.
SECTION 21. 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.
SECTION 22. GOVERNING LAW; TERMS. THIS AGREEMENT 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, EXCEPT TO
THE EXTENT THAT THE CODE PROVIDES THAT THE PERFECTION OF THE
SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF
ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK. Unless otherwise
defined herein or in the Credit Agreement, terms used in Article
9 of the Uniform Commercial Code in the State of New York are
used herein as therein defined.
SECTION 23. WAIVER OF JURY TRIAL. PLEDGOR,
ADMINISTRATIVE AGENT AND COLLATERAL AGENT HEREBY AGREE TO WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of
this waiver is intended to be all-encompassing of any and all
disputes that may be filed in any court and that relate to the
subject matter of this transaction, including without limitation
contract claims, tort claims, breach of duty claims, and all
other common law and statutory claims. Pledgor, Administrative
Agent and Collateral Agent each acknowledge that this waiver is a
material inducement for Pledgor, Administrative Agent and
Collateral Agent to enter into a business relationship, that
Pledgor, Administrative Agent and Collateral Agent have 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. Pledgor, Administrative Agent and Collateral Agent
further warrant and represent that each has reviewed this waiver
with its legal counsel, and that each 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
XII-A-9
MODIFICATIONS TO THIS AGREEMENT. In the event of litigation,
this Agreement may be filed as a written consent to a trial by
the court.
SECTION 24. COUNTERPARTS. 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.
[Remainder of page intentionally left blank]
XII-A-10
IN WITNESS WHEREOF, Pledgor, Administrative Agent and
Collateral Agent have caused this Agreement to be duly executed
and delivered by their respective officers thereunto duly
authorized as of the date first above written.
▇▇▇▇▇-ILLINOIS, INC.
By:_________________________
Title:_______________________
Notice Address:
___________________________
___________________________
BANKERS TRUST COMPANY, as
Administrative Agent and Collateral Agent
By:__________________________
Title:________________________
Notice Address:
____________________________
____________________________
XII-A-S-1
EXHIBIT XII-B
[FORM OF]
ACQUISITION NEWCO COLLATERAL ACCOUNT AGREEMENT
This ACQUISITION NEWCO COLLATERAL ACCOUNT AGREEMENT
(this "AGREEMENT") is dated as of ___________, 199_ and entered
into by and between [ACQUISITION NEWCO], a ___________
corporation ("PLEDGOR"), and BANKERS TRUST COMPANY, as
administrative agent for and representative of (in such capacity,
"ADMINISTRATIVE AGENT") the financial institutions ("LENDERS")
party to the Credit Agreement (as hereinafter defined).
PRELIMINARY STATEMENTS
A. Lenders, the Lenders named as Lead Managers and Co-
Agents therein, Bank of America National Trust and Savings
Association, as Documentation Agent, and Administrative Agent
have entered into the Refinancing Credit Agreement dated as of
November 19, 1996 (said Refinancing Credit Agreement, as it may
hereafter be amended, amended and restated, 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) with ▇▇▇▇▇-Illinois,
Inc. (to which Credit Agreement Pledgor has become a party by
executing a counterpart thereof), pursuant to which BofA and
Lenders have made certain commitments, subject to the terms and
conditions set forth in the Credit Agreement, to issue Foreign
Letters of Credit for the account of Pledgor (any such Foreign
Letters of Credit being referred to herein as "PLEDGOR LETTERS OF
CREDIT") and to purchase participations therein.
B. It is a condition precedent to the issuance of
Pledgor Letters of Credit under the Credit Agreement that Pledgor
shall have executed and delivered to Administrative Agent a copy
of this Agreement.
NOW, THEREFORE, in consideration of the premises and in
order to induce BofA to issue Pledgor Letters of Credit and to
induce Lenders to purchase participations therein and for other
good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Pledgor hereby agrees with
Administrative Agent as follows:
SECTION 1. DEFINITIONS. The following terms used in
this Agreement shall have the following meanings:
"CASH EQUIVALENTS" means, as at any date of
determination, (i) marketable securities issued or directly and
unconditionally guaranteed 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 thirty
(30) days from such date; (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 thirty (30) days from
such date and, at the time of acquisition thereof, having the
XII-B-1
highest rating obtainable from either S&P or ▇▇▇▇▇'▇; (iii)
commercial paper maturing no more than thirty (30) days from such
date and, at the time of acquisition thereof, having the highest
rating obtainable from either S&P or ▇▇▇▇▇'▇; and (iv)
certificates of deposit or bankers' acceptances maturing within
thirty (30) days from such date issued by any Lender.
"COLLATERAL" means (i) the Collateral Account and all
amounts from time to time on deposit therein, (ii) all
Investments, including all certificates and instruments from time
to time representing or evidencing such Investments and any
account or accounts in which such Investments may be held by, or
in the name of, Administrative Agent for or on behalf of Pledgor,
(iii) all notes, certificates of deposit, checks and other
instruments and all deposits and uncertificated securities from
time to time hereafter transferred to or otherwise possessed by,
or held in the name of, Administrative Agent for or on behalf of
Pledgor in substitution for or in addition to any or all of the
Collateral, (iv) all interest, dividends, 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 Collateral, and (v) to the extent not covered by clauses
(i) through (iv) above, all proceeds of any or all of the
foregoing Collateral.
"COLLATERAL ACCOUNT" means the deposit account
established and maintained by Pledgor with Administrative Agent
pursuant to Section 2.
"INVESTMENTS" means those investments, if any, made by
Administrative Agent pursuant to Section 5.
"SECURED OBLIGATIONS" means all Obligations of Pledgor .
"SECURED PARTIES" means Agents and Lenders.
SECTION 2. COLLATERAL ACCOUNT.
(a) Pledgor hereby authorizes and directs
Administrative Agent to establish and maintain at its office at
One Bankers Trust Plaza, New York, New York, as a blocked account
in the name of Pledgor but under the sole dominion and control of
Administrative Agent, a deposit account (account number _____)
designated as "BT Co., as Administrative Agent for [Insert name
of Acquisition Newco] Cash Collateral Account".
(b) In accordance with Section 7 of the Credit
Agreement, if an Event of Default has occurred and is continuing
and Pledgor is required to pay to Administrative Agent an amount
(the "AGGREGATE AVAILABLE AMOUNT") equal to the maximum amount
that may at any time be drawn under all Pledgor Letters of Credit
then outstanding, Administrative Agent shall, upon receipt of any
amounts which are allocable to the amounts then due under the
Credit Agreement which are described above, deposit such amounts
in the Collateral Account; provided that, if the aggregate amount
delivered by Pledgor and/or Collateral Agent to Administrative
Agent for deposit in the Collateral Account as aforesaid is less
than the Aggregate Available Amount, the aggregate amount so
delivered by Pledgor and/or Collateral Agent to Administrative
Agent shall be apportioned among all outstanding Pledgor Letters
of Credit for purposes of this Section 2(b) in accordance with
the ratio of the maximum amount available for drawing under each
such Pledgor Letter of Credit (as to such Pledgor Letter of
Credit, the "MAXIMUM AVAILABLE AMOUNT") to the Aggregate
Available Amount. Upon any drawing under any outstanding Pledgor
XII-B-2
Letter of Credit in respect of which Administrative Agent has
deposited in the Collateral Account any amounts described above,
Administrative Agent shall apply such amounts to reimburse the
respective Issuing Lender for the amount of such drawing. In the
event of cancellation or expiration of any Pledgor Letter of
Credit in respect of which Administrative Agent has deposited in
the Collateral Account any amounts described above, or in the
event of any reduction in the Maximum Available Amount under such
Pledgor Letter of Credit, Administrative Agent shall apply the
amount then on deposit in the Collateral Account in respect of
such Pledgor Letter of Credit less such Maximum Available Amount
immediately after such cancellation, expiration or reduction
first, to the cash collateralization pursuant to the terms of
this Agreement of any outstanding Pledgor Letters of Credit in
respect of which all or a portion of the amounts described above
have not been deposited in the Collateral Account, and second, to
the extent of any excess, to the payment of any outstanding
Secured Obligations.
(c) Anything contained in this Agreement to the
contrary notwithstanding, any interest received in respect of
Investments of any amounts deposited in the Collateral Account
pursuant to Section 2(b) shall be delivered by Administrative
Agent to Pledgor on the last Business Day of each calendar month
or, if earlier, upon cancellation or expiration of or drawing
under all Pledgor Letters of Credit in respect of which such
amounts were deposited in the Collateral Account hereunder;
provided that Administrative Agent shall not deliver to Pledgor
any such interest received in respect of Investments of any
amounts deposited in the Collateral Account pursuant to Section
2(b) unless all outstanding Secured Obligations have been
indefeasibly paid in full or cash collateralized pursuant to the
terms of this Agreement.
SECTION 3. PLEDGE OF SECURITY FOR SECURED OBLIGATIONS.
Pledgor hereby pledges and assigns to Administrative Agent for
the benefit of Lenders and the other Secured Parties, and hereby
grants to Administrative Agent for the benefit of Lenders and the
other Secured Parties a security interest in, all of Pledgor's
right, title and interest in and to the Collateral as collateral
security for the prompt payment or performance in full when due,
whether at stated maturity, by acceleration or otherwise, of all
Secured Obligations.
SECTION 4. DELIVERY OF PLEDGED COLLATERAL. All
certificates or instruments, if any, representing or evidencing
the Collateral shall be delivered to and held by or on behalf of
Administrative Agent pursuant hereto and shall be in suitable
form for transfer by delivery or, as applicable, shall be
accompanied by Pledgor's endorsement, where necessary, or duly
executed instruments of transfer or assignment in blank, all in
form and substance reasonably satisfactory to Administrative
Agent. In the event any Collateral is not evidenced by a
certificate, a notation reflecting title in the name of
Administrative Agent or the security interest of Administrative
Agent shall be made in the records of the issuer of such
Collateral or in such other appropriate records as Administrative
Agent may require, all in form and substance reasonably
satisfactory to Administrative Agent. Administrative Agent shall
have the right, at any time without notice to Pledgor, to
transfer to or to register in the name of Administrative Agent or
any of its nominees any or all of the Collateral. In addition,
Administrative Agent shall have the right at any time to exchange
certificates or instruments representing or evidencing Collateral
for certificates or instruments of smaller or larger
denominations.
XII-B-3
SECTION 5. INVESTMENT OF AMOUNTS IN THE COLLATERAL
ACCOUNT. Cash held by Administrative Agent in the Collateral
Account shall not be invested or reinvested except as provided in
this Section 5.
(a) Except as otherwise provided in Section 13, any
funds on deposit in the Collateral Account shall be invested by
Administrative Agent in its own name (i) in call deposits of
Lenders that shall be available in the London interbank market or
(ii) in Cash Equivalents.
(b) Administrative Agent is hereby authorized to sell,
and shall sell, all or any designated part of the securities
constituting part of the Collateral if such sale is necessary to
permit Administrative Agent to perform its duties hereunder.
Administrative Agent shall have no responsibility for any loss
resulting from a fluctuation in interest rates or otherwise.
Subject to the provisions of Section 2(c), any interest received
in respect of securities constituting part of the Collateral and
the net proceeds of the sale or payment of any such securities
shall be held in the Collateral Account by Administrative Agent
pending investment thereof pursuant to Section 5(a).
(c) The Collateral Account shall be subject to such
applicable laws, and such applicable regulations of the Board of
Governors of the Federal Reserve System and of any other
appropriate banking or governmental authority, as may now or
hereafter be in effect.
SECTION 6. REPRESENTATIONS AND WARRANTIES. Pledgor
represents and warrants as follows:
(a) Ownership of Collateral. Pledgor is (or at the
time of transfer to Administrative Agent thereof will be) the
legal and beneficial owner of the Collateral from time to time
transferred by Pledgor to Administrative Agent, free and clear of
any Lien except for the security interest created by this
Agreement.
(b) Perfection. The pledge and assignment of the
Collateral pursuant to this Agreement creates a valid and
perfected first priority security interest in the Collateral,
securing the payment of the Secured Obligations.
(c) Other Information. All information heretofore,
herein or hereafter supplied to Administrative Agent by or on
behalf of Pledgor with respect to the Collateral is accurate and
complete in all respects.
SECTION 7. FURTHER ASSURANCES. Pledgor agrees that
from time to time, at the expense of Pledgor, Pledgor will
promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary, or
that Administrative Agent may reasonably request, in order to
perfect and protect any security interest granted or purported to
be granted hereby or to enable Administrative Agent to exercise
and enforce its rights and remedies hereunder with respect to any
Collateral. Without limiting the generality of the foregoing,
Pledgor will: (i) execute and file such financing or
continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary, or as Administrative
Agent may reasonably request, in order to perfect and preserve
the security interests granted or purported to be granted hereby
and (ii) at Administrative Agent's request, appear in and defend
any action or proceeding that may affect Pledgor's title to or
Administrative Agent's security interest in all or any part of
the Collateral.
XII-B-4
SECTION 8. TRANSFERS AND OTHER LIENS. Pledgor agrees
that it will not (a) sell, assign (by operation of law or
otherwise) or otherwise dispose of any of the Collateral or (b)
create or suffer to exist any Lien upon or with respect to any of
the Collateral, except for the security interest under this
Agreement.
SECTION 9. ADMINISTRATIVE AGENT APPOINTED
ATTORNEY-IN-FACT. Pledgor hereby irrevocably appoints
Administrative Agent as Pledgor's attorney-in-fact, with full
authority in the place and stead of Pledgor and in the name of
Pledgor or otherwise, from time to time in Administrative Agent's
reasonable discretion to take any action and to execute any
instrument that Administrative Agent may deem necessary or
advisable to accomplish the purposes of this Agreement, including
without limitation (a) if Pledgor fails to do so following
Administrative Agent's request pursuant to Section 7 hereof, to
file one or more financing or continuation statements, or
amendments thereto, relative to all or any part of the Collateral
without the signature of Pledgor and (b) to receive, endorse and
collect any instruments made payable to Pledgor representing any
dividend, principal or interest payment or other distribution in
respect of the Collateral or any part thereof and to give full
discharge for the same.
SECTION 10. ADMINISTRATIVE AGENT MAY PERFORM. If
Pledgor fails to perform any agreement contained herein, after
notice to Pledgor, Administrative Agent may itself perform, or
cause performance of, such agreement, and the expenses of
Administrative Agent incurred in connection therewith shall be
payable by Pledgor under Section 14.
SECTION 11. STANDARD OF CARE. The powers conferred on
Administrative Agent hereunder are solely to protect its
interests in the Collateral and shall not impose any duty upon it
to exercise any such powers. Except for the exercise of
reasonable care in the custody of any Collateral in its
possession and the accounting for moneys actually received by it
hereunder, Administrative Agent shall have no duty as to any
Collateral, it being understood that Administrative Agent shall
have no responsibility for (a) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or
other matters relating to any Collateral, whether or not
Administrative Agent has or is deemed to have knowledge of such
matters, (b) taking any necessary steps (other than steps taken
in accordance with the standard of care set forth above to
maintain possession of the Collateral) to preserve rights against
any parties with respect to any Collateral, (c) taking any
necessary steps to collect or realize upon the Secured
Obligations or any guarantee therefor, or any part thereof, or
any of the Collateral, (d) initiating any action to protect the
Collateral against the possibility of a decline in market value,
(e) any loss resulting from Investments made pursuant to Section
5, except for a loss resulting from Administrative Agent's gross
negligence or willful misconduct in complying with Section 5, or
(f) determining whether any deposit in the Collateral Account is
proper. Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of Collateral in
its possession if such Collateral is accorded treatment
substantially equal to that which Administrative Agent accords
its own property consisting of negotiable securities.
SECTION 12. REMEDIES. If any Event of Default shall
have occurred and be continuing, Administrative Agent may
exercise in respect of the Collateral, in addition to all 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 as in effect in any relevant
jurisdiction (the "CODE") (whether or not the Code applies to the
affected Collateral), and Administrative Agent may also, without
notice except as specified below, sell the Collateral or any part
XII-B-5
thereof in one or more parcels at public or private sale, at any
exchange or broker's board or at any of Administrative Agent's
offices or elsewhere, for cash, on credit or for future delivery,
at such time or times and at such price or prices and upon such
other terms as Administrative Agent may deem commercially
reasonable, irrespective of the impact of any such sales on the
market price of the Collateral. Each purchaser at any such sale
shall hold the property sold absolutely free from any claim or
right on the part of Pledgor, and Pledgor hereby waives (to the
extent permitted by applicable 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. Pledgor agrees that, to the extent notice of
sale shall be required by law, at least ten days' notice to
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. Administrative Agent shall not be
obligated to make any sale of Collateral regardless of notice of
sale having been given. Administrative 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.
SECTION 13. APPLICATION OF PROCEEDS. Subject to the
provisions of Section 2(b), any cash held by Administrative Agent
and all cash proceeds received by Administrative Agent in respect
of any sale of, collection from, or other realization upon all or
any part of the Collateral shall be applied (after payment of any
amounts payable to Administrative Agent pursuant to Section 14)
by Administrative Agent to pay the Secured Obligations as
provided in Section 2(b) of this Agreement. Any surplus of such
cash or cash proceeds held by Administrative Agent and remaining
after payment in full of all Secured Obligations shall be paid
over to Pledgor or to whomever may be lawfully entitled to
receive such surplus.
SECTION 14. EXPENSES. Pledgor will pay to
Administrative Agent upon demand the amount of any and all costs
and expenses, including the reasonable fees and expenses of its
counsel and of any experts and agents, that Administrative Agent
may incur in connection with (i) the custody or preservation of,
or the sale of, collection from, or other realization upon, any
of the Collateral, (ii) the exercise or enforcement of any of the
rights of Administrative Agent hereunder, or (iii) the failure by
Pledgor to perform or observe any of the provisions hereof.
SECTION 15. CONTINUING SECURITY INTEREST; TRANSFER OF
NOTES. This Agreement shall create a continuing security
interest in the Collateral and shall (a) remain in full force and
effect until the indefeasible payment in full of the Secured
Obligations and the cancellation or expiration of all outstanding
Pledgor Letters of Credit and any remaining obligations to issue
Pledgor Letters of Credit, (b) be binding upon Pledgor, its
successors and assigns, and (c) inure, together with the rights
and remedies of Administrative Agent hereunder, to the benefit of
each of Administrative Agent and the other Secured Parties and
their respective successors, transferees and assigns. Without
limiting the generality of the foregoing clause (c), but subject
to the provisions of subsections 9.2 and 9.17 of the Credit
Agreement, any Lender may assign or otherwise transfer any Notes
held by it to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof
granted to Lenders herein or otherwise. Upon the indefeasible
payment in full of all Secured Obligations and the cancellation
or expiration of all outstanding Pledgor Letters of Credit and
any remaining obligations to issue Pledgor Letters of Credit, the
security interest granted hereby shall terminate and all rights
to the Collateral shall revert to Pledgor. Upon any such
XII-B-6
termination Administrative Agent will, at Pledgor's expense,
execute and deliver to Pledgor such documents as Pledgor shall
reasonably request to evidence such termination and Pledgor shall
be entitled to the return, upon its request and at its expense,
against receipt and without recourse to Administrative Agent, of
such of the Collateral as shall not have been sold or otherwise
applied pursuant to the terms hereof.
SECTION 16. RESIGNATION OR REMOVAL. Administrative
Agent shall, at all times, be the same Person which 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 resigna-
tion under this Agreement; removal of Administrative Agent
pursuant to subsection 8.6 of the Credit Agreement shall also
constitute removal under this Agreement; and appointment of a
successor Administrative Agent pursuant to subsection 8.6 of the
Credit Agreement shall also constitute appointment of a successor
Administrative Agent under this Agreement. Upon the acceptance
of any appointment as Administrative Agent under subsection 8.6
of the Credit Agreement 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 under this
Agreement, and the retiring or removed Administrative Agent under
this Agreement shall promptly deliver to such successor
Administrative Agent all sums and securities held hereunder,
together with all records and other documents necessary or
appropriate in connection with the performance of the duties of
the successor Administrative Agent as depository under this
Agreement, whereupon such retiring or removed Administrative
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring or removed Administrative
Agent's resignation or removal hereunder as Administrative Agent,
the provisions of Sections 11 and 14 hereof 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.
SECTION 17. AMENDMENTS; ETC. No amendment or waiver of
any provision of this Agreement, or consent to any departure by
Pledgor herefrom, shall in any event be effective unless the same
shall be in writing and signed by Administrative Agent, and then
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
SECTION 18. NOTICES. 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 courier service and shall be deemed to have been
given when delivered in person or by courier service, upon
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. For the purposes
hereof, the address of each party hereto shall be as set forth
under such party's name on the signature pages hereof or, as to
either party, such other address as shall be designated by such
party in a written notice delivered to the other party hereto.
SECTION 19. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES
CUMULATIVE. No failure or delay on the part of Administrative
Agent in the exercise of any power, right or privilege hereunder
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 any other or further exercise thereof or of any other
power, right or privilege. All rights and remedies existing
under this Agreement are cumulative to, and not exclusive of, any
XII-B-7
rights or remedies otherwise available.
SECTION 20. SEVERABILITY. 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.
SECTION 21. 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.
SECTION 22. GOVERNING LAW; TERMS. THIS AGREEMENT 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, EXCEPT TO
THE EXTENT THAT THE CODE PROVIDES THAT THE PERFECTION OF THE
SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF
ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK. Unless otherwise
defined herein or in the Credit Agreement, terms used in Article
9 of the Uniform Commercial Code in the State of New York are
used herein as therein defined.
SECTION 23. CONSENT TO JURISDICTION AND SERVICE OF
PROCESS. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST PLEDGOR
ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT IN
ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE
OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT
PLEDGOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF
THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. Pledgor
hereby 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 Pledgor at its address provided in
Section 18, such service being hereby acknowledged by Pledgor to
be sufficient for personal jurisdiction in any action against
Pledgor in any such court and to be otherwise effective and
binding service in every respect. Nothing herein shall affect
the right to serve process in any other manner permitted by law
or shall limit the right of Secured Party to bring proceedings
against Pledgor in the courts of any other jurisdiction.
SECTION 24. WAIVER OF JURY TRIAL. PLEDGOR AND
ADMINISTRATIVE AGENT HEREBY AGREE TO WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may
be filed in any court and that relate to the subject matter of
this transaction, including without limitation contract claims,
tort claims, breach of duty claims, and all other common law and
statutory claims. Pledgor and Administrative Agent each
acknowledge that this waiver is a material inducement for Pledgor
and Administrative Agent to enter into a business relationship,
that Pledgor and Administrative Agent have already relied on this
XII-B-8
waiver in entering into this Agreement and that each will
continue to rely on this waiver in their related future dealings.
Pledgor and Administrative Agent further warrant and represent
that each has reviewed this waiver with its legal counsel, and
that each 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. In the event of litigation, this Agreement may be
filed as a written consent to a trial by the court.
SECTION 25. COUNTERPARTS. 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.
[Remainder of page intentionally left blank]
XII-B-9
IN WITNESS WHEREOF, Pledgor and Administrative Agent
have caused this Agreement to be duly executed and delivered by
their respective officers thereunto duly authorized as of the
date first above written.
___________________________
[Acquisition Newco]
By:_________________________
Title:______________________
Notice Address:
___________________________
___________________________
BANKERS TRUST COMPANY, as
Administrative Agent
By:__________________________
Title:________________________
Notice Address:
____________________________
____________________________
XII-B-S-1
EXHIBIT XIII
[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 November 19, 1996, by ▇▇▇▇▇-ILLINOIS, INC., a
Delaware corporation ("GUARANTOR"), in favor of and for the
benefit of BANKERS TRUST COMPANY, as Administrative Agent for and
representative of (in such capacity herein called the
"ADMINISTRATIVE AGENT") the lenders ("LENDERS") party to the
Credit Agreement (as hereinafter defined) (collectively, the
"GUARANTIED PARTIES").
R E C I T A L S
WHEREAS, Guarantor, Lenders, the Lenders named as Lead
Managers and Co-Agents, Bank of America National Trust and
Savings Association, as Documentation Agent, and Administrative
Agent have entered into that certain Refinancing Credit Agreement
dated as of November 19, 1996 (said Refinancing Credit Agreement,
as it may hereafter be amended, amended and restated or otherwise
modified from time to time, being the "CREDIT AGREEMENT";
capitalized terms defined therein and not otherwise defined
herein being used herein as therein defined) pursuant to which
Lenders have agreed to provide certain credit facilities to
Company and Acquisition Newcos for the purpose of, among other
things, providing for the issuance of Foreign Letters of Credit
for the account of Acquisition Newcos as part of the financing
for the Genie Acquisition.
WHEREAS, Company desires to guaranty any Obligations of
Acquisition Newcos in respect of Foreign Letters of Credit; and
WHEREAS, Lenders have required that this Guaranty be
executed and delivered by Guarantor at or prior to the making of
the initial Loans under the 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, Guarantor hereby agrees as
follows:
Guarantor hereby unconditionally guaranties the due and
punctual payment of all Obligations of Acquisition Newcos in
respect of any Foreign Letters of Credit, in each case when the
same shall become due (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. Section 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, Agents or Lenders in enforcing 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
XIII-1
this Guaranty notwithstanding any extension, renewal or other
alteration of any Guarantied Obligation.
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, any Agent or
any other Person to assert any claim or demand or to enforce
any right or remedy against Acquisition Newcos under the
provisions of the Credit Agreement or any other Loan
Document 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 the Credit Agreement,
any other Loan Document 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 Agent or any other Person for
any of the Guarantied Obligations, or
(e) the failure of any Guarantied Party, Collateral
Agent, any 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 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 Agent or
any other Person in favor of any Acquisition Newco 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 Acquisition Newco 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 Agent or any other Person to assert
any claim or demand or to enforce any remedy under the Credit
Agreement, any other Loan Document 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 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
XIII-2
Guarantied Party, Collateral Agent, any Agent or any other Person
upon the bankruptcy or reorganization of any Acquisition Newco,
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, any Agent or any other Person may have at law
or in equity against Guarantor by virtue hereof, upon the failure
of any Acquisition Newco 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. Section
362(a)), Guarantor will forthwith pay, or cause to be paid, in
cash, to Administrative 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 any Acquisition Newco,
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 Administrative Agent:
First, to the payment of the costs and expenses of any
collection or other realization under this Guaranty,
including reasonable compensation to Administrative Agent
and its agents and counsel, and all expenses, liabilities
and advances made or incurred by Administrative Agent in
connection therewith;
Second, to the payment of all other Guarantied
Obligations in such order as Administrative Agent may
specify; 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;
provided that, anything contained herein or in any of the other
Loan Documents to the contrary notwithstanding, Guarantor and
Administrative Agent hereby agree that, in the event any payments
by Guarantor hereunder are to be applied in respect of any
Obligations of any Acquisition Newco to cash collateralize any
outstanding Foreign Letter of Credit, (i) Guarantor hereby
authorizes and directs Administrative Agent to deposit (and
Administrative Agent shall deposit) such payments in the
Acquisition Newco Collateral Account Agreement of such
Acquisition Newco, (ii) Guarantor hereby irrevocably designates
any such amounts so deposited in such Acquisition Newco
Collateral Account Agreement as capital contributions to such
Acquisition Newco, and (iii) Guarantor shall have no further
ownership interest in any such amounts, which shall thereafter be
the sole property of such Acquisition Newco, subject to the Lien
of such Acquisition Newco Collateral Account Agreement.
Guarantor hereby waives any claim, right or remedy,
direct or indirect, that Guarantor now has or may hereafter have
against any Acquisition Newco 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
of subrogation, reimbursement or indemnification that Guarantor
XIII-3
now has or may hereafter have against any Acquisition Newco, (b)
any right to enforce, or to participate in, any claim, right or
remedy that Administrative Agent or any Guarantied Party now has
or may hereafter have against any Acquisition Newco, and (c) any
benefit of, and any right to participate in, any collateral or
security now or hereafter held by Collateral Agent,
Administrative Agent or any Guarantied Party. In addition, until
the Guarantied Obligations shall have been indefeasibly paid in
full and the Revolving Loan Commitments shall have terminated and
all Foreign Letters of Credit shall have expired or been
cancelled, Guarantor shall withhold exercise of any right of
contribution Guarantor may have against any other guarantor of
the Guarantied Obligations (including without limitation any such
right of contribution hereunder) 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 Acquisition Newco
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 Administrative
Agent or any Guarantied Party may have against such Acquisition
Newco, to all right, title and interest Collateral Agent or
Administrative Agent or any Guarantied Party may have in any such
collateral or security, and to any right Collateral Agent or
Administrative 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 Administrative Agent on behalf
of Guarantied Parties and shall forthwith be paid over to
Administrative 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 or
Administrative 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 under the
Credit Agreement. 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 Administrative Agent in accordance with
the terms of the Credit 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 Administrative Agent and Guarantied
Parties and, in the event of any transfer or assignment of rights
by Administrative Agent or any Guarantied Party, the rights and
privileges herein conferred upon Administrative Agent and
Guarantied Parties shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and
conditions hereof.
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
XIII-4
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
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 upon the execu-
tion of a counterpart hereof by Guarantor and receipt by
Administrative Agent of written or telephonic notification of
such execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
XIII-5
IN WITNESS WHEREOF, the undersigned Guarantor has caused
this Guaranty to be duly executed as of the day and year first
written above.
▇▇▇▇▇-ILLINOIS, INC.
By:
_______________________________
▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
Senior Vice President
ACCEPTED AND AGREED TO:
BANKERS TRUST COMPANY,
as Administrative Agent
By: __________________________
Title:
XIII-S-1
EXHIBIT XIV
[FORM OF]
O-I SUBSIDIARY GUARANTY
This O-I SUBSIDIARY GUARANTY (as amended, amended and
restated or otherwise modified from time to time, this
"GUARANTY") is entered into as of November 19, 1996, 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") party to the Current Credit Agreement
(as hereinafter defined), any Successor Lenders (as hereinafter
defined), any Lender (as hereinafter defined) party to the
Interest Rate Agreements and Currency Agreements referred to
below, and any Commercial Paper Representatives and Commercial
Paper Holders (as such terms are hereinafter defined)
(collectively, the "GUARANTIED PARTIES").
