================================================================================
$250,000,000
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Dated as of February 10, 2003
among
LIBBEY GLASS INC.,
and
LIBBEY EUROPE B.V.
as the Borrowers,
BANK OF AMERICA, N.A.,
as the Administrative Agent, Swing Line Lender
and
as an L/C Issuer,
BANK ONE, NA
and
FLEET NATIONAL BANK,
as Syndication Agents
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
and
BANC ONE CAPITAL MARKETS, INC.,
as
Joint Lead Arrangers and Joint Book Managers
================================================================================
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS........................................................................1
1.01 Amendment and Restatement...................................................................1
1.02 Defined Terms...............................................................................2
1.03 Other Interpretive Provisions..............................................................28
1.04 Accounting Terms...........................................................................28
1.05 Rounding...................................................................................29
1.06 References to Agreements and Laws..........................................................29
1.07 Exchange Rates; Currency Equivalents.......................................................29
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS.................................................................29
2.01 Amounts and Terms of Commitments...........................................................29
2.02 Borrowings, Conversions and Continuations of Loans.........................................31
2.03 Negotiated Rate Loans......................................................................33
2.04 Letters of Credit..........................................................................34
2.05 Prepayments................................................................................42
2.06 Swing Line Loans...........................................................................43
2.07 Reduction or Termination of Commitments; Optional Increase in Commitments..................47
2.08 Repayment of Loans.........................................................................48
2.09 Interest...................................................................................48
2.10 Fees.......................................................................................49
2.11 Computation of Interest and Fees...........................................................49
2.12 Evidence of Debt...........................................................................49
2.13 Payments Generally.........................................................................50
2.14 Sharing of Payments........................................................................52
2.15 Extensions of Revolving Loan Termination Date..............................................52
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY...............................................................54
3.01 Taxes......................................................................................54
3.02 Illegality.................................................................................56
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3.03 Inability to Determine Rates...............................................................56
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Fixed Rate Loans..........57
3.05 Funding Losses.............................................................................58
3.06 Matters Applicable to all Requests for Compensation........................................58
3.07 Survival...................................................................................58
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS.............................................................59
4.01 Conditions of Effectiveness of Amendment and Restatement and Credit Extension on
the Amendment and Restatement Effectiveness Date...........................................59
4.02 Conditions to all Credit Extensions........................................................60
ARTICLE V REPRESENTATIONS AND WARRANTIES.........................................................................61
5.01 Existence, Qualification and Power; Compliance with Laws...................................61
5.02 Authorization; No Contravention............................................................61
5.03 Governmental Authorization.................................................................61
5.04 Binding Effect.............................................................................61
5.05 Financial Statements; No Material Adverse Effect...........................................62
5.06 Litigation.................................................................................62
5.07 No Default.................................................................................62
5.08 Ownership of Property; Liens...............................................................62
5.09 Environmental Compliance...................................................................62
5.10 Insurance..................................................................................64
5.11 Taxes......................................................................................64
5.12 ERISA Compliance...........................................................................64
5.13 Subsidiaries...............................................................................65
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.............65
5.15 Disclosure.................................................................................65
5.16 Intellectual Property; Licenses, Etc.......................................................65
5.17 Solvency...................................................................................65
ARTICLE VI AFFIRMATIVE COVENANTS.................................................................................66
6.01 Financial Statements.......................................................................66
6.02 Certificates; Other Information............................................................67
6.03 Notices....................................................................................68
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6.04 Payment of Obligations.....................................................................68
6.05 Preservation of Existence, Etc.............................................................68
6.06 Maintenance of Properties..................................................................69
6.07 Maintenance of Insurance...................................................................69
6.08 Compliance with Laws.......................................................................69
6.09 Books and Records..........................................................................69
6.10 Inspection Rights..........................................................................69
6.11 Compliance with ERISA......................................................................69
6.12 Use of Proceeds............................................................................70
6.13 Environmental Disclosure and Inspection....................................................70
6.14 Borrower's Remedial Action Regarding Hazardous Materials...................................70
6.15 Further Assurances.........................................................................71
ARTICLE VII NEGATIVE COVENANTS...................................................................................71
7.01 Liens......................................................................................71
7.02 Investments................................................................................73
7.03 Indebtedness...............................................................................74
7.04 Fundamental Changes........................................................................76
7.05 Dispositions...............................................................................76
7.06 Lease Obligations..........................................................................77
7.07 Restricted Payments........................................................................78
7.08 ERISA......................................................................................79
7.09 Change in Nature of Business...............................................................79
7.10 Transactions with Affiliates...............................................................79
7.11 Burdensome Agreements......................................................................79
7.12 Use of Proceeds............................................................................80
7.13 Contingent Obligations.....................................................................80
7.14 Financial Covenants........................................................................81
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES......................................................................81
8.01 Events of Default..........................................................................81
8.02 Remedies Upon Event of Default.............................................................83
8.03 Judgment Currency..........................................................................84
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ARTICLE IX ADMINISTRATIVE AGENT..................................................................................84
9.01 Appointment and Authorization of the Administrative Agent..................................84
9.02 Delegation of Duties.......................................................................85
9.03 Liability of the Administrative Agent......................................................85
9.04 Reliance by the Administrative Agent.......................................................85
9.05 Notice of Default..........................................................................86
9.06 Credit Decision; Disclosure of Information by the Administrative Agent.....................86
9.07 Indemnification of the Administrative Agent................................................87
9.08 Administrative Agent in its Individual Capacity............................................87
9.09 Successor Administrative Agent.............................................................88
9.10 Syndication Agents; Joint Lead Arrangers; Joint Book Managers..............................88
ARTICLE X MISCELLANEOUS..........................................................................................89
10.01 Amendments, Etc............................................................................89
10.02 Notices and Other Communications; Facsimile Copies.........................................90
10.03 No Waiver; Cumulative Remedies.............................................................91
10.04 Attorney Costs, Expenses and Taxes.........................................................91
10.05 Indemnification by the Borrowers...........................................................92
10.06 Payments Set Aside.........................................................................93
10.07 Successors and Assigns.....................................................................93
10.08 Confidentiality............................................................................97
10.09 Set-off....................................................................................98
10.10 Interest Rate Limitation...................................................................98
10.11 Counterparts...............................................................................99
10.12 Integration................................................................................99
10.13 Survival of Representations and Warranties.................................................99
10.14 Severability...............................................................................99
10.15 Foreign Lenders............................................................................99
10.16 Replacement of Lenders....................................................................100
10.17 Governing Law.............................................................................101
10.18 Waiver of Right to Trial by Jury..........................................................102
10.19 Entire Agreement..........................................................................102
10.20 Unrestricted Subsidiaries.................................................................102
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10.21 Consent to Consolidated Amendment to Guaranties...........................................103
10.22 Several Liability of Borrowers............................................................103
SCHEDULES
1.01 Existing Letters of Credit
2.01 Revolving Loan Commitments and Pro Rata Shares
5.09 Environmental Compliance
5.12 ERISA
5.13 Subsidiaries and Other Equity Investments
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
7.06 Existing Leases
7.13 Existing Contingent Obligations
10.02 Eurodollar, Offshore Currency and Domestic Lending Offices,
Addresses for Notices
EXHIBITS
FORM OF
A-1 Notice of Borrowing
A-2 Notice of Conversion/Continuation
B Swing Line Notice
C-1 Revolving Loan Note
C-2 Negotiated Rate Loan Note
C-3 U.S. Swing Line Note
C-4 Offshore Currency Loan Note
C-5 Offshore Currency Swing Line Note
D Compliance Certificate
E Assignment and Assumption Agreement
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AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT ("Agreement") is
entered into as of February 10, 2003 among LIBBEY GLASS INC., a Delaware
corporation (the "US Borrower"), LIBBEY EUROPE B.V., a company organized and
existing under the laws of the Netherlands (the "Dutch Borrower", and together
with the US Borrower, the "Borrowers"), each lender from time to time party
hereto (collectively, the "Lenders" and individually, a "Lender"), and BANK OF
AMERICA, N.A., as the administrative agent, Swing Line Lender and an L/C Issuer,
and BANK ONE, NA and FLEET NATIONAL BANK, as syndication agents (the
"Syndication Agents", and together with the Administrative Agent, the "Agents").
The Lenders have provided to the US Borrower a revolving credit
facility pursuant to that certain
Revolving Credit Agreement dated April 23,
2002 by and among the US Borrower, the Lenders and the Agents (the "Original
Credit Agreement");
The Borrowers have requested that the Original Credit Agreement be
amended and restated to provide for an offshore currency subfacility and an
offshore currency swing line subfacility to be available to the Dutch Borrower
and to make certain other amendments;
The Lenders and the Agents are willing to so amend and restate the
Original Credit Agreement, to make the offshore currency subfacility and the
offshore currency swing line subfacility available to the Dutch Borrower and to
continue to make the revolving credit and letter of credit facilities available
to the US Borrower upon the terms and conditions set forth herein;
The Borrowers, the Lenders and the Agents hereby agree that the
Original Credit Agreement is hereby amended, restated and substituted for in its
entirety as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 AMENDMENT AND RESTATEMENT. The Borrowers, the Agents and the
Lenders hereby agree that upon the effectiveness of this Agreement, the terms
and provisions of the Original Credit Agreement shall be and hereby are, except
as otherwise provided herein, amended and restated in their entirety.
This Agreement is given as a substitution of, and not as a payment of,
the obligations of the US Borrower under the Original Credit Agreement and is
not intended to constitute a novation of the liabilities, duties and obligations
under the Original Credit Agreement. Upon effectiveness of this Agreement, all
Obligations outstanding and owing by the US Borrower under the Original Credit
Agreement as of the Amendment and Restatement Effectiveness Date shall
constitute Obligations hereunder. All Base Rate Loans, Eurodollar Rate Loans and
Negotiated Rate Loans under the Original Credit Agreement shall continue in
effect hereunder at the respective applicable rates and with the respective
applicable Interest Periods, and, as to Negotiated Rate Loans, maturity dates.