R E C I T A L S
WHEREAS, ▇▇▇▇▇-Illinois, Inc., a Delaware corporation
("COMPANY"), Current Lenders, the Current Lenders named as Lead
Managers and Co-Agents for Current Lenders, Bank of America
National Trust and Savings Association, as Documentation Agent
for Current Lenders, and Bankers Trust Company, as Administrative
Agent for Current Lenders ("CURRENT CREDIT AGENT"), have entered
into that certain Refinancing Credit Agreement dated as of
November 19, 1996 (said Refinancing 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 Company and Acquisition Newcos for
the purpose of, among other things, (i) refinancing all
outstanding Indebtedness under the Existing Credit Agreement,
(ii) providing financing for the Genie Acquisition, and
(iii) permitting Company to issue Commercial Paper as more fully
described below;
WHEREAS, the refinancing of Indebtedness referred to in
the immediately preceding recital will inure, in whole or in
part, to the benefit of Guarantors, and, in addition, it is
contemplated that certain proceeds of the Loans made to Company
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 Company are being incurred for and will inure to the benefit
of Guarantors (which benefits are hereby acknowledged);
WHEREAS, it is contemplated that, from time to time,
Current Lenders or other financial institutions (collectively,
"SUCCESSOR LENDERS") may enter into one or more agreements with
Company 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) or the Senior Debenture Indenture (said
XIV-1
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, notwithstanding the fact (as
more fully described in the Intercreditor Agreement) that any
agreement or instrument pursuant to which any Commercial Paper is
issued or evidencing any Commercial Paper Obligations (as
hereinafter defined) (collectively, the "COMMERCIAL PAPER
DOCUMENTS") could have constituted a Successor Credit Agreement,
in no event shall any Commercial Paper Document be deemed to be a
Successor Credit Agreement or a Credit Agreement; and provided,
further, 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 (collectively,
"SUCCESSOR CREDIT AGENTS") under any Successor Credit Agreements
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 Company may from time
to time enter into Interest Rate Agreements and Currency
Agreements with one or more Lenders as contemplated by subsection
6.4(vii) of the Current Credit Agreement, and Guarantors desire
to guaranty all the obligations of Company 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;
WHEREAS, Current Lenders have agreed, subject to the
terms and conditions set forth in the Current Credit Agreement,
to permit Company to issue Commercial Paper in an aggregate face
amount at any time outstanding not to exceed the amount specified
in the Current Credit Agreement to the extent that Company has
reserved unused a portion of the Commitments under the Current
Credit Agreement;
WHEREAS, it is contemplated that the Commercial Paper
Obligations (as hereinafter defined) will be incurred for and
will inure to, in whole or in part, the benefit of Guarantors;
WHEREAS, Guarantors desire to guaranty all obligations
of Company under any such Commercial Paper outstanding from time
to time (the "COMMERCIAL PAPER OBLIGATIONS") for the benefit of
any financial institutions initially purchasing such Commercial
Paper (each an "INITIAL COMMERCIAL PAPER HOLDER" and collectively
the "INITIAL COMMERCIAL PAPER HOLDERS") or appointed to act as
agent or representative for the holders from time to time of such
XIV-2
Commercial Paper (each a "COMMERCIAL PAPER REPRESENTATIVE" and
collectively the "COMMERCIAL PAPER REPRESENTATIVES"; provided
that in the event no such financial institution is appointed to
act as agent or representative for the holders of any Commercial
Paper, the Commercial Paper Holder in respect of such Commercial
Paper shall be deemed to be the Commercial Paper Representative
in respect of such Commercial Paper) and for the benefit of the
holders from time to time of such Commercial Paper (together with
the Initial Commercial Paper Holders, the "COMMERCIAL PAPER
HOLDERS");
WHEREAS, Current Lenders have required that this
Guaranty be executed and delivered by Guarantors at or prior to
the making of the initial Loans under the Current Credit
Agreement; and
WHEREAS, Company, Group, as guarantor, and The Bank of
New York, as trustee, have entered into an Indenture dated as of
December 15, 1991 (the "SENIOR DEBENTURE INDENTURE") pursuant to
which Company has issued $1,000,000,000 in aggregate principal
amount of senior debentures due 2003 (the "SENIOR DEBENTURES");
WHEREAS, each Guarantor other than Group (collectively,
the "COMMON GUARANTORS") has guarantied the obligations of
Company under the Senior Debenture Indenture and the Senior
Debentures issued thereunder pursuant to a Subsidiary Guaranty
substantially in the form of Exhibit E to the Senior Debenture
Indenture (each such Subsidiary Guaranty being a "SENIOR
DEBENTURE GUARANTY"; collectively, the "SENIOR DEBENTURE
GUARANTIES"); and
WHEREAS, in accordance with certain provisions of the
Senior Debenture Indenture, Current Lenders have agreed to modify
the maximum liability of each Common Guarantor hereunder during
any period in which such Common Guarantor is the obligor under a
Senior Debenture Guaranty or any other guaranty of any
Participating Indebtedness (as hereinafter defined);
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 unconditionally
guaranty the due and punctual payment of all Obligations, all
Successor Credit Agreement Obligations, all Interest Rate
Obligations, all Currency Obligations and all Commercial Paper
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. Section 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, Lenders, any Commercial Paper
Representative or any Commercial Paper Holder in enforcing 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; and provided,
further, that the guaranty hereunder and any other provisions of
this Guaranty shall be effective as to Commercial Paper
Obligations in respect of any Commercial Paper only if the
XIV-3
Commercial Paper Representative in respect of such Commercial
Paper 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 (but subject, however, to the provisions of the
next succeeding paragraph), the obligations of each 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 pursuant to which the liability
of such Guarantor hereunder is included in the liabilities taken
into account in determining such maximum amount) 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 or contribution of such Guarantor
pursuant to (i) applicable law or (ii) any agreement providing
for an equitable allocation among such Guarantor and other
affiliates of Company of obligations arising under guaranties by
such parties.
Anything contained in this Guaranty to the contrary
notwithstanding, at all times, if any, during which any Common
Guarantor is the obligor under a Senior Debenture Guaranty or any
other guaranty of any Participating Indebtedness (any such Common
Guarantor being, at all such times (and only at such times), a
"PARTICIPATING GUARANTOR") the provisions of the immediately
preceding paragraph shall be inapplicable as to such
Participating Guarantor, and each Common Guarantor hereby, and
each beneficiary under this Guaranty by accepting the benefits
hereof, confirms that it is its intention that the guaranty by
each Participating Guarantor pursuant to this Guaranty together
with each other guaranty by such Participating Guarantor of
Participating Indebtedness shall not constitute a fraudulent
transfer or conveyance for purposes of any applicable provisions
of Title 11 of the United States Code, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act, or any
similar federal or state law. To effectuate the foregoing
intent, the obligations of each Participating Guarantor under
this Guaranty and each other guaranty of Participating
Indebtedness shall be limited, collectively, to such maximum
amount as will, after giving effect to such maximum amount and
all other liabilities of such Participating Guarantor, contingent
or otherwise, that are relevant under such laws, and after giving
effect to any rights to contribution of such Participating
Guarantor pursuant to any agreement providing for an equitable
distribution among such Participating Guarantor and other
affiliates of Company of payments made under guaranties by such
parties, result in the obligations of such Participating
Guarantor in respect of such maximum amount not constituting a
fraudulent transfer or conveyance. Each beneficiary under this
Guaranty by accepting the benefits hereof confirms its intention
that, in the event of a bankruptcy, reorganization or other
similar proceeding of Company or any Participating Guarantor in
which concurrent claims are made upon such Participating
Guarantor hereunder and under any other guaranty of Participating
Indebtedness, to the extent such claims will not be fully
satisfied, each claimant with a valid claim against Company shall
be entitled to a ratable share of all payments by such
Participating Guarantor in respect of such concurrent claims.
For the purposes of this paragraph and this Guaranty,
"PARTICIPATING INDEBTEDNESS" means, as to any Common Guarantor,
XIV-4
any Indebtedness of Company that is guarantied by such Common
Guarantor pursuant to a guaranty (i) the incurrence of which is
not prohibited by the terms of any Credit Agreement or any
agreement governing any other Participating Indebtedness then
outstanding (or, if so prohibited by the terms of any Credit
Agreement or any such agreement, is permitted as a result of a
consent or waiver thereunder) and (ii) that contains a limitation
of liability and confirmation of intention regarding ratability
of payments on substantially the terms set forth in this
paragraph.
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 of 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 Guarantor under this Guaranty, determined as of such date in
accordance with the second preceding paragraph or the immediately
preceding paragraph, whichever is applicable; 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 or reimbursement 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:
XIV-5
(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
Company under the provisions of any Credit Agreement, any
other Loan Document, any Interest Rate Agreement, any
Currency Agreement or any Commercial Paper Document 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, any Commercial Paper Document 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.
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 Company 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, any Commercial Paper Document 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.
XIV-6
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.
Section 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 the
Collateral Agent:
First, to the payment of the costs and expenses of any
collection or other realization under this Guaranty,
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 Guarantied Obligations as
provided in Section 3 of the Intercreditor Agreement;
provided that in making such application to any Commercial
Paper Holder (or the Commercial Paper Representative in
respect of such Commercial Paper Holder) in respect of any
Commercial Paper Obligations, the Collateral Agent shall be
entitled to deduct from such Commercial Paper Holder's share
of such payments such Commercial Paper Holder's pro rata
share of all amounts that the Collateral Agent has been paid
by the Paying Indemnifying Parties (as defined in Section
7(c) of the Intercreditor Agreement) pursuant to Section
7(c) 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 Company 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 Company, (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 Company, 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 indefeasibly paid in
full and the Revolving Loan 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
XIV-7
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
Company 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 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; provided that no such
amendment, modification, termination, waiver or consent which
would reduce or adversely affect the right of the Commercial
Paper Representatives to request or direct the Collateral Agent
to take action as provided in Section 2(a) of the Intercreditor
Agreement shall in any event be effective as to the Commercial
Paper Holders or Commercial Paper Representatives in respect of
any Commercial Paper outstanding at the time of such amendment,
modification, termination, waiver or consent without the written
concurrence of the Commercial Paper Representatives in respect of
a majority in aggregate face amount of such outstanding
Commercial Paper. 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
XIV-8
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 O-I
Subsidiary 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.
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
with respect to this Guaranty may be brought in any state or
federal court of competent jurisdiction in the State of New York
and by execution and delivery of this Guaranty, each Guarantor
accepts for itself and in connection with its properties,
generally and unconditionally, the nonexclusive jurisdiction of
the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Guaranty. Each
Guarantor designates and appoints C T Corporation System, The
Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ and such other Persons as may hereafter be selected by
Guarantors irrevocably agreeing in writing to so serve, as their
agent to receive on their behalf service of all process in any
such proceedings in any such court, such service being hereby
acknowledged by each Guarantor to be effective and binding
service in every respect. A copy of any such process so served
shall be mailed by registered mail to each Guarantor at the
address of the Company provided in the Credit Agreement except
that, unless otherwise provided by applicable law, any failure to
mail such copy shall not affect the validity of service of
process. If any agent appointed by any Guarantor refuses to
accept service, each Guarantor hereby agrees that service upon it
by mail shall constitute sufficient notice. Nothing herein shall
affect the right of Collateral Agent to bring proceedings against
any Guarantor in the courts of any other jurisdiction.
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 parties hereto, as
additional Guarantors (each an "ADDITIONAL GUARANTOR"), by
executing a counterpart of this Guaranty. Upon delivery of any
XIV-9
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]
XIV-10
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.
▇▇▇▇▇-Illinois Group, Inc., ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging,
Inc. (formerly named "OI Glass Container FTS Inc."), OI Closure
FTS Inc., OI Plastic Products FTS Inc., O-I Health Care Holding
Corp. (formerly named "Health Care and Retirement Corporation"),
OI General FTS Inc., OI General Finance Inc., ▇▇▇▇▇-▇▇▇▇▇▇▇▇
Glass Container Inc. (formerly named "▇▇▇▇▇-Illinois Glass
Container Inc." and "OI Glass Container STS Inc."), OI ▇▇▇▇ STS
Inc., ▇▇▇▇▇-Illinois Closure Inc. (formerly named "OI Closure STS
Inc."), ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Plastic Products Inc., ▇▇▇▇▇-Illinois
Prescription Products Inc. (formerly named "OI Prescription
Products STS Inc."), ▇▇▇▇▇-Illinois Labels Inc., ▇▇▇▇▇-Illinois
General Inc. (formerly named "OI General STS Inc."), OI Castalia
STS Inc., OI Levis Park STS Inc., OI AID STS Inc. and Specialty
Packaging Licensing Company.
By:
_______________________________
▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
Vice President and Treasurer
of each of the foregoing
Guarantors
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:
BANKERS TRUST COMPANY,
as Collateral Agent
By: __________________________
Title:
______________________________
(Name of Additional Guarantor)
By: _________________________
Name: _________________________
Title: _________________________
XIV-S-1
EXHIBIT XV
[FORM OF]
COMPANY PLEDGE AGREEMENT
This FIFTH AMENDED AND RESTATED COMPANY PLEDGE AGREEMENT
(as amended, amended and restated or otherwise modified from time
to time, herein called "this AGREEMENT") is dated as of November
19, 1996, between ▇▇▇▇▇-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), the Foreign
Lenders (as hereinafter defined), the trustee (including any
successor, the "SENIOR DEBENTURE TRUSTEE") under the Senior
Debenture Indenture (as hereinafter defined), the Commercial
Paper Holders and the Commercial Paper Representatives (as such
terms are hereinafter defined), the trustee (including any
successor, the "SUBORDINATED DEBT TRUSTEE") under the
Subordinated Debt Indenture (as hereinafter defined), and amends
and restates the Fourth Amended and Restated Company Pledge
Agreement dated as of December 15, 1993 (the "EXISTING COMPANY
PLEDGE AGREEMENT") among the Pledgor and Bankers, as collateral
agent for and representative of the Lenders and the Senior Note
Trustee (as such terms are defined in the Existing Company Pledge
Agreement), the Interest Rate Exchangers, the Currency
Exchangers, the Foreign Lenders, the Senior Debenture Trustee,
the Subordinated Debt Trustee, the Commercial Paper Holders and
the Commercial Paper Representatives. 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. The Current Lenders (including certain of such
Current Lenders appointed as Managers for such Current Lenders)
and the Current Credit Agent (as such terms are defined in the
Existing Company Pledge Agreement) have entered into a
Refinancing Credit Agreement dated as of December 15, 1993 with
the Pledgor (said Refinancing Credit Agreement, as amended to the
date hereof, being the "EXISTING CREDIT AGREEMENT"), and the
obligations of the Pledgor under the Existing Credit Agreement
have been secured on a senior basis pursuant to the Existing
Company Pledge Agreement and the Existing Intercreditor Agreement
(such term being used herein as defined in the Intercreditor
Agreement (as hereinafter defined));
3. The Pledgor, ▇▇▇▇▇-Illinois Group, Inc., a Delaware
corporation ("GROUP"), as guarantor, and the Senior Debenture
Trustee have entered into an Indenture dated as of December 15,
1991 (the "SENIOR DEBENTURE INDENTURE") pursuant to which the
XV-1
Pledgor has issued $1,000,000,000 in aggregate principal amount
of 11% Senior Debentures Due 2003 (the "SENIOR DEBENTURES");
4. As more fully described in the recitals to the
Existing Company Pledge Agreement, the Indebtedness evidenced by
the Senior Debentures has been secured on a senior basis pursuant
to the Existing Company Pledge Agreement, subject to certain
limitations on the rights of the Senior Debenture Trustee under
the Existing Company Pledge Agreement and the Existing
Intercreditor Agreement with respect to decisions relating to the
exercise of remedies in respect of the Pledged Collateral (as
defined in the Existing Company Pledge Agreement) and other
matters, and the Pledgor desires that such Indebtedness continue
to be secured on a senior basis by the Pledged Collateral to the
same extent, and subject to the same limitations relative to the
other obligations secured by the Pledged Collateral (treating the
Current Credit Agreement for such purposes as being in all
respects the same as the Existing Credit Agreement), as under the
Existing Company Pledge Agreement and the Existing Intercreditor
Agreement; provided that, notwithstanding the foregoing, the
holders of any Senior Debentures and the Senior Debenture Trustee
shall only be entitled to the benefits of this Agreement if the
Senior Debenture Trustee shall have executed and delivered to the
Collateral Agent a counterpart of the Intercreditor Agreement;
5. The Pledgor and the Subordinated Debt Trustee have
entered into an Indenture dated as of April 1, 1992, together
with supplements thereto dated as of April 8, 1992, June 22,
1992, August 4, 1992, August 24, 1992 and October 8, 1992
(collectively, the "SUBORDINATED DEBT INDENTURE"), pursuant to
which the Pledgor has issued the following (collectively, the
"SUBORDINATED DEBT SECURITIES"): (a) $250,000,000 in aggregate
principal amount of 10-1/4% Senior Subordinated Notes Due
April 1, 1999; (b) $150,000,000 in aggregate principal amount of
10-1/2% Senior Subordinated Notes Due June 15, 2002;
(c) $250,000,000 in aggregate principal amount of 10% Senior
Subordinated Notes Due August 1, 2002; (d) $200,000,000 in
aggregate principal amount of 9-3/4% Senior Subordinated Notes
Due August 15, 2004; and (e) $100,000,000 in aggregate principal
amount of 9.95% Senior Subordinated Notes Due October 15, 2004
(the Subordinated Debt Securities described in the foregoing
clauses (a)-(d) having been referred to in the Existing Company
Pledge Agreement and the Existing Intercreditor Agreement as
"1992 Refinancing Subordinated Debt", and the Subordinated Debt
Securities referred to in the foregoing clause (e) having been
referred to in the Existing Company Pledge Agreement and the
Existing Intercreditor Agreement as "Additional 1992 Subordinated
Debt");
6. As more fully described in the recitals to the
Existing Company Pledge Agreement, the Indebtedness evidenced by
the Subordinated Debt Securities has been secured on a senior
subordinated basis pursuant to the Existing Company Pledge
Agreement, subject to certain limitations on the rights of the
Subordinated Debt Trustee under the Existing Company Pledge
Agreement and the Existing Intercreditor Agreement with respect
to decisions relating to the exercise of remedies in respect of
the Pledged Collateral (as defined in the Existing Company Pledge
Agreement) and other matters, and the Pledgor desires that such
Indebtedness continue to be secured on a senior subordinated
basis by the Pledged Collateral to the same extent, and subject
to the same limitations relative to the other obligations secured
by the Pledged Collateral (treating the Current Credit Agreement
for such purposes as being in all respects the same as the
Existing Credit Agreement), as under the Existing Company Pledge
Agreement and the Existing Intercreditor Agreement; provided that
the holders of any Subordinated Debt Securities and the
Subordinated Debt Trustee shall only be entitled to the benefits
of this Agreement if the Subordinated Debt Trustee shall have
XV-2
executed and delivered to the Collateral Agent a counterpart of
the Intercreditor Agreement;
7. Certain lenders (the "CURRENT LENDERS"), the
Current Lenders appointed as Co-Agents for the Current Lenders,
Bank of America National Trust and Savings Association, as
Documentation Agent for the Current Lenders, and Bankers, as
Administrative Agent for the Current Lenders (in such capacity
herein called the "CURRENT CREDIT AGENT"), have entered into a
Refinancing Credit Agreement dated as of November 19, 1996 with
the Pledgor (said Refinancing 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 Acquisition Newcos for the purpose of, among other
things, (a) refinancing all outstanding Indebtedness under the
Existing Credit Agreement and (b) permitting the Pledgor to issue
Commercial Paper as more fully described below;
8. The Pledgor desires that all obligations of the
Pledgor under the Current Credit Agreement and any Successor
Credit Agreements be secured on a senior basis by the Pledged
Collateral to the same extent as the obligations under the
Existing Credit Agreement have been secured by the Pledged
Collateral (as defined in the Existing Company Pledge Agreement),
and that the relative priority of the Liens and other rights in
favor of the Credit Agents and the Lenders (as such terms are
hereinafter defined) with respect to the Pledged Collateral be
the same in all substantive respects as the relative priority of
the corresponding Liens and other rights granted to the Current
Credit Agent and the Current Lenders (as such terms are defined
in the Existing Company Pledge Agreement and the Existing
Intercreditor Agreement), in each case as compared to the
relative priority of any corresponding Liens and other rights
granted to the Senior Debenture Trustee, the Subordinated Debt
Trustee and the holders of any other obligations secured by the
Pledged Collateral;
9. (a) As more fully described in the recitals to the
Existing Company Pledge Agreement, to the extent that the Current
Credit Agreement refinances all or any portion of the
Indebtedness under the Existing Credit Agreement or the Senior
Debenture Indenture, the Current Credit Agreement and any
Successor Credit Agreements will each constitute a "Successor
Credit Agreement" as defined in the Existing Company Pledge
Agreement and the Existing Intercreditor Agreement and, as such,
the Current Credit Agreement and any Successor Credit Agreements
will automatically be entitled to be secured by the Pledged
Collateral on the basis described in Recital 8, and (b) whether
or not the Current Credit Agreement constitutes a "Successor
Credit Agreement" as defined in the Existing Company Pledge
Agreement and the Existing Intercreditor Agreement, the terms of
the Senior Debenture Indenture, the Subordinated Debt Indenture,
the Existing Company Pledge Agreement and the Existing
Intercreditor Agreement permit the amendments to the Existing
Company Pledge Agreement and the Existing Intercreditor Agreement
effected pursuant to this Agreement and the Intercreditor
Agreement without the consent of the holders of the Senior
Debentures or the Subordinated Debt Securities for the purpose of
securing the Current Credit Agreement and any Successor Credit
Agreements by the Pledged Collateral on the basis described in
Recital 8; and accordingly the entire amount of the obligations
under the Current Credit Agreement and any Successor Credit
Agreements is entitled (as described in the foregoing clauses (a)
XV-3
and (b)) to be secured by the Pledged Collateral on the basis
described in Recital 8;
10. It is contemplated that, from time to time, the
Current Lenders or other financial institutions (collectively,
the "SUCCESSOR LENDERS") may enter into one or more agreements
with the Pledgor 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 or the Senior Debenture Indenture (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, notwithstanding the fact (as
described in certain of the following recitals) that any
agreement or instrument pursuant to which any Commercial Paper is
issued or evidencing any Commercial Paper Obligations (as herein-
after defined) (collectively, the "COMMERCIAL PAPER DOCUMENTS")
could have constituted a Successor Credit Agreement, in no event
shall any Commercial Paper Document be deemed to be a Successor
Credit Agreement or a Credit Agreement; and provided, further,
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 (collectively, the
"SUCCESSOR CREDIT AGENTS") under any Successor Credit Agreements
being collectively referred to herein as the "CREDIT AGENTS"),
and the Pledgor desires that, as described in Recitals 8 and 9,
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;
11. The Current Lenders have agreed, subject to the
terms and conditions set forth in the Current Credit Agreement,
to permit the Pledgor to issue Commercial Paper in an aggregate
face amount at any time outstanding not to exceed the amount
specified in the Current Credit Agreement to the extent that the
Pledgor has reserved unused a portion of the Revolving Loan
Commitments under the Current Credit Agreement, and the Pledgor
desires that all obligations of the Pledgor under any such
Commercial Paper outstanding from time to time (collectively, the
"COMMERCIAL PAPER OBLIGATIONS") be secured on a senior basis by
the Pledged Collateral;
12. The parties hereto desire to acknowledge and
confirm, for the benefit of any financial institutions initially
purchasing any such Commercial Paper (each an "INITIAL COMMERCIAL
PAPER HOLDER" and collectively the "INITIAL COMMERCIAL PAPER
HOLDERS") or appointed to act as agent or representative for the
holders from time to time of such Commercial Paper (each a
"COMMERCIAL PAPER REPRESENTATIVE" and collectively the
"COMMERCIAL PAPER REPRESENTATIVES"; provided that in the event no
such financial institution is appointed to act as agent or
representative for the holders of any Commercial Paper, the
Initial Commercial Paper Holder in respect of such Commercial
Paper shall be deemed to be the Commercial Paper Representative
in respect of such Commercial Paper) and for the benefit of the
holders from time to time of such Commercial Paper (together with
the Initial Commercial Paper Holders, the "COMMERCIAL PAPER
XV-4
HOLDERS"), that during any period in which any Commercial Paper
is outstanding such Commercial Paper constitutes a restructuring
of a portion of the credit facilities provided under the Current
Credit Agreement and accordingly that all Commercial Paper
Obligations would also constitute Indebtedness outstanding under
a "Successor Credit Agreement" as defined in this Agreement and
the Intercreditor Agreement, and as such all Commercial Paper
Obligations are entitled to constitute Senior Secured Obligations
(as hereinafter defined); provided that, as a condition to
permitting the Pledgor to issue Commercial Paper, the Current
Lenders have required, as was required in the Existing Company
Pledge Agreement and the Existing Intercreditor Agreement, that
no Commercial Paper Document shall be deemed to be a "Successor
Credit Agreement" for purposes of this Agreement or the
Intercreditor Agreement and that certain limitations be placed on
the rights of the Commercial Paper Holders and the Commercial
Paper Representatives with respect to decisions relating to the
exercise of remedies in respect of the Pledged Collateral and
other matters; and provided, further, that the Commercial Paper
Holder and Commercial Paper Representative in respect of any
Commercial Paper shall only be entitled to the benefits of this
Agreement if such Commercial Paper Representative shall have
executed and delivered to the Collateral Agent an acknowledgment
to the Intercreditor Agreement (in the form attached thereto)
acknowledged by the Pledgor;
13. The Pledgor contemplates that it may, from time to
time, enter into certain guaranties permitted under the Credit
Agreements (collectively, the "FOREIGN LENDER GUARANTIES") in
support of certain indebtedness of certain Foreign Subsidiaries
(collectively, the "FOREIGN LENDER DEBT") to certain Lenders
(collectively, the "FOREIGN LENDERS") under certain loan and
other credit agreements (collectively, the "FOREIGN LOAN
AGREEMENTS"), and the Pledgor desires that its obligations under
the Foreign Lender Guaranties (such obligations being
collectively referred to herein as the "FOREIGN LENDER
OBLIGATIONS") continue to be secured by the Pledged Collateral,
to the extent permitted by the Credit Agreements, to the same
extent as under the Existing Company Pledge Agreement and the
Existing Intercreditor Agreement; provided that any Foreign
Lender desiring such security shall execute and deliver 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;
14. It is contemplated that the Pledgor may from time
to time enter into Interest Rate Agreements and Currency
Agreements with one or more Lenders (collectively, the "INTEREST
RATE EXCHANGERS" or the "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 "INTEREST RATE OBLIGATIONS" or the "CURRENCY OBLIGATIONS," as
the case may be), continue to be secured hereunder to the same
extent as under the Existing Company Pledge Agreement and the
Existing Intercreditor Agreement; provided that any Interest Rate
Exchanger or any Currency Exchanger requiring such security shall
execute and deliver to the Collateral Agent an acknowledgment to
the Intercreditor Agreement (in the form attached thereto)
acknowledged by the Pledgor;
15. As described in Recital 9, all or a portion of the
Current Credit Agreement constitutes a "Successor Credit
Agreement" as defined in the Existing Company Pledge Agreement
and the Existing Intercreditor Agreement, and accordingly the
Current Lenders constitute "Lenders" as defined in the Existing
Company Pledge Agreement and the Existing Intercreditor Agreement
and are entitled to be secured by the Pledged Collateral in their
XV-5
capacities as Foreign Lenders, Interest Rate Exchangers and
Currency Exchangers as described in Recitals 13 and 14;
16. The Pledgor has executed and delivered the Existing
Company Pledge Agreement to Bankers, as collateral agent for and
representative of the Lenders and the Senior Note Trustee (as
such terms are defined in the Existing Company Pledge Agreement),
the Interest Rate Exchangers, the Currency Exchangers, the
Foreign Lenders, the Senior Debenture Trustee, the Subordinated
Debt Trustee, the Commercial Paper Holders and the Commercial
Paper Representatives;
17. The Current Credit Agent, the Senior Debenture
Trustee, the Subordinated Debt Trustee and the Collateral Agent
have entered into a Sixth Amended and Restated Intercreditor
Agreement dated the date hereof (said Sixth Amended and Restated
Intercreditor Agreement, as it may hereafter be amended, amended
and restated or otherwise modified from time to time, being the
"INTERCREDITOR AGREEMENT"), which amends and restates the
Existing Intercreditor Agreement and provides for, inter alia,
the appointment of the Collateral Agent to administer the Pledged
Collateral; and
18. The Pledgor wishes to confirm the continuation of
the pledge and grant of security interests in favor of the
Collateral Agent for the benefit of the Lenders, the Credit
Agents, the Interest Rate Exchangers, the Currency Exchangers,
the Foreign Lenders, the holders of the Senior Debentures and the
Senior Debenture Trustee, and the Commercial Paper Holders and
the Commercial Paper Representatives (collectively, the "SENIOR
SECURED PARTIES") and for the benefit of the holders of the
Subordinated Debt Securities and the Subordinated Debt Trustee
(collectively, the "JUNIOR SECURED PARTIES"; the Senior Secured
Parties and the Junior Secured Parties being collectively
referred to herein as the "SECURED PARTIES");
NOW, THEREFORE, in consideration of the premises the
parties hereto agree that the Existing Company Pledge Agreement
is hereby amended and restated as follows:
SECTION 1. PLEDGES.
A. SENIOR PLEDGE. The Pledgor hereby pledges to the
Collateral Agent and grants to the Collateral Agent for the
benefit of the Senior Secured Parties a first priority security
interest in the following (the "PLEDGED COLLATERAL") to secure
the Senior Secured Obligations (as defined in Section 2A):
(i) the Pledged Shares and the certificates
representing the Pledged Shares and any interest of the
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;
(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
XV-6
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 1A(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.
The foregoing pledge and grant of a security interest
confirms the pledge and grant of a first priority security
interest in the Pledged Collateral to secure the Senior Secured
Obligations made in the Original Company Pledge Agreement (such
term being used herein as used in the Existing Company Pledge
Agreement) and heretofore confirmed in each preceding amendment
and restatement of the Original Company Pledge Agreement and
continues in all respects the pledge and grant therein without in
any way causing any interruption in continuity from such original
pledge and grant.
B. JUNIOR PLEDGE. The Pledgor hereby pledges to the
Collateral Agent and grants to the Collateral Agent for the
benefit of the Junior Secured Parties a second priority security
interest in the Pledged Collateral to secure the Junior Secured
Obligations (as defined in Section 2B).
The foregoing pledge and grant of a security interest
confirms the pledge and grant of a second priority security
interest in the Pledged Collateral to secure the Junior Secured
Obligations made in the First Amended and Restated Company Pledge
Agreement and heretofore confirmed in each preceding amendment
and restatement of the First Amended and Restated Pledge
Agreement and continues in all respects the pledge and grant
therein without in any way causing any interruption in continuity
from such original pledge and grant.
SECTION 2. SECURED OBLIGATIONS.
A. SENIOR SECURED OBLIGATIONS. This Agreement
secures, and the Pledged Collateral is collateral security for,
the prompt payment or performance in full when due, whether at
XV-7
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. Section 362(a)), of all Obligations 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 Obligations now or hereinafter existing
under or in respect of the Interest Rate Agreements and the
Currency Agreements, all Foreign Lender Obligations, all
obligations of the Pledgor now or hereafter existing under the
Senior Debenture Indenture and the Senior Debentures issued
thereunder, and all Commercial Paper Obligations, 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 (all such obligations being the "SENIOR SECURED
OBLIGATIONS"); provided that the pledge made and security
interest granted in Section 1A and any other provisions of this
Agreement shall be effective as to any obligations in respect of
any Successor Credit Agreements, Interest Rate Agreements,
Currency Agreements and Foreign Lender Guaranties 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 1A and any other
provisions of this Agreement shall be effective as to any
obligations in respect of the Senior Debenture Indenture and the
Senior Debentures issued thereunder only if the Senior Debenture
Trustee shall have executed and delivered to the Collateral Agent
a counterpart of the Intercreditor Agreement; provided, further
that the pledge made and security interest granted in Section 1A
and any other provisions of this Agreement shall be effective as
to any Commercial Paper Obligations in respect of any Commercial
Paper only if the Commercial Paper Representative in respect of
such Commercial Paper shall have executed and delivered to the
Collateral Agent an acknowledgment to the Intercreditor Agreement
(in the form attached thereto) acknowledged by the Pledgor; and
provided, further that the pledge made and security interest
granted by the Pledgor in Section 1A shall be released, and any
other provisions of this Agreement with respect to such pledge
made and security interest granted by the Pledgor shall cease to
be effective, in each case with respect to the obligations of the
Pledgor under the Senior Debenture Indenture and the Senior
Debentures issued thereunder, if upon the date of such release
(i) all outstanding Indebtedness (as defined in the Senior
Debenture Indenture) of the Pledgor incurred, or taken into
account in determining the amount of Indebtedness (as defined in
the Senior Debenture Indenture) outstanding, under clause (i) of
part (a) of Section 4.03 of the Senior Debenture Indenture, if
incurred by the Pledgor on that date, would be permitted to be
incurred by the Pledgor under Section 4.03 of the Senior
Debenture Indenture and secured (if applicable) under
Section 4.08 of the Senior Debenture Indenture, in each case
under the permitted exceptions to the restrictions set forth
therein (other than clause (i) of Section 4.08 of the Senior
Debenture Indenture) and (ii) no Default (as defined in the
Senior Debenture Indenture) would occur as a result thereof or
otherwise shall have occurred and be continuing. For purposes of
determining the amount of Senior Secured Obligations relating to
any obligation with respect to which a Person other than the
Pledgor is the direct or primary obligor and with respect to
which the Pledgor is a guarantor (including by way of providing
security), the total amount of such Senior Secured Obligations
shall be calculated without duplication of the amount of such
direct or primary obligation secured by the Pledged Collateral
XV-8
and the related guaranty obligations of the Pledgor secured by
the Pledged Collateral.
B. JUNIOR SECURED OBLIGATIONS. This Agreement
secures, and the Pledged Collateral is collateral security for,
the prompt payment in full when due, whether at stated maturity,
by acceleration 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. Section
362(a)), of all obligations of the Pledgor now or hereafter
existing under the Subordinated Debt Indenture and the
Subordinated Debt Securities issued thereunder, in each case
whether for principal, premium, 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), fees,
expenses or otherwise, and all obligations of the Pledgor now or
hereafter existing under this Agreement (all such obligations of
the Pledgor being the "JUNIOR SECURED OBLIGATIONS"); provided
that the pledge made and the security interest granted in
Section 1B and any other provisions of this Agreement shall be
effective as to any obligations in respect of the Subordinated
Debt Indenture and the Subordinated Debt Securities issued
thereunder only if the Subordinated Debt 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. All
such certificates and instruments delivered pursuant to the
Original Company Pledge Agreement or any preceding amendment and
restatement of the Original Company Pledge Agreement shall be
retained by the Collateral Agent without re-delivery hereunder.
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, 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
XV-9
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
Senior Secured Obligations and a valid and perfected second
priority security interest in the Pledged Shares and the
Pledged Debt securing the payment of the Junior 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 O-I Subsidiary Debt Obligations 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 G, 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 proviso to Section
1A(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
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 1A(ii) or 1A(iii), promptly (and in any event within
five (5) Business Days) deliver to the Collateral Agent a pledge
XV-10
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, the Senior Debenture Indenture or the
Subordinated Debt Indenture; 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, the Senior Debenture Indenture and the
Subordinated Debt Indenture shall be deemed inconsistent
with the terms of this Agreement, the Credit Agreements, the
Senior Debenture Indenture or the Subordinated Debt
Indenture 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 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
XV-11
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 permitted by the Credit Agreements, the
Senior Debenture Indenture and the Senior Debenture Guaranties
(as defined in the Intercreditor Agreement) (in the case of the
Senior Debenture Indenture and such Senior Debenture Guaranties,
only to the extent the obligations of the Pledgor under the
Senior Debenture Indenture are then secured by the Pledged
Collateral) and the Subordinated Debt Indenture, (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 permitted 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 to the Pledgor free and clear of the
lien and security interest under this Agreement (a) so long as
any Obligations remain outstanding under the Credit Agreements,
concurrently with the receipt of advice from the Credit Agent
that arrangements satisfactory to it have been made for delivery
to it of the Net Cash Proceeds of such Asset Sale to which the
Lenders are entitled under such Credit Agreements and the
Intercreditor Agreement, (b) after such time as all Obligations
under the Credit Agreements have been indefeasibly paid in full,
in the event that any other Secured Parties are entitled to
receive any portion of the Cash Proceeds of such Asset Sale,
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concurrently with the receipt of advice from the agent or trustee
for such Secured Parties that arrangements satisfactory to it
have been made for delivery to it of the amounts required to be
paid to such Secured Parties out of the Cash Proceeds of such
Asset Sale, and (c) in the event no Secured Party is entitled to
receive any portion of the Cash Proceeds of such Asset Sale,
concurrently with the consummation of such Asset Sale; provided,
in the case of clause (c), that the issuer of the Pledged Shares
that are the subject of such Asset Sale will be concurrently
released from its obligations, if any, as a guarantor under the
Senior Debenture Indenture (or would have been so released if
such issuer of the Pledged Shares were such a guarantor); 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 1A(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 1A(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
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nor any other Secured Party shall have responsibility for (i)
ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or 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 Sections 11B and
11C, (i) if any event of default under any Credit Agreement, or
(ii) after such time as all Obligations shall have been
indefeasibly paid in full, and provided that the Pledged
Collateral then secures the payment and performance of Interest
Rate Obligations, Currency Obligations, Foreign Lender
Obligations, obligations of the Pledgor under the Senior
Debenture Indenture or Commercial Paper Obligations under any
Commercial Paper Document, if any event of default under (A) any
Interest Rate Agreement or Currency Agreement which is secured by
the Pledged Collateral, (B) any Foreign Lender Guaranty which is
secured by the Pledged Collateral, (C) the Senior Debenture
Indenture, or (D) any such Commercial Paper Document, as the case
may be, or (iii) after such time as all Senior Secured
Obligations shall have been indefeasibly paid in full, and
provided that the Pledged Collateral then secures the payment and
performance of the Junior Secured Obligations, if any event of
default under the Subordinated Debt Indenture (each of the events
of default described in the foregoing clauses (i) through (iii)
(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
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Agent shall not be obligated to make any sale of Pledged
Collateral 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.
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 Interest Rate Exchangers, the Currency
Exchangers, the Foreign Lenders, the holders of the Senior
Debentures and the Senior Debenture Trustee, the Commercial Paper
Holders and the Commercial Paper Representatives, and the holders
of the Subordinated Debt Securities and the Subordinated Debt
Trustee shall be bound by such instructions; and the sole rights
of the Credit Agents, the Interest Rate Exchangers, the Currency
Exchangers, the Foreign Lenders, the holders of the Senior
Debentures and the Senior Debenture Trustee, the Commercial Paper
Holders and the Commercial Paper Representatives, and the holders
of the Subordinated Debt Securities and the Subordinated Debt
Trustee under this Agreement shall be to be secured by the
Pledged Collateral and to receive the payments provided for in
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Section 12 hereof; provided, however, that if the Collateral
Agent has requested instructions from any Commercial Paper
Representative as to the exercise of any such remedies and such
Commercial Paper Representative has not promptly responded to
such request, in determining the instructions given by Requisite
Obligees (as defined in the Intercreditor Agreement), the
Collateral Agent shall disregard such Commercial Paper
Representative and the outstanding amount of Commercial Paper in
respect of which such Commercial Paper Representative is the
Commercial Paper Representative.
C. LIMITATIONS ON EXERCISE OF REMEDIES.
Notwithstanding anything in this Agreement to the contrary, as
provided in the Intercreditor Agreement, the Collateral Agent
shall not exercise any remedy provided for in Section 11A for the
purpose of realizing value on the Pledged Collateral to be
applied to the payment of the Junior Secured Obligations unless
(y) such remedy is concurrently being exercised for the purpose
of realizing value on the Pledged Collateral to be applied to the
payment of the Senior Secured Obligations or (z) all Senior
Secured Obligations shall have been indefeasibly paid in full.
D. NO IMPAIRMENT OF SUBORDINATION IN RIGHT OF
PAYMENTS. The Intercreditor Agreement and the Subordinated Debt
Indenture set forth certain agreements of the Pledgor, and the
holders of the Subordinated Debt Securities are subject to
certain obligations, which subordinate the right of payment of
such Subordinated Debt Securities to the prior payment of "Senior
Indebtedness" (as defined in the Subordinated Debt Indenture).
Notwithstanding anything in this Agreement to the contrary, such
agreements and obligations of the Pledgor and the holders of the
Subordinated Debt Securities shall not be impaired in any manner
by the pledge of the Pledged Collateral, the security interest
granted by this Agreement or the exercise of rights provided
hereunder, and the rights of the holders of such "Senior
Indebtedness" shall not be impaired in any manner by any such
action.
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 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 Senior Secured Obligations
as provided in Section 3 of the Intercreditor Agreement;
provided that in making such application to the Senior
Debenture Trustee in respect of outstanding obligations
under the Senior Debenture Indenture, the Collateral Agent
shall be entitled to deduct from the share of such Proceeds
otherwise payable to the holders of the Senior Debentures
issued thereunder such holders' pro rata share of all
amounts that the Collateral Agent has been paid by the
Paying Indemnifying Parties (such term being used in this
Section 12 as defined in Section 7(c) of the Intercreditor
Agreement) pursuant to Section 7(c) of the Intercreditor
Agreement; and provided, further, that in making such
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application to any Commercial Paper Holder (or the
Commercial Paper Representative in respect of such
Commercial Paper Holder) in respect of any Commercial Paper
Obligations, the Collateral Agent shall be entitled to
deduct from such Commercial Paper Holder's share of such
Proceeds such Commercial Paper Holder's pro rata share of
all amounts that the Collateral Agent has been paid by the
Paying Indemnifying Parties pursuant to Section 7(c) of the
Intercreditor Agreement;
Third, only after payment in full of all Senior Secured
Obligations, to the payment of the Junior Secured
Obligations as provided in Section 3 of the Intercreditor
Agreement; provided that, to the extent applicable, the
Subordinated Debt Trustee shall hold any amount so payable
subject to the subordination provisions contained in the
Subordinated Debt Indenture; provided, further, that in
making such application to the Subordinated Debt Trustee,
the Collateral Agent shall be entitled to deduct from the
share of such Proceeds otherwise payable to the holders of
the Subordinated Debt Securities such holders' pro rata
share of all amounts that the Collateral Agent has been paid
by the Paying Indemnifying Parties pursuant to Section 7(c)
of the Intercreditor Agreement; and
Fourth, 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 Debenture Trustee, the Commercial
Paper Representative in respect of any Commercial Paper, and the
Subordinated Debt Trustee with a certificate setting forth the
total amount paid to the Collateral Agent pursuant to Section
7(c) of the Intercreditor Agreement and a calculation of the
amounts, if any, deducted from Proceeds paid to the Senior
Debenture Trustee, the Commercial Paper Holders in respect of
such Commercial Paper, or the Subordinated Debt Trustee, as the
case may be.
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 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, the Senior
XV-17
Debenture Trustee, the Subordinated Debt Trustee and the Foreign
Lender listed on the signature pages thereof and, in the event
that any Interest Rate Obligations or Currency Obligations, any
other Foreign Lender Obligations or any Commercial Paper
Obligations are secured hereby, by each Interest Rate Exchanger
and Currency Exchanger, each other Foreign Lender and each
Commercial Paper Representative 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 Foreign Lender Guaranties, the Senior Debentures,
the Senior Debenture Indenture, the Commercial Paper Documents,
the Subordinated Debt Securities, the Subordinated Debt Indenture
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 (including without
limitation the Commercial Paper 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.
SECTION 17. AMENDMENTS, ETC. Prior to such time as all
Senior Secured Obligations shall have been indefeasibly paid in
full, 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", "Secured Obligations", "Senior
XV-18
Secured Obligations" or "Junior 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), each Foreign
Lender (if the Pledged Collateral then secures such Foreign
Lender), the Senior Debenture Trustee (if the Pledged Collateral
then secures the Senior Debentures), and the Subordinated Debt
Trustee (if the Pledged Collateral then secures the Subordinated
Debt Securities); provided that the written consent of the Credit
Agents shall not be required if the Obligations have been
indefeasibly paid in full; provided, further, that if the
Obligations have been indefeasibly paid in full, the written
consent of the holders of a majority of the outstanding Interest
Rate Obligations, Currency Obligations and Foreign Lender
Obligations which are secured by the Pledged Collateral shall be
required to any amendment, modification or waiver of this
Agreement; and provided, further, that (x) during such times as
the Pledged Collateral secures payment of any Commercial Paper
Obligations, solely with respect to an amendment, modification or
waiver which would (i) reduce or adversely affect the right of
the Commercial Paper Representatives to request or direct the
Collateral Agent to take action as provided in Section 2(a) of
the Intercreditor Agreement or (ii) subordinate or cause the
Commercial Paper Holders to hold a security interest in the
Pledged Collateral junior to the security interest therein of any
other holder of Senior Secured Obligations, no such amendment,
modification or waiver shall in any event be effective as to the
Commercial Paper Holders or Commercial Paper Representatives in
respect of any Commercial Paper outstanding at the time of such
amendment, modification or waiver except with the prior written
consent of the Commercial Paper Representatives in respect of a
majority in aggregate face amount of such outstanding Commercial
Paper, (y) during such time as the Pledged Collateral secures
only the payment of the Junior Secured Obligations and the
obligations under or in respect of the Senior Debenture
Indenture, this Agreement may not be amended, modified or waived
except with the written consent of the Pledgor, the Collateral
Agent and the Senior Debenture Trustee, and (z) during such time
as the Pledged Collateral secures only the payment of the Junior
Secured Obligations, this Agreement may not be amended, modified
or waived except with the written consent of the Pledgor, the
Collateral Agent and the Subordinated Debt Trustee; provided,
however, that, notwithstanding the foregoing, such written
consent of the Senior Debenture Trustee or the Subordinated Debt
Trustee and, insofar as required by clause (y) or (z) above, as
the case may be, the Collateral Agent, shall not be required with
respect to amendments, modifications or waivers necessary to
permit the incurrence of additional Indebtedness secured by the
Pledged Collateral and entitled to the benefits hereof insofar as
the foregoing is permitted by the Senior Debenture Indenture or
the Subordinated Debt Indenture, as the case may be.
SECTION 18. TERMINATION. When all Secured Obligations
have been indefeasibly paid in full, 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 Senior Secured
Obligations except the obligations in respect of the Senior
Debentures have either been indefeasibly paid in full or are no
longer secured by any of the Pledged Collateral, 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
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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, if
to the Senior Debenture Trustee, addressed to such trustee at the
address provided by such trustee pursuant to the Intercreditor
Agreement, and if to the Subordinated Debt Trustee, 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
NOTES. 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 indefeasible payment in
full of all Secured Obligations, (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 5-1402 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
with respect to this Agreement may be brought in any state or
federal court of competent jurisdiction in the State of New York
and by execution and delivery of this Agreement, the Pledgor
accepts for itself and in connection with its properties,
generally and unconditionally, the nonexclusive jurisdiction of
the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Agreement. The
XV-20
Pledgor designates and appoints C T Corporation System, The
Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ and such other Persons as may hereafter be selected by the
Pledgor irrevocably agreeing in writing to so serve, as its agent
to receive on its behalf service of all process in any such
proceedings in any such court, such service being hereby
acknowledged by the Pledgor to be effective and binding service
in every respect. A copy of any such process so served shall be
mailed by registered mail to the Pledgor at its address referred
to in Section 19, except that unless otherwise provided by
applicable law, any failure to mail such copy shall not affect
the validity of service of process. If any agent appointed by
the Pledgor refuses to accept service, the Pledgor hereby agrees
that service upon it by mail shall constitute sufficient notice.
Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of the
Collateral Agent to bring proceedings against the Pledgor in the
courts of any other jurisdiction.
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, any Interest Rate
Agreement, any Currency Agreement, any Foreign Lender
Guaranty, the Senior Debentures, the Senior Debenture
Indenture, any Commercial Paper Document, the Subordinated
Debt Securities, the Subordinated Debt Indenture 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, any Interest Rate Agreement, any
Currency Agreement, any Foreign Lender Guaranty, the Senior
Debentures, the Senior Debenture Indenture, any Commercial
Paper Document, the Subordinated Debt Securities or the
Subordinated Debt Indenture;
(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]
XV-21
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
▇▇▇▇▇-ILLINOIS, INC.
By
Title
Notice Address:
▇▇▇▇▇-Illinois, Inc.
One ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Collateral Agent
BANKERS TRUST COMPANY
By
Title
Notice Address:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇ ▇▇▇▇▇
with a copy to:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
XV-S-1
SCHEDULE I
Attached to and forming a part of that certain Fifth
Amended and Restated Company Pledge Agreement dated as of
November 19, 1996, by ▇▇▇▇▇-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
------------ ----- ----------- ----- ------ -------------
▇▇▇▇▇-Illinois common 1 $.01 100 100%
Group, Inc.
PART II
Principal Date of
Amount of Promissory Note
Indebtedness as of Evidencing the
Debt Issuer December 31, 1988 Pledged Debt
----------- ------------------ ----------------
▇▇▇▇▇-Illinois
Group, Inc. $3,552,810,591 March 17, 1987
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.
XV-I-1
SCHEDULE II
To the Fifth Amended and Restated 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 Fifth Amended and
Restated Company Pledge Agreement dated as of November 19, 1996,
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 Senior Secured Obligations and Junior
Secured Obligations as provided in the Pledge Agreement.
▇▇▇▇▇-ILLINOIS, INC.
By __________________________
Title ________________________
Class Stock Number Percentage of
of Certificate Par of All Capital
Stock Issuer Stock No(s). Value Shares Stock Owned
------------ ----- ----------- ----- ------ -------------
XV-II-1
ANNEX 1
to
FIFTH AMENDED AND RESTATED
COMPANY PLEDGE AGREEMENT
INDEX OF TERMS
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . .Introduction
Bankers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Introduction
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 11A
Collateral Agent . . . . . . . . . . . . . . . . . . . . . . . . .Introduction
Commercial Paper Documents . . . . . . . . . . . . . . . . . . . . .Recital 10
Commercial Paper Holders . . . . . . . . . . . . . . . . . . . . . .Recital 12
Commercial Paper Obligations . . . . . . . . . . . . . . . . . . . .Recital 11
Commercial Paper Representative. . . . . . . . . . . . . . . . . . .Recital 12
Commercial Paper Representatives . . . . . . . . . . . . . . . . . .Recital 12
Credit Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 10
Credit Agreements. . . . . . . . . . . . . . . . . . . . . . . . . .Recital 10
Currency Exchangers. . . . . . . . . . . . . . . . . . . . . . . . .Recital 14
Currency Obligations . . . . . . . . . . . . . . . . . . . . . . . .Recital 14
Current Credit Agent . . . . . . . . . . . . . . . . . . . . . . . . Recital 7
Current Credit Agreement . . . . . . . . . . . . . . . . . . . . . . Recital 7
Current Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . Recital 7
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . Section 11A
Existing Company Pledge Agreement. . . . . . . . . . . . . . . . .Introduction
Existing Credit Agreement. . . . . . . . . . . . . . . . . . . . . . Recital 2
Existing Intercreditor Agreement . . . . . . . . . . . Intercreditor Agreement
First Amended and Restated Company Existing Company
Pledge Agreement . . . . . . . . . . . . . . . . . . . .Pledge Agreement
Foreign Lender Debt. . . . . . . . . . . . . . . . . . . . . . . . .Recital 13
Foreign Lender Guaranties. . . . . . . . . . . . . . . . . . . . . .Recital 13
Foreign Lender Obligations . . . . . . . . . . . . . . . . . . . . .Recital 13
Foreign Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 13
Foreign Loan Agreements. . . . . . . . . . . . . . . . . . . . . . .Recital 13
Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital 3
Initial Commercial Paper Holder. . . . . . . . . . . . . . . . . . .Recital 12
Initial Commercial Paper Holders . . . . . . . . . . . . . . . . . .Recital 12
Intercreditor Agreement. . . . . . . . . . . . . . . . . . . . . . .Section 17
Interest Rate Exchangers . . . . . . . . . . . . . . . . . . . . . .Recital 14
Interest Rate Obligations. . . . . . . . . . . . . . . . . . . . . .Recital 14
Junior Secured Obligations . . . . . . . . . . . . . . . . . . . . .Section 2B
Junior Secured Parties . . . . . . . . . . . . . . . . . . . . . . .Recital 18
Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 10
Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Section 2A
Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . .Section 2A
Original Company Pledge Agreement. . . . . . Existing Company Pledge Agreement
Paying Indemnifying Parties. . . . . . . . . . . . . . Intercreditor Agreement
Pledge Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . Section 5
Pledged Collateral . . . . . . . . . . . . . . . . . . . . . . . . .Section 1A
Pledged Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital 1
Pledged Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital 1
ANNEX 1-1
Pledgor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Introduction
Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Section 12
Secured Parties. . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 18
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . Section 11A
Senior Debenture Indenture . . . . . . . . . . . . . . . . . . . . . Recital 3
Senior Debenture Trustee . . . . . . . . . . . . . . . . . . . . .Introduction
Senior Debentures. . . . . . . . . . . . . . . . . . . . . . . . . . Recital 3
Senior Secured Obligations . . . . . . . . . . . . . . . . . . . . .Section 2A
Senior Secured Parties . . . . . . . . . . . . . . . . . . . . . . .Recital 18
Subordinated Debt Indenture. . . . . . . . . . . . . . . . . . . . . Recital 5
Subordinated Debt Securities . . . . . . . . . . . . . . . . . . . . Recital 5
Subordinated Debt Trustee. . . . . . . . . . . . . . . . . . . . .Introduction
Successor Credit Agents. . . . . . . . . . . . . . . . . . . . . . .Recital 10
Successor Credit Agreements. . . . . . . . . . . . . . . . . . . . .Recital 10
Successor Lenders. . . . . . . . . . . . . . . . . . . . . . . . . .Recital 10
ANNEX 1-2
EXHIBIT XVI
[FORM OF]
O-I SUBSIDIARY PLEDGE AGREEMENT
This FOURTH AMENDED AND RESTATED INTERMEDIATE SUBSIDIARY
PLEDGE AGREEMENT (as amended, amended and restated or otherwise
modified from time to time, herein called "this AGREEMENT") is
dated as of November 19, 1996, among THE O-I SUBSIDIARIES 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), the Foreign Lenders (as
hereinafter defined), the trustee (including any successor, the
"SENIOR DEBENTURE TRUSTEE") under the Senior Debenture Indenture
(as hereinafter defined) and the Commercial Paper Holders and
Commercial Paper Representatives (as such terms are hereinafter
defined), and amends and restates the Third Amended and Restated
Intermediate Subsidiary Pledge Agreement dated as of December 15,
1993 (the "EXISTING INTERMEDIATE SUBSIDIARY PLEDGE AGREEMENT"),
among the Pledgors and Bankers, as collateral agent for and
representative of the Lenders (as such term is defined in the
Existing Intermediate Subsidiary Pledge Agreement), the Foreign
Lenders, the Interest Rate Exchangers, the Currency Exchangers,
the Senior Debenture Trustee, and the Commercial Paper Holders
and the Commercial Paper Representatives. 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. The Current Lenders (including certain of such
Current Lenders appointed as Managers for such Current Lenders)
and the Current Credit Agent (as such terms are defined in the
Existing Intermediate Subsidiary Pledge Agreement) have entered
into a Refinancing Credit Agreement dated as of December 15, 1993
with ▇▇▇▇▇-Illinois, Inc., a Delaware corporation (the "COMPANY")
(said Refinancing Credit Agreement, as amended to the date
hereof, being the "EXISTING CREDIT AGREEMENT");
3. ▇▇▇▇▇-Illinois Group, Inc., a Delaware corporation
("GROUP"), and the other Guarantor Subsidiaries (such term being
used in this Agreement as defined in the Current Credit Agreement
(as hereinafter defined)) have guarantied the obligations of the
XVI-1
Company under the Existing Credit Agreement pursuant to the O-I
Subsidiary Guaranty (as such term is defined in the Existing
Intercreditor Agreement (such term being used herein as defined
in the Intercreditor Agreement (as hereinafter defined)); the
"EXISTING LOAN GUARANTY");
4. The obligations of the Company under the Existing
Credit Agreement and the obligations of the Pledgors under the
Existing Loan Guaranty have been secured on a senior basis
pursuant to the Existing Intermediate Subsidiary Pledge Agreement
and the Existing Intercreditor Agreement;
5. The Company, Group, as guarantor, and the Senior
Debenture Trustee have entered into an Indenture dated as of
December 15, 1991 (the "SENIOR DEBENTURE INDENTURE") pursuant to
which the Company has issued $1,000,000,000 in aggregate
principal amount of 11% Senior Debentures Due 2003 (the "SENIOR
DEBENTURES");
6. Each Pledgor (other than Group) has guarantied the
obligations of the Company under the Senior Debenture Indenture
and the Senior Debentures issued thereunder pursuant to a
Subsidiary Guaranty substantially in the form of Exhibit E to the
Senior Debenture Indenture, and Group has guarantied the
obligations of the Company under the Senior Debenture Indenture
and the Senior Debentures issued thereunder pursuant to the Group
Exchange Guaranty, substantially in the form of Exhibit D to the
Senior Debenture Indenture (each such Subsidiary Guaranty and
such Group Exchange Guaranty being a "SENIOR DEBENTURE GUARANTY";
collectively, the "SENIOR DEBENTURE GUARANTIES");
7. As more fully described in the recitals to the
Existing Intermediate Subsidiary Pledge Agreement, the
Indebtedness evidenced by the Senior Debentures and the
obligations of the Pledgors under the Senior Debenture Guaranties
have been secured on a senior basis pursuant to the Existing
Intermediate Subsidiary Pledge Agreement, subject to certain
limitations on the rights of the Senior Debenture Trustee under
the Existing Intermediate Subsidiary Pledge Agreement and the
Existing Intercreditor Agreement with respect to decisions
relating to the exercise of remedies in respect of the Pledged
Collateral (as defined in the Existing Intermediate Subsidiary
Pledge Agreement) and other matters, and each Pledgor desires
that such Indebtedness and obligations continue to be secured on
a senior basis by the Pledged Collateral to the same extent, and
subject to the same limitations relative to the other obligations
secured by the Pledged Collateral (treating the Current Credit
Agreement for such purposes as being in all respects the same as
the Existing Credit Agreement), as under the Existing
Intermediate Subsidiary Pledge Agreement and the Existing
Intercreditor Agreement; provided that, notwithstanding the
foregoing, the holders of any Senior Debentures and the Senior
Debenture Trustee shall only be entitled to the benefits of this
Agreement if the Senior Debenture Trustee shall have executed and
delivered to the Collateral Agent a counterpart of the
Intercreditor Agreement;
8. Certain lenders (the "CURRENT LENDERS"), the
Current Lenders appointed as Co-Agents for the Current Lenders,
Bank of America National Trust and Savings Association, as
Documentation Agent for the Current Lendrers, and Bankers, as
Administrative Agent for the Current Lenders (in such capacity
herein called the "CURRENT CREDIT AGENT"), have entered into a
Refinancing Credit Agreement dated as of November 19, 1996 with
XVI-2
the Company (said Refinancing 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 for the purpose of, among other things, (a) refinancing
all outstanding Indebtedness under the Existing Credit Agreement
and (b) permitting the Company to issue Commercial Paper as more
fully described below;
9. As required in the Current Credit Agreement, Group
and the other Guarantor Subsidiaries have guarantied the
obligations of the Company under the Current Credit Agreement and