All Swing Line Loans under the Original Credit Agreement shall continue in
effect as US Swing Line Loans hereunder evidenced by the US
Swing Line Note. All of the indebtedness, liabilities and obligations owing by
the US Borrower under the Original Credit Agreement evidenced by the Original
Revolving Loan Notes shall be evidenced by the Revolving Loan Notes issued by
the US Borrower in substitution for, and not in payment or novation of, the
Original Revolving Loan Notes.
1.02 DEFINED TERMS.
As used in this Agreement, the following terms shall have the meanings
set forth below:
"Accounts Receivable" means presently existing and hereafter arising or
acquired accounts receivable, general intangibles, choses in action and other
forms of obligations and receivables relating in any way to Inventory or arising
from the sale of Inventory or the rendering of services or howsoever otherwise
arising, and, with respect to any of the foregoing receivables or obligations,
(a) all of the interest of the US Borrower or any of its Subsidiaries in the
goods (including returned goods) the sale of which gave rise to such receivable
or obligation after the passage of title thereto to any obligor, (b) all other
Liens and property subject thereto from time to time purporting to secure
payment of such receivables or obligations, (c) all guarantees, insurance,
letters of credit and other agreements or arrangements of whatever character
from time to time supporting or securing payment of any such receivables or
obligations, (d) all interests of the Receivables Subsidiary under the documents
evidencing a Permitted Receivables Purchase Facility and any permitted
performance guaranty given in connection therewith, and (e) all records relating
to any of the foregoing and all proceeds and products of any of the foregoing.
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
by the US Borrower or a Subsidiary of all or substantially all of the assets of
a Person, or of any business or division of a Person, (b) the acquisition by the
US Borrower or a Subsidiary of in excess of 50% of the capital stock,
partnership interests, membership interests or equity of any Person (other than
a Person already a Subsidiary), or otherwise causing any Person to become a
Subsidiary, or (c) a merger or consolidation or any other combination by a
Borrower or a Subsidiary with another Person (other than a Person that is the US
Borrower or a Subsidiary), provided that the US Borrower or such Subsidiary is
the surviving entity.
"Adjusted Consolidated Net Income" means, for any period, for Holdings
and its Subsidiaries (other than any Unrestricted Subsidiaries) on a
consolidated basis, Consolidated Net Income excluding, if applicable, any
after-tax adjustment to Consolidated Net Income for the Restructuring Charge for
such period.
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any permitted successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's
address and, as appropriate, account as set forth on Schedule 10.02, or such
other address or account as the Administrative Agent may from time to time
notify the US Borrower and the Lenders.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be
2
deemed to be "controlled by" any other Person if such other Person possesses,
directly or indirectly, power to direct or cause the direction of the management
and policies of such Person whether through the ownership of voting securities
or by contract or otherwise other than any director, officer or employee of such
Person.
"Agent-Related Persons" means the Administrative Agent (including any
permitted successor administrative agent), together with its Affiliates
(including, in the case of Bank of America in its capacities as the
Administrative Agent and as a Joint Lead Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Agents" means the Administrative Agent and the Syndication Agents.
"Aggregate Commitments" has the meaning specified in the definition of
"Commitment."
"Aggregate Receivables Discount Amount" has the meaning specified in
the definition of "Consolidated EBITDA."
"Agreement" means this Amended and Restated
Revolving Credit Agreement.
"Amendment and Restatement Effectiveness Date" means the first date
that all of the conditions precedent in Section 4.01 are satisfied or waived in
accordance with Section 4.01.
"Applicable Rate" means the following basis points per annum, based
upon the Leverage Ratio as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 6.02(b):
Applicable Rate
---------------------------------------------------------------------------------------------
Offshore
Offshore Currency
Base Rate Eurodollar Currency Swing Line
+ (or minus) Rate + Rate + Rate +
------------ ---------- ---------- -----------
Offshore
Revolving Revolving Offshore Currency
Pricing Leverage Facility Loans in Loans in Currency Swing Line
Level Ratio Fee Dollars Dollars Rate Loans Loans
------- ----------------- -------- ------------ ---------- ---------- ----------
1 Less than
1.75:1.0 17.5 -17.5 70.0 70.0 120.0
---------------------------------------------------------------------------------------------
2 Greater than or
equal to
1.75:1.0 but less
than 2.5:1.0 25.0 -25.0 75.0 75.0 125.0
---------------------------------------------------------------------------------------------
3
---------------------------------------------------------------------------------------------
Offshore
Offshore Currency
Base Rate Eurodollar Currency Swing Line
+ (or minus) Rate + Rate + Rate +
------------ ---------- ---------- -----------
Offshore
Revolving Revolving Offshore Currency
Pricing Leverage Facility Loans in Loans in Currency Swing Line
Level Ratio Fee Dollars Dollars Rate Loans Loans
------- ----------------- -------- ------------ ---------- ---------- ----------
3 Greater than or 30.0 20.0 120.0 120.0 170.0
equal to 2.5:1.0
but less than
3.0:1.0
---------------------------------------------------------------------------------------------
4 Greater than or 37.5 37.5 137.5 137.5 187.5
equal to 3.0:1.0
---------------------------------------------------------------------------------------------
Any increase or decrease in the Applicable Rate resulting from a change
in the Leverage Ratio shall become effective as of the fifth Business Day
immediately following the date a Compliance Certificate is delivered pursuant to
Section 6.02(b); provided, however, that if no Compliance Certificate is
delivered with respect to a fiscal quarter on or prior to the date when due in
accordance with such Section, then, until such time as the applicable Compliance
Certificate is delivered, with respect to the Facility Fee, Revolving Loans and
Offshore Currency Loans, Pricing Level 4 as set forth in the table above shall
apply as of the fifth Business Day after the Administrative Agent gives the US
Borrower notice that it has not received such certificate by the due date. Until
adjusted as provided above, the Applicable Rate shall be at the Pricing Level in
effect under the Original Credit Agreement immediately prior to the
effectiveness of this Agreement.
"Applicable Swing Line Funding Office" means, initially, (i) for US
Swing Line Loans, the office specified for notices to the Swing Line Lender on
Schedule 10.02, and (ii) for Offshore Currency Swing Line Loans, the office of
the London Branch of the Swing Line Lender as shall be designated by the Swing
Line Lender by notice to the Borrowers, and thereafter in each case such other
office or offices as the Swing Line Lender may designate by notice to the
Borrowers and the Administrative Agent.
"Approved Fund" has the meaning specified in Section 10.07(h).
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement substantially in the form of Exhibit E.
"Attorney Costs" means and includes all fees and disbursements of any
law firm or other external counsel and the allocated non-duplicative cost of
internal legal services and all disbursements of internal counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
(b) in respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that
4
would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a capital lease, and
(c) in respect of any Permitted Receivables Purchase Facility, the amount of
Receivables Facility Attributed Indebtedness.
"Audited Financial Statements" means the audited consolidated balance
sheet of Holdings and its Subsidiaries for the fiscal year ended December 31,
2001, and the related consolidated statements of income, shareholders' equity
and cash flows for such fiscal year of Holdings and its Subsidiaries.
"Auto-Renewal Letter of Credit" has the meaning specified in Section
2.04(b)(iii).
"Bank of America" means Bank of America, N.A.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." Such rate is a rate set by Bank of America based
upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate. All Base Rate Loans shall be denominated in Dollars.
"Borrowers" has the meaning set forth in the introductory paragraph
hereto.
"Borrowing" means a Revolving Borrowing, an Offshore Currency
Borrowing, a Negotiated Rate Loan Borrowing or a Swing Line Borrowing, as the
context may require.
"Business Day" means (a) any day other than a Saturday, Sunday or other
day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where the Administrative Agent's Office is located,
(b) if such day relates to any Eurodollar Rate Loan, means any such day
described in clause (a) on which dealings in Dollar deposits are conducted by
and between banks in the London interbank eurodollar market and (c) if such day
relates to any Offshore Currency Loan or an Offshore Currency Swing Line Loan,
means any such day described in clause (a) which is also a TARGET Day.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the applicable L/C Issuer and the
Lenders, as collateral for the L/C Obligations, cash or deposit account balances
pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the applicable L/C Issuer (which documents are hereby
consented to by the Lenders). Derivatives of such term shall have corresponding
meaning.
"Change of Control" means, with respect to any Person, an event or
series of events by which:
5
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any employee
benefit plan of such person or its subsidiaries, and any person or entity acting
in its capacity as trustee, agent or other fiduciary or administrator of any
such plan) becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Securities Exchange Act of 1934), directly or indirectly, of 30% or
more of the equity securities of such Person entitled to vote for members of the
board of directors or equivalent governing body of such Person; or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of such
Person cease to be composed of individuals (i) who were members of that board or
equivalent governing body on the first day of such period, (ii) whose election
or nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body.
"Code" means the Internal Revenue Code of 1986, as amended.
"COLI Debt" means all Indebtedness of Holdings or any of its
Subsidiaries to the insurance company issuing the COLI Policies, if and for so
long as: (a) the aggregate principal amount of such Indebtedness is equal to or
less than the aggregate account value of all COLI Policies at the time such
Indebtedness is incurred by Holdings and such Subsidiaries and at all times
thereafter; and (b) the documentation with respect to such Indebtedness limits
the recourse of the insurance company issuing the COLI Policies, as lender,
against Holdings and such Subsidiaries for the payment of such Indebtedness to
the ownership interest of Holdings and its Subsidiaries in the COLI Policies.