any Successor Credit Agreements pursuant to an O-I Subsidiary
Guaranty dated as of November 19, 1996 (as amended, amended and
restated or otherwise modified from time to time, herein called
the "LOAN GUARANTY");
10. Each Pledgor desires that all obligations of the
Company under the Current Credit Agreement and any Successor
Credit Agreements and all obligations of the Pledgors under the
Loan Guaranty be secured on a senior basis by the Pledged
Collateral to the same extent as the obligations under the
Existing Credit Agreement and the Existing Loan Guaranty have
been secured by the Pledged Collateral (as defined in the
Existing Intermediate Subsidiary Pledge Agreement), and that the
relative priority of the Liens and other rights in favor of the
Credit Agents and the Lenders (as such terms are hereinafter
defined) with respect to the Pledged Collateral be the same in
all substantive respects as the relative priority of the
corresponding Liens and other rights granted to the Current
Credit Agent and the Current Lenders (as such terms are defined
in the Existing Intermediate Subsidiary Pledge Agreement and the
Existing Intercreditor Agreement), in each case as compared to
the relative priority of any corresponding Liens and other rights
granted to the Senior Debenture Trustee and the holders of any
other obligations secured by the Pledged Collateral;
11. (a) As more fully described in the recitals to the
Existing Intermediate Subsidiary Pledge Agreement, to the extent
that the Current Credit Agreement refinances all or any portion
of the Indebtedness under the Existing Credit Agreement or the
Senior Debenture Indenture, the Current Credit Agreement and any
Successor Credit Agreements will each constitute a "Successor
Credit Agreement" as defined in the Existing Intermediate
Subsidiary Pledge Agreement and the Existing Intercreditor
Agreement and, as such, the Current Credit Agreement and any
Successor Credit Agreements will automatically be entitled to be
secured by the Pledged Collateral on the basis described in
Recital 10, and (b) whether or not the Current Credit Agreement
constitutes a "Successor Credit Agreement" as defined in the
Existing Intermediate Subsidiary Pledge Agreement and the
Existing Intercreditor Agreement, the terms of the Senior
Debenture Indenture, the Senior Subordinated Debt Indenture, the
Existing Intermediate Subsidiary Pledge Agreement and the
Existing Intercreditor Agreement permit the amendments to the
Existing Intermediate Subsidiary Pledge Agreement and the
Existing Intercreditor Agreement effected pursuant to this
Agreement and the Intercreditor Agreement without the consent of
the holders of the Senior Debentures or the Senior Subordinated
Debt for the purpose of securing the Current Credit Agreement and
any Successor Credit Agreements and the Loan Guaranty by the
XVI-3
Pledged Collateral on the basis described in Recital 10; and
accordingly the entire amount of the obligations under the
Current Credit Agreement and any Successor Credit Agreements and
the Loan Guaranty is entitled (as described in the foregoing
clauses (a) and (b)) to be secured by the Pledged Collateral on
the basis described in Recital 10;
12. It is contemplated that, from time to time, the
Current Lenders or other financial institutions (collectively,
the "SUCCESSOR LENDERS") may enter into one or more agreements
with the Company 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 or the Senior Debenture Indenture (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, notwithstanding the fact (as
described in certain of the following recitals) that any
agreement or instrument pursuant to which any Commercial Paper is
issued or evidencing any Commercial Paper Obligations (as herein-
after defined) (collectively, the "COMMERCIAL PAPER DOCUMENTS")
could have constituted a Successor Credit Agreement, in no event
shall any Commercial Paper Document be deemed to be a Successor
Credit Agreement or a Credit Agreement; and provided, further,
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 (collectively, the
"SUCCESSOR CREDIT AGENTS") under any Successor Credit Agreements
being collectively referred to herein as the "CREDIT AGENTS"),
and each Pledgor desires that, as described in Recitals 10 and
11, the obligations of the Company and any additional borrowers
which are Subsidiaries of the Company under any Successor Credit
Agreements be secured by the Pledged Collateral to the same
extent as the obligations under the Current Credit Agreement;
13. The Current Lenders have agreed, subject to the
terms and conditions set forth in the Current Credit Agreement,
to permit the Company to issue Commercial Paper in an aggregate
face amount at any time outstanding not to exceed the amount
specified in the Current Credit Agreement to the extent that the
Company has reserved unused a portion of the Revolving Loan
Commitments under the Current Credit Agreement, and each Pledgor
desires that all obligations of the Company under any such
Commercial Paper outstanding from time to time (collectively, the
"COMMERCIAL PAPER OBLIGATIONS") be secured on a senior basis by
the Pledged Collateral;
14. The parties hereto desire to acknowledge and
confirm, for the benefit of any financial institutions initially
purchasing any such Commercial Paper (each an "INITIAL COMMERCIAL
PAPER HOLDER" and collectively the "INITIAL COMMERCIAL PAPER
HOLDERS") or appointed to act as agent or representative for the
holders from time to time of such Commercial Paper (each a
"COMMERCIAL PAPER REPRESENTATIVE" and collectively the
"COMMERCIAL PAPER REPRESENTATIVES"; provided that in the event no
XVI-4
such financial institution is appointed to act as agent or
representative for the holders of any Commercial Paper, the
Initial Commercial Paper Holder in respect of such Commercial
Paper shall be deemed to be the Commercial Paper Representative
in respect of such Commercial Paper) and for the benefit of the
holders from time to time of such Commercial Paper (together with
the Initial Commercial Paper Holders, the "COMMERCIAL PAPER
HOLDERS"), that during any period in which any Commercial Paper
is outstanding such Commercial Paper constitutes a restructuring
of a portion of the credit facilities provided under the Current
Credit Agreement and accordingly that all Commercial Paper
Obligations would also constitute Indebtedness outstanding under
a "Successor Credit Agreement" as defined in this Agreement and
the Intercreditor Agreement, and as such all Commercial Paper
Obligations are entitled to constitute Secured Obligations (as
hereinafter defined); provided that, as a condition to permitting
the Company to issue Commercial Paper, the Current Lenders have
required, as was required in the Existing Intermediate Subsidiary
Pledge Agreement and the Existing Intercreditor Agreement, that
no Commercial Paper Document shall be deemed to be a "Successor
Credit Agreement" for purposes of this Agreement or the
Intercreditor Agreement and that certain limitations be placed on
the rights of the Commercial Paper Holders and the Commercial
Paper Representatives with respect to decisions relating to the
exercise of remedies in respect of the Pledged Collateral and
other matters; and provided, further, that the Commercial Paper
Holder and Commercial Paper Representative in respect of any
Commercial Paper shall only be entitled to the benefits of this
Agreement if such Commercial Paper Representative shall have
executed and delivered to the Collateral Agent an acknowledgment
to the Intercreditor Agreement (in the form attached thereto)
acknowledged by each Pledgor;
15. The Company contemplates that it may, from time to
time, enter into certain guaranties permitted under the Credit
Agreements (collectively, the "FOREIGN LENDER GUARANTIES") in
support of certain indebtedness of certain Foreign Subsidiaries
(collectively, the "FOREIGN LENDER DEBT") to certain Lenders
(collectivley, the "FOREIGN LENDERS") under certain loan and
other credit agreements (collectively, the "FOREIGN LOAN
AGREEMENTS"), and each Pledgor desires that the obligations of
the Company under the Foreign Lender Guaranties (such obligations
being collectively referred to herein as the "FOREIGN LENDER
OBLIGATIONS") continue to be secured by the Pledged Collateral,
to the extent permitted by the Credit Agreements, to the same
extent as under the Existing Intermediate Subsidiary Pledge
Agreement and the Existing Intercreditor Agreement; provided that
any Foreign Lender desiring such security shall execute and
deliver to the Collateral Agent a counterpart of the
Intercreditor Agreement or an acknowledgment to the Intercreditor
Agreement (in the form attached thereto) acknowledged by each
Pledgor;
16. Pursuant to the Loan Guaranty, each Pledgor has
agreed to guaranty the obligations of the Company under any
Interest Rate Agreements and Currency Agreements that may from
time to time be entered into between the Company and one or more
Lenders (collectively, the "INTEREST RATE EXCHANGERS" or the
"CURRENCY EXCHANGERS," as the case may be), and each Pledgor
desires that its obligations under the Loan Guaranty with respect
to 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),
continue to be secured hereunder to the same extent as under the
Existing Intermediate Subsidiary Pledge Agreement and the
Existing Intercreditor Agreement; provided that any Interest Rate
XVI-5
Exchanger or any Currency Exchanger requiring such security shall
execute and deliver to the Collateral Agent a counterpart of the
Intercreditor Agreement or an acknowledgment to the Intercreditor
Agreement (in the form attached thereto) acknowledged by each
Pledgor;
17. As described in Recital 11, all or a portion of the
Current Credit Agreement constitutes a "Successor Credit
Agreement" as defined in the Existing Intermediate Subsidiary
Pledge Agreement and the Existing Intercreditor Agreement, and
accordingly the Current Lenders constitute "Lenders" as defined
in the Existing Intermediate Subsidiary Pledge Agreement and the
Existing Intercreditor Agreement and are entitled to be secured
by the Pledged Collateral in their capacities as Foreign Lenders,
Interest Rate Exchangers and Currency Exchangers as described in
Recitals 15 and 16;
18. The Pledgors have executed and delivered the
Existing Intermediate Subsidiary Pledge Agreement to Bankers, as
collateral agent for and representative of the Lenders (as such
term is defined in the Existing Intermediate Subsidiary Pledge
Agreement), the Foreign Lenders, the Interest Rate Exchangers,
the Currency Exchangers, the Senior Debenture Trustee, and the
Commercial Paper Holders and the Commercial Paper Represen-
tatives;
19. The Current Credit Agent, the Senior Debenture
Trustee, the Senior Subordinated Debt Trustee and the Collateral
Agent have entered into a Sixth Amended and Restated
Intercreditor Agreement dated as of the date hereof (said Sixth
Amended and Restated Intercreditor Agreement, as it may hereafter
be amended, amended and restated or otherwise modified from time
to time, being the "INTERCREDITOR AGREEMENT"), which amends and
restates the Existing Intercreditor Agreement and provides for,
inter alia, the appointment of the Collateral Agent to administer
the Pledged Collateral;
20. Pursuant to the Intercreditor Agreement, the Senior
Subordinated Debt Trustee has agreed, which agreement shall be
binding on the holders of the Senior Subordinated Debt, that
notwithstanding anything to the contrary contained in the
Original Intermediate Subsidiary Pledge Agreement (such term
being used herein as used in the Existing Intermediate Subsidiary
Pledge Agreement) or any preceding amendment and restatement of
the Original Intermediate Subsidiary Pledge Agreement or this
Agreement or the Second Amended and Restated Intercreditor
Agreement (such term being used herein as used in the Existing
Intermediate Subsidiary Pledge Agreement) or any of the
successive amendments and restatements of the Second Amended and
Restated Intercreditor Agreement or the Intercreditor Agreement,
the Secured Obligations shall not include any obligations in
respect of any Senior Subordinated Debt; and
21. Each Pledgor wishes to confirm the continuation of
the pledge and grant of security interests, in favor of the
Collateral Agent for the benefit of the Lenders, the Credit
Agents, the Interest Rate Exchangers, the Currency Exchangers,
the Foreign Lenders, the holders of the Senior Debentures and the
Senior Debenture Trustee, and the Commercial Paper Holders and
the Commercial Paper Representatives (all such beneficially
interested parties being referred to collectively herein as the
"SECURED PARTIES");
XVI-6
NOW, THEREFORE, in consideration of the premises the
parties hereto agree that the Existing Intermediate Subsidiary
Pledge Agreement is hereby amended and restated as follows:
SECTION 1. PLEDGE. Each Pledgor hereby pledges to the
Collateral Agent and grants to the Collateral Agent for the
benefit of 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;
(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 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 evi-
dencing 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.
The foregoing pledge and grant of a security interest
confirms the pledge and grant of a first priority security
interest in the Pledged Collateral to secure the Secured
XVI-7
Obligations made in the Original Intermediate Subsidiary Pledge
Agreement and confirmed in each preceding amendment and
restatement of the Original Intermediate Subsidiary Pledge
Agreement and continues in all respects the pledge and grant
therein without in any way causing any interruption in continuity
from such original pledge and grant.
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. Section 362(a)), of all
Obligations 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 Obligations now or
hereinafter existing under or in respect of the Interest Rate
Agreements and the Currency Agreements, all Foreign Lender
Obligations, all obligations of the Company now or hereafter
existing under the Senior Debenture Indenture and the Senior
Debentures issued thereunder, and all Commercial Paper
Obligations, 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 obligations of each Pledgor now or hereafter
existing under this Agreement and the Loan Guaranty and under the
Senior Debenture Guaranty executed by such Pledgor (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
obligations in respect of any Successor Credit Agreements,
Interest Rate Agreements, Currency Agreements and Foreign Lender
Guaranties 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; 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
the Senior Debenture Indenture, the Senior Debentures issued
thereunder and any Senior Debenture Guaranties only if the Senior
Debenture Trustee shall have executed and delivered to the
Collateral Agent a counterpart of the Intercreditor Agreement;
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 Commercial Paper Obligations in
respect of any Commercial Paper only if the Commercial Paper
Representative in respect of such Commercial Paper shall have
executed and delivered to the Collateral Agent an acknowledgment
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 shall be released, and any other provisions of this
Agreement with respect to such pledge made and security interest
granted by such Pledgor shall cease to be effective, in each case
with respect to the obligations of the Company under the Senior
Debenture Indenture and the Senior Debentures issued thereunder
and the obligations of the Pledgors (including such Pledgor)
under their respective Senior Debenture Guaranties, from and
after such time, if any, as such Pledgor is released from its
obligations under its Senior Debenture Guaranty in accordance
with the terms of Section 9 thereof. For purposes of determining
XVI-8
the amount of Secured Obligations of any Pledgor relating to any
obligation with respect to which a Person other than such Pledgor
is the direct or primary obligor and with respect to which such
Pledgor is a guarantor (including by way of providing security),
the total amount of such Secured Obligations shall be calculated
without duplication of the amount of such direct or primary
obligation secured by the Pledged Collateral of such Pledgor and
the related guaranty obligations of such Pledgor secured by such
Pledged Collateral.
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. All
such certificates and instruments delivered pursuant to the
Original Intermediate Subsidiary Pledge Agreement and each
preceding amendment and restatement of the Original Intermediate
Subsidiary Pledge Agreement shall be retained by the Collateral
Agent without re-delivery hereunder. 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) 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,
XVI-9
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 O-I Subsidiary Debt Obligations owing to each
Pledgor 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 G, 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 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.
SECTION 6. VOTING RIGHTS; DIVIDENDS; ETC. (a) As long
as no Event of Default shall have occurred and be continuing:
XVI-10
(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
Debenture Indenture; 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 Debenture Indenture shall be
deemed inconsistent with the terms of this Agreement, the
Credit Agreements or the Senior Debenture Indenture 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.
(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,
XVI-11
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 permitted by the Credit Agreements,
the Senior Debenture Indenture and the Senior Debenture
Guaranties (in the case of the Senior Debenture Indenture and the
Senior Debenture Guaranties, only to the extent the obligations
of the Company under the Senior Debenture Indenture are then
secured by the Pledged Collateral in question), (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 permitted 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 to the Pledgor owning such Pledged
Shares free and clear of the lien and security interest under
this Agreement (a) so long as any Obligations remain outstanding
under the Credit Agreements and any Lenders thereunder are
entitled to all or any portion of the Net Cash Proceeds of such
Asset Sale, concurrently with the receipt of advice from the
Credit Agent that arrangements satisfactory to it have been made
for delivery to it of the Net Cash Proceeds of such Asset Sale to
which the Lenders are entitled under such Credit Agreements and
the Intercreditor Agreement, (b) after such time as all
Obligations under the Credit Agreements have been indefeasibly
paid in full, in the event that any other Secured Parties are
entitled to receive any portion of the Cash Proceeds of such
Asset Sale, concurrently with the receipt of advice from the
agent or trustee for such Secured Parties that arrangements
satisfactory to it have been made for delivery to it of the
amounts required to be paid to such Secured Parties out of the
Cash Proceeds of such Asset Sale, and (c) in the event no Secured
Party is entitled to receive any portion of the Cash Proceeds of
such Asset Sale, concurrently with the consummation of such Asset
XVI-12
Sale; provided, in the case of clause (c), that the issuer of the
Pledged Shares that are the subject of such Asset Sale will be
concurrently released from its obligations under any Senior
Debenture Guaranty to which it is a party; 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 first 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 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
XVI-13
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
(ii) after such time as all Obligations shall have been
indefeasibly paid in full, and provided that the Pledged
Collateral then secures the payment and performance of Interest
Rate Obligations, Currency Obligations, Foreign Lender
Obligations, obligations of the Company under the Senior
Debenture Indenture or the Senior Debentures, or Commercial Paper
Obligations under any Commercial Paper Document, if any event of
default under (A) any Interest Rate Agreement or Currency
Agreement which is secured by the Pledged Collateral, (B) any
Foreign Lender Guaranty which is secured by the Pledged Collat-
eral, (C) the Senior Debenture Indenture, or (D) any such
Commercial Paper Document, as the case may be (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 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
XVI-14
notice, be made at the time and place to which it was so ad-
journed. 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 Interest Rate Exchangers, the Currency
Exchangers, the Foreign Lenders, the holders of the Senior
Debentures and the Senior Debenture Trustee, and the Commercial
Paper Holders and the Commercial Paper Representatives shall be
bound by such instructions; and the sole rights of the Credit
Agents, the Interest Rate Exchangers, the Currency Exchangers,
the Foreign Lenders, the holders of the Senior Debentures and the
Senior Debenture Trustee, and the Commercial Paper Holders and
the Commercial Paper Representatives under this Agreement shall
be to be secured by the Pledged Collateral and to receive the
payments provided for in Section 12 hereof; provided, however,
that if the Collateral Agent has requested instructions from any
Commercial Paper Representative as to the exercise of any such
remedies and such Commercial Paper Representative has not
XVI-15
promptly responded to such request, in determining the
instructions given by Requisite Obligees (as defined in the
Intercreditor Agreement), the Collateral Agent shall disregard
such Commercial Paper Representative and the outstanding amount
of Commercial Paper in respect of which such Commercial Paper
Representative is the Commercial Paper Representative.
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 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 Senior
Debenture Trustee in respect of outstanding obligations
under the Senior Debenture Indenture or any Senior Debenture
Guaranty, the Collateral Agent shall be entitled to deduct
from the share of such Proceeds otherwise payable to the
holders of the Senior Debentures issued thereunder such
holders' pro rata share of all amounts that the Collateral
Agent has been paid by the Paying Indemnified Parties (as
defined in Section 7(c) of the Intercreditor Agreement)
pursuant to Section 7(c) of the Intercreditor Agreement; and
provided, further, that in making such application to any
Commercial Paper Holder (or the Commercial Paper Representa-
tive in respect of such Commercial Paper Holder) in respect
of any Commercial Paper Obligations, the Collateral Agent
shall be entitled to deduct from such Commercial Paper
Holder's share of such Proceeds such Commercial Paper
Holder's pro rata share of all amounts that the Collateral
Agent has been paid by the Paying Indemnifying Parties
pursuant to Section 7(c) of the Intercreditor Agreement; 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 Debenture Trustee and the
Commercial Paper Representative in respect of any Commercial
Paper with a certificate setting forth the total amount paid to
the Collateral Agent pursuant to Section 7(c) of the
Intercreditor Agreement and a calculation of the amounts, if any,
deducted from Proceeds paid to the Senior Debenture Trustee or
the Commercial Paper Holders in respect of such Commercial Paper,
as the case may be.
XVI-16
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.
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, the Senior
Debenture Trustee and the Foreign Lender listed on the signature
pages thereof and, in the event that any Interest Rate
Obligations or Currency Obligations, any other Foreign Lender
Obligations, or any Commercial Paper Obligations are secured
hereby, by each Interest Rate Exchanger and Currency Exchanger,
each other Foreign Lender, and each Commercial Paper
Representative 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
XVI-17
Agreements, the Foreign Lender Guaranties, the Senior Debentures
or the Senior Debenture Indenture, or the Commercial Paper
Documents 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 (including, without limitation, the Commercial Paper
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 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), each
Foreign Lender (if the Pledged Collateral then secures such
Foreign Lender), and the Senior Debenture Trustee (if the Pledged
Collateral then secures the Senior Debentures); provided that the
written consent of the Credit Agents shall not be required if the
Obligations have been indefeasibly paid in full; provided,
further, that if the Obligations have been indefeasibly paid in
full, 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, Currency Obligations
and Foreign Lender Obligations which are secured by the Pledged
Collateral; and provided, further, that (y) during such times as
the Pledged Collateral secures payment of any Commercial Paper
Obligations, solely with respect to an amendment which would
(i) reduce or adversely affect the right of the Commercial Paper
Representatives to request or direct the Collateral Agent to take
action as provided in Section 2(a) of the Intercreditor Agreement
or (ii) subordinate or cause the Commercial Paper Holders to hold
a security interest in the Pledged Collateral junior to the
security interest therein of any other holder of Secured
Obligations, no such amendment, modification or waiver shall in
any event be effective as to the Commercial Paper Holders or
Commercial Paper Representatives in respect of any Commercial
Paper outstanding at the time of such amendment, modification or
waiver except with the prior written consent of the Commercial
Paper Representatives in respect of a majority in aggregate face
amount of such outstanding Commercial Paper, and (z) during such
time as the Pledged Collateral secures only the payment of the
obligations under or in respect of the Senior Debenture Indenture
and any Senior Debenture Guaranties, this Agreement may not be
amended, modified or waived except with the written consent of
each Pledgor, the Collateral Agent and the Senior Debenture
Trustee; provided, however, that, notwithstanding the foregoing,
no such written consent of the Senior Debenture Trustee shall be
required with respect to amendments, modifications or waivers
necessary to permit the incurrence of additional Indebtedness
secured by the Pledged Collateral and entitled to the benefits
hereof insofar as the foregoing is permitted by the Senior
Debenture Indenture.
XVI-18
SECTION 18. TERMINATION. When all Secured Obligations
have been indefeasibly paid in full, 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 Senior Debentures and any Senior Debenture
Guaranties have either been indefeasibly paid in full or are no
longer secured by any of the Pledged Collateral, 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 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
the Senior Debenture Trustee, 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
NOTES. This Agreement shall create a continuing security
interest in the Pledged Collateral and shall (i) remain in full
force and effect until indefeasible payment in full of all
Secured Obligations, (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
XVI-19
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 MAY BE BROUGHT IN
ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE
OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH
PLEDGOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF
THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. Each Pledgor
hereby 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 Section 19, such service being hereby acknowledged by such
Pledgor to be sufficient for personal jurisdiction in any action
against such Pledgor in any such court and to be otherwise
effective and binding service in every respect. Nothing herein
shall affect the right to serve process in any other manner
permitted by law or shall limit the right of any Secured Party to
bring proceedings against any Pledgor in the courts of any other
jurisdiction.
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 Loan Guaranty, any
Interest Rate Agreement, any Currency Agreement, any Foreign
Lender Guaranty, the Senior Debentures, the Senior Debenture
Indenture, any Senior Debenture Guaranty or any Commercial
Paper Document 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 Loan Guaranty, any Interest Rate
Agreement, any Currency Agreement, any Foreign Lender
Guaranty, the Senior Debentures, the Senior Debenture
Indenture, any Senior Debenture Guaranty or any Commercial
Paper Document;
(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
XVI-20
(iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, any
Pledgor.
SECTION 24. SECURED OBLIGATIONS LIMITATION.
Notwithstanding anything to the contrary set forth herein, the
amount of the Secured Obligations with respect to the Pledged
Collateral pledged by any Pledgor other than Group shall in no
event exceed (i) with respect to Secured Obligations in respect
of Guarantied Obligations (as defined in the Loan Guaranty), the
maximum liability of such Pledgor under the Loan Guaranty, as
calculated in accordance with the provisions of the Loan Guaranty
without regard to any lack of validity or enforceability (whether
actual or alleged) of any provision thereof or (ii) with respect
to Secured Obligations in respect of the Senior Debentures and
the Senior Debenture Guaranty executed and delivered by such
Pledgor, the maximum liability of such Pledgor under such Senior
Debenture Guaranty, as calculated in accordance with the
provisions of such Senior Debenture Guaranty without regard to
any lack of validity or enforceability (whether actual or
alleged) of any provision thereof.
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.
(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]
XVI-21
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:
▇▇▇▇▇-Illinois Group, Inc. (formerly named "OII Group,
Inc."), ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, Inc. (formerly named "OI Glass
Container FTS Inc."), OI Closure FTS Inc., OI Plastic Products
FTS Inc., O-I Health Care Holding Corp. (formerly named "Health
Care and Retirement Corporation"), OI General FTS Inc., and OI
General Finance Inc.
By: _________________________________
▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
Vice President and Treasurer
of each of the foregoing
Pledgors
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: ______________________________
XVI-S-1
Collateral Agent:
BANKERS TRUST COMPANY
By: ________________________________
Title: _____________________________
Notice Address:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇ ▇▇▇▇▇
with a copy to:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
XVI-S-2
SCHEDULE I
Attached to and forming a part of that certain Fourth
Amended and Restated Intermediate Subsidiary Pledge Agreement
dated as of November 19, 1996 by the O-I Subsidiaries 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
------- ---------------- ----- ------- ----- ------ --------------
▇▇▇▇▇-Illinois Group, Inc. ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, Common 1 $.01 100 100%
Inc. (formerly named
"OI Glass Container FTS Inc.")
▇▇▇▇▇-Illinois Group, Inc. ..... OI Closure FTS Inc. Common 1 .01 100 100%
▇▇▇▇▇-Illinois Group, Inc. ..... OI Plastic Products FTS Inc. Common 1 .01 100 100%
▇▇▇▇▇-Illinois Group, Inc. ..... O-I Health Care Holding Common 1 .01 100 100%
Corp. (formerly named
"Health Care and Retirement
Corporation")
▇▇▇▇▇-Illinois Group, Inc. ..... OI General FTS Inc. Common 1 .01 100 100%
▇▇▇▇▇-Illinois Group, Inc. ..... OI General Finance Inc. Common 1 .01 100 100%
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, Inc.. ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Common 1 .01 100 100%
Container Inc. (formerly
named "▇▇▇▇▇-Illinois Glass
Container Inc." and "OI Glass
Container STS Inc.")
XVI-I-1
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
------- ---------------- ----- ------- ----- ------ --------------
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, Inc.. OI ▇▇▇▇ STS Inc. Common 1 $.01 100 100%
OI Closure FTS Inc. ............ ▇▇▇▇▇-Illinois Closure Inc. Common 1 .01 100 100%
(formerly named "OI
Closure STS Inc.")
OI Closure FTS Inc. ........... Specialty Packaging Common 3 1.00 1000 100%
Licensing Company
OI Plastic Products FTS Inc. ... ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Plastic Common 3 none 300,000 100%
Products, Inc.
OI Plastic Products FTS Inc... ▇▇▇▇▇-Illinois Prescription Common 1 .01 100 100%
Products Inc. (formerly
named "OI Prescription
Products STS Inc.")
OI Plastic Products FTS Inc. ... ▇▇▇▇▇-Illinois Labels Inc. Common 5 none 10,000 100%
OI General FTS Inc. ............ ▇▇▇▇▇-Illinois General Inc. Common 1 .01 100 100%
(formerly named "OI General
STS Inc.")
OI General FTS Inc. ............ OI Castalia STS Inc. Common 1 .01 100 100%
OI General FTS Inc. ............ OI Levis Park STS Inc. Common 1 .01 100 100%
OI General FTS Inc. ............ OI AID STS Inc. Common 1 .01 100 100%
XVI-I-2
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
NAMES OF PLEDGOR HELD BY PLEDGOR DEC. 31, 1988 THE PLEDGED DEBT
---------------- ------------------------- ------------- ----------------
▇▇▇▇▇-Illinois Group, Inc. ........ ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, $1,072,961,703 March 17, 1987
(formerly named "OI Group, Inc.") Inc.(formerly named "OI
Glass Container FTS Inc.")
▇▇▇▇▇-Illinois Group, Inc. ........ OI Closure FTS Inc. 205,401,223 March 17, 1987
(formerly named "OI Group, Inc.")
▇▇▇▇▇-Illinois Group, Inc. ........ OI Plastic Products FTS Inc. 608,479,545 March 17, 1987
(formerly named "OI Group, Inc.")
▇▇▇▇▇-Illinois Group, Inc. ........ O-I Health Care Holding 474,893,863 March 17, 1987
(formerly named "OI Group, Inc.") Corp.(formerly named
"Health Care and Retirement
Corporation")
▇▇▇▇▇-Illinois Group, Inc. ........ OI General FTS Inc. 192,131,215 March 17, 1987
(formerly named "OI Group, Inc.")
XVI-I-3
PRINCIPAL
AMOUNT OF DATE OF
INDEBTEDNESS PROMISSORY
ISSUER OF PROMISSORY NOTE AS OF NOTE EVIDENCING
NAMES OF PLEDGOR HELD BY PLEDGOR DEC. 31, 1988 THE PLEDGED DEBT
---------------- ------------------------- ------------- ----------------
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, Inc. .... ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container 936,294,711 March 17, 1987
(formerly named "OI Glass Inc. (formerly named "▇▇▇▇▇-
Container FTS Inc.") Illinois Glass Container Inc."
and "OI Glass Container
STS Inc.")
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, Inc. .... OI ▇▇▇▇ STS Inc. 36,603,643 March 17, 1987
(formerly named "OI Glass
Container FTS Inc.")
OI Closure FTS Inc. ............. ▇▇▇▇▇-Illinois Closure Inc. 178,638,873 March 17, 1987
(formerly named "OI Closure
STS Inc.")
OI Plastic Products FTS Inc. .... ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Plastic 510,442,205 March 17, 1987
Products Inc.
OI Plastic Products FTS Inc. .... ▇▇▇▇▇-Illinois Prescription 106,742,864 March 17, 1987
Products Inc. (formerly
named "OI Prescription
Products STS Inc.")
OI Plastic Products FTS Inc. .... ▇▇▇▇▇-Illinois Labels Inc. N/A November 19,
1996
OI General FTS Inc. ............. ▇▇▇▇▇-Illinois General Inc. 149,900,436 March 17, 1987
(formerly named "OI General
STS Inc.")
OI General FTS Inc. ............. OI Castalia STS Inc. 10,140,374 March 17, 1987
OI General FTS Inc. ............. OI Levis Park STS Inc. 25,529,670 March 17, 1987
OI General FTS Inc. ............. OI AID STS Inc. 2,121,291 March 17, 1987
XVI-4
SCHEDULE II
TO THE FOURTH AMENDED AND RESTATED
INTERMEDIATE 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 Fourth Amended and Restated
Intermediate Subsidiary Pledge Agreement dated as of November 19,
1996, 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
------------ ----- ----------- ----- ------
XVI-II-1
ANNEX 1
to
FOURTH AMENDED AND RESTATED
INTERMEDIATE SUBSIDIARY PLEDGE AGREEMENT
INDEX OF TERMS
Additional Pledgor . . . . . . . . . . . . . . . . . . . . . . . Section 25(a)
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . .Introduction
Bankers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Introduction
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 11A
Collateral Agent . . . . . . . . . . . . . . . . . . . . . . . . .Introduction
Commercial Paper Documents . . . . . . . . . . . . . . . . . . . . .Recital 12
Commercial Paper Holders . . . . . . . . . . . . . . . . . . . . . .Recital 14
Commercial Paper Obligations . . . . . . . . . . . . . . . . . . . .Recital 13
Commercial Paper Representative. . . . . . . . . . . . . . . . . . .Recital 14
Commercial Paper Representatives . . . . . . . . . . . . . . . . . .Recital 14
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital 2
Credit Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 12
Credit Agreements. . . . . . . . . . . . . . . . . . . . . . . . . .Recital 12
Currency Exchangers. . . . . . . . . . . . . . . . . . . . . . . . .Recital 16
Currency Obligations . . . . . . . . . . . . . . . . . . . . . . . .Recital 16
Current Credit Agent . . . . . . . . . . . . . . . . . . . . . . . . Recital 8
Current Credit Agreement . . . . . . . . . . . . . . . . . . . . . . Recital 8
Current Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . Recital 8
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . Section 11A
Existing Intermediate Subsidiary Pledge Agreement. . . . . . . . .Introduction
Existing Credit Agreement. . . . . . . . . . . . . . . . . . . . . . Recital 2
Existing Loan Guaranty . . . . . . . . . . . . . . . . . . . . . . . Recital 3
Existing Intercreditor Agreement . . . . . . . . . . . Intercreditor Agreement
First Amended and Restated Company Existing Company
Pledge Agreement . . . . . . . . . . . . . . . . . . . .Pledge Agreement
Foreign Lender Debt. . . . . . . . . . . . . . . . . . . . . . . . .Recital 15
Foreign Lender Guaranties. . . . . . . . . . . . . . . . . . . . . .Recital 15
Foreign Lender Obligations . . . . . . . . . . . . . . . . . . . . .Recital 15
Foreign Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 15
Foreign Loan Agreements. . . . . . . . . . . . . . . . . . . . . . .Recital 15
Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital 3
Initial Commercial Paper Holder. . . . . . . . . . . . . . . . . . .Recital 14
Initial Commercial Paper Holders . . . . . . . . . . . . . . . . . .Recital 14
Intercreditor Agreement. . . . . . . . . . . . . . . . . . . . . . .Recital 19
Interest Rate Exchangers . . . . . . . . . . . . . . . . . . . . . .Recital 16
Interest Rate Obligations. . . . . . . . . . . . . . . . . . . . . .Recital 16
Junior Secured Obligations . . . . . . . . . . . . . . . . . . . . .Section 2B
Junior Secured Parties . . . . . . . . . . . . . . . . . . . . . . .Recital 22
ANNEX 1-1
Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 12
Loan Guaranty. . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital 9
Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2
Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2
Original Intermediate Subsidiary Existing Intermediate
Pledge Agreement. . . . . . . . . . . . . . . Subsidiary Pledge Agreement
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
Second Amended and Restated Existing Intermediate
Intercreditor Agreement . . . . . . . . . . . Subsidiary Pledge Agreement
Secured Obligations. . . . . . . . . . . . . . . . . . . . . . . . . Section 2
Secured Parties. . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 21
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . Section 11A
Senior Debenture Guaranties. . . . . . . . . . . . . . . . . . . . . Recital 6
Senior Debenture Guaranty. . . . . . . . . . . . . . . . . . . . . . Recital 6
Senior Debenture Indenture . . . . . . . . . . . . . . . . . . . . . Recital 5
Senior Debenture Trustee . . . . . . . . . . . . . . . . . . . . .Introduction
Senior Debentures. . . . . . . . . . . . . . . . . . . . . . . . . . Recital 5
Senior Indentures. . . . . . . . . . . . . . . . . . . . . . . . . .Recital 12
Successor Credit Agents. . . . . . . . . . . . . . . . . . . . . . .Recital 12
Successor Credit Agreements. . . . . . . . . . . . . . . . . . . . .Recital 12
Successor Lenders. . . . . . . . . . . . . . . . . . . . . . . . . .Recital 12
ANNEX 2-2
EXHIBIT XVII
[FORM OF]
INTERCREDITOR AGREEMENT
This SIXTH AMENDED AND RESTATED 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 November 19, 1996 among BANKERS TRUST
COMPANY ("BANKERS"), as administrative agent (the "CURRENT CREDIT
AGENT") for the lenders (the "CURRENT LENDERS") party to the
Current Credit Agreement (as hereinafter defined), THE BANK OF
NEW YORK, as trustee (together with its successors in such
capacity, the "SENIOR DEBENTURE TRUSTEE") under the Senior
Debenture Indenture (as hereinafter defined), ▇▇▇▇▇▇ TRUST AND
SAVINGS BANK, as trustee (together with its successors in such
capacity, the "SUBORDINATED DEBT TRUSTEE") under the Subordinated
Debt Indenture (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 6 of this
Agreement, and amends and restates the Fifth Amended and Restated
Intercreditor Agreement dated as of December 15, 1993 (the
"EXISTING INTERCREDITOR AGREEMENT"), among the Current Credit
Agent, the Senior Note Trustee and Bankers, as a Foreign Lender
(as such terms are defined in the Existing Intercreditor
Agreement), the Senior Debenture Trustee, the Subordinated Debt
Trustee, and Bankers, as Collateral Agent. Certain defined terms
used in this Agreement are indexed in Annex 1 to this Agreement.
R E C I T A L S
1. ▇▇▇▇▇-Illinois, Inc., a Delaware corporation (the
"COMPANY"), has executed and delivered to the Collateral Agent a
Fifth Amended and Restated Company Pledge Agreement dated as of
November 19, 1996 (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), which amends and restates the Existing Company Pledge
Agreement (such term being used in this Agreement as defined in
the Company Pledge Agreement);
2. ▇▇▇▇▇-Illinois Group, Inc., a Delaware corporation
("GROUP"), and the O-I Subsidiaries (such term being used in this
Agreement as defined in the Current Credit Agreement) identified
as "First Tier Subsidiaries" on Schedule A annexed to the Current
Credit Agreement (each, including Group, an "INTERMEDIATE
XVII-1
SUBSIDIARY PLEDGOR" and collectively the "INTERMEDIATE SUBSIDIARY
PLEDGORS") have executed and delivered to the Collateral Agent a
Fourth Amended and Restated Intermediate Subsidiary Pledge
Agreement dated as of November 19, 1996 (as amended, amended and
restated or otherwise modified from time to time in accordance
with the terms thereof and hereof, herein called the
"INTERMEDIATE SUBSIDIARY PLEDGE AGREEMENT"; a copy of the
Intermediate Subsidiary Pledge Agreement as in effect on the date
this Agreement becomes effective is attached to this Agreement as
Annex 3), which amends and restates the Existing Intermediate
Subsidiary Pledge Agreement (such term being used in this
Agreement as defined in the Intermediate Subsidiary Pledge
Agreement; the Existing Company Pledge Agreement and the Existing
Intermediate Subsidiary Pledge Agreement being collectively
referred to herein as the "EXISTING PLEDGE AGREEMENTS");
3. The Company and the Intermediate Subsidiary
Pledgors have delivered to the Collateral Agent the Pledged
Shares (as defined in each of the Company Pledge Agreement and
the Intermediate 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");
4. The Current Lenders, the Lead Managers and the
Current Credit Agent (as such terms are defined in the Existing
Intercreditor Agreement) have entered into a Refinancing Credit
Agreement dated as of December 15, 1993 with the Company (said
Refinancing Credit Agreement, as amended to the date hereof,
being the "EXISTING CREDIT AGREEMENT");
5. Group and the other Guarantor Subsidiaries (such
term being used in this Agreement as defined in the Current
Credit Agreement) have guarantied the obligations of the Company
under the Existing Credit Agreement pursuant to the Loan Guaranty
(as such term is defined in the Existing Intercreditor Agreement,
the "EXISTING LOAN GUARANTY");
6. (a) The obligations of the Company under the
Existing Credit Agreement have been secured on a senior basis
pursuant to the Existing Company Pledge Agreement and (b) the
obligations of the Company under the Existing Credit Agreement
and the obligations of the Intermediate Subsidiary Pledgors under
the Existing Loan Guaranty have been secured on a senior basis
pursuant to the Existing Intermediate Subsidiary Pledge
Agreement;
7. The Company, Group, as guarantor, and the Senior
Debenture Trustee have entered into an Indenture dated as of
December 15, 1991 (the "SENIOR DEBENTURE INDENTURE") pursuant to
which the Company has issued $1,000,000,000 in aggregate
principal amount of 11% Senior Debentures Due 2003 (the "SENIOR
DEBENTURES"; the obligations of the Company under the Senior
Debenture Indenture being referred to herein as the "SENIOR
DEBENTURE OBLIGATIONS");
XVII-2
8. Each Guarantor Subsidiary (other than Group) has
guarantied the obligations of the Company under the Senior
Debenture Indenture and the Senior Debentures issued thereunder
pursuant to a Subsidiary Guaranty substantially in the form of
Exhibit E to the Senior Debenture Indenture, and Group has
guarantied the obligations of the Company under the Senior
Debenture Indenture and the Senior Debentures issued thereunder
pursuant to the Group Exchange Guaranty, substantially in the
form of Exhibit D to the Senior Debenture Indenture (each such
Subsidiary Guaranty and such Group Exchange Guaranty being a
"SENIOR DEBENTURE GUARANTY"; collectively, the "SENIOR DEBENTURE
GUARANTIES");
9. As more fully described in the recitals to the
Existing Intercreditor Agreement, (a) the Indebtedness evidenced
by the Senior Debentures has been secured on a senior basis
pursuant to the Existing Company Pledge Agreement, subject to
certain limitations on the rights of the Senior Debenture Trustee
under the Existing Company Pledge Agreement and the Existing
Intercreditor Agreement with respect to decisions relating to the
exercise of remedies in respect of the Pledged Collateral (as
defined in the Existing Company Pledge Agreement) and other
matters, and (b) such Indebtedness and the obligations of the
Intermediate Subsidiary Pledgors under the Senior Debenture
Guaranties have been secured on a senior basis pursuant to the
Existing Intermediate Subsidiary Pledge Agreement, subject to
certain limitations on the rights of the Senior Debenture Trustee
under the Existing Intermediate Subsidiary Pledge Agreement and
the Existing Intercreditor Agreement with respect to decisions
relating to the exercise of remedies in respect of the Pledged
Collateral (as defined in the Existing Intermediate Subsidiary
Pledge Agreement) and other matters, and the Company desires that
such Indebtedness and obligations continue to be secured on a
senior basis by the Pledged Collateral under the Company Pledge
Agreement and the Intermediate Subsidiary Pledge Agreement to the
same extent, and subject to the same limitations relative to the
other obligations secured by such Pledged Collateral (treating
the Current Credit Agreement for such purposes as being in all
respects the same as the Existing Credit Agreement), as under the
Existing Company Pledge Agreement, the Existing Intermediate
Subsidiary Pledge Agreement and the Existing Intercreditor
Agreement;
10. The Company and the Subordinated Debt Trustee have
entered into an Indenture dated as of April 1, 1992, together
with supplements thereto dated as of April 8, 1992, June 22,
1992, August 4, 1992, August 24, 1992 and October 8, 1992
(collectively, the "SUBORDINATED DEBT INDENTURE"), pursuant to
which the Company has issued the following (collectively, the
"SUBORDINATED DEBT SECURITIES"; the obligations of the Company
under the Subordinated Debt Indenture and the Subordinated Debt
Securities being collectively referred to herein as the "JUNIOR
SECURED OBLIGATIONS"): (a) $250,000,000 in aggregate principal
amount of 10-1/4% Senior Subordinated Notes Due April 1, 1999;
(b) $150,000,000 in aggregate principal amount of 10-1/2% Senior
Subordinated Notes Due June 15, 2002; (c) $250,000,000 in
aggregate principal amount of 10% Senior Subordinated Notes Due
August 1, 2002; (d) $200,000,000 in aggregate principal amount of
9-3/4% Senior Subordinated Notes Due August 15, 2004; and
XVII-3
(e) $100,000,000 in aggregate principal amount of 9.95% Senior
Subordinated Notes Due October 15, 2004;
11. As more fully described in the recitals to the
Existing Intercreditor Agreement, the Indebtedness evidenced by
the Subordinated Debt Securities has been secured on a senior
subordinated basis pursuant to the Existing Company Pledge
Agreement, subject to certain limitations on the rights of the
Subordinated Debt Trustee under the Existing Company Pledge
Agreement and the Existing Intercreditor Agreement with respect
to decisions relating to the exercise of remedies in respect of
the Pledged Collateral (as defined in the Existing Company Pledge
Agreement) and other matters, and the Company desires that such
Indebtedness continue to be secured on a senior subordinated
basis by the Pledged Collateral under the Company Pledge
Agreement to the same extent, and subject to the same limitations
relative to the other obligations secured by such Pledged
Collateral (treating the Current Credit Agreement for such
purposes as being in all respects the same as the Existing Credit
Agreement), as under the Existing Company Pledge Agreement and
the Existing Intercreditor Agreement;
12. The Current Lenders, the Current Lenders appointed
as Co-Agents for the Current Lenders, Bank of America National
Trust and Savings Association, as Documentation Agent for the
Current Lenders, and the Current Credit Agent have entered into a
Refinancing Credit Agreement dated as of November 19, 1996 with
the Company (said Refinancing 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 for the purpose of, among other things, (a) refinancing
all outstanding Indebtedness under the Existing Credit Agreement
and (b) permitting the Company to issue Commercial Paper as more
fully described below;
13. As required in the Current Credit Agreement, Group
and the other Guarantor Subsidiaries (collectively, the "LOAN
GUARANTORS") have guarantied the obligations of the Company under
the Current Credit Agreement and any Successor Credit Agreements
pursuant to an O-I Subsidiary Guaranty dated as of November 19,
1996 (as amended, amended and restated or otherwise modified from
time to time in accordance with the terms thereof and hereof,
herein called the "LOAN GUARANTY"; a copy of the Loan Guaranty as
in effect on the date this Agreement becomes effective is
attached to this Agreement as Annex 4);
14. It is desired that (a) all obligations of the
Company under the Current Credit Agreement and any Successor
Credit Agreements be secured on a senior basis by the Pledged
Collateral under the Pledge Agreements to the same extent as the
obligations under the Existing Credit Agreement have been secured
by the Pledged Collateral (as defined in the Existing Pledge
XVII-4
Agreements) and (b) all obligations of the Loan Guarantors under
the Loan Guaranty be secured on a senior basis by the Pledged
Collateral under the Intermediate Subsidiary Pledge Agreement to
the same extent as the obligations under the Existing Loan
Guaranty have been secured by the Pledged Collateral (as defined
in the Existing Intermediate Subsidiary Pledge Agreement), and
that the relative priority of the Liens and other rights in favor
of the Credit Agents and the Lenders (as such terms are
hereinafter defined) with respect to the Pledged Collateral be
the same in all substantive respects as the relative priority of
the corresponding Liens and other rights granted to the Current
Credit Agent and the Current Lenders (as such terms are defined
in the Existing Pledge Agreements and the Existing Intercreditor
Agreement), in each case as compared to the relative priority of
any corresponding Liens and other rights granted to the Senior
Debenture Trustee, the Subordinated Debt Trustee and the holders
of any other obligations secured by any or all of the Pledged
Collateral;
15. (a) As more fully described in the recitals to the
Existing Intercreditor Agreement, to the extent that the Current
Credit Agreement refinances all or any portion of the
Indebtedness under the Existing Credit Agreement or the Senior
Debenture Indenture, the Current Credit Agreement and any
Successor Credit Agreements will each constitute a "Successor
Credit Agreement" as defined in the Existing Pledge Agreements
and the Existing Intercreditor Agreement and, as such, the
Current Credit Agreement and any Successor Credit Agreements will
automatically be entitled to be secured by the Pledged Collateral
on the basis described in Recital 14, and (b) whether or not the
Current Credit Agreement constitutes a "Successor Credit
Agreement" as defined in the Existing Pledge Agreements and the
Existing Intercreditor Agreement, the terms of the Senior
Debenture Indenture, the Subordinated Debt Indenture, the
Existing Pledge Agreements and the Existing Intercreditor
Agreement permit the amendments to the Existing Pledge Agreements
and the Existing Intercreditor Agreement effected pursuant to the
Pledge Agreements and this Agreement without the consent of the
holders of the Senior Debentures or the Subordinated Debt
Securities for the purpose of (i) securing the Current Credit
Agreement and any Successor Credit Agreements by the Pledged
Collateral on the basis described in Recital 14 and (ii) securing
the Loan Guaranty by the Pledged Collateral under the
Intermediate Subsidiary Pledge Agreement on the basis described
in Recital 14; and accordingly (X) the entire amount of the
obligations under the Current Credit Agreement and any Successor
Credit Agreements is entitled (as described in the foregoing
clauses (a) and (b)) to be secured by the Pledged Collateral on
the basis described in Recital 14 and (Y) the entire amount of
the obligations under the Loan Guaranty is entitled (as described
in the foregoing clause (b)) to be secured by the Pledged
Collateral under the Intermediate Subsidiary Pledge Agreement on
the basis described in Recital 14;
16. It is contemplated that, from time to time, the
Current Lenders or other financial institutions (collectively,
the "SUCCESSOR LENDERS") may enter into one or more agreements
with the Company and other Persons, including Subsidiaries of the
Company, either extending the maturity of, refinancing or
otherwise restructuring (including, but not limited to, the
XVII-5
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 or any Senior Indenture (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, notwithstanding the fact (as
described in certain of the following recitals) that any
agreement or instrument pursuant to which any Commercial Paper is
issued or evidencing any Commercial Paper Obligations (as herein-
after defined) (collectively, the "COMMERCIAL PAPER DOCUMENTS")
could have constituted a Successor Credit Agreement, in no event
shall any Commercial Paper Document be deemed to be a Successor
Credit Agreement or a Credit Agreement; and provided, further,
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 (collectively, the "SUCCESSOR CREDIT AGENTS")
under any Successor Credit Agreements being collectively referred
to herein as the "CREDIT AGENTS"), and it is desired that, as
described in Recitals 14 and 15, the obligations of the Company
and any additional borrowers which are Subsidiaries of the
Company under any Successor Credit Agreements be secured by the
Pledged Collateral to the same extent as the obligations under
the Current Credit Agreement;
17. The Current Lenders have agreed, subject to the
terms and conditions set forth in the Current Credit Agreement,
to permit the Company to issue Commercial Paper in an aggregate
face amount at any time outstanding not to exceed the amount
specified in the Current Credit Agreement to the extent that the
Company has reserved unused a portion of the Revolving Loan
Commitments under the Current Credit Agreement, and it is desired
that all obligations of the Company under any such Commercial
Paper outstanding from time to time (collectively, the
"COMMERCIAL PAPER OBLIGATIONS") be guarantied under the Loan
Guaranty and secured on a senior basis by the Pledged Collateral;
18. The parties hereto desire to acknowledge and
confirm, for the benefit of any financial institutions initially
purchasing any such Commercial Paper (each an "INITIAL COMMERCIAL
PAPER HOLDER" and collectively the "INITIAL COMMERCIAL PAPER
HOLDERS") or appointed to act as agent or representative for the
holders from time to time of such Commercial Paper (each a
"COMMERCIAL PAPER REPRESENTATIVE" and collectively the
"COMMERCIAL PAPER REPRESENTATIVES"; provided that in the event no
such financial institution is appointed to act as agent or
representative for the holders of any Commercial Paper, the
Initial Commercial Paper Holder in respect of such Commercial
Paper shall be deemed to be the Commercial Paper Representative
in respect of such Commercial Paper) and for the benefit of the
holders from time to time of such Commercial Paper (together with
XVII-6
the Initial Commercial Paper Holders, the "COMMERCIAL PAPER
HOLDERS"), that during any period in which any Commercial Paper
is outstanding such Commercial Paper constitutes a restructuring
of a portion of the credit facilities provided under the Current
Credit Agreement and accordingly that all Commercial Paper
Obligations would also constitute Indebtedness outstanding under
a "Successor Credit Agreement" as defined in the Pledge
Agreements and this Agreement, and as such all Commercial Paper
Obligations are entitled to constitute (a) Senior Secured
Obligations (as defined in the Company Pledge Agreement) and (b)
Secured Obligations (as defined in the Intermediate Subsidiary
Pledge Agreement); provided that, as a condition to permitting
the Company to issue Commercial Paper, the Current Lenders have
required, as was required in the Existing Pledge Agreements and
the Existing Intercreditor Agreement, that no Commercial Paper
Document shall be deemed to be a "Successor Credit Agreement" for
purposes of the Pledge Agreements or this Agreement and that
certain limitations be placed on the rights of the Commercial
Paper Holders and the Commercial Paper Representatives with
respect to decisions relating to the exercise of remedies in
respect of the Pledged Collateral and other matters; and
provided, further, that the Commercial Paper Holder and
Commercial Paper Representative in respect of any Commercial
Paper shall only be entitled to the benefits of the Pledge
Agreements, the Loan Guaranty and this Agreement if such
Commercial Paper Representative shall have executed and delivered
to the Collateral Agent an acknowledgment to this Agreement (in
the form attached hereto) agreeing to be bound by the terms
hereof (which acknowledgment shall have been acknowledged by the
Company, each Intermediate Subsidiary Pledgor and each Loan
Guarantor);
19. The Company contemplates that it may, from time to
time, enter into certain guaranties permitted under the Credit
Agreements (collectively, the "FOREIGN LENDER GUARANTIES") in
support of certain indebtedness of certain Foreign Subsidiaries
(collectively, the "FOREIGN LENDER DEBT") to certain Lenders
(collectively, the "FOREIGN LENDERS") under certain loan and
other credit agreements (collectively, the "FOREIGN LOAN
AGREEMENTS"), and the Company desires that its obligations under
the Foreign Lender Guaranties (such obligations being
collectively referred to herein as the "FOREIGN LENDER
OBLIGATIONS") continue to be secured by the Pledged Collateral,
to the extent permitted by the Credit Agreements, to the same
extent as under the Existing Pledge Agreements and the Existing
Intercreditor Agreement; provided that any Foreign Lender
desiring such security shall execute and deliver to the
Collateral Agent a counterpart of this Agreement or an
acknowledgment to this Agreement (in the form attached hereto)
agreeing to be bound by the terms hereof (which acknowledgment
shall be acknowledged by the Company and the Intermediate
Subsidiary Pledgors); and provided, further, that in no event
shall any Foreign Lender benefit from or have any rights with
respect to the Loan Guaranty;
20. It is contemplated that the Company may from time
to time enter into one or more Interest Rate Agreements with one
or more Lenders (collectively, the "INTEREST RATE EXCHANGERS")
and it is desired that the obligations of the Company under such
Interest Rate Agreements, including the obligation to make
payments in the event of early termination thereunder (all such
XVII-7
obligations being the "INTEREST RATE OBLIGATIONS"), be guarantied
under the Loan Guaranty to the same extent as under the Existing
Loan Guaranty and the Existing Intercreditor Agreement and
continue to be secured by the Pledged Collateral to the same
extent as under the Existing Pledge Agreements and the Existing
Intercreditor Agreement; provided that any Interest Rate
Exchanger desiring the benefit of the Loan Guaranty and such
security shall execute and deliver to the Collateral Agent an
acknowledgment to this Agreement (in the form attached hereto)
agreeing to be bound by the terms hereof (which acknowledgment
shall be acknowledged by the Company, the Intermediate Subsidiary
Pledgors and the Loan Guarantors);
21. It is contemplated that the Company may from time
to time enter into one or more Currency Agreements with one or
more Lenders (collectively, the "CURRENCY EXCHANGERS") and it is
desired that the obligations of the Company under such Currency
Agreements, including the obligation to make payments in the
event of early termination thereunder (all such obligations being
the "CURRENCY OBLIGATIONS"), be guarantied under the Loan
Guaranty to the same extent as under the Existing Loan Guaranty
and the Existing Intercreditor Agreement and continue to be
secured by the Pledged Collateral to the same extent as under the
Existing Pledge Agreements and the Existing Intercreditor
Agreement; provided that any Currency Exchanger desiring the
benefit of the Loan Guaranty and such security shall execute and
deliver to the Collateral Agent an acknowledgment to this
Agreement (in the form attached hereto) agreeing to be bound by
the terms hereof (which acknowledgment shall be acknowledged by
the Company, the Intermediate Subsidiary Pledgors and the Loan
Guarantors);
22. As described in Recital 15, all or a portion of the
Current Credit Agreement constitutes a "Successor Credit
Agreement" as defined in the Existing Pledge Agreements and the
Existing Intercreditor Agreement, and accordingly the Current
Lenders constitute "Lenders" as defined in the Existing Pledge
Agreements and the Existing Intercreditor Agreement and are
entitled to be secured by the Pledged Collateral in their
capacities as Foreign Lenders, Interest Rate Exchangers and
Currency Exchangers as described in Recitals 19, 20 and 21;
23. The Current Credit Agent, the Senior Debenture
Trustee, the Subordinated Debt Trustee and the Foreign Lender
named on the signature pages hereof, and, in the event any
Successor Credit Agreement is to be guarantied under the Loan
Guaranty and secured by the Pledge Agreements, the Successor
Credit Agent thereunder, and, in the event any other Foreign
Lender Obligations are to be secured by the Pledge Agreements,
the Foreign Lender which is the beneficiary of the applicable
Foreign Lender Guaranty, and, in the event any Interest Rate
Obligations are to be guarantied under the Loan Guaranty 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 Loan
Guaranty and secured by the Pledge Agreements, the Currency
Exchanger party to the relevant Currency Agreement, and, in the
event any Commercial Paper Obligations in respect of any
XVII-8
Commercial Paper are to be guarantied under the Loan Guaranty and
secured by the Pledge Agreements, the Commercial Paper
Representative in respect of such Commercial Paper, and the
Collateral Agent (collectively, the "PARTIES") desire to set
forth certain additional 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 Intermediate Subsidiary Pledgors and the Loan
Guarantors (collectively, the "LOAN PARTIES") to the Parties and
to the Lenders, the holders of the Senior Debentures, the holders
of the Subordinated Debt Securities, and the Commercial Paper
Holders in respect of any Commercial Paper guarantied under the
Loan Guaranty and secured by the Pledge Agreements (collectively,
together with the Parties, the "SECURED PARTIES") under the
agreements referred to in the foregoing recitals;
24. The Parties wish to set forth their agreement as to
the allocation of certain payments to be made from the proceeds
of Asset Sales of Pledged Collateral;
25. The Parties wish to set forth their agreement as to
decisions relating to the exercise of remedies under the Loan
Guaranty and the Pledge Agreements and certain limitations on the
exercise of such remedies;
26. Certain of the Parties wish to set forth their
mutual intentions as to certain matters relating to payments by
the applicable Loan Parties under the Loan Guaranty and the
Senior Debenture Guaranties;
27. The Parties wish to confirm their agreement that
(a) in no event shall either the Junior Secured Obligations or
the Subordinated Debt Trustee be secured by or have any rights
with respect to the Pledged Collateral under the Intermediate
Subsidiary Pledge Agreement or benefit from or have any rights
with respect to the Loan Guaranty or the Senior Debenture
Guaranties and (b) certain remedies under the Company Pledge
Agreement not be taken for the benefit of certain junior
indebtedness unless such remedies are being concurrently
exercised for the benefit of certain senior indebtedness or
unless all such senior indebtedness has been paid in full; and
28. The Parties wish to confirm that certain
subordination provisions granting benefits to the holders of
certain senior indebtedness shall not be impaired by the granting
of security interests in collateral, or the exercise of rights
with respect to such collateral, in favor of the holders of
certain junior indebtedness;
NOW, THEREFORE, the Parties agree that the Existing
Intercreditor Agreement is hereby amended and restated as
follows:
SECTION 1. APPOINTMENT AS COLLATERAL AGENT. The
Current Credit Agent, the Senior Debenture Trustee, the
Subordinated Debt Trustee and the Foreign Lender listed on the
signature pages hereof each hereby appoints, and each Credit
XVII-9
Agent, Lender, Foreign Lender, Interest Rate Exchanger, Currency
Exchanger and Commercial Paper Representative signing an
acknowledgment hereto, by such signing appoints Bankers Trust
Company to serve as collateral agent and representative of each
such Party and the Commercial Paper Holders (to the extent
applicable) under each of the Pledge Agreements and the Loan
Guaranty (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 Company Pledge Agreement and, on behalf
of all such Parties and the Secured Parties except the
Subordinated Debt Trustee and the holders of the Subordinated
Debt Securities, and (with respect to the Collateral Account
Agreement only) the Senior Debenture Trustee and the holders of
the Senior Debentures, the Intermediate Subsidiary Pledge
Agreement and the Collateral Account Agreement 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 Intermediate
Subsidiary Pledgor (collectively, the "PLEDGORS") under the
Pledge Agreements and the obligations of the Company under the
Collateral Account Agreement 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,
Currency Exchanger and Commercial Paper Representative signing an
acknowledgment hereto (collectively, together with the Commercial
Paper Holders, the "GUARANTIED PARTIES"), for the purpose of
enforcing the Guarantied Parties' rights under the Loan Guaranty
and the obligations of the Loan Guarantors under the Loan
Guaranty.
SECTION 2. DECISIONS RELATING TO EXERCISE OF REMEDIES
VESTED IN REQUISITE OBLIGEES UNDER THE CREDIT AGREEMENTS,
INTEREST RATE AGREEMENTS, CURRENCY AGREEMENTS, FOREIGN LOAN
AGREEMENTS, SENIOR DEBENTURE INDENTURE, COMMERCIAL PAPER DOCU-
MENTS, AND SUBORDINATED DEBT INDENTURE.