"COLI Policies" means all corporate-owned life insurance policies now
or hereafter purchased and maintained by Holdings or any of its Subsidiaries to
insure the lives of certain employees of Holdings and its Subsidiaries, which
policies name Holdings or such Subsidiary as the beneficiary upon the death of
such employee.
"Commitment" means, as to each Lender, its obligation to (a) make
Revolving Loans to the US Borrower pursuant to Section 2.01(a), (b) make
Offshore Currency Loans to the Dutch Borrower pursuant to Section 2.01(b), (c)
purchase participations in L/C Obligations, and (d) purchase participations in
Swing Line Loans, in an aggregate principal amount not to exceed the amount set
forth opposite such Lender's name on Schedules 2.01(a), as such amount may be
reduced or adjusted from time to time in accordance with the terms of this
Agreement (collectively, the "Aggregate Commitments").
"Compensation Period" has the meaning specified in Section 2.13(d)(ii).
"Compliance Certificate" means a certificate substantially in the form
of Exhibit E.
6
"Consolidated Amendment to Guaranties" means that Consolidated
Amendment to Guaranties dated the Amendment and Restatement Effectiveness Date
by and among certain of the Guarantors and the Administrative Agent.
"Consolidated EBITDA" means, for any period, for Holdings and its
Subsidiaries (other than any Unrestricted Subsidiaries) on a consolidated basis,
an amount equal to (a) the sum of (i) Consolidated Net Income, (ii) Consolidated
Interest Charges, (iii) provisions for taxes, based on or measured by income,
included in the determination of such Consolidated Net Income, (iv) the amount
of depreciation and amortization expense deducted in determining such
Consolidated Net Income, (v) cash dividends received in respect of equity
investments, (vi) the amount of the Restructuring Charge included in the
determination of such Consolidated Net Income, (vii) other non-cash charges as
disclosed in the financial statements or footnotes thereto of Holdings and its
Subsidiaries (other than any Unrestricted Subsidiaries) for such period included
in the determination of such Consolidated Net Income and (viii) the aggregate
amount of any discount on the sale of Accounts Receivable by Holdings and its
Subsidiaries (other than any Unrestricted Subsidiaries) in connection with a
Permitted Receivables Purchase Facility for such period included in the
determination of such Consolidated Net Income ("Aggregate Receivables Discount
Amount") minus (b) the sum of (i) pre-tax earnings (with any pre-tax loss being
treated as a negative amount) from equity investments and (ii) non-cash gains as
disclosed in the financial statements or footnotes thereto of Holdings and its
Subsidiaries (other than any Unrestricted Subsidiaries) for such period, in each
case, to the extent included in the determination of such Consolidated Net
Income; provided, however, that solely for the purpose of the computation of the
Leverage Ratio, if there has occurred an Acquisition or Disposition during the
relevant period, Consolidated EBITDA shall be calculated on a Pro Forma Basis.
"Consolidated Interest Charges" means, for any period, for Holdings and
its Subsidiaries (other than any Unrestricted Subsidiaries) on a consolidated
basis, the sum (without any netting of interest income) of (a) all interest,
premium payments and fees (excluding deferred financing fees payable to the
Lenders, the Agents or Joint Lead Arrangers in connection herewith or in
connection with other financing arrangements) of Holdings and its Subsidiaries
(other than any Unrestricted Subsidiaries) in connection with borrowed money
(including capitalized interest) or in connection with the deferred purchase
price of assets, in each case to the extent treated as interest in accordance
with GAAP, and (b) the portion of rent expense of Holdings and its Subsidiaries
(other than any Unrestricted Subsidiaries) with respect to such period under
capital leases that is treated as interest in accordance with GAAP.
"Consolidated Net Income" means, for any period, for Holdings and its
Subsidiaries (other than any Unrestricted Subsidiaries) on a consolidated basis,
the net income of Holdings and its Subsidiaries (other than any Unrestricted
Subsidiaries) after extraordinary items for that period.
"Consolidated Total Indebtedness" means, as of any date of
determination, for Holdings and its Subsidiaries (other than any Unrestricted
Subsidiaries) on a consolidated basis, the sum (without duplication) of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder but excluding COLI Debt),
and all obligations evidenced by bonds, debentures, notes, loan agreements or
other similar instruments, in each case determined in accordance with GAAP, (b)
Receivables Facility
7
Attributed Indebtedness, (c) Attributable Indebtedness in respect of capital
leases and Synthetic Lease Obligations, and (d) without duplication, all
Guaranty Obligations with respect to Indebtedness of the types specified in
sections (a) through (c) above of Persons other than Holdings or any Restricted
Subsidiary to the extent the aggregate amount thereof exceeds $30,000,000.
"Contingent Obligation" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse,
(a) in respect of any Guaranty Obligation, (b) with respect to any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments, (c) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered, or (d) in respect of any Swap Contract. The amount of any
Contingent Obligation shall (a) in the case of Guaranty Obligations, be deemed
equal to the stated or determinable amount of the primary obligation or portion
thereof in respect of which such Guaranty Obligation is made or, if less, to the
amount to which the Guaranty Obligation is limited or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof
as determined by the guarantying Person in good faith, and (b) in the case of
other Contingent Obligations, be equal to the maximum reasonably anticipated
liability in respect thereof.
"Continuing Lender" has the meaning specified in Section 2.15(b).
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any material agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Extension" means each of the following: (a) a Revolving
Borrowing, (b) an Offshore Currency Borrowing, (c) a Negotiated Rate Loan
Borrowing, (d) a Swing Line Borrowing, and (e) an L/C Credit Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any event that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Fixed Rate Loan or Offshore
Currency Swing Line Loan, the Default Rate shall be an interest rate equal to
the interest rate (including any Applicable Rate) otherwise applicable to such
Loan plus 2% per annum, in each case to the fullest extent permitted by
applicable Laws.
8
"Disposition" or "Dispose" means the sale, assignment, exclusive (in
all jurisdictions) licensing or other transfer (including any sale and leaseback
transaction but excluding any ordinary course licensing arrangement and
excluding the sale of environmental credits to the extent the amount of proceeds
therefrom does not exceed $3,000,000 in the aggregate in any fiscal year of the
US Borrower) of any property by any Person, including any sale, assignment or
other transfer, with or without recourse, of any notes or accounts receivable or
any rights and claims associated therewith (other than in connection with a
Permitted Receivables Purchase Facility).
"Dollar" and "$" means lawful money of the United States of America.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in euro, the equivalent amount thereof in Dollars as determined by
the Administrative Agent at such time on the basis of the Spot Rate (determined
in respect of the most recent Revaluation Date) for the purchases of Dollars
with euro.
"Domestic Subsidiary" means a Subsidiary of a Borrower which is
organized under the laws of the United States or any political subdivision
thereof.
"Dutch Borrower" has the meaning set forth in the introductory
paragraphs hereto.
"Effective Date" means the date that all of the conditions precedent in
Section 4.01 of the Original Credit Agreement were satisfied or waived in
accordance with such Section 4.01.
"Eligible Assignee" has the meaning specified in Section 10.07(h).
"EMU" means the economic and monetary union in accordance with the
Treaty of Rome of 1957, as amended by the Single European Act of 1986, the
Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998, as amended from time
to time.
"EMU Legislation" means the legislative measures of the European
Council for the introduction, changeover to or operation of a single or unified
European currency.
"Environmental Claim" means any written accusation, allegation, notice
of violation, claim, demand, abatement order or other order or direction
(conditional or otherwise) by any Governmental Authority or any other Person for
any damage, including, without limitation, personal injury (including sickness,
disease or death), tangible or intangible 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 any Loan Party,
any of its Restricted Subsidiaries or any Facility.
"Environmental Laws" means all Laws relating to environmental, health,
and safety matters applicable to any property.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
any regulations issued pursuant thereto.
9
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with either Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the US Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the US Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization (other than any withdrawal by the US Borrower from its
Syracuse China Multiemployer Plan to the extent such withdrawal could not
reasonably be expected to result in incremental liability in excess of the
Threshold Amount to any Loan Party); (d) the filing of a notice of intent to
terminate, the treatment of a Pension Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC
to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition
which might reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under
Title IV of ERISA, other than PBGC premiums due but not delinquent under Section
4007 of ERISA, upon the US Borrower or any ERISA Affiliate.
"euro" and "E" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation. All Loans denominated
in euro must be Offshore Currency Loans or Offshore Currency Swing Line Loans.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan:
(a) the rate per annum (rounded upward to the next 1/100th of 1%) equal
to the rate determined by the Administrative Agent to be the offered rate that
appears on the page of the Telerate screen (or any successor thereto) that
displays an average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest Period) with
a term equivalent to such Interest Period, determined as of approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period, or
(b) if the rate referenced in the preceding subsection (a) does not
appear on such page or service or such page or service shall cease to be
available, the rate per annum (rounded upward to the next 1/100th of 1%) equal
to the rate determined by the Administrative Agent to be the offered rate on
such other page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for delivery on
the first day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding subsections (a) and (b)
are not available, the rate per annum (rounded upward to the next 1/100th of 1%)
determined by the Administrative Agent as the rate of interest at which deposits
in Dollars for delivery on the first
10
day of such Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by Bank of America and
with a term equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the London interbank eurodollar market
at their request at approximately 4:00 p.m. (London time) two Business Days
prior to the first day of such Interest Period.
"Eurodollar Rate Loan" means a Revolving Loan that bears interest at a
rate based on the Eurodollar Rate.
"Event of Default" means any of the events or circumstances specified
in Article VIII.
"Excluded Tax" means any of the following taxes, levies, imposts,
duties, deductions, withholdings or charges, and all liabilities with respect
thereto: (a) Taxes imposed on the net income of a Lender or the Administrative
Agent (including without limitation branch profits taxes, minimum taxes and
taxes computed under alternative methods, at least one of which is based on net
income by (i) the jurisdiction under the laws of which such Lender or the
Administrative Agent is organized or any political subdivision thereof or (ii)
the jurisdiction of such Lender's or the Administrative Agent's applicable
lending office or any political subdivision thereof or (iii) any jurisdiction in
which the Lender or Administrative Agent is doing business (other than by virtue
of being a Lender under this Agreement), (b) any Taxes that would not have been
imposed but for (i) the failure by the Administrative Agent or such Lender, as
applicable, to comply with the requirements of Section 10.15 or otherwise
provide and keep current any certification or other documentation required to
qualify for an exemption from or reduced rate of any Tax or (ii) the gross
negligence or willful misconduct of Administrative Agent or such Lender, and (c)
Taxes paid by a transferee of a Lender to the extent such taxes exceed the
amount that the Lender would have paid with respect to the rights assigned,
participated, or otherwise transferred, unless (i) such assignment,
participation or transfer shall have been made when the circumstances giving
rise to such greater payment did not exist or had not yet occurred or (ii) such
assignment, participation or transfer shall have been made at the request of the
US Borrower.
"Existing Termination Date" has the meaning specified in Section
2.15(a).
"Facilities" means any and all real property (including, without
limitation, all buildings, fixtures or other improvements located thereon) now
or hereafter owned, leased or operated by any Loan Party or any of its
Restricted Subsidiaries.
"Facility Fee" has the meaning specified in Section 2.10(a).
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for
11
such day shall be the average rate charged to Bank of America on such day on
such transactions as determined by the Administrative Agent.
"Fee Letter" has the meaning specified in Section 2.10(b).
"Fixed Rate" means the Eurodollar Rate and/or the Offshore Currency
Rate, as the context may require.
"Fixed Rate Loan" means a Eurodollar Rate Loan and/or an Offshore
Currency Loan, as the context may require.
"Foreign Lender" has the meaning specified in Section 10.15.
"Foreign Subsidiary" means a Restricted Subsidiary of the US Borrower
which is not a Domestic Subsidiary.
"Fund" has the meaning specified in Section 10.07(h).
"FRB" means the Board of Governors of the Federal Reserve System of the
United States of America.
"GAAP" means generally accepted accounting principles in the United
States of America set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or
such other principles as may be approved by a significant segment of the
accounting profession, that are applicable to the circumstances as of the date
of determination.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank, or other public
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Governmental Authorizations" 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.
"Granting Lender" has the meaning specified in Section 10.07(b).
"Guaranteed Creditors" means and includes (a) the Administrative Agent,
and the Lenders and (b) each Swap Creditor (other than any Loan Party).
"Guarantors" means, collectively, Holdings, US Borrower and the
Restricted Material Subsidiaries as identified with an asterisk on Schedule 5.13
and, after the date hereof, any Subsidiary which may have joined in the
Subsidiary Guaranty pursuant to Section 6.15(b) hereof.
12
"Guaranties" means, collectively, (a) the Subsidiary Guaranty, (b) the
Holdings Guaranty and (c) the Libbey Glass Guaranty.
"Guaranty Obligation" means, as to any Person, any (a) any obligation,
contingent or otherwise, of such Person guarantying or having the economic
effect of guarantying any Indebtedness or other obligation payable or
performable by another Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligee in respect of such Indebtedness or other obligation of the
payment or performance thereof or to protect such obligee against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person.
The amount of any Guaranty Obligation shall be deemed to be an amount equal to
the stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guaranty Obligation is made or, if less, the
maximum amount to which the Contingent Obligation is limited or, if not stated
or determinable, the maximum reasonably anticipated liability in respect thereof
as determined by the guarantying Person in good faith.
"Hazardous Materials" means (a) 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;
(b) any oil, petroleum, petroleum fraction or petroleum derived substance; (c)
any radioactive materials; (d) asbestos in any form; (e) urea formaldehyde foam
insulation; (f) electrical equipment which contains any oil or dielectric fluid
containing levels of polychlorinated biphenyls in excess of fifty parts per
million; and (g) pesticides.
"Holdings" means
Libbey Inc., a Delaware corporation, and the owner of
100% of the outstanding equity of the US Borrower.
"Holdings Guaranty" means the Guaranty made by Holdings in favor of the
Administrative Agent on behalf of the Guaranteed Creditors.
"Honor Date" has the meaning specified in Section 2.04(c)(i).
"Incremental Amount" has the meaning specified in Section 7.02(l).
"Indebtedness" means, as to any Person at a particular time, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:
13
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers' acceptances, bank
guaranties, surety bonds and similar instruments;
(c) all obligations of such Person to pay the deferred purchase price
of property or services payable more than six months after incurrence of the
obligation (other than trade accounts payable in the ordinary course of business
and contingent earn-outs payable with respect to Acquisitions otherwise
permitted hereunder);
(d) indebtedness (excluding prepaid interest thereon) secured by a Lien
on property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements), whether or
not such indebtedness shall have been assumed by such Person or is limited in
recourse;
(e) capital leases to the extent classified as a liability on the
balance sheet in accordance with GAAP and Synthetic Lease Obligations;
(f) Receivables Facility Attributed Indebtedness; and
(g) all Guaranty Obligations of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or Joint Venture (other than a Joint Venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person (subject only to customary exceptions) but only
to the extent such Person is liable therefor. The amount of any capital lease or
Synthetic Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Intercompany Indebtedness" means Indebtedness of the US Borrower or
any of its Subsidiaries which, in the case of the US Borrower, is owing to any
Restricted Subsidiary of the US Borrower and which, in the case of any
Subsidiary, is owing to the US Borrower or any of the US Borrower's other
Restricted Subsidiaries.
"Interest Coverage Ratio" means, as of any date of determination, the
ratio of (a) of Consolidated EBITDA for the period of the four prior fiscal
quarters ending on such date to (b) Consolidated Interest Charges plus the
Aggregate Receivables Discount Amount for such period.
"Interest Payment Date" means, (a) as to any Fixed Rate Loan, the last
day of each Interest Period applicable to such Loan; provided, however, that if
any Interest Period for a Fixed Rate Loan exceeds three months, the respective
dates that fall every three months after the
14
beginning of such Interest Period shall also be Interest Payment Dates; (b) as
to any Base Rate Loan (including a US Swing Line Loan), the first Business Day
of each April, July, October and January and the Revolving Loan Termination
Date; (c) as to any Offshore Currency Swing Line Loan, the first Business Day of
each month and the Revolving Loan Termination Date, and (d) as to any Negotiated
Rate Loan, the first Business Day of each month (or such other dates as are
mutually agreed upon by the US Borrower and the applicable Lender) and the
Revolving Loan Termination Date.
"Interest Period" means as to each Fixed Rate Loan the period
commencing on the date such Fixed Rate Loan is disbursed or converted to or
continued as a Fixed Rate Loan and ending on the date one, two, three or six
months thereafter, as selected by the US Borrower in its Notice of Borrowing or
Notice of Conversion/Continuation, as applicable (or, if all Lenders have
agreed, nine or twelve months thereafter); provided that:
(a) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless, in
the case of a Fixed Rate Loan, such Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding
Business Day;
(b) any Interest Period pertaining to a Fixed Rate Loan that begins on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the end of
such Interest Period; and
(c) no Interest Period with respect to any Loan shall extend beyond the
Revolving Loan Termination Date.
"Inventory" means, inclusively, all inventory as defined in the UCC
from time to time and all goods, merchandise and other personal property
wherever located, now owned or hereafter acquired by the US Borrower or any of
its Subsidiaries of every kind or description which are held for sale or lease
or are furnished or to be furnished under a contract of service or are raw
materials, work-in-process or materials used or consumed or to be used or
consumed in the US Borrower's or any of its Subsidiaries' business.
"Investment" means, as to any Person, any acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
capital stock or other securities of another Person, (b) a loan, advance or
capital contribution to, guaranty of debt of, or purchase or other acquisition
of any other debt or equity participation or interest in, another Person,
including any partnership or Joint Venture interest in such other Person, or (c)
the purchase or other acquisition (in one transaction or a series of related
transactions) of assets of another Person that constitute a business unit. For
purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested by a Person minus cash dividends, other cash returns
and the fair market value of other distributions received by such Person on or
with respect to such Investment net of taxes associated with such dividends and
returns without adjustment for subsequent increases or decreases in the value of
such Investment.
"IP Rights" has the meaning set forth in Section 5.16.
15
"IRS" means the United States Internal Revenue Service.
"Joint Lead Arrangers" means, collectively, Banc of America Securities
LLC and Banc One Capital Markets, Inc., in their respective capacities as joint
lead arrangers hereunder.
"Joint Venture" means a corporation, partnership, limited liability
company, joint venture or other similar legal arrangement (whether created by
contract or conducted through a separate legal entity) which is not a Subsidiary
and which is now existing or hereafter formed by the US Borrower or any of its
Subsidiaries with another Person in order to conduct a common venture or
enterprise with such Person.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents or authorities, and all applicable
administrative orders, licenses, authorizations and permits of, and agreements
with, any Governmental Authority (and, in the case of each of the foregoing,
with respect to Section 3.04 only, whether or not having the force of law).
"L/C Advance" means, with respect to each Lender, such Lender's
participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Revolving Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as an issuer of
Letters of Credit hereunder, any other Lender which agrees at the US Borrower's
request to serve as an issuer of Letters of Credit hereunder or any successor
issuer of the foregoing; provided, however, that at no time shall there be more
than three Lenders issuing Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn face amount of all outstanding Letters of Credit plus the aggregate of
all Unreimbursed Amounts, including all L/C Borrowings.