(a) The Collateral Agent agrees to make such demands
and give such notices under the Loan Guaranty and the Pledge
Agreements as Requisite Obligees may request, and to take such
action to enforce the Loan Guaranty 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 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; provided that, if the
Obligations (such term being used herein as defined in the Credit
Agreements) have been indefeasibly paid in full, "REQUISITE
OBLIGEES" shall mean (x) solely for purposes of directing the
Collateral Agent with respect to actions to be taken under or in
respect of the Company Pledge Agreement, Secured Parties holding
51% or more of the aggregate amount of the sum of (A) the
principal amount of the Foreign Lender Debt then guarantied by
the Foreign Lender Guaranties, (B) 20% of the notional amount
XVII-10
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, (C) the
aggregate outstanding principal amount of the Senior Debentures
(to the extent the Senior Debentures are then secured by the
Pledged Collateral under the Company Pledge Agreement), and (D)
the aggregate original issuance price of any outstanding
Commercial Paper secured by the Pledged Collateral under the
Company Pledge Agreement until indefeasible payment in full of
the Foreign Lender Obligations, the Interest Rate Obligations,
the Currency Obligations, and all Senior Debentures and
Commercial Paper secured by the Pledged Collateral under the
Company Pledge Agreement, and, thereafter, Secured Parties
holding 51% or more of (E) the aggregate outstanding principal
amount of the Subordinated Debt Securities until indefeasible
payment in full of the Subordinated Debt Securities, and (y)
solely for purposes of directing the Collateral Agent with
respect to actions to be taken under or in respect of the
Intermediate Subsidiary Pledge Agreement, Secured Parties holding
51% or more of the sum of the amounts described in clauses (A),
(B), (C) (to the extent the Senior Debentures are then secured by
the Pledged Collateral under the Intermediate Subsidiary Pledge
Agreement), and (D) above; 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 Loan Guaranty, Requisite
Lenders under the Credit Agreement, or, if the Obligations have
been indefeasibly paid in full, Guarantied Parties holding 51% or
more of the sum of (F) 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, and (G) the
aggregate original issuance price of any outstanding Commercial
Paper guarantied by the Loan Guaranty; provided, further that, in
the case of each of clauses (i) and (ii) above, if the Collateral
Agent requests instruction as to any action to be taken at the
direction of Requisite Obligees from any Commercial Paper
Representative (on behalf of such Commercial Paper Representative
and the Commercial Paper Holders in respect of which such
Commercial Paper Representative is the Commercial Paper
Representative) and such Commercial Paper Representative declines
or otherwise fails to promptly give directions to the Collateral
Agent, the aggregate original issuance price of any outstanding
Commercial Paper held by such Commercial Paper Holders shall not
be counted or otherwise deemed to be outstanding by Collateral
Agent for purposes of determining the action to be directed by
Requisite Obligees or whether a consensus of Requisite Obligees
has been obtained. 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 Loan Guaranty 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 Loan Guaranty or the Pledge
XVII-11
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; and provided that any such indemnification required by
the Collateral Agent with respect to any such action under the
Loan Guaranty shall be provided by the Guarantied Parties.
(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 Loan Guaranty (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 Loan Guaranty (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 Commercial Paper Holders or the
holders of the Senior Debentures or the Subordinated Debt
Securities) 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 Loan 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
(i) the Foreign Lender Obligations, the Interest Rate
Obligations, the Currency Obligations, the Senior Debenture
Obligations and the Commercial Paper Obligations to be secured by
the Pledged Collateral and (ii) the Junior Secured Obligations to
be secured by the Pledged Collateral pledged under the Company
Pledge Agreement, 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 and Section 4(b) hereof. The Non-Directing
Parties with respect to the Loan Guaranty agree that the only
right of such Non-Directing Parties under the Loan Guaranty is
for the Interest Rate Obligations, the Currency Obligations and
the Commercial Paper Obligations to be guarantied by the Loan
Guaranty for the period and to the extent provided in the Loan
Guaranty and to receive a share of any payments received on
account of the Loan Guaranty as provided in the Loan Guaranty.
(d) The Senior Debenture Trustee agrees, which
agreement shall be binding upon each and every holder of the
Senior Debentures, that the Senior Debenture Obligations
XVII-12
(i) shall be secured by the Pledged Collateral pledged by any
Pledgor only until such time, if any, as the pledge made and
security interest granted by such Pledgor with respect to such
Senior Indenture Obligations may be released in accordance with
the terms of the last proviso to Section 2A of the Company Pledge
Agreement or the penultimate proviso to Section 2 of the
Intermediate Subsidiary Pledge Agreement, as the case may be, and
(ii) shall not be secured by the collateral pledged under the
Collateral Account Agreement.
(e) The Subordinated Debt Trustee agrees, which
agreement shall be binding upon each and every holder of the
Subordinated Debt Securities, that (i) the Junior Secured
Obligations shall be secured only by the Pledged Collateral under
the Company Pledge Agreement and the Junior Secured Obligations
shall not be secured by any Pledged Collateral under the
Intermediate Subsidiary Pledge Agreement or the collateral
pledged under the Collateral Account Agreement and (ii) the
Collateral Agent shall take no action to exercise any remedy
provided in Section 11 of the Company Pledge Agreement for the
purpose of realizing value on the Pledged Collateral under the
Company Pledge Agreement to be applied to the payment of any
Junior Secured Obligation unless (y) such remedy is concurrently
being exercised for the purpose of realizing value on such
Pledged Collateral to be applied to the payment of the
Obligations, the Foreign Lender Obligations, the Interest Rate
Obligations, the Currency Obligations, the Senior Debenture
Obligations (to the extent such Senior Debenture Obligations are
then secured by the Pledged Collateral under the Company Pledge
Agreement) or the Commercial Paper Obligations (collectively, the
"SENIOR SECURED OBLIGATIONS"); provided, however, that the
holders of the Junior Secured Obligations shall have no right to
direct the exercise of such remedy; or (z) all Senior Secured
Obligations shall have been indefeasibly paid in full.
(f) The Collateral Agent may at any time request
directions from the Requisite Obligees with respect to the Pledge
Agreements or the Loan Guaranty as to any course of action or
other matter relating hereto or to such Pledge Agreements or Loan
Guaranty, as the case may be. Except as otherwise provided in
the Pledge Agreements and the Loan Guaranty, 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.
(g) 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 Agreements or the
Loan Guaranty 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, LOAN
GUARANTY PAYMENTS, ETC.
(a) Subject to the provisions of Section 4 which shall
govern with respect to the allocation of Net Cash Proceeds of
Asset Sales of Pledged Collateral, any and all amounts actually
XVII-13
received by the Collateral Agent in connection with the enforce-
ment of the Pledge Agreements, including the proceeds of any
collection, sale or other disposition of the Pledged Collateral
or any portion thereof (collectively, "PROCEEDS") shall be
applied promptly by the Collateral Agent as provided for in
Section 12 of the Pledge Agreements. Any and all amounts
actually received by the Collateral Agent in connection with the
enforcement of the Loan Guaranty (collectively, "LOAN GUARANTY
PAYMENTS") shall be applied promptly by the Collateral Agent as
provided in the Loan Guaranty. Until Proceeds and Loan Guaranty
Payments are so applied, the Collateral Agent shall hold such
Proceeds and Loan Guaranty Payments in its custody in accordance
with its regular procedures for handling deposited funds.
(b) Subject to the provisions of Section 4 which shall
govern with respect to the allocation of Net Cash Proceeds of
Asset Sales of Pledged Collateral, (i) any Proceeds received by
the Collateral Agent relating to the Senior Secured Obligations
shall be applied so that each Secured Party with respect thereto
that is then secured by the Pledged Collateral giving rise to
such Proceeds shall receive payment of the same proportionate
amount of all such Senior Secured Obligations and (ii) any
Proceeds received by the Collateral Agent relating to the Junior
Secured Obligations shall be applied so that each Secured Party
with respect thereto that is then secured by the Pledged
Collateral giving rise to such Proceeds shall receive payment of
the same proportionate amount of all such Junior Secured
Obligations. Any Loan Guaranty Payments received by the
Collateral Agent relating to the Obligations, the Interest Rate
Obligations, the Currency Obligations or the Commercial Paper
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. For purposes of determining the
proportionate amounts of all Senior Secured Obligations or
Guarantied Obligations at the time any Proceeds or Loan Guaranty
Payments are to be distributed under this Section 3, the amount
of the outstanding Obligations, Foreign Lender Obligations,
Senior Debenture Obligations and Commercial Paper Obligations,
respectively, shall be deemed to be the principal and interest or
face amount, as applicable, then due and payable under the Credit
Agreements, the Foreign Lender Guaranties, the Senior Debenture
Indenture (to the extent that the Senior Indenture Obligations
with respect thereto are then secured by the Pledged Collateral
under the Company Pledge Agreement or the Intermediate Subsidiary
Pledge Agreement, as applicable) and the Commercial Paper
Documents, as the case may be, 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 obligations then due and payable
(exclusive of expenses or similar liabilities but including any
early termination payments then due) under the applicable
Interest Rate Agreements or Currency Agreements. For purposes of
determining the proportionate amounts of all Junior Secured
Obligations at the time any Proceeds are to be distributed under
this Section 3, the amount of the outstanding Junior Secured
Obligations in respect of the Subordinated Debt Securities shall
be deemed to be the principal and interest then due and payable
under the Subordinated Debt Indenture. Anything contained in
XVII-14
this Agreement or the Pledge Agreements to the contrary
notwithstanding, by signing an acknowledgment to this Agreement,
the Current Credit Agent agrees that, in the event the Current
Credit Agent receives any Proceeds which are held pursuant to the
terms of Section 2(b) of the Collateral Account Agreement as cash
collateral for any outstanding Letter of Credit, the Current
Credit Agent shall, in the event of cancellation or expiration of
such Letter of Credit or any reduction in the maximum amount
available at any time for drawing thereunder, return to the
Collateral Agent any portion of such Proceeds which, at the time
of such cancellation, expiration or reduction, is neither
required to be retained as cash collateral for such Letter of
Credit or any other Letter of Credit nor required to be applied
to the payment of any outstanding Obligations secured pursuant to
the terms of the Collateral Account Agreement. The Collateral
Agent shall apply the amount of any Proceeds so returned by the
Current Credit Agent to the payment of the other Senior Secured
Obligations owed to the Secured Parties (as defined in the
Collateral Account Agreement) in accordance with Section 12 of
the Intermediate Subsidiary Pledge Agreement.
(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; any payments in respect of Foreign Lender Obligations
shall be made as directed by the Foreign Lender to which such
Foreign Lender Obligations are owed; any payments in respect of
any Senior Debenture Obligations shall be paid to the Senior
Debenture Trustee for the benefit of the holders of such Senior
Debenture Obligations; any payments in respect of Commercial
Paper Obligations shall be paid to the respective Commercial
Paper Holders or to the applicable Commercial Paper
Representatives for their benefit; and any payments in respect of
any Junior Secured Obligations shall be paid to the Subordinated
Debt Trustee for the benefit of the holders of such Junior
Secured Obligations.
SECTION 4. ALLOCATION OF PROCEEDS FROM ASSET SALES OF
PLEDGED COLLATERAL. The Current Credit Agent, acting on behalf
of the Current Lenders, each Successor Credit Agent signing an
acknowledgment hereto, acting on behalf of the Lenders for which
it is agent, each Interest Rate Exchanger, Currency Exchanger and
Foreign Lender executing this Agreement or an acknowledgment
hereto, the Senior Debenture Trustee, acting on behalf of the
holders of the Senior Debentures, each Commercial Paper
Representative executing an acknowledgment to this Agreement,
acting on behalf of such Commercial Paper Representative and the
Commercial Paper Holders in respect of which such Commercial
Paper Representative is the Commercial Paper Representative, and
the Subordinated Debt Trustee, acting on behalf of the holders of
the Subordinated Debt Securities, agree, inter se, that Net Cash
Proceeds of Assets Sales of Pledged Collateral shall be allocated
as provided in this Section 4. The Company, the Intermediate
Subsidiary Pledgors and the Parties agree that any Net Cash
Proceeds relating to Asset Sales of Pledged Collateral shall be
XVII-15
applied at the times, if any, required under the Credit
Agreements by the Company as provided in Section 4(c).
(a) Upon the occurrence of an Asset Sale of Pledged
Collateral, the applicable Net Cash Proceeds shall be applied to
repay outstanding Obligations; provided that, anything contained
in this Agreement or the Pledge Agreements to the contrary
notwithstanding (but subject, however, to the provisions of
Section 4(b) hereof), repayment of the outstanding Obligations
out of such Net Cash Proceeds shall only be made to the extent
required by the terms of the Credit Agreement then in effect.
(b) Notwithstanding paragraph (a) of this Section 4,
(i) after the occurrence and during the continuation of a Level 2
Sharing Event (as hereinafter defined) with respect to any
Pledged Collateral, 100% of any Net Cash Proceeds with respect to
such Pledged Collateral which become available shall be applied
to the payment of the Obligations, the Foreign Lender
Obligations, the Interest Rate Obligations, the Currency
Obligations, the Senior Debenture Obligations and the Commercial
Paper Obligations in proportion to their respective outstanding
principal and interest or face amounts or early termination
amounts, as the case may be, (ii) if a Level 1 Sharing Event (as
hereinafter defined) is continuing at the time Net Cash Proceeds
become available for repayment of the Obligations pursuant to
Section 4(a), the Collateral Agent shall apply such Net Cash
Proceeds received by it to repay principal and interest or the
face amount, as applicable, then due and payable under the Credit
Agreement, the Foreign Lender Guaranties, the Senior Debenture
Indenture and the Commercial Paper Documents and to repay any
amount upon early termination then due and payable in respect of
Interest Rate Obligations and Currency Obligations in proportion
to their respective outstanding principal and interest or face
amounts or early termination amounts, as the case may be, and
(iii) if Net Cash Proceeds are applied in accordance with Section
4(a) to repay outstanding Obligations, or if Net Cash Proceeds
are applied in accordance with Section 4(b)(i) to pay outstanding
Obligations, Foreign Lender Obligations, Interest Rate
Obligations, Currency Obligations, Senior Debenture Obligations
and/or Commercial Paper Obligations, and in either such case a
Level 1 Sharing Event occurs within the period commencing on the
date the Collateral Agent delivers such amounts to the Credit
Agent, the applicable Lender, the Senior Debenture Trustee and/or
the applicable Commercial Paper Representative for payment of the
Obligations, any Foreign Lender Obligations, Interest Rate
Obligations or Currency Obligations, the Senior Debenture
Obligations or any Commercial Paper Obligations, as the case may
be (the "PREPAYMENT DATE"), and ending ninety days thereafter,
then 100% of Net Cash Proceeds which thereafter become available
shall be applied to the repayment of the Obligations, Foreign
Lender Obligations, Interest Rate Obligations, Currency
Obligations, Senior Debenture Obligations and Commercial Paper
Obligations until such time as the proportion of the principal
and interest due and payable under the Credit Agreements to the
principal and interest or the face amount, as applicable, due and
payable under the Foreign Loan Guaranties, the Senior Debenture
Indenture (to the extent the Senior Debenture Obligations are
then secured by the Pledged Collateral that is the subject of the
XVII-16
relevant Asset Sale) and the Commercial Paper Documents and the
amount upon early termination then due and payable in respect of
Interest Rate Obligations and Currency Obligations is the same as
it was immediately prior to the Prepayment Date (without giving
effect to the impact on the applicable proportions set forth
above of any reductions in the amounts of the various applicable
Senior Secured Obligations resulting from events other than the
application of Net Cash Proceeds in accordance with Section 4(a)
or Section 4(b)(i)), and thereafter such Net Cash Proceeds shall
be applied to repayment of principal and interest or the face
amount, as applicable, then due and payable under the Credit
Agreements, the Foreign Lender Guaranties, the Senior Debenture
Indenture and the Commercial Paper Documents and to repay any
amount upon early termination then due and payable in respect of
Interest Rate Obligations and Currency Obligations in proportion
to their respective outstanding principal and interest or face
amounts or early termination amounts, as the case may be;
provided that, in making any determination pursuant to this
Section 4(b) of either the amount of principal and interest then
outstanding under or in respect of the Senior Debentures or the
amount of principal and interest then due and payable under or in
respect of the Senior Debentures, the amount so determined shall
in each case be reduced, for purposes of this Section 4(b), by an
amount equal to any amounts held by the Senior Debenture Trustee
pursuant to the proviso to clause "Third" of Section 6.10 of the
Senior Debenture Indenture as in effect on the date of issuance
of the Senior Debentures (the "SENIOR DEBENTURE CLOSING DATE");
and provided, further that, anything contained in this Section 4
to the contrary notwithstanding, (X) in no event shall any Net
Cash Proceeds in respect of any Asset Sale of Pledged Collateral
under the Company Pledge Agreement be applied to the repayment of
any Foreign Lender Obligations, Interest Rate Obligations,
Currency Obligations, Senior Debenture Obligations or Commercial
Paper Obligations which do not constitute "Senior Secured
Obligations" under the Company Pledge Agreement and (Y) in no
event shall any Net Cash Proceeds of any Asset Sale of Pledged
Collateral under the Intermediate Subsidiary Pledge Agreement be
applied to the repayment of any Foreign Lender Obligations,
Interest Rate Obligations, Currency Obligations, Senior Debenture
Obligations or Commercial Paper Obligations which do not
constitute "Secured Obligations" under the Intermediate
Subsidiary Pledge Agreement. The priorities of allocation set
forth in this paragraph (b) shall apply in all circumstances
including, without limitation, with respect to any case or
proceeding under any bankruptcy law or insolvency law involving
creditors' rights generally.
For purposes of this Section 4(b), (i) "LEVEL 2 SHARING
EVENT" means, with respect to any Pledged Collateral, the
occurrence and continuation, during any period when such Pledged
Collateral secures the Senior Debenture Obligations, of a Default
or Event of Default (as such terms are defined in the Senior
Debenture Indenture as in effect on the Senior Debenture Closing
Date) under the Senior Debenture Indenture as in effect on the
Senior Debenture Closing Date; provided that such a Default or
Event of Default under Section 6.01(3) of the Senior Debenture
Indenture (as in effect on the Senior Debenture Closing Date)
shall only constitute a Level 2 Sharing Event to the extent such
Default or Event of Default results from a failure of the Company
XVII-17
to comply with the provisions of any of Sections 4.01, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.13, 4.14, 4.17, 4.18, 4.19
and 5.01 of the Senior Debenture Indenture (in each case as in
effect on the Senior Debenture Closing Date); and provided
further, however, that in no event shall a Level 2 Sharing Event
be deemed to be continuing after the occurrence and during the
continuation of a ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇; and (ii) "LEVEL 1
SHARING EVENT" means each of the following: (i) the insolvency
or bankruptcy of Company, (ii) a default which is continuing in
the payment (whether such payment is due upon maturity, accelera-
tion or otherwise) of principal, interest or any other
obligations with respect to Indebtedness under (A) the Credit
Agreements or (B) the Senior Debenture Indenture or any
Commercial Paper Documents in respect of any Commercial Paper (in
the case of any Indebtedness described in this clause (B), only
to the extent such Indebtedness is then secured by the Pledged
Collateral that is the subject of the relevant Asset Sale), or
(iii) the commencement of foreclosure proceedings or any other
action taken in exercising any right of Requisite Obligees with
respect to the security interests granted or property pledged to
Secured Parties pursuant to the Pledge Agreements.
(c) To the extent received by the Company, the Company
shall pay to the Collateral Agent the Net Cash Proceeds which are
allocable to, and required to be applied in respect of, the
Obligations under Section 4(a) and all of the Net Cash Proceeds
which are payable under Section 4(b). Any such payments received
by the Collateral Agent directly or from the Company shall be
distributed as provided in Section 3(c).
SECTION 5. 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 Loan Guaranty, 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 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
XVII-18
Rate Agreement and the amount payable by the Company 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 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 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 termina-
tion 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) Each Foreign Lender beneficiary to a Foreign Lender
Guaranty benefited by this Agreement, by executing this Agreement
or signing an acknowledgment to this Agreement, as the case may
be, agrees to promptly from time to time notify the Collateral
Agent of (i) the aggregate amount of principal and interest
outstanding under the Foreign Loan Agreement to which such
Foreign Lender Guaranty relates, whether such amounts are fully
guarantied by such Foreign Lender Guaranty and the amount, if
any, then due and payable under such Foreign Lender Guaranty, as
at such date as the Collateral Agent may specify and (ii) any
payment received by such Foreign Lender to be applied to the
principal of or interest on the amounts due under such Foreign
Loan Agreement and such Foreign Lender Guaranty. The Foreign
Lender shall certify as to such amounts and the Collateral Agent
shall be entitled to rely conclusively upon such certification.
(e) The Senior Debenture Trustee agrees to promptly
from time to time notify the Collateral Agent of the outstanding
principal amount of the Senior Debentures and the amount of
accrued but unpaid interest thereon, at such date as the
Collateral Agent may specify. The Senior Debenture Trustee
shall, or shall cause the registrar for the Senior Debentures to,
certify as to such amount as reflected in the register maintained
for such purpose by the Senior Debenture Trustee or such
registrar, as the case may be, and the Collateral Agent shall be
entitled to rely conclusively upon such certification.
(f) Each Commercial Paper Representative, by signing an
acknowledgment to this Agreement, severally agrees, promptly from
time to time upon written inquiry, to notify the Collateral Agent
of (i) the aggregate amount of Commercial Paper Obligations
outstanding in respect of Commercial Paper in respect of which
such Commercial Paper Representative is the Commercial Paper
Representative and (ii) any payment received by such Commercial
Paper Representative to be applied to any such Commercial Paper
Obligations, as at such date as the Collateral Agent may specify,
XVII-19
and the Collateral Agent shall be entitled to rely conclusively
upon such notification.
(g) 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 Commitment 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.
(h) The Subordinated Debt Trustee agrees to promptly
from time to time notify the Collateral Agent of the outstanding
principal amount of the Subordinated Debt Securities and the
amount of accrued but unpaid interest thereon, at such date as
the Collateral Agent may specify. The Subordinated Debt Trustee
shall, or shall cause the registrar for the Subordinated Debt
Securities to, certify as to such amount as reflected in the
register maintained for such purpose by the Subordinated Debt
Trustee or such registrar, as the case may be, and the Collateral
Agent shall be entitled to rely conclusively upon such
certification.
SECTION 6. SUCCESSOR CREDIT AGREEMENTS; INTEREST RATE
AGREEMENTS; CURRENCY AGREEMENTS; FOREIGN LENDER GUARANTIES;
COMMERCIAL PAPER DOCUMENTS.
(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 Loan Guaranty 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 Loan 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 Loan Guaranty 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 Loan Guarantors) to the
Collateral Agent, by which such Lender agrees to be bound by the
terms of this Agreement.
(c) Each Foreign Lender may cause Foreign Lender
Obligations to be secured by the Pledge Agreements 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) to the Collateral Agent, by
XVII-20
which such Foreign Lender agrees to be bound by the terms of this
Agreement.
(d) Each Commercial Paper Representative may cause the
Commercial Paper in respect of which such Commercial Paper
Representative is the Commercial Paper Representative to be
guarantied by the Loan Guaranty and secured by the Pledge
Agreements 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 Loan Guarantors) to the Collateral Agent, by which such
Commercial Paper Representative agrees, for itself and on behalf
of the Commercial Paper Holders in respect of which such
Commercial Paper Representative is the Commercial Paper
Representative, to be bound by the terms of this Agreement.
SECTION 7. 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 Loan Guaranty, and the
Collateral Agent shall not by reason of this Agreement, the
Pledge Agreements or the Loan Guaranty 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 Foreign Lender Guaranties, the Foreign Loan
Agreements, the Senior Debenture Indenture, the Senior
Debentures, the Commercial Paper Documents, the Subordinated Debt
Indenture, the Subordinated Debt Securities, the Pledge Agree-
ments or the Loan Guaranty (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
XVII-21
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 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, each Currency Exchanger and each Foreign Lender
(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 Commercial Paper Representative,
on behalf of such Commercial Paper Representative and the
Commercial Paper Holders in respect of which such Commercial
Paper Representative is the Commercial Paper Representative,
agrees that, as provided in Section 12 of each Pledge Agreement
and in the Loan Guaranty, deductions from distributions otherwise
due the Commercial Paper Holders will be made so that such
Commercial Paper Holders shall share with the Paying Indemnifying
Parties, ratably in accordance with the amount of the Commercial
Paper Obligations secured by the Pledge Agreements and guarantied
by the Loan Guaranty, the payment of the amounts due under the
preceding sentence. The Senior Debenture Trustee and the
Subordinated Debt Trustee (on behalf of the holders of the Senior
Debenture Obligations or Subordinated Debt Securities on behalf
of which it is entering into this Agreement) agrees that, as
provided in Section 12 of the Company Pledge Agreement or (in the
case of the holders of Senior Debenture Obligations to the extent
XVII-22
such Senior Debenture Obligations are then secured by the Pledged
Collateral under the Intermediate Subsidiary Pledge Agreement)
Section 12 of the Intermediate Subsidiary Pledge Agreement,
deductions from distributions otherwise due such holders of
Senior Debenture Obligations or Subordinated Debt Securities, as
the case may be, will be made so that such holders of Senior
Debenture Obligations or Subordinated Debt Securities, as the
case may be, shall share with the Paying Indemnifying Parties,
ratably in accordance with the amount (without duplication) of
such Senior Debenture Obligations or Subordinated Debt
Securities, as the case may be, secured by the Company Pledge
Agreement or the Intermediate Subsidiary Pledge Agreement, as the
case may be, the payment of the amounts due under the second
preceding sentence.
(d) Except for action expressly required of the
Collateral Agent hereunder, the Collateral Agent shall,
notwithstanding anything to the contrary in Section 7(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 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 Foreign
Lender Obligations, the Interest Rate Obligations and the
Currency Obligations secured by the Pledged Collateral shall have
been indefeasibly 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
XVII-23
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 the Company.
(ii) After the payment in full of the Obligations, the
Foreign Lender Obligations, the Interest Rate Obligations and the
Currency Obligations secured by the Pledged Collateral and until
such time as the Senior Debenture Obligations, the Commercial
Paper Obligations and the Junior Secured Obligations are paid in
full, the Collateral Agent may resign at any time by giving at
least 30 days' notice thereof to the Senior Debenture Trustee (to
the extent the Senior Debenture Obligations are then secured by
any of the Pledged Collateral), each Commercial Paper
Representative, and the Subordinated Debt Trustee (such resig-
nation 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 and surplus of at
least $500,000,000 and (B) shall, unless such successor
Collateral Agent is appointed by the retiring Collateral Agent,
be approved by Company.
(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 7 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 8. NO IMPAIRMENT OF SUBORDINATION IN RIGHTS OF
PAYMENT. The Subordinated Debt Trustee agrees, which agreement
shall be binding upon each and every holder of the Junior Secured
Obligations, that the agreements and obligations of the Loan
Parties and the holders of the Junior Secured Obligations
relating to the subordination of the right of payment of the
holders of the Subordinated Debt Securities to the prior payment
XVII-24
of "Senior Indebtedness" (as defined in the Subordinated Debt
Indenture) shall not be impaired in any manner by the pledge of
the Pledged Collateral and the security interest granted under
the Company Pledge Agreement or the exercise of any rights
provided thereunder and that the rights of the holders of such
"Senior Indebtedness" shall not be impaired in any manner by any
such action.
SECTION 9. 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 9(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 that, in the event and only in the event of a modifi-
cation or amendment which would (i) reduce or adversely affect
the right of the Commercial Paper Representatives to request or
direct the Collateral Agent to take action as provided in Section
2(a) or (ii) subordinate or cause the Commercial Paper Holders to
hold a security interest in the Pledged Collateral junior to the
security interest therein of any other Secured Party, no such
modification or amendment shall be effective as to the Commercial
Paper Holders or Commercial Paper Representatives in respect of
any Commercial Paper outstanding at the time of such modification
or amendment except with the prior written consent of the
Commercial Paper Representatives in respect of a majority in
aggregate face amount of such outstanding Commercial Paper;
provided, however that, notwithstanding the foregoing, neither
the written consent of the Senior Debenture Trustee nor the
written consent of the Subordinated Debt Trustee shall be
required with respect to amendments, modifications or waivers
necessary to permit the incurrence of additional Indebtedness
secured by the Pledged Collateral and entitled to the benefits of
the Company Pledge Agreement or the Intermediate Subsidiary
Pledge Agreement insofar as the foregoing is permitted by the
Senior Debenture Indenture or the Subordinated Debt Indenture, as
the case may be, 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 (including without
limitation the provisions of Section 4 and the definitions of
Level 2 Sharing Event and Level 1 Sharing Event set forth
therein and, if applicable, the provisions of Section 10) in
connection with the incurrence of such Indebtedness; 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
XVII-25
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 Debenture
Trustee and the holders of the Senior Debentures, the
Subordinated Debt Trustee and the holders of the Subordinated
Debt Securities, the Foreign Lender listed on the signature pages
hereof, and the Collateral Agent upon the execution of this
Agreement by the Current Credit Agent, the Senior Debenture
Trustee, the Subordinated Debt Trustee, the Foreign Lender listed
on the signature pages hereof, 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, each Currency Exchanger, each other Foreign Lender,
each Successor Credit Agent, each Successor Lender, and each
Commercial Paper Representative and each Commercial Paper Holder,
respectively, upon the execution of an acknowledgment by any such
Person or its representative as contemplated by Section 6 and
delivery of such executed acknowledgment (which shall also be
acknowledged by the applicable Pledgors and Loan Guarantors) to
the Collateral Agent.
(f) The Foreign Lender listed on the signature pages
hereof, the Senior Debenture Trustee and the Subordinated Debt
Trustee, by their execution of this Agreement, consent to and
approve the execution and delivery of the Company Pledge
Agreement and, in the case of such Foreign Lender and the Senior
Debenture Trustee, the Intermediate 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, the Senior Debenture Trustee or the
Subordinated Debt Trustee, as the case may be, shall no longer be
a Party from and after such time as all of the applicable Senior
Debentures or Subordinated Debt Securities, respectively, or the
instruments representing the same, shall have ceased to be
outstanding by virtue of the payment thereof or the cancellation
XVII-26
thereof or delivery for cancellation thereof in accordance with
the terms of the Senior Debenture Indenture or the applicable
Subordinated Debt Indenture, respectively.