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes any L/C Issuer and the Swing Line Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify the US Borrower and the Administrative
Agent.
"Letter of Credit" means (a) the letters of credit previously issued by
Bank of America for the account of the US Borrower listed on Schedule 1.01
hereto and (b) any letter of credit issued hereunder. A Letter of Credit may be
a commercial letter of credit or a standby letter of credit.
16
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a letter of credit in the form from time to time in
use by the applicable L/C Issuer.
"Letter of Credit Expiration Date" means the day that is three days
prior to the Revolving Loan Termination Date (or, if such day is not a Business
Day, the next preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to the lesser of the
combined Revolving Loan Commitments and $30,000,000. The Letter of Credit
Sublimit is part of, and not in addition to, the Revolving Loan Commitments.
"Leverage Ratio" means, as of any date of determination, for Holdings
and its Subsidiaries (other than any Unrestricted Subsidiaries) on a
consolidated basis, the ratio of (a) Consolidated Total Indebtedness as of such
date to (b) Consolidated EBITDA for the most recently ended period of four
fiscal quarters.
"Libbey Glass Guaranty" means the Guaranty made by the US Borrower in
favor of the Administrative Agent on behalf of the Guaranteed Creditors.
"Lien" means any mortgage, pledge, hypothecation, assignment,
encumbrance, lien (statutory or other), charge, priority or other security
interest (including any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the UCC or comparable
Laws of any jurisdiction), including the interest of a purchaser of Accounts
Receivable under any Permitted Receivables Purchase Facility.
"Loan" means an extension of credit by a Lender to a Borrower under
Article II in the form of a Revolving Loan, an Offshore Currency Loan, a Swing
Line Loan or a Negotiated Rate Loan.
"Loan Documents" means this Agreement, each Note, the Fee Letter, each
Request for Credit Extension, each Compliance Certificate, the Guaranties and
the Consolidated Amendment of Guaranties.
"Loan Parties" means, collectively, each Borrower and each Guarantor.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, assets, liabilities
(actual or contingent) or condition (financial or otherwise) of Holdings, the US
Borrower and its Restricted Subsidiaries taken as a whole; (b) a material
impairment of the ability of the Loan Parties to perform their obligations under
the Loan Documents taken as a whole; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against the Loan Parties of
the Loan Documents taken as a whole.
"Material Subsidiary" means (a) any Domestic Subsidiary and (b) solely
for the purposes of subsections 8.01(f) and (g), any Foreign Subsidiary, in each
case, whose (i) assets have a book value of at least $2,000,000 or (ii) annual
revenues exceed $10,000,000 for the most recently completed four fiscal quarters
of the US Borrower.
17
"Maximum Rate" has the meaning specified in Section 10.10.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the US Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
three calendar years, has made or been obligated to make contributions.
"Negotiated Rate" means, with respect to any Negotiated Rate Loan, the
fixed rate of interest per annum agreed upon by the US Borrower and the Lender
funding such Negotiated Rate Loan.
"Negotiated Rate Loan" has the meaning specified in Section 2.03.
"Negotiated Rate Loan Borrowing" means a borrowing of a Negotiated Rate
Loan pursuant to Section 2.03.
"Negotiated Rate Loan Note" means a promissory note made by the US
Borrower in favor of a Lender evidencing Negotiated Rate Loans made by such
Lender, substantially in the form of Exhibit C-2.
"Negotiated Rate Loan Sublimit" means an amount equal to the lesser of
(a) $125,000,000 and (b) the combined Revolving Loan Commitments. The Negotiated
Rate Loan Sublimit is part of, and not in addition to, the Revolving Loan
Commitments.
"Non-Consenting Lender" has the meaning specified in Section 2.15(b).
"Nonrenewal Notice Date" has the meaning specified in Section
2.04(b)(iii).
"Notes" means, collectively, the Revolving Loan Notes, the Offshore
Currency Loan Notes, the Swing Line Notes and the Negotiated Rate Loan Notes.
"Notice of Borrowing" means a notice of a Revolving Borrowing, an
Offshore Currency Borrowing, or Negotiated Rate Loan Borrowing pursuant to
Section 2.02 or 2.03, as applicable, which, if in writing, shall be
substantially in the form of Exhibit A-1.
"Notice of Conversion/Continuation" means a notice of a conversion or
continuation of Loans pursuant to Section 2.02 which, if in writing, shall be
substantially in the form of Exhibit A-2.
"Notice of Extension" has the meaning specified in Section 2.15(a).
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest that accrues after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding.
18
"Offshore Currency Borrowing" means a borrowing consisting of
simultaneous Offshore Currency Loans having the same Interest Period made by
each of the Lenders pursuant to Section 2.01(b).
"Offshore Currency Equivalent" means at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in euro as
determined by the Administrative Agent at such time on the basis of the Spot
Rate (determined in respect of the most recent Revaluation Date) for the
purchase of euro with Dollars.
"Offshore Currency Loan" has the meaning set forth in Section 2.01(b).
"Offshore Currency Loan Note" means a promissory note made by the
Borrowers in favor of a Lender evidencing Offshore Currency Loans made by such
Lender, substantially in the form of Exhibit C-4.
"Offshore Currency Rate" means for any Interest Period with respect to
any Offshore Currency Loan:
(a) the rate per annum (rounded upward to the next 1/100th of 1%) equal
to the rate determined by the Administrative Agent to be the offered
rate that appears on the page of the Telerate screen (or any successor
thereto) that displays an average British Bankers Association Interest
Settlement Rate for deposits in euro (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding subsection (a) does not
appear on such page or service or such page or service shall cease to
be available, the rate per annum (rounded upward to the next 1/100th of
1%) equal to the rate determined by the Administrative Agent to be the
offered rate on such other page or other service that displays an
average British Bankers Association Interest Settlement Rate for
deposits in euro (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, or
(c) if the rates referenced in the preceding subsections (a) and (b)
are not available, the rate per annum (rounded upward to the next
1/100th of 1%) determined by the Administrative Agent as the rate of
interest at which deposits in euro for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the
Offshore Currency Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch to major banks in the London
interbank market for euro at their request at approximately 4:00 p.m.
(London time) two Business Days prior to the first day of such Interest
Period.
"Offshore Currency Sublimit" means an amount equal to the lesser of (a)
the combined Revolving Loan Commitments and (b) $60,000,000. The Offshore
Currency Sublimit is a part of, and not in addition to, the Revolving Loan
Commitments.
19
"Offshore Currency Swing Line Loan" has the meaning specified in
Section 2.06(a).
"Offshore Currency Swing Line Loan Sublimit" means the amount, not at
any time to exceed the lesser of the Revolving Loan Commitments or $10,000,000,
as designated by the US Borrower (by written notice to the Swing Line Lender at
the Applicable Swing Line Funding Office and to the Administrative Agent) from
time to time, but not more frequently than once each month. The Offshore
Currency Swing Line Loan Sublimit is part of, and not in addition to, the
Revolving Loan Commitments.
"Offshore Currency Swing Line Note" means a promissory note dated as of
the Amendment and Restatement Effectiveness Date made by the Dutch Borrower in
favor of the Swing Line Lender evidencing Offshore Currency Swing Line Loans
made by such Lender, substantially in the form of Exhibit C-5.
"Offshore Currency Swing Line Rate" means for any day with respect to
Offshore Currency Swing Line Loans the rate of interest per annum (rounded
upward to the next 1/100th of 1%) determined by the Swing Line Lender as the
rate of interest at which deposits in euro in the approximate amount of such
Offshore Currency Swing Line Loan and having a term of one Business Day would be
offered to major banks in the London interbank market at their request at
approximately 11:00 a.m. (London time) on such day.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws; (b) with respect to
any limited liability company, the articles of formation and operating
agreement; and (c) with respect to any partnership, Joint Venture, trust or
other form of business entity, the partnership, Joint Venture or other
applicable agreement of formation and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation with the
secretary of state or other department in the state of its formation, in each
case as amended from time to time.
"Original Credit Agreement" has the meaning set forth in the
introductory paragraph hereto.
"Original Revolving Loan Notes" means the promissory notes issued by
the US Borrower under the Original Credit Agreement in favor of each Lender
evidencing Revolving Loans made by such Lender.
"Original Swing Line Note" means the promissory note issued by the US
Borrower under the Original Credit Agreement in favor of the Swing Line Lender
evidencing Swing Line Loans thereunder
"Other Taxes" has the meaning specified in Section 3.01(b).
"Outstanding Amount" means (a) with respect to Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Loans, as the case may be, occurring
on such date; and (b) with respect to any L/C Obligations on any date, the
amount of such L/C Obligations on such date after giving effect to any L/C
Credit Extension occurring on such date and any other changes in the aggregate
amount of the L/C Obligations as of such date, including as a result of any
reimbursements of
20
outstanding unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on
such date. Notwithstanding the foregoing, the Outstanding Amount of Offshore
Currency Loans and Offshore Currency Swing Line Loans shall mean the Dollar
Equivalent of the outstanding principal amount of such Offshore Currency Loans
and Offshore Currency Swing Line Loans.
"Outstanding Offshore Currency Obligations" means the sum of the
Outstanding Amounts of all Offshore Currency Loans and Offshore Currency Swing
Line Loans.
"Outstanding Revolving Credit Obligations" means the sum of the
aggregate Dollar Equivalent of the Outstanding Amount of all Revolving Loans,
Offshore Currency Loans, Negotiated Rate Loans, Swing Line Loans and L/C
Obligations.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the Federal Funds Rate and (b) with respect to any
amount denominated in euro, the rate of interest per annum at which overnight
deposits in euro, in an amount approximately equal to the amount with respect to
which such rate is being determined, would be offered for such day by a branch
or Affiliate of Bank of America located in the applicable interbank market for
such currency to major banks in such interbank market.
"Participant" has the meaning specified in Section 10.07(d).
"Participating Member" means each state so described in any EMU
Legislation.
"Participating Subsidiary" means any Subsidiary of the US Borrower that
is a participant in a Permitted Receivables Purchase Facility.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the US Borrower
or any ERISA Affiliate or to which the US Borrower or any ERISA Affiliate
contributes or has an obligation to contribute, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made contributions
at any time during the immediately preceding five plan years.
"Permitted Cost Savings" means, with respect to the determination of
Consolidated Net Income on a Pro Forma Basis, such cost savings as would be
permitted pursuant to Rule 11.02 of Regulation S-X, based on the US Borrower's
management's good faith estimate and as reviewed by certified public
accountants.
"Permitted Liens" has the meaning specified in Section 7.01.
"Permitted Receivables Purchase Facility" means any program entered
into by the US Borrower and/or its Participating Subsidiaries directly or
indirectly through a Receivables Subsidiary involving the sale or other
financing, without recourse based solely upon a default by one or more account
debtors in the payment of any Accounts Receivable included in the applicable
Permitted Receivables Purchase Facility, of Accounts Receivable arising in the
21
ordinary course of business; provided that any such transaction described in the
foregoing clause shall be consummated pursuant to documentation in form
reasonably satisfactory to the Administrative Agent, as evidenced by its written
approval thereof.
"Permitted Swap Obligations" means any obligations (contingent or
otherwise) of the US Borrower or any Subsidiary existing or arising under any
Swap Contract, provided that such obligations are (or were) entered into by such
Person in the ordinary course of business for the purpose of directly mitigating
risks associated with liabilities, commitments, investments, assets, or property
held or reasonably anticipated by such Person, or changes in the value of
securities issued by such Person and not for purposes of speculation.
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
Joint Venture or Governmental Authority.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the US Borrower or any ERISA Affiliate.
"Proposed AH Acquisition" means the proposed acquisition by the US
Borrower of substantially all of the Anchor Hocking consumer and specialty glass
products business of ▇▇▇▇▇▇ Rubbermaid, Inc.
"Pro Forma Basis" means, (a) with respect to the preparation of pro
forma financial statements for the purpose of the adjustment to Consolidated
EBITDA relating to any Acquisition and for any other purpose related to any
Acquisition, a pro forma on the basis that (i) any Indebtedness incurred or
assumed in connection with such Acquisition was incurred or assumed on the first
day of the applicable period, (ii) if such Indebtedness bears a floating
interest rate, such interest shall be paid over the pro forma period either at
the rate in effect on the date of such Acquisition or the applicable rate
experienced over the period, and (iii) all income and expense associated with
the assets or entity acquired in connection with such Acquisition for the most
recently ended four fiscal quarter period for which such income and expense
amounts are available shall be treated as being earned or incurred by Holdings
and its Restricted Subsidiaries on a pro forma basis for the portion of the
applicable period occurring prior to the date such Acquisition has occurred
without giving effect to any cost savings other than Permitted Cost Savings;
provided, however, that with respect to the amount of any Permitted Cost
Savings, 100% of such amount may be used in the first fiscal quarter ending
after the date the applicable Acquisition was consummated, 75% of such amount
may be used in the second fiscal quarter ending after the date the applicable
Acquisition was consummated, 50% of such amount may be used in the third fiscal
quarter ending after the date the applicable Acquisition was consummated, and
25% of such amount may be used in the fourth fiscal quarter ending after the
date the applicable Acquisition was consummated; and (b) with respect to the
preparation of pro forma financial statements for purpose of the permitted
adjustment to Consolidated EBITDA relating to any Disposition and for any other
purpose related to any Disposition, a pro forma on the basis that (i) any
Indebtedness prepaid out of the proceeds of such Disposition shall be deemed to
have been prepaid as of the first day of the applicable period, and (ii) all
income and expense (other than such expenses as the US Borrower, in good faith,
estimates will not be reduced or eliminated as a consequence of such
Disposition)
22
associated with the assets or entity disposed of in connection with such
Disposition shall be deemed to have been eliminated as of the first day of the
applicable period.
"Pro Rata Share" means, with respect to each Lender, the percentage
(carried out to the ninth decimal place) of the combined Revolving Loan
Commitments set forth opposite the name of that Lender on Schedule 2.01, as
adjusted to give effect to any assignments pursuant to Section 10.07(b),
increase in the combined Revolving Loan Commitments pursuant to Section 2.07(c)
or termination of the Revolving Loan Commitments pursuant to Section 2.07 or
2.15.
"Qualified Accounting Firm" means any of Ernst & Young, LLP,
PricewaterhouseCoopers, LLP, Deloitte & Touche, LLP and KPMG, LLP.
"Receivables Facility Attributed Indebtedness" at any time shall mean
the aggregate net outstanding amount theretofore paid to the Receivables
Subsidiary in respect of the Accounts Receivable sold, transferred or otherwise
financed by it in connection with a Permitted Receivables Purchase Facility.
"Receivables Subsidiary" means a special purpose, bankruptcy remote,
direct or indirect, wholly-owned Restricted Subsidiary of the US Borrower which
may be formed for the sole and exclusive purpose of engaging in activities in
connection with the purchase, sale and financing of Accounts Receivable in
connection with and pursuant to a Permitted Receivables Purchase Facility.
"Register" has the meaning set forth in Section 10.07(c).
"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 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.
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30-day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Revolving
Borrowing, an Offshore Currency Borrowing, a borrowing of Negotiated Rate Loans,
a conversion or continuation of Revolving Loans, or a continuation of Offshore
Currency Loans, a Notice of Borrowing or Notice of Conversion/Continuation, as
applicable, (b) with respect to a Borrowing of a Swing Line Loan, a Swing Line
Notice and (c) with respect to an L/C Credit Extension, a Letter of Credit
Application.
"Required Lenders" means, as of any date of determination, Lenders
whose Voting Percentages aggregate more than 50%.
"Response Date" has the meaning specified in Section 2.15(b).
23
"Responsible Officer" means the president, chief financial officer,
secretary, treasurer or assistant treasurer of a Loan Party. Any document
delivered hereunder that is signed by a Responsible Officer of a Loan Party
shall be conclusively presumed to have been authorized by all necessary
corporate, partnership, limited liability company and/or other action on the
part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
"Restricted Payment" means (a) any dividend or other distribution
(whether in cash, securities or other property) with respect to any capital
stock of the US Borrower or any Subsidiary thereof, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or of any option, warrant
or other right to acquire any such capital stock and (b) any Investment in an
Unrestricted Subsidiary (it being understood that on the date any Subsidiary is
designated as an Unrestricted Subsidiary, the US Borrower shall be deemed to
have made an Investment in such Subsidiary in the aggregate amount of all then
outstanding Investments previously made in such Subsidiary by the US Borrower or
its Restricted Subsidiaries).
"Restricted Material Subsidiaries" means all Material Subsidiaries
which are also Restricted Subsidiaries.
"Restricted Subsidiaries" means all the Subsidiaries of the US Borrower
other than the Unrestricted Subsidiaries.
"Restructuring Charge" means the pre-tax charges of the US Borrower in
an aggregate amount not to exceed $20,000,000 relating to (a) the Proposed AH
Acquisition and/or (b) goodwill impairment charges pursuant to FASB Rule 141 or
142.
"Revaluation Date" means each of the following: (a) each date of a
Borrowing of an Offshore Currency Loan or an Offshore Currency Swing Line Loan,
(b) each date of a continuation of an Offshore Currency Loan, (c) the end of
each fiscal quarter of the US Borrower and (d) during any period in which the
Outstanding Revolving Credit Obligations exceeds 90% of the Aggregate
Commitments, such additional dates as the Administrative Agent shall specify.
"Revolving Borrowing" means a borrowing consisting of simultaneous
Revolving Loans of the same Type and, as to Eurodollar Rate Loans, having the
same Interest Period made by each of the Lenders pursuant to Section 2.01(a).
"Revolving Lender" means a Lender having a Revolving Loan Commitment.
"Revolving Loan" has the meaning specified in Section 2.01(a).
"Revolving Loan Commitment" means with respect to each Lender the
amount set forth in Schedule 2.01 with respect to such Lender (such amount, as
the same may be reduced or increased under Section 2.07 or reduced as a result
of one or more assignments under Section 10.07).
24
"Revolving Loan Note" means a promissory note dated as of the Amendment
and Restatement Effectiveness Date made by the US Borrower in favor of a Lender
evidencing Revolving Loans made by such Lender, substantially in the form of
Exhibit C-1, issued in substitution of the Original Revolving Loan Notes.
"Revolving Loan Termination Date" means (a) the later of April 23, 2005
and any later date to which such date is extended pursuant to Section 2.15, or
(b) such earlier date upon which the Revolving Loan Commitments and Offshore
Currency Commitments may be terminated in accordance with the terms hereof.
"Solvent" means, when used with respect to a Person, that (a) the fair
saleable value of the assets of such Person is in excess of the total amount of
the present value of its liabilities (including for purposes of this definition
all liabilities (including loss reserves as determined by such Person), whether
or not reflected on a balance sheet prepared in accordance with GAAP and whether
direct or indirect, fixed or contingent, secured or unsecured, disputed or
undisputed), (b) such Person is able to pay its debts or obligations in the
ordinary course as they mature and (c) such Person does not have unreasonably
small capital to carry out its business as conducted and as proposed to be
conducted. "Solvency" shall have a correlative meaning.