SECTION 10. CONFIRMATION OF MUTUAL INTENTIONS AS TO
CERTAIN MATTERS REGARDING PAYMENTS UNDER THE LOAN GUARANTY AND
CERTAIN GUARANTIES OF THE SENIOR DEBENTURES. The Collateral
Agent and the Senior Debenture Trustee each hereby confirms,
which confirmation shall be binding on each and every Guarantied
Party and each and every holder of the Senior Debentures, that,
in the event of a bankruptcy, reorganization or other similar
proceeding of the Company or any Intermediate Subsidiary
Guarantor (as hereinafter defined) in which concurrent claims are
made upon such Intermediate Subsidiary Guarantor under the Loan
Guaranty and the Applicable Senior Debenture Guaranty (as
hereinafter defined), to the extent such concurrent claims will
not be fully satisfied, each holder of such a concurrent claim
with a valid claim against the Company shall be entitled to a
ratable share of all payments by such Intermediate Subsidiary
Guarantor in respect of such concurrent claims. For purposes of
this Section 10, (i) the term "INTERMEDIATE SUBSIDIARY GUARANTOR"
means any O-I Subsidiary (other than Group) that (a) has executed
a counterpart of, or has otherwise become a party to, the Loan
Guaranty and (b) is a party to a Senior Debenture Guaranty or has
otherwise guarantied the obligations of the Company under the
Senior Debenture Indenture and the Senior Debentures issued
thereunder pursuant to a Subsidiary Guaranty substantially in the
form of Exhibit E to the Senior Debenture Indenture and (ii) the
term "APPLICABLE SENIOR DEBENTURE GUARANTY" means, with respect
to any Intermediate Subsidiary Guarantor, the applicable Senior
Debenture Guaranty or other guaranty described in clause (i)(b)
above to which such Intermediate Subsidiary Guarantor is a party.
[Remainder of page intentionally left blank]
XVII-27
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 Agent for the Current
Lenders
By:
Title:
Notice Address:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇ ▇▇▇▇▇
With a copy to:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
XVII-S-1
THE BANK OF NEW YORK,
as trustee under the Senior
Debenture Indenture
By:
Title:
Notice Address:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust
Trustee Administration
XVII-S-2
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as trustee under the
Subordinated Debt Indenture
By:
Title:
Notice Address:
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: U.S. Corporate Banking
XVII-S-3
BANKERS TRUST COMPANY,
as Collateral Agent
By:
Title:
Notice Address:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇ ▇▇▇▇▇
With a copy to:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
XVII-S-4
ACKNOWLEDGMENT
Reference is hereby made to the Sixth Amended and
Restated Intercreditor Agreement dated as of November 19, 1996,
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
Debenture Trustee, as trustee for the holders of the Senior
Debentures, the Subordinated Debt Trustee, as trustee for the
holders of the Subordinated Debt Securities, the Foreign Lender
listed on the signature pages thereof 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 pursuant to which Interest Rate Obligations
thereunder are to be secured by the Pledge Agreements and
guarantied under the Loan Guaranty. 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
XVII-S-5
[Loan Guarantors]
By
Date
XVII-S-6
ACKNOWLEDGMENT
Reference is hereby made to the Sixth Amended and
Restated Intercreditor Agreement dated as of November 19, 1996 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
Debenture Trustee, as trustee for the holders of the Senior
Debentures, the Subordinated Debt Trustee, as trustee for the
holders of the Subordinated Debt Securities, the Foreign Lender
listed on the signature pages thereof 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 pursuant to which Currency Obligations thereunder are to
be secured by the Pledge Agreements and guarantied under the Loan
Guaranty. 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
XVII-S-7
[Loan Guarantors]
By
Date
XVII-S-8
ACKNOWLEDGMENT
Reference is hereby made to the Sixth Amended and
Restated Intercreditor Agreement dated as of November 19, 1996 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
Debenture Trustee, as trustee for the holders of the Senior
Debentures, the Subordinated Debt Trustee, as trustee for the
holders of the Subordinated Debt Securities, the Foreign Lender
listed on the signature pages thereof 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 Loan Guaranty. 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
XVII-S-9
[Loan Guarantors]
By
Date
XVII-S-10
ACKNOWLEDGMENT
Reference is hereby made to the Sixth Amended and
Restated Intercreditor Agreement dated as of November 19, 1996 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
Debenture Trustee, as trustee for the holders of the Senior
Debentures, the Subordinated Debt Trustee, as trustee for the
holders of the Subordinated Debt Securities, the Foreign Lender
listed on the signature pages thereof and Bankers Trust Company,
as Collateral Agent, in which this Acknowledgment is
incorporated. The undersigned Secured Party has entered into
Foreign Debt Agreements described below with the Foreign
Subsidiaries identified below and the obligations of such Foreign
Subsidiaries under such Foreign Debt Agreements have been
guarantied by Company, pursuant to a Foreign Lender Guaranty as
permitted under the Credit Agreement. The Pledgors desire that
the obligations to Secured Party under such Foreign Lender
Guaranty be secured by the Pledge Agreements. The undersigned
Secured Party acknowledges the terms of this Agreement and agrees
to be bound hereby.
The Foreign Loan Agreements and Foreign Lender
Guaranties referred to above are: [Insert description of
relevant Foreign Loan Agreements and Foreign Lender Guaranties].
SECURED PARTY:
[Insert Name of Foreign Lender]
By
Date
Notice Address:
Acknowledged and Agreed:
[Pledgors]
By
Date
XVII-S-11
ACKNOWLEDGMENT
Reference is hereby made to the Sixth Amended and
Restated Intercreditor Agreement dated as of November 19, 1996 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
Debenture Trustee, as trustee for the holders of the Senior
Debentures, the Subordinated Debt Trustee, as trustee for the
holders of the Subordinated Debt Securities, the Foreign Lender
listed on the signature pages thereof and Bankers Trust Company,
as Collateral Agent, in which this Acknowledgment is
incorporated. The undersigned Secured Party and Guarantied Party
has purchased and/or may from time to time hereafter purchase
Commercial Paper from the Company under, or has been appointed to
act as agent or representative of the holders of Commercial Paper
purchased or to be purchased from the Company under, the
Commercial Paper Documents described below pursuant to which
Commercial Paper Obligations thereunder are to be secured by the
Pledge Agreements and guarantied under the Loan Guaranty. The
undersigned Secured Party and Guarantied Party, for itself and on
behalf of the Commercial Paper Holders in respect of which it is
Commercial Paper Representative, acknowledges the terms of this
Agreement and agrees to be bound hereby.
The Commercial Paper Documents described above are
[Insert description of Commercial Paper Documents.]
SECURED PARTY AND GUARANTIED PARTY:
[Insert Name of Commercial Paper
Representative]
By
Date
Notice Address:
Acknowledged and Agreed:
[Pledgors]
By
Date
XVII-S-12
[Loan Guarantors]
By
Date
XVII-S-13
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, Sections 3 and 4 hereof.
▇▇▇▇▇-Illinois, Inc. (formerly named "OII Holdings
Corporation" and "▇▇▇▇▇-Illinois Holdings Corporation"), ▇▇▇▇▇-
Illinois Group, Inc. (formerly named "OII Group, Inc."), ▇▇▇▇▇-
▇▇▇▇▇▇▇▇ Packaging, Inc. (formerly named "OI Glass Container FTS
Inc."), OI Closure FTS Inc., OI Plastic Products FTS Inc., O-I
Health Care Holding Corp. (formerly named "Health Care and
Retirement Corporation"), OI General FTS Inc., OI General Finance
Inc., ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. (formerly named "▇▇▇▇▇-
Illinois Glass Container Inc." and "OI Glass Container STS
Inc."), OI ▇▇▇▇ STS Inc., ▇▇▇▇▇-Illinois Closure Inc. (formerly
named "OI Closure STS Inc."), Specialty Packaging Licensing
Company, ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Plastic Products Inc., ▇▇▇▇▇-Illinois
Prescription Products Inc. (formerly named "OI Prescription
Products STS Inc."), ▇▇▇▇▇-Illinois Labels Inc., ▇▇▇▇▇-Illinois
General Inc. (formerly named "OI General STS Inc."), OI Castalia
STS Inc., OI Levis Park STS Inc., and OI AID STS Inc.
By:
Title:
XVII-S-14
ANNEX 1
to
FIFTH AMENDED AND RESTATED
INTERCREDITOR AGREEMENT
INDEX OF TERMS
Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . .Introduction
Applicable Senior Debenture Guaranty . . . . . . . . . . . . . . . . Section 8
Bankers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Introduction
Collateral Agent . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1
Commercial Paper Documents . . . . . . . . . . . . . . . . . . . . .Recital 16
Commercial Paper Holders . . . . . . . . . . . . . . . . . . . . . .Recital 18
Commercial Paper Obligations . . . . . . . . . . . . . . . . . . . .Recital 17
Commercial Paper Representative. . . . . . . . . . . . . . . . . . .Recital 18
Commercial Paper Representatives . . . . . . . . . . . . . . . . . .Recital 18
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital 1
Company Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . Recital 1
Credit Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 16
Credit Agreements. . . . . . . . . . . . . . . . . . . . . . . . . .Recital 16
Currency Exchangers. . . . . . . . . . . . . . . . . . . . . . . . .Recital 21
Currency Obligations . . . . . . . . . . . . . . . . . . . . . . . .Recital 21
Current Credit Agent . . . . . . . . . . . . . . . . . . . . . . .Introduction
Current Credit Agreement . . . . . . . . . . . . . . . . . . . . . .Recital 12
Current Lenders. . . . . . . . . . . . . . . . . . . . . . . . . .Introduction
Directing Parties. . . . . . . . . . . . . . . . . . . . . . . . .Section 2(b)
Existing Company Pledge Agreement. . . . . . . . . . .Company Pledge Agreement
Existing Credit Agreement. . . . . . . . . . . . . . . . . . . . . .Recital 19
Existing Intercreditor Agreement . . . . . . . . . . . . . . . . .Introduction
Existing Intermediate Intermediate Subsidiary
Subsidiary Pledge Agreement . . . . . . . . . . . . .Pledge Agreement
Existing Loan Guaranty . . . . . . . . . . . . . . . . . . . . . . . Recital 5
Existing Pledge Agreements . . . . . . . . . . . . . . . . . . . . . Recital 2
Financing Agreements . . . . . . . . . . . . . . . . . . . . . . .Section 7(a)
Foreign Lender Debt. . . . . . . . . . . . . . . . . . . . . . . . .Recital 19
Foreign Lender Guaranties. . . . . . . . . . . . . . . . . . . . . .Recital 19
Foreign Lender Obligations . . . . . . . . . . . . . . . . . . . . .Recital 19
Foreign Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 19
Foreign Loan Agreements. . . . . . . . . . . . . . . . . . . . . . .Recital 19
Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recital 2
Guarantied Obligations . . . . . . . . . . . . . . . . . . . . . .Section 3(b)
Guarantied Parties . . . . . . . . . . . . . . . . . . . . . . . . . Section 1
Initial Commercial Paper Holder. . . . . . . . . . . . . . . . . . .Recital 18
Initial Commercial Paper Holders . . . . . . . . . . . . . . . . . .Recital 18
ANNEX 1-1
Interest Rate Exchangers . . . . . . . . . . . . . . . . . . . . . .Recital 20
Interest Rate Obligations. . . . . . . . . . . . . . . . . . . . . .Recital 20
Intermediate Subsidiary Guarantor. . . . . . . . . . . . . . . . . . Section 8
Intermediate Subsidiary Pledge Agreement . . . . . . . . . . . . . . Recital 2
Intermediate Subsidiary Pledgor. . . . . . . . . . . . . . . . . . . Recital 2
Intermediate Subsidiary Pledgors . . . . . . . . . . . . . . . . . . Recital 2
Junior Secured Obligations . . . . . . . . . . . . . . . . . . . . .Recital 10
Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 16
Level 1 Sharing Event. . . . . . . . . . . . . . . . . . . . . . .Section 4(b)
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇. . . . . . . . . . . . . . . . . . . . . . .Section 4(b)
Loan Guaranty. . . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 13
Loan Guarantors. . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 13
Loan Guaranty Payments . . . . . . . . . . . . . . . . . . . . . .Section 3(a)
Loan Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 23
Non-Directing Parties. . . . . . . . . . . . . . . . . . . . . . .Section 2(b)
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 23
Paying Indemnifying Parties. . . . . . . . . . . . . . . . . . . .Section 7(c)
Pledge Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . Recital 3
Pledged Collateral . . . . . . . . . . . . . . . . . . . . . . . . . Recital 3
Pledgors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1
Prepayment Date. . . . . . . . . . . . . . . . . . . . . . . . . .Section 4(b)
Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Section 3(a)
Requisite Obligees . . . . . . . . . . . . . . . . . . . . . . . .Section 2(a)
Secured Parties. . . . . . . . . . . . . . . . . . . . . . . . . . .Recital 23
Senior Debenture Closing Date. . . . . . . . . . . . . . . . . . .Section 4(b)
Senior Debenture Guaranties. . . . . . . . . . . . . . . . . . . . . Recital 8
Senior Debenture Guaranty. . . . . . . . . . . . . . . . . . . . . . Recital 8
Senior Debenture Indenture . . . . . . . . . . . . . . . . . . . . . Recital 7
Senior Debenture Obligations . . . . . . . . . . . . . . . . . . . . Recital 7
Senior Debenture Trustee . . . . . . . . . . . . . . . . . . . . .Introduction
Senior Debentures. . . . . . . . . . . . . . . . . . . . . . . . . . Recital 7
Senior Secured Obligations . . . . . . . . . . . . . . . . . . . .Section 2(f)
Subordinated Debt Indenture. . . . . . . . . . . . . . . . . . . . .Recital 10
Subordinated Debt Securities . . . . . . . . . . . . . . . . . . . .Recital 10
Subordinated Debt Trustee. . . . . . . . . . . . . . . . . . . . .Introduction
Successor Credit Agents. . . . . . . . . . . . . . . . . . . . . . .Recital 16
Successor Credit Agreements. . . . . . . . . . . . . . . . . . . . .Recital 16
Successor Lenders. . . . . . . . . . . . . . . . . . . . . . . . . .Recital 16
ANNEX 1-2
EXHIBIT XVIII
[FORM OF OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇]
[ATTACHED]
▇▇▇▇▇-▇
▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇ Trust Company, as Administrative
Agent and as Collateral Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bank of America National Trust and Savings Association,
as Documentation Agent
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
The Lead Managers, Co-Agents and Lenders
identified on Exhibit A hereto
Re: Refinancing Credit Agreement, dated as of November 19, 1996 among
▇▇▇▇▇-Illinois, Inc., the Lenders, Lead Managers and Co-Agents
listed therein, Bank of America National Trust & Savings
Association, as Documentation Agent and Bankers Trust Company,
as Administrative Agent
Ladies and Gentlemen:
We have acted as special counsel to ▇▇▇▇▇-Illinois, Inc., a Delaware
corporation (the "Company"), in connection with that certain Refinancing Credit
Agreement, dated as of November 19, 1996 (the "Credit Agreement") among the
Company, the Lenders, Lead Managers and Co-Agents listed therein (collectively,
the "Lenders"), Bank of America National Trust & Savings Association, as
Documentation Agent (in such capacity, the "Documentation Agent"), and
1
Bankers Trust Company, as Administrative Agent (in such capacity, the
"Administrative Agent"). We also acted as special counsel to each direct and
indirect subsidiary of the Company identified on Exhibit B hereto (each a
"Guarantor Subsidiary" and, collectively, the "Guarantor Subsidiaries") in
connection with the Intercreditor Agreement, the O-I Subsidiary Pledge Agreement
and the O-I Subsidiary Guaranty.
This opinion is rendered to you, at the request of the Company,
pusuant to Section 3.1F of the Credit Agreement. Capitalized terms defined
in the Credit Agreement, used herein and not otherwise defined herein, shall
have the meanings given them in the Credit Agreement.
As such counsel, we have examined such matters of fact and questions
of law as we have considered appropriate for purposes of rendering the opinions
expressed below. We have examined, among other things, the following:
(a) the Credit Agreement;
(b) the Revolving Notes and Bid Rate Loan Notes, in each case issued
by the Company on the Closing Date (collectively, the "Notes");
(c) the Company Pledge Agreement;
(d) the Company Guaranty;
(e) the O-I Subsidiary Guaranty;
(f) the O-I Subsidiary Pledge Agreement;
(g) the Collateral Account Agreement;
(h) the Overdraft Agreement;
(i) the indentures pursuant to which the Senior Debentures and Senior
Subordinated debt have been issued (collectively, the "Indentures"); and
2
(j) the Intercreditor Agreement.
The documents described in subsections (a) through (h) above are
referred to herein collectively as the "Loan Documents." As used in this
opinion, the "UCC" shall mean the Uniform Commercial Code as now in effect in
the spcified jurisdiction.
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 me as originals, and the conformity to authentic
original documents of all documents submitted to us as copies.
We have been furnished with, and with your consent have relied upon,
certificates of officer(s) of the Company and the Guarantor Subsidiaries 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 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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 secured loan
transactions.
For purposes of our opinion, we have assumed, with your permission,
that (i) each of the Company and each Guarantor Subsidiary (each a "Loan Party"
and, collectively, the "Loan Parties") 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 Intercreditor
Agreement and the Loan Documents to which it is a party and perform its
obligations thereunder, (ii) each Loan Party has duly authorized, executed and
delivered the Intercreditor Agreement and each Loan Document to which it is a
3
party, and (iii) none of the execution, delivery and performance by any Loan
Party of the Intercreditor Agreement and each Loan Document to which it is a
party will result in the violation of the Certificate of Incorporation or Bylaws
of such Loan Party.
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 Loan Party thereto, enforceable against such Loan
Party in accordance with its terms.
2. (a) The execution and delivery by each Loan Party of the
Intercreditor Agreement and the Loan Documents to which it is a party, (b) the
borrowing and repayment of the Loans by the Company pursuant to the Credit
Agreement, (c) the guarantee of the Company's obligations under the Credit
Agreement by each Guarantor Subsidiary pursuant to the O-I Subsidiary Guaranty,
(d) the guarantee of Acquisition Newcos' obligations under the Credit Agreement
in respect of Foreign Letters of Credit pursuant to the Company Guaranty,
(e) the pledge, pursuant to the Company Pledge Agreement, by the Company of the
Pledged Collateral (as defined in the Company Pledge Agreement) to secure the
Obligations, or (f) the pledge, pursuant to the O-I Subsidiary Pledge Agreement,
by each Guarantor Subsidiary party to the O-I Subsidiary Pledge Agreement (the
"OI Subsidiary Pledgors") of the Pledged Collateral (as defined in the O-I
Subsidiary Pledge Agreement) of such OI Subsidiary Pledgor to secure the
Obligations and to secure such OI Subsidiary Pledgor's obligations under the O-I
Subsidiary Guaranty do not: (a) violate any federal or New York statute, rule or
regulation applicable to such Loan Party (including, without limitation,
Regulations G, T, U or X of the Board of Governors of the Federal Reserve
System) or any provision of the DGCL applicable to such Loan Party, (b) result
in the breach of or a default under any of the Indentures, or (c) require any
consents, approvals, authorizations, registrations, declarations or filings by
such Loan Party under any federal or New York statute, rule or regulation
applicable to such Loan Party or under any provision of the DGCL applicable to
such Loan Party. 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.
4
3. Assuming the Collateral Agent is holding the certificates
evidencing the shares of capital stock listed on Part I of Schedule I to the
Company Pledge Agreement (the "Company Pledged Shares") and the certificates
evidencing the shares of capital stock listed on Part I of Schedule I to the
O-I Subsidiary Pledge Agreement (the "OI Subsidiary Pledged Shares" and,
together with the Company Pledged Shares, the "Pledged Shares"), delivered to
the Collateral Agent pursuant to the applicable Pledge Agreement, with undated
stock powers duly indorsed in blank, in the State of New York, the Pledge
Agreements create valid and perfected security interests in favor of the
Collateral Agent for the benefit of the Lenders and the other Secured Parties
(as defined in the applicable Pledge Agreement) in the rights in such Pledged
Shares which each Pledgor (as defined in the applicable Pledge Agreement) has
or has actual authority to convey, subject to no equal or prior consensual
security interest granted by the applicable Loan Party, as security for the
payment, to the extent set forth in the applicable Pledge Agreement, of all
obligations of the Company and the Intermediate Pledgors under the Loan
Documents.
4. Assuming the Collateral Agent is holding the promissory notes
evidencing the indebtedness described on Part II of Schedule I to the Company
Pledge Agreement (the "Company Pledged Notes") and the promissory notes
evidencing the indebtedness described on Part II of Schedule I to the O-I
Subsidiary Pledge Agreement (the "OI Subsidiary Pledged Notes" and, together
with the Company Pledged Notes, the "Pledged Notes"), delivered to the
Collateral Agent pursuant to the applicable Pledge Agreement, duly indorsed in
blank, in the State of New York, the Pledge Agreements create valid and
perfected security interests in favor of the Collateral Agent for the benefit
of the Lenders and the other Secured Parties (as defined in the applicable
Pledge Agreement) in such Pledged Notes, subject to no equal or prior
consensual security interest granted by the applicable Loan Party, as security
for the payment, to the extent set forth in the applicable Pledge Agreement,
of all obligations of the Company and the OI Subsidiary Pledgors under the Loan
Documents.
5. None of the Loan Parties is an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended.
6. It is not necessary in connection with the execution and delivery
by the Company of the Notes to the recipients thereof (the "Note Recipients")
on the Closing 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
7. All monetary obligations of the Company under the Credit Agreement
and the Company Guaranty are within the definition of "Senior Indebtedness" as
defined in the Senior Subordinated Debt Indenture.
The opinions expressed in paragraph 1 do not include any opinions
with respect to the perfection or priority of any security interest or lien.
The opinions expressed in paragraph 1 and our opinions expressed in
paragraphs 3 and 4 as to the creation, validity, perfection and priority of the
security interests and liens referred to therein are further subject to the
following limitations, qualifications and exceptions:
(a) the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights or remedies of creditors generally;
(b) the effect of general principles of equity, whether
enforcement is 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 express no opinion as to the terms of the O-I Subsidiary Guaranty
providing for the equitable allocation and contribution among the Guarantor
Subsidiaries with respect to their obligations under or payments made in
respect of the O-I Subsidiary Guaranty.
We have not been requested to express and, with your permission, do
not render any opinion as to the applicability to the obligations of the
Guarantor Subsidiaries under the Loan Documents of Section 548 of the
Bankruptcy Code or applicable state law (including, without limitation, Article
6
10 of the New York Debtor & Creditor Law) relating to fraudulent transfers and
obligations.
We call to your attention that the provisions of the Loan Documents
which permit the Administrative Agent, the Documentation Agent, the Collateral
Agent, any Lead Manager, any Co-Agent or any Lender to take action or make
determinations may be subject to a requirement that such action be taken or
such determinations be made in a commercially reasonable manner and in good
faith.
Our opinions in paragraphs 3 and 4 are also subject to the following
assumptions, exceptions, limitations and qualifications:
(i) we express no opinion as to the creation, validity, perfection
or priority of any security interest or lien, except as expressly set forth
in paragraphs 3 and 4;
(ii) we have assumed that each Loan Party has "rights" in the Pledged
Notes pledged by such Loan Party, as contemplated by Section 9-203 of the New
York UCC;
(iii) we call to your attention the fact that the perfection of a
security interest in "proceeds" (as defined in the New York UCC) of collateral
is governed and restricted by Section 9-306 of the New York UCC;
(iv) we have assumed that the Collateral Agent and each Lender has
taken the Pledged Shares in good faith and without prior notice of any adverse
claim and that the Collateral Agent and each Lender has not been a party to any
fraud or illegality affecting the Pledged Shares;
(v) we have assumed that the Collateral Agent and each Lender has
taken the Pledged Notes in good faith and without notice that any Pledged Note
is overdue or has been dishonored or of any defense against or claim to
any Pledged Note on the part of any person; and
(vi) we have assumed that neither the Collateral Agent nor any of
the Lenders has expressly or by implication waived, subordinated or agreed to
any modification of the perfection or priority of any security interest under
the Loan Documents or agreed to any adverse claim;
7
(vii) we have assumed that none of the Pledged Notes is subject to a
security interest perfected in the manner described in New York UCC 9-304(4),
(5) or (7) or 9-306(2) or (3).
For purposes of our opinions expressed in paragraph 2, we have
assumed, with your permission, that, as of the Closing Date, the entire amount
of the Revolving Loan Commitments (including, without limitation, the
Genie Acquisition Sub-Facility) is outstanding.
For purposes of our opinions expressed in paragraph 6, we have
assumed with your permission that each Note Recipient is a commercial lender
or a financial institution which makes loans in the ordinary course of its
business and that it is receiving the Notes to be received by it and will make
each Loan under the Credit Agreement to be made by it for its own
account in the ordinary course of its commercial banking or lending business
and not with a view to or for sale in connection with any distribution of such
Notes.
To the extent that the obligations of the Company may be dependent
upon such matters, we assume for purposes of this opinion that: all parties
to the Loan Documents are duly incorporated, validly existing and in good
standing under the laws of their respective jurisdictions of incorporation;
all parties to the Loan Documents have the requisite corporate power and
authority to execute and deliver the Loan Documents and to perform their
respective obligations under the Loan Documents to which they are a party; and
the Loan Documents to which such parties are a party have been duly authorized,
executed and delivered by such parties and (with respect to such parties other
than the Loan Parties) 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
8
responsibility or obligation to update this opinion, to consider its
applicability or correctness to other than its addressees, or to take into
account changes in law, facts or any other development of which we may later
become aware.
Very truly yours,
/s/ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
9
Exhibit A
to
Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Dated November 20, 1996
Rendered In Connection With
▇▇▇▇▇-Illinois, Inc. Refinancing Credit Agreement
Lead Managers:
Banque Nationale de Paris
Citicorp USA, Inc.
Caisse Nationale de Credit Agricole
The Fuji Bank, Limited
The Long-Term Credit Bank of Japan, Ltd.
Mellon Bank, N.A.
The Sanwa Bank, Limited, Chicago Branch
United States National Bank of Oregon
Co-Agents:
ABN Amro Bank N.V.
Bank of Montreal
The Bank of New York
The Bank of Nova Scotia
CIBC, Inc.
Credit Lyonnais
The First National Bank of Chicago
The Industrial Bank of Japan, Limited
Nationsbank, N.A.
Societe Generale
The Sumitomo Bank, Limited
Toronto-Dominion (Texas), Inc.
Lenders:
The Mitsubishi Trust and Banking Corp.
National City Bank
Yasuda Trust & Banking Co. Ltd.
Arab Banking Corporation
Banque Paribas
Commerzbank Aktiengesellschaft
Dai-Ichi Kangyo Bank, Limited
Keybank National Associations
Exhibit B
to
Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Dated November 20, 1996
Rendered In Connection With
▇▇▇▇▇-Illinois, Inc. Refinancing Credit Agreement
Guarantor Subsidiaries:
▇▇▇▇▇-Illinois Group, Inc.
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, Inc.
OI Closure FTS Inc.
OI Plastic Products FTS Inc.
O-I Health Care Holding Corp.
OI General FTS Inc.
OI General Finance Inc.
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc.
OI ▇▇▇▇ STS Inc.
▇▇▇▇▇-Illinois Closure Inc.
Specialty Packaging Licensing Company
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Plastic Products Inc.
▇▇▇▇▇-Illinois Prescription Products Inc.
▇▇▇▇▇-Illinois Labels, Inc.
▇▇▇▇▇-Illinois General Inc.
OI Castalia STS Inc.
OI Levis Park STS Inc.
OI AID STS Inc.
EXHIBIT XIX
[FORM OF OPINION OF GENERAL COUNSEL FOR ▇▇▇▇▇-ILLINOIS]
[ATTACHED]
XIX-1
November __, 1996
Bankers Trust Company, as Administrative
Agent and as Collateral Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bank of America National Trust and Savings Association,
as Documentation Agent
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
The Lead Managers, Co-Agents and Lenders
identified on Exhibit A hereto
Re: Refinancing Credit Agreement, dated as of November __, 1996 among
▇▇▇▇▇-Illinois, Inc., the Lenders, Lead Managers and Co-Agents
listed therein, Bank of America National Trust & Savings
Association, as Documentation Agent and Bankers Trust Company,
as Administrative Agent
Ladies and Gentlemen:
I am associate general counsel to ▇▇▇▇▇-Illinois, Inc., a Delaware
corporation (the "Company"), and render this opinion to you in such capacity
pursuant to Section 3.1G of that certain Refinancing Credit Agreement, dated
as of November __, 1996 (the "Credit Agreement") among the Company, the
Lenders, Lead Managers and Co-Agents listed therein (collectively, the
"Lenders"), Bank of America National Trust & Savings Association, as
Documentation Agent (in such capacity, the "Documentation Agent"), and
Bankers Trust Company, as Administrative Agent (in such capacity, the
1
"Administrative Agent"). Capitalized terms defined in the Credit Agreement,
used herein and not otherwise defined herein, shall have the meanings given
them in the Credit Agreement.
As such counsel, I have examined such matters of fact and questions
of law as I have considered appropriate for purposes of rendering the opinions
expressed below. I have examined, among other things, the following:
(a) the Credit Agreement;
(b) the Revolving Notes and Bid Rate Loan Notes, in each case issued
by the Company on the Closing Date (collectively, the "Notes");
(c) the Company Pledge Agreement;
(d) the Company Guaranty;
(e) the O-I Subsidiary Guaranty;
(f) the O-I Subsidiary Pledge Agreement;
(g) the Collateral Account Agreement;
(h) the Intercreditor Agreement;
(i) the Overdraft Agreement;
2
(j) the Certificate of Incorporation and Bylaws (the "Governing
Documents") of the Company and each direct and indirect subsidiary of the
Company identified on Exhibit B hereto (each a "Guarantor Subsidiary" and,
collectively, "Guarantor Subsidiaries");
(k) the indenture(s) (but not including the indentures pursuant to
which the Senior Debentures and the Senior Subordinated Debt have been issued),
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
(l) court and administrative orders, writs, judgments and decrees
specifically directed to the Company or its Subsidiaries which are material to
the Company and its Subsidiaries taken as a whole (the "Court Orders").