"SPC" has the meaning specified in Section 10.07(b).
"Spot Rate" for a currency means the rate quoted by Bank of America as
the spot rate for the purchase by Bank of America of such currency with another
currency through its principal foreign exchange trading office at approximately
11:00 a.m.,
New York time, on the date two Business Days prior to the date as of
which the foreign exchange computation is made.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the US Borrower.
"Subsidiary Guaranty" means the Guaranty made by the applicable
Guarantors in favor of the Administrative Agent on behalf of the Guaranteed
Creditors.
"Surety Instruments" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments, including the Letters of Credit.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap
25
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Creditor" means Bank of America, in its individual capacity, any
Lender or syndicate of financial institutions organized by Bank of America, any
affiliate of Bank of America, or any Lender or affiliate of any Lender (even if
Bank of America or any such Lender subsequently ceases to be a Lender under this
Agreement for any reason) which, in any case, is a party to any Swap Contract
and, in each case of the foregoing, their subsequent assigns.
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.06.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant
to Section 2.06.
"Swing Line Lender" means Bank of America in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" means a US Swing Line Loan or an Offshore Currency
Swing Line Loan, as the case may be.
"Swing Line Notes" means, collectively, the US Swing Line Note and the
Offshore Currency Swing Line Note.
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.06(b), which, if in writing, shall be substantially in the
form of Exhibit B.
"Syndication Agents" means Bank One, NA and Fleet National Bank in
their respective capacities as syndication agents hereunder.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Taxes" has the meaning specified in Section 3.01(a).
"TARGET Day" means any day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer (TARGET) System (or, if such
clearing system ceases to be
26
operative, such other clearing system (if any) determined by the Administrative
Agent to be a suitable replacement) is operating.
"Threshold Amount" means $20,000,000.
"Type" means, with respect to a Revolving Loan, its character as a Base
Rate Loan or a Eurodollar Rate Loan, or, with respect to an Offshore Currency
Loan, its character as a Loan made using the Offshore Currency Rate.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"Unreimbursed Amount" has the meaning set forth in Section 2.04(c)(i).
"Unrestricted Subsidiary" means (a) any Subsidiary of the US Borrower
which is not a Domestic Subsidiary and which is designated as such in writing to
the Administrative Agent pursuant to Section 10.20 and (b) any Subsidiary of
Holdings (other than the US Borrower and any of its Subsidiaries) which is
formed after the date hereof.
"US Borrower" has the meaning set forth in the introductory paragraphs
hereto.
"US Swing Line Loan" has the meaning specified in Section 2.06(a).
"US Swing Line Sublimit" means an amount equal to (a) the lesser of (i)
$25,000,000 or (ii) the Revolving Loan Commitments minus (b) the Offshore
Currency Swing Line Loan Sublimit. The US Swing Line Loan Sublimit is part of,
and not in addition to, the Revolving Loan Commitments.
"US Swing Line Note" means a promissory note dated as of the Amendment
and Restatement Effectiveness Date made by the US Borrower in favor of the Swing
Line Lender evidencing US Swing Line Loans made by such Lender, substantially in
the form of Exhibit C-3, issued in substitution of the Original Swing Line Note.
"Voting Percentage" means as to any Lender, (a) at the time when the
Aggregate Commitments are in effect, the percentage (carried out to the ninth
decimal place) which the sum of such Lender's Pro Rata Share of the combined
Revolving Loan Commitments then comprises of the Aggregate Commitments, and (b)
at any time after the termination of the Aggregate Commitments, the percentage
(carried out to the ninth decimal place) which (i) the sum of (A) the
Outstanding Amount of such Lender's Revolving Loans plus (B) the Outstanding
Amount of such Lender's Offshore Currency Loans, plus (C) such Lender's Pro Rata
Share of the Outstanding Amount of L/C Obligations, plus (D) such Lender's Pro
Rata Share of the Outstanding Amount of Swing Line Loans, then comprises of (ii)
the Outstanding Amount of all Loans and L/C Obligations; provided, however, that
if any Lender has failed to fund any portion of the Revolving Loans, Offshore
Currency Loans, participations in L/C Obligations or
27
participations in Swing Line Loans required to be funded by it hereunder, such
Lender's Voting Percentage shall be deemed to be zero, and the respective Pro
Rata Shares and Voting Percentages of the other Lenders shall be recomputed for
purposes of this definition and the definition of "Required Lenders" without
regard to such Lender's Commitment or the outstanding amount of its Revolving
Loans, Offshore Currency Loans, L/C Advances and funded participations in Swing
Line Loans, as the case may be.
1.03 OTHER INTERPRETIVE PROVISIONS.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein" and "hereunder" and words of similar import
when used in any Loan Document shall refer to such Loan Document as a whole and
not to any particular provision thereof.
(i) Article, Section, Exhibit and Schedule references are to
the Loan Document in which such reference appears.
(ii) The term "including" is by way of example and not
limitation.
(iii) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical
or electronic form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.04 ACCOUNTING TERMS.
(a) All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP
applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
the US Borrower or the Required Lenders shall so request, the Administrative
Agent, the Lenders and the US Borrower shall negotiate in good faith to amend
such ratio or requirement to preserve the original intent
28
thereof in light of such change in GAAP (subject to the approval of the Required
Lenders); provided that, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein and
(ii) the US Borrower shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP.
1.05 ROUNDING.
Any financial ratios required to be maintained by the US Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which such ratio is expressed herein and rounding the result
up or down to the nearest number (with a rounding-up if there is no nearest
number).
1.06 REFERENCES TO AGREEMENTS AND LAWS.
Unless otherwise expressly provided herein, (a) references to
agreements (including the Loan Documents) and other contractual instruments
shall be deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are
not prohibited by any Loan Document; and (b) references to any Law shall include
all statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Law.
1.07 EXCHANGE RATES; CURRENCY EQUIVALENTS.
(a) The Administrative Agent shall determine the Spot Rates as of each
Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit
Extensions and Outstanding Amounts denominated in euro. Such Spot Rates shall
become effective as of such Revaluation Date and shall be the Spot Rates
employed in converting any amounts between Dollars and euro until the next
Revaluation Date to occur. Except for purposes of financial statements delivered
by Loan Parties hereunder or calculating financial covenants hereunder or except
as otherwise provided herein, the applicable amount of euro for purposes of the
Loan Documents shall be such Dollar Equivalent amount as so determined by the
Administrative Agent.
(b) Wherever in this Agreement in connection with a Borrowing,
conversion, continuation or prepayment of a Loan or the issuance of a Letter of
Credit, an amount, such as a required minimum or multiple amount, is expressed
in Dollars, but such Borrowing, Loan or Letter of Credit is denominated in euro,
such amount shall be the relevant Offshore Currency Equivalent of such Dollar
amount (rounded to the nearest 1,000 units of euro).
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 AMOUNTS AND TERMS OF COMMITMENTS. (a) Subject to the terms and
conditions set forth herein, each Lender severally agrees to make loans in
Dollars (each such loan, a
29
"Revolving Loan") to the US Borrower from time to time on any Business Day
during the period from the Effective Date to the Revolving Loan Termination
Date, in an aggregate amount not to exceed at any time the Revolving Loan
Commitment of such Lender; provided, however, that after giving effect to any
Revolving Borrowing, (i) the Dollar Equivalent of the Outstanding Revolving
Credit Obligations shall not exceed the combined Revolving Loan Commitments, and
(ii) no Revolving Lender's Pro Rata Share of the Outstanding Revolving Credit
Obligations shall exceed such Lender's Revolving Loan Commitment. Within the
limits of each Lender's Revolving Loan Commitment, and subject to the other
terms and conditions hereof, the US Borrower may borrow under this Section
2.01(a), prepay under Section 2.05, and reborrow under this Section 2.01(a).
Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein. The Dutch Borrower shall not be permitted to borrow Revolving
Loans and shall not be liable for Obligations incurred in connection with Loans
made to the US Borrower.
(b) (i) Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans in euro (each such loan, a "Offshore
Currency Loan") to the Dutch Borrower from time to time on any Business Day
during the period from the Amendment and Restatement Effectiveness Date to the
Revolving Loan Termination Date, in an aggregate amount not to exceed at any
time such Lender's Pro Rata Share of the Offshore Currency Sublimit; provided,
however, that after giving effect to any Offshore Currency Borrowing, (i) the
Dollar Equivalent of the Outstanding Revolving Credit Obligations shall not
exceed the combined Revolving Loan Commitments, (ii) the Dollar Equivalent of
the Outstanding Offshore Currency Obligations shall not exceed the Offshore
Currency Sublimit and (iii) no Lender's Pro Rata Share of the Dollar Equivalent
of the Outstanding Offshore Currency Obligations shall exceed such Lender's Pro
Rata Share of the Offshore Currency Sublimit. Within the limits of each Lender's
Pro Rata Share of the Offshore Currency Sublimit, and subject to the other terms
and conditions hereof, the Dutch Borrower may borrow under this Section 2.01(b),
prepay under Section 2.05, and reborrow under this Section 2.01(b). Offshore
Currency Loans must be Loans made in euro at the Offshore Currency Rate.
(ii) Because the operations and business activities of the Borrowers
are highly integrated and interdependent, at any particular time it is in the
mutual best interest of the Administrative Agent, the Lenders and the Borrowers
for the US Borrower, through a Responsible Officer, to deliver with respect to
all Offshore Currency Loans (or either Borrower, as the Borrowers shall
determine with respect to all Offshore Currency Swing Line Loans) all Requests
for Credit Extensions, and to take all other action of a Responsible Officer in
this Agreement or in any other Loan Document, on behalf of the Dutch Borrower.