The documents described in subsections (a) through (i) above are
referred to 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 and the Guarantor Subsidiaries 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.
3
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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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 and each
Guarantor Subsidiary (each a "Loan Party" and, collectively, the "Loan Parties")
of each Loan Document to which it is a party will result in the violation of
any federal statute, rule or regulation applicable to such Loan Party
(including, without limitation, Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System) or the DGCL.
Subject to the foregoing and the other matters set forth herein, and
in reliance thereon, it is my opinion that, as of the date hereof:
1. Each Loan Party has been duly incorporated and is validy
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
4
the Loan Documents to which it is a party and perform its obligations
thereunder.
2. The execution, delivery and performance by each Loan Party of the
Loan Documents to which such Loan Party is a party have been duly authorized by
all necessary corporate action of such Loan Party. Each Loan Document has been
duly executed and delivered by each Loan Party party thereto.
3. None of (a) the execution and delivery by each Loan Party of the
Loan Documents to which it is a party, (b) the borrowing and repayment of the
Loans by the Company pursuant to the Credit Agreement, (c) the guarantee of the
Company's obligations under the Credit Agreement by each Guarantor Subsidiary
pursuant to the O-I Subsidiary Guaranty, (d) the guarantee of Acquisition
Newcos' obligations under the Credit Agreement in respect of Foreign Letters
of Credit pursuant to the Company Guaranty, (e) the pledge, pursuant to the
Company Pledge Agreement, by the Company of the Pledged Collateral (as
defined in the Company Pledge Agreement) to secure the Obligations, or (f) the
pledge, pursuant to the O-I Subsidiary Pledge Agreement, by each Guarantor
Subsidiary party to the O-I Subsidiary Pledge Agreement (the "OI Subsidiary
Pledgors") of the Pledged Collateral (as defined in the O-I Subsidiary Pledge
Agreement) of such OI Subsidiary Pledgor to secure the Obligations and to
secure such OI Subsidiary Pledgor's obligations under the O-I Subsidiary
Guaranty: (i) violate the provisions of the Governing Documents of such Loan
Party, (ii) violate any Ohio statute, rule or regulation applicable to such
Loan Party, (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 such Loan Party
under any Ohio statute, rule or regulation applicable to such Loan Party. 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.
5
4. The common stock of each Guarantor Subsidiary listed on Schedule
1 hereto has been duly authorized and validly issued, is fully paid and
nonassessable, constitutes all of the issued and outstanding capital stock of
such Guarantor Subsidiary and is owned of record by the Persons indicated on
Schedule 1.
5. To the best of my knowledge after due inquiry, there are no
legal or governmental proceedings pending or threatened to which any Loan Party
is a party or to which any of the properties of any Loan Party is subject
(except for those legal or governmental proceedings previously disclosed in
writing to Lenders including, without limitation, those disclosed in the
Company's quarterly report on Form 10-Q for the fiscal quarter ended
September 30, 1996) 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 any Loan Party under the Loan Documents
or 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.
6
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,
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Associate General Counsel
7
Exhibit A
to
Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Dated November __, 1996
Rendered In Connection With
▇▇▇▇▇-Illinois, Inc. Refinancing Credit Agreement
Lead Managers:
Banque Nationale de Paris
Citicorp USA, Inc.
Caisse Nationale de Credit Agricole
The Fuji Bank, Limited
The Long-Term Credit Bank of Japan, Ltd.
Mellon Bank, N.A.
The Sanwa Bank Ltd.
United States National Bank of Oregon
Co-Agents:
ABN Amro Bank N.V.
Bank of Montreal
The Bank of New York
The Bank of Nova Scotia
CIBC, Inc.
Credit Lyonnais
First Chicago, N.B.D.
The Industrial Bank of Japan, Limited, New York Branch
Nationsbank of North Carolina, N.A.
Societe Generale
The Sumitomo Bank, Limited
The Toronto-Dominion Bank
Lenders:
The Mitsubishi Trust and Banking Corp.
National City Bank
Yasuda Trust & Banking Co. Ltd.
Arab Banking Corporation
Banque Paribas
Commerzbank AG
Dai-Ichi Kangyo Bank
Key Bank
Kredietbank
The Northern Trust Company
A-1
Sakura Bank
Tokai Bank, Limited
Union Bank
Westdeutsche ▇▇▇▇▇▇ Bank
Bank of Hawaii
A-2
Exhibit B
to
Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Dated November __, 1996
Rendered In Connection With
▇▇▇▇▇-Illinois, Inc. Refinancing Credit Agreement
Guarantor Subsidiaries:
▇▇▇▇▇-Illinois Group, Inc.
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, Inc.
OI Closure FTS Inc.
OI Plastic Products FTS Inc.
O-I Health Care Holding Corp.
OI General FTS Inc.
OI General Finance Inc.
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc.
OI ▇▇▇▇ STS Inc.
▇▇▇▇▇-Illinois Closure Inc.
Specialty Packaging Licensing Company
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Plastic Products Inc.
▇▇▇▇▇-Illinois Prescription Products Inc.
▇▇▇▇▇-Illinois Labels, Inc.
▇▇▇▇▇-Illinois General Inc.
OI Castalia STS Inc.
OI Levis Park STS Inc.
OI AID STS Inc.
Schedule 1
to
Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Dated November __, 1996
Rendered In Connection With
▇▇▇▇▇-Illinois, Inc. Refinancing Credit Agreement
Class of Stock Cert. No. of
Stockholder Issuer of Stock Stock No(s). Par Value Shares
----------- --------------- -------- ----------- --------- ------
▇▇▇▇▇-Illinois, Inc. ▇▇▇▇▇-Illinois
Group, Inc. Common 1 $.01 100
▇▇▇▇▇-Illinois Group, Inc. ▇▇▇▇▇-▇▇▇▇▇▇▇▇
Packaging, Inc. Common 1 .01 100
▇▇▇▇▇-Illinois Group, Inc. OI Closure FTS Inc. Common 1 .01 100
▇▇▇▇▇-Illinois Group, Inc. OI Plastic Products
FTS Inc. Common 1 .01 100
▇▇▇▇▇-Illinois Group, Inc. O-I Health Care
Holding Corp. Common 1 .01 100
▇▇▇▇▇-Illinois Group, Inc. OI General FTS Inc. Common 1 .01 100
▇▇▇▇▇-Illinois Group, Inc. OI General Finance
Inc. Common 1 .01 100
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, Inc. ▇▇▇▇▇-▇▇▇▇▇▇▇▇
Glass Container Inc. Common 1 .01 100
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, Inc. OI ▇▇▇▇ STS Inc. Common 1 .01 100
OI Closure FTS Inc. ▇▇▇▇▇-Illinois
Closure Inc. Common 1 .01 100
OI Closure FTS Inc. Specialty Packaging
Licensing Company Common 3 1.00 1,000
OI Plastic Products FTS Inc. ▇▇▇▇▇-▇▇▇▇▇▇▇▇
Plastic Products, Inc.Common 3 None 300,000
OI Plastic Products FTS Inc. ▇▇▇▇▇-Illinois
Prescription
Products Inc. Common 1 .01 100
OI Plastic Products FTS Inc. ▇▇▇▇▇-Illinois Labels
Inc. Common 5 None 10,000
OI General FTS Inc. ▇▇▇▇▇-Illinois
General Inc. Common 1 .01 100
OI General FTS Inc. OI Castalia STS Inc. Common 1 .01 100
OI General FTS Inc. OI Levis Park STS
Inc. Common 1 .01 100
OI General FTS Inc. OI AID STS Inc. Common 1 .01 100
2
EXHIBIT XX
[FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇]
November__, 1996
Bankers Trust Company, as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bank of America National Trust
& Savings Association, as Documentation Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
The Lead Managers, Co-Agents and Lenders
Party to the Refinancing Credit
Agreement Referenced Below
Re: Loans to ▇▇▇▇▇-Illinois, Inc.
Ladies and Gentlemen:
We have acted as counsel to Bankers Trust Company, as
Administrative Agent (in such capacity, "Administrative Agent"),
and Bank of America National Trust and Savings Association, as
Documentation Agent (in such capacity, "Documentation Agent") in
connection with the preparation and delivery of a Refinancing
Credit Agreement dated as of November 19, 1996 (the "Credit
Agreement") among ▇▇▇▇▇-Illinois, Inc., a Delaware corporation
("Company"), the Lenders named therein, the Lenders named as Lead
Managers and Co-Agents for Lenders, Documentation Agent and
Administrative Agent and in connection with the preparation and
delivery of certain related documents.
We have participated in various conferences with
representatives of Company and Agents and conferences and
telephone calls with ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to Company, 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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Associate
General Counsel to the Company (collectively, the "Opinions"),
and the officers' certificates and other documents delivered at
XX-1
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,
XX-2
SCHEDULE A-1
COMPANY, GROUP, FIRST AND SECOND TIER SUBSIDIARIES
Jurisdiction
and Date of Percentage of
Entity Incorporation Stockholder(s) Ownership
------ ------------- -------------- -------------
Company
-------
▇▇▇▇▇-Illinois, Inc. Delaware
11/27/85
Group
-----
▇▇▇▇▇-Illinois Group, Inc. Delaware ▇▇▇▇▇-Illinois, Inc. 100
3/10/87
First Tier Subsidiaries
-----------------------
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, Inc. Delaware ▇▇▇▇▇-Illinois Group, Inc. 100
3/6/87
OI Closure FTS Inc. Delaware ▇▇▇▇▇-Illinois Group, Inc. 100
3/6/87
OI Plastic Products FTS Inc. Delaware ▇▇▇▇▇-Illinois Group, Inc. 100
3/6/87
O-I Health Care Holding Corp. Delaware ▇▇▇▇▇-Illinois Group, Inc. 100
3/6/87
OI General FTS Inc. Delaware ▇▇▇▇▇-Illinois Group, Inc. 100
3/6/87
OI General Finance Inc. Delaware ▇▇▇▇▇-Illinois Group, Inc. 100
4/19/93
Second Tier Subsidiaries
------------------------
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, 100
Inc. 3/9/87 Inc.
OI ▇▇▇▇ STS Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, 100
3/9/87 Inc.
▇▇▇▇▇-Illinois Closure Inc. Delaware OI Closure FTS Inc. 100
3/9/87
Specialty Packaging Licensing Delaware OI Closure FTS Inc. 100
Company 11/15/85
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Plastic Products Delaware OI Plastic Products FTS Inc. 100
Inc. 6/15/60
▇▇▇▇▇-Illinois Prescription Delaware OI Plastic Products FTS Inc. 100
Products Inc. 3/9/87
▇▇▇▇▇-Illinois Labels Inc. Delaware OI Plastic Products FTS Inc. 100
9/16/86
▇▇▇▇▇-Illinois General Inc. Delaware OI General FTS Inc. 100
3/9/87
OI Castalia STS Inc. Delaware OI General FTS Inc. 100
3/9/87
OI Levis Park STS Inc. Delaware OI General FTS Inc. 100
3/9/87
OI AID STS Inc. Delaware OI General FTS Inc. 100
3/9/87
The Guarantor Subsidiaries, as of the Closing Date, consist of ▇▇▇▇▇-Illinois
Group, Inc. and each of the "First Tier Subsidiaries" and "Second Tier
Subsidiaries" set forth above.
SCHEDULE A-2
DIRECT & INDIRECT SUBSIDIARIES
OF THE GUARANTOR SUBSIDIARIES
FOREIGN SUBSIDIARIES (INCLUDING FOREIGN JOINT VENTURES)
DENOTED WITH ASTERISK
(For purposes of this Schedule A-2, "First Tier Subsidiary" means a direct
Subsidiary of the Person indicated and "Second Tier Subsidiary" means a direct
Subsidiary of one or more of such First Tier Subsidiaries of the Person
indicated)
Jurisdiction of Percentage of
Name Incorp. or Organization Stockholder(s) Ownership
---- ----------------------- -------------- -------------
OI Puerto Rico STS Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
1. ▇▇▇▇▇-Illinois de Puerto Ohio OI Puerto Rico STS Inc. 80
Rico* (Partnership)
OI Venezuela STS Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
OI Peldar STS Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. ▇▇▇
▇▇ ▇▇▇▇▇▇▇ STS Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
OI Consol STS Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
Bolivian Investments, Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
▇▇▇▇▇▇▇▇ Realty Inc. Pennsylvania ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
▇▇▇▇▇▇▇▇ Research Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
Overseas Finance Company Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
Seagate, Inc. Ohio ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
OIB Produvisa Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
OI Latin America, Inc. Delaware OI Peldar STS Inc. 100
OI Machinworks Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
1
Jurisdiction of Percentage of
Name Incorp. or Organization Stockholder(s) Ownership
---- ----------------------- -------------- -------------
OI Thailand Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
OI China Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. ▇▇▇
▇▇ ▇▇▇▇ STS Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
1. Vinsa* Peru OI Peru STS Inc. 77.7
OI Poland Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
OI India Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
OI Hungary Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
OI Brazil Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
OI Europe & Asia Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
▇▇▇▇▇-Illinois Specialty New Jersey ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Plastic Products Inc. 100
Products Puerto Rico, Inc.*
O-I Holding Company, Inc. Ohio ▇▇▇▇▇-Illinois General Inc. 100
Toledo Air Associates Ohio ▇▇▇▇▇-Illinois General Inc. 50
Harbor Capital Advisors, Inc. Delaware ▇▇▇▇▇-Illinois General Inc. 100
1. HCA Securities, Inc. Delaware Harbor Capital Advisors, Inc. 100
2. Harbor Transfer, Inc. Delaware Harbor Capital Advisors, Inc. 100
O-I Medical Inc. Delaware ▇▇▇▇▇-Illinois Prescription Products Inc. 100
1. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Medical Company Delaware OI Medical Inc. 55
(Partnership)
Product Design & Engineering, Inc. Minnesota ▇▇▇▇▇-Illinois Closure Inc. 100
Universal Materials, Inc. Ohio ▇▇▇▇▇-Illinois General Inc. 100
OI Regioplast STS Inc. Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Plastic Products Inc. 100
1. Regioplast, S.A. de C.V.* Mexico OI Regioplast STS Inc. 50
2
Jurisdiction of Percentage of
Name Incorp. or Organization Stockholder(s) Ownership
---- ----------------------- -------------- -------------
▇▇▇▇▇-Illinois (Australia) Australia ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
Pty. Ltd.*
Bahamian Grove Limited* Bahamas ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇* ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇ General Inc. 100
(W/4 First Tier Subsidiaries)
Fabrica Boliviana de Bolivia ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 46
Vidrios, S.A.* Bolivian Investments Inc. 4
Sao ▇▇▇▇▇▇▇▇ Administracao, Brazil ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 1
Participacoes e Representacoes, ▇▇▇▇▇-Illinois International B.V. 99
Limitada*
1. Companhia Industrial Sao Paulo Brazil Sao ▇▇▇▇▇▇▇▇ 79.41
e Rio* & (W/8 First Tier
Subsidiaries and 1 Second Tier
Subsidiary)
Cristaleria Peldar, S.A.* Colombia ▇▇▇▇▇-Illinois International B.V. 57.44
(W/1 First Tier Subsidiary)
Cristaleria del Ecuador, S.A.* Ecuador OI Ecuador STS Inc. 65.3
(W/2 First Tier Subsidiaries)
O-I Overseas Management Company Delaware ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 100
Limited*
1. United Glass Group, Ltd.* England O-I Overseas Management Company 100
W/13 First Tier Subsidiaries and Limited
4 Second Tier Subsidiaries
Specialty Packaging Products De Mexico ▇▇▇▇▇-Illinois Closure Inc. 100
Mexico, S.A. de C.V.*
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Venezuelan Holding Venezuela OI Venezuela STS Inc. 100
Co.*
1. Manufactura de Vidrios Planos Venezuela ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Venezuela Holding Co. 100
C.A.* (W/1 First Tier Subsidiary
and 1 Second Tier Subsidiary)
3
Jurisdiction of Percentage of
Name Incorp. or Organization Stockholder(s) Ownership
---- ----------------------- -------------- -------------
2. Contro Vidvioro de Venezuela Venezuela ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Venezuela Holding Co. 100
("Cevive") C.A.*
3. ▇▇▇▇▇-Illinois de Venezuela, Venezuela ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Venezuela Holding Co. 92.2
C.A.* (W/3 First Tier
Subsidiaries and 5 Second
Tier Subsidiaries)
▇▇▇▇▇-Illinois Foreign Sales Virgin Islands ▇▇▇▇▇-Illinois General Inc. 100
Corporation*
Consol Ltd.* South Africa OI Consol STS Inc. 19.32
Productos de ▇▇▇▇▇▇ ▇.▇.* Venezuela OIB Produvisa Inc. .90
Middle East Glass Mfg. Co.* Egypt ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 9.1
Nippon Glass Company* Japan ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 10
Union Glass Container Corp.* Philippines ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc. 16
▇▇▇▇▇-Illinois Foreign Sales Barbados ▇▇▇▇▇-Illinois General Inc. 100
Corporation*
Huta Szkla ▇▇▇▇▇▇▇▇ S.A.* Poland OI Poland Inc. 48.1
▇▇▇▇▇-Bilt Limited* India OI India Inc. 51
Oroshaza Glass Containers KFT* Hungary OI Hungary 100
Wuhan ▇▇▇▇▇ Glass Containers China OI China Inc. 70
Company, Ltd.*
▇▇▇▇▇-Illinois International Netherlands OI Brazil Inc. 60
Netherlands B.V.* OI Latin America 40
1. OI Finnish Holdings OY* Finland ▇▇▇▇▇-Illinois International B.V. 100
w/3 Second-Tier Subsidiaries
4
SCHEDULE B
LENDERS' COMMITMENTS AND PRO RATA SHARES
Revolving Loan
Lender Commitment Pro Rata Share
------ -------------- --------------
ADMINISTRATIVE AGENT:
--------------------
Bankers Trust Company $112,500,000 6.250000%
DOCUMENTATION AGENT:
-------------------
Bank of America National Trust and Savings
Association $112,500,000 6.250000%
CO-AGENTS:
----------
ABN Amro Bank, N.V. $ 65,000,000 3.▇▇▇▇▇▇%
Bank of Montreal $ 65,000,000 3.▇▇▇▇▇▇%
The Bank of New York $ 65,000,000 3.▇▇▇▇▇▇%
The Bank of Nova Scotia $ 65,000,000 3.▇▇▇▇▇▇%
CIBC, Inc. $ 65,000,000 3.611111%
Credit Lyonnais, Chicago Branch $ 65,000,000 3.611111%
The First National Bank of Chicago $ 65,000,000 3.611111%
The Industrial Bank of Japan, Limited $ 65,000,000 3.611111%
NationsBank, N.A. $ 65,000,000 3.611111%
Societe Generale $ 65,000,000 3.611111%
The Sumitomo Bank, Limited $ 65,000,000 3.611111%
Toronto-Dominion (Texas), Inc. $ 65,000,000 3.611111%
LEAD MANAGERS:
-------------
Banque Nationale De Paris $ 50,000,000 2.777778%
Citibank, N.A. $ 50,000,000 2.777778%
B-1
Revolving Loan
Lender Commitment Pro Rata Share
------ -------------- --------------
Caisse Nationale De Credit Agricole $ 50,000,000 2.777778%
The Fuji Bank, Limited $ 50,000,000 2.777778%
The Long-Term Credit Bank of Japan, Ltd. $ 50,000,000 2.777778%
Mellon Bank, N.A. $ 50,000,000 2.777778%
The Sanwa Bank, Limited (Chicago Branch) $ 50,000,000 2.777778%
United States National Bank of Oregon $ 50,000,000 2.777778%
LENDERS:
--------
The Mitsubishi Trust and Banking Corp. $ 40,000,000 2.222222%
National City Bank $ 35,000,000 1.944444%
Yasuda Trust & Banking Co. Ltd. $ 30,000,000 1.666667%
Arab Banking Corporation $ 25,000,000 1.388889%
Banque Paribas $ 25,000,000 1.388889%
Commerzbank Aktiengesellschaft $ 25,000,000 1.388889%
Dai-Ichi Kangyo Bank, Limited $ 25,000,000 1.388889%
KeyBank National Association $ 25,000,000 1.388889%
Kredietbank N.V. $ 25,000,000 1.388889%
The Northern Trust Company $ 25,000,000 1.388889%
Sakura Bank $ 25,000,000 1.388889%
The Tokai Bank, Ltd., Chicago Branch $ 25,000,000 1.388889%
Union Bank of California, N.A $ 25,000,000 1.388889%
Westdeutsche Landesbank $ 25,000,000 1.388889%
Bank of Hawaii $ 15,000,000 0.833333%
-------------- ----------
$1,800,000,000 100.000000%
B-2
SCHEDULE C
EXISTING INDEBTEDNESS
OF
▇▇▇▇▇-ILLINOIS AND
CONSOLIDATED SUBSIDIARIES
Amount
($M)
------
Industrial Development Revenue Bonds
▇▇▇▇▇▇ County, Ohio (Berlin, OH) 1,000
Miscellaneous Senior Debt
Alcon capital lease 755
Obligation to repurchase shares of ▇▇▇▇▇▇▇▇, Inc. (NY) 610
Obligation to repurchase shares of ▇▇▇▇▇-Illinois, Inc., an
Ohio corporation 930
Commonwealth of PA machinery loan 467
Superior Beverage 10,780 (1)
Various capitalized leases 856
------
Total Senior Debt 14,398
Total Existing Indebtedness 15,398
======
(1) Not indebtedness under GAAP.
SCHEDULE D
EXISTING ▇▇▇▇▇
OF
▇▇▇▇▇-ILLINOIS AND
CONSOLIDATED SUBSIDIARIES
Amount of
Encumbrance
Location Property encumbered ($M)
----------------------- ------------------------------- -----------
Danville, VA and Tracy,
CA Real estate, plant & equipment 10,780
Commonwealth of PA Real estate, plant & equipment 467
Various capital leases Real estate, plant & equipment 1,611
------
Total Existing Liens 12,158
======
SCHEDULE E
INVESTMENTS
OF
▇▇▇▇▇-ILLINOIS AND
CONSOLIDATED SUBSIDIARIES
Amount
Investment ($M)
---------- ------
Domestic investments and advances
Kimble Glass J.V. 14,500
Foreign investments and advances
Consol, Ltd. 3,400
Huta Szkla ▇▇▇▇▇▇▇▇, S.A. 9,200
Regioplast, S.A. 19,700
------
Total investments and advances 46,800
Other investments
Allwaste, Inc. 1,000
BriGam Ventures Inc. 1,260
Cross City 1,334
Fremont Plastics 50
Industrial Development Board of the City of ▇▇▇▇▇▇▇▇▇▇ 1,550
▇▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇ ▇▇▇▇▇▇ (Castalia) 777
------
Total Other Investments 5,971
Total Investments 52,771
======
SCHEDULE F
EXISTING CONTINGENT LIABILITIES
OF
▇▇▇▇▇-ILLINOIS AND CONSOLIDATED SUBSIDIARIES
Amount
Debtor Creditor ($M)
------ -------- ------
Indebtedness assumed by
purchasers of assets
sold (1)
Kansas City,
Missouri IRB Bondholders 9,000
Harlan, Kentucky IRB Bondholders 1,100
Mentor, Ohio IRB Bondholders 2,000
------
Total indebtedness assumed by purchasers of assets sold 12,100
Guaranties of Amount
Foreign Subsidiaries Creditor ($M)
-------------------- -------- ------
O-I de Puerto Rico Scotia Bank de Puerto Rico 14,828
O-I Specialty
Products P.R. Scotia Bank 9,736
Fabrica Boliviana de
Vidrios Bank of New York 5,000
Other 1,486
Total ----- 6,486
O-I Finnish Holdings Others 22,250
Oroshaza Glass Containers
KFT ABN-Amro 1,871
Regioplast, S.A. Other 7,500
▇▇▇▇▇-Bilt, Ltd. B of A 3,000
B of A & Syndicate 15,307
------ Total 18,307
------
Total Foreign Indebtedness Guarantied by the Company 80,978
Guaranties of Domestic Subsidiaries
-----------------------------------
O-I Closure, Inc. Commonwealth of PA 467
---
Total Domestic Indebtedness Guarantied by the Company 467
1
Guaranties of Amount
Domestic Subsidiaries ($M)
(continued)
---------------------- ------
▇▇▇▇▇▇▇▇ Airlines
Indemnity to airplane lessors Not
Indemnity to sellers of airline deicing services quantifiable
Indemnity to truck, trailer and auto lessors but not
Indemnity to seller of ground services at municipal airports expected
Liability with other airlines to be
Cross border lease material
Unexpired airplane leases 14,755
------
Total quantifiable contingent liabilities related
to ▇▇▇▇▇▇▇▇ Airlines 14,755
Total Quantifiable Existing Contingent Liabilities 108,300
=======
(1) Indebtedness assumed by third parties in connection with the purchase of
the underlying assets. The Company is indemnified by the party assuming
the debt.
2
SCHEDULE G
REPORTING UNITS
OF
▇▇▇▇▇-ILLINOIS
Glass Container
International Glass
Plastic Containers
Labels & Carriers
Closure & Specialty
Prescription Products
SCHEDULE H
1. ▇▇▇▇▇-Illinois Salary Employees Welfare Benefit Plan (Plan No. 501)
2. ▇▇▇▇▇-Illinois Hourly Employees Welfare Benefit Plan (Plan No. 502)
SCHEDULE I
ENVIRONMENTAL MATTERS
None.
SCHEDULE J
LETTERS OF CREDIT OUTSTANDING UNDER EXISTING CREDIT AGREEMENT
Amount
Refer # Memo Outstanding T-O Date Mat Date Iss Loc # Code Div
-------- ---- ----------- -------- -------- --- ------ ---- ---
LOC00001 State of 17,240,297.00 05/01/89 06/16/97 BOA 133809 1/3 090
California
-------------
17,240,297.00 = Bank of America
LOC00014 Aetna Life 1,457,530.00 07/01/87 06/30/97 BTC S-01760 2/3 090
Insurance
LOC00015 NJDEP- 3,149,459.00 03/13/87 03/12/97 BTC S-01120 1/3 ▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇- 213,285.00 05/24/90 05/24/97 BTC S-07039 1/3 ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ 500,000.00 01/31/92 01/31/97 BTC S-08285 1/3 090
Insurance
LOC00018 Ohio Dept. 55,000.00 07/01/94 06/30/97 BTC S-09998 1/3 ▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ Workers 2,500,000.00 01/31/91 01/31/97 BTC S-07585 1/3 ▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇ National 3,659,000.00 11/08/89 09/01/97 BTC S-06176 1/3 ▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ Peoples Gas 100,000.00 11/18/89 11/18/97 BTC S-05933 1/3 090
LOC00022 Pitney ▇▇▇▇▇ 750,000.00 05/22/91 04/30/97 BTC S-07811 1/3 090
LOC00023 State of 297,030.00 02/18/92 12/31/96 BTC s-08333 2/3 ▇▇▇
▇▇/▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ CIT Group/ 2,979,131.40 08/14/91 07/31/97 BTC S-07930 1/3 090
Equip
LOC00025 NHW/ 6,000,000.00 11/09/90 11/09/97 BTC S-07378 1/3 090
Hibernia
Bank
LOC00026 NJDEP- 3,124,250.00 03/13/87 03/12/97 BTC S-01121 1/3 ▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Industrial 2,975,000.00 08/11/87 06/30/97 BTC S-02026 1/3 ▇▇▇
▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ Liberty 202,893.00 10/06/93 10/06/97 BTC S-09537 1/3/ 090
Mutual SAC 4
LOC00029 ▇▇▇▇▇▇▇ 272,590.00 08/06/91 09/30/97 BTC S-07951 1/3/ 090
Finance 4
LOC00030 Continental 9,712,000.00 06/18/92 06/18/97 BTC S-08571 1/3 090
Casualty
LOC00031 Banc- 750,000.00 08/14/91 07/31/97 BTC S-70929 1/3 090
Ireland/
First
LOC00032 NY Workers 2,269,000.00 10/06/89 10/06/97 BTC S-05934 1/3 090
Comp
LOC00033 Liberty 159,074.00 10/30/92 3/31/97 BTC S-08831 1/3/ 090
Mutual SPPI 4
LOC00052 NY Gas ▇▇▇▇▇ 60,000.00 09/09/96 09/09/97 BTC s-11510 1/3 090
LOC00036 Texas 50,000.00 12/31/87 12/31/96 BTC S-02899 1/3 301
Employer's
Amount
Refer # Memo Outstanding T-O Date Mat Date Iss Loc # Code Div
LOC00037 Republic 78,655.00 12/31/89 12/31/96 BTC S-06578 1/3 301
Insurance
LOC00038 Allstate 534.00 12/31/89 12/31/96 BTC S-06557 1/3 301
Insurance
LOC00039 Paladin, 3,422.37 12/31/89 12/31/96 BTC S-06571 1/3 301
Heartland
LOC00040 Liberty 310.00 12/31/89 12/31/96 BTC S-06555 1/3 301
National
LOC00041 Farmers 1,300.00 12/31/89 12/31/96 BTC S-06563 1/3 301
Alliance
LOC00042 Fremont 2,585.26 12/31/89 12/31/96 BTC S-06556 1/3 301
Reinsurance
LOC00043 Lancer 10,000.00 12/31/89 12/31/96 BTC S-06577 1/3 301
Insurance
LOC00044 Mutual 186,271.00 12/31/89 12/31/96 BTC S-06551 1/3 ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ American 40,390.00 12/31/89 12/31/96 BTC S-06574 1/3 301
Eagle
-------------
41,558,710.42 = Bankers Trust
LOC00007 Self- 6,000,000.00 10/19/94 09/01/97 MBB S836096 1/3 090
Insurance ------------
PA 6,000,000.00 = ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ Self- 1,500,000.00 04/07/92 /4/07/97 ▇▇▇ ▇▇▇ 1/3 090
Insurance ------------ 2052092
GA 1,500,000.00 = Nationsbank of North
-------------
66,299,007.42
=============