The Dutch Borrower hereby directs the Administrative Agent to disburse the
proceeds of each Offshore Currency Loan as directed by the US Borrower through a
Responsible Officer, and such distribution will, in all circumstances, be deemed
to be made to the Dutch Borrower. The Dutch Borrower hereby irrevocably
designates, appoints, authorizes and (except with respect to the Borrowing of
Offshore Currency Swing Line Loans) directs the US Borrower (including each
Responsible Officer) to act on behalf of such Borrower for the purposes set
forth in this Section 2.01(b)(ii) and in Section 2.06, and to act on behalf of
such Borrower for purposes of giving notice to the Administrative Agent and/or
the Swing Line Lender of requests for Offshore Currency Borrowings or Offshore
Swing Line Loans, conversions, continuations and for otherwise giving and
receiving notices and certifications under this Agreement or any other Loan
30
Document, approving assignments by Lenders under Section 10.07 and otherwise for
taking all other action contemplated to be taken by the Dutch Borrower
(including each Responsible Officer) hereunder or under any other Loan Document.
The Administrative Agent and/or the Swing Line Lender is entitled to rely and
act on the instructions of the US Borrower, by and through any Responsible
Officer, on behalf of each Borrower. The US Borrower shall maintain detailed
accounting and records of all disbursements and payments made to the Dutch
Borrower with respect to proceeds of Offshore Currency Loans. Notwithstanding
any provision of this Section 2.01(b)(ii) to the contrary, (x) neither Revolving
Borrowings, US Swing Line Loans, Negotiated Rate Loan Borrowings, nor Letters of
Credit are available to the Dutch Borrower, and the US Borrower shall not have
the authority to request on behalf of the Dutch Borrower Revolving Borrowings,
US Swing Line Loans, Negotiated Rate Loan Borrowings or the issuance of Letters
of Credit and (y) without limiting the authority conferred on the US Borrower in
this subsection, the Dutch Borrower through its Responsible Officers may make
requests for Credit Extensions under the Offshore Currency Swing Line.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Revolving Borrowing, each Offshore Currency Borrowing, each
conversion of Revolving Loans from one Type to the other, and each continuation
of Revolving Loans or Offshore Currency Loans as the same Type shall be made
upon the US Borrower's irrevocable notice to the Administrative Agent, which
notice shall be irrevocable (subject to Section 3.03) and which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than noon,
New York time, (i) three Business Days prior to the requested
date of any Revolving Borrowing of, conversion to or continuation of Eurodollar
Rate Loans, (ii) four Business Days prior to the requested date of any Offshore
Currency Borrowing or continuation of Offshore Currency Loans, and (iii) on the
requested date of any conversion of Eurodollar Rate Loans to Base Rate Loans,
and of any Revolving Borrowing of Base Rate Loans; provided, however, that if
the US Borrower wishes to request Eurodollar Rate Loans, or the US Borrower
wishes to request on behalf of the Dutch Borrower Offshore Currency Loans,
having an Interest Period other than one, two, three or six months in duration
as provided in the definition of "Interest Period", the applicable notice must
be received by the Administrative Agent not later than noon,
New York time, four
Business Days prior to the requested date of Revolving Borrowing, Offshore
Currency Borrowing, conversion or continuation. Each such telephonic notice must
be confirmed promptly by delivery to the Administrative Agent of a written
Notice of Borrowing or Notice of Conversion/Continuation as the case may be,
appropriately completed and signed by a Responsible Officer of the US Borrower
or a Person designated in writing to the Administrative Agent by such
Responsible Officer to request Revolving Loans or Offshore Currency Loans (and
with respect to which specimen signatures have been provided), convert/continue
Revolving Loans or continue Offshore Currency Loans. Each Revolving Borrowing
of, Offshore Currency Borrowing of, and each conversion to or continuation of
Loans of any Type shall be in a principal Dollar Equivalent amount of $2,500,000
or a whole Dollar Equivalent multiple of $500,000 in excess thereof. Each Notice
of Borrowing or Notice of Conversion/Continuation, as applicable (whether
telephonic or written), shall specify (i) whether the US Borrower is requesting
a Revolving Borrowing, an Offshore Currency Borrowing, a conversion of Revolving
Loans from one Type to the other, or a continuation of Revolving Loans or
Offshore Currency Loans as the same Type, (ii) the requested date of the
Revolving Borrowing, Offshore Currency Borrowing, conversion or continuation, as
the case may be
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(which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) if applicable, the Type of Revolving
Loans to be borrowed or to which existing Revolving Loans are to be converted,
and (v) if applicable, the duration of the Interest Period with respect thereto.
With respect to Revolving Loans in Dollars, if the US Borrower fails to specify
a Type of Loan in a Notice of Borrowing or Notice of Conversion/Continuation or
if the US Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Revolving Loans shall be made or continued as,
or converted to, Base Rate Loans. Any such automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the US Borrower
requests a Revolving Borrowing of, conversion to, or continuation of Eurodollar
Rate Loans or Offshore Currency Borrowing of or continuation of Offshore
Currency Loans in any such Notice of Borrowing or Notice of
Conversion/Continuation, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.
(b) Following receipt of a Notice of Borrowing or Notice of Conversion/
Continuation, the Administrative Agent shall promptly notify each Lender of its
Pro Rata Share of the applicable Loans, and if no timely notice of a conversion
or continuation is provided by the US Borrower, the Administrative Agent shall
notify each Lender of the details of any automatic conversion to Base Rate Loans
described in the preceding subsection. In the case of a Revolving Borrowing or
Offshore Currency Borrowing, each Lender shall make the amount of its Revolving
Loan or Offshore Currency Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent's Office not later than
1:00 p.m.,
New York time, on the Business Day specified in the applicable Notice
of Borrowing. Upon satisfaction of the applicable conditions set forth in
Section 4.02 (and, if such Borrowing is a Credit Extension made on the Amendment
and Restatement Effectiveness Date, Section 4.01), the Administrative Agent
shall make all funds so received available to the applicable Borrower in like
funds as received by the Administrative Agent either by (i) crediting the
account of the applicable Borrower on the books of Bank of America with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to the Administrative Agent by the US
Borrower; provided, however, that if, on the date of any Revolving Borrowing
there are L/C Borrowings outstanding, then the proceeds of such Borrowing shall
be applied, first, to the payment in full of any such L/C Borrowings, and
second, to the US Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted and an Offshore Currency Loan may be continued only on
the last day of the Interest Period for such Fixed Rate Loan. During the
existence of a Default or Event of Default, no Loans may be requested as,
converted to or continued as Eurodollar Rate Loans or Offshore Currency Loans,
as applicable, without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the US Borrower and
the Lenders of the interest rate applicable to any Eurodollar Rate Loan or any
Offshore Currency Loan, as applicable, upon determination of such interest rate.
The determination of the Eurodollar Rate or the Offshore Currency Rate by the
Administrative Agent shall be presumptively correct in the absence of manifest
error. The Administrative Agent shall notify the US Borrower and the Lenders of
any change in Bank of America's prime rate used in determining the Base Rate
promptly following the public announcement of such change.
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(e) After giving effect to any Borrowings, all conversions of Loans
from one Type to the other, and all continuations of Loans as the same Type,
there shall not be more than fifteen Interest Periods in effect with respect to
Eurodollar Rate Loans and Offshore Currency Loans, taken as a whole.
(f) Negotiated Rate Loans may not be converted or continued but shall
at all times bear interest at the applicable Negotiated Rate.
(g) Swing Line Loans may not be converted or continued but shall at all
times bear interest (i) with respect to US Swing Line Loans, at the Base Rate
plus the Applicable Rate for Revolving Loans that are Base Rate Loans and (ii)
with respect to Offshore Currency Swing Line Loans, the Offshore Currency Swing
Line Rate plus the Applicable Rate for Offshore Currency Swing Line Loans.
(h) Offshore Currency Loans may not be converted, but may be continued,
and shall bear interest at the Offshore Currency Rate, plus the Applicable Rate
for Offshore Currency Loans.
2.03 NEGOTIATED RATE LOANS.
(a) Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of the Borrowers set forth
herein, each Revolving Lender hereby severally agrees that from time to time
during the period from and including the Effective Date to but excluding the
Revolving Loan Termination Date, the US Borrower may request one or more
Revolving Lenders, in the sole discretion of each, to make one or more Loans to
the US Borrower on a non-pro rata basis, each such Loan to remain outstanding
for at least one day and to mature no later than 180 days after the making
thereof (or if earlier, the Revolving Loan Termination Date) and to bear
interest at such rate as shall be agreed to by the US Borrower and the
applicable Revolving Lender (each such Loan being a "Negotiated Rate Loan");
provided that in no event shall (i) the aggregate Outstanding Amount of
Negotiated Rate Loans at any time exceed the Negotiated Rate Loan Sublimit or
(ii) the Outstanding Revolving Credit Obligations exceed the Revolving Loan
Commitment. All Negotiated Rate Loans shall be in such minimum amounts as may be
mutually agreed upon by the US Borrower and the applicable Revolving Lender. The
US Borrower and Revolving Lenders acknowledge that (i) subject to the proviso in
the first sentence of this paragraph, notwithstanding the Revolving Loan
Commitment of any Revolving Lender, each Revolving Lender may, but shall not be
obligated to, make Negotiated Rate Loans as of any date in any aggregate amount
that would not cause the Outstanding Revolving Credit Obligations to exceed the
combined Revolving Loan Commitments then in effect (and for such purposes each
Revolving Lender may rely on the information provided by the US Borrower in the
Notice of Borrowing); and (B) Negotiated Rate Loans need not be made in
accordance with the Revolving Lenders' Pro Rata Shares.
(b) Each Revolving Lender making any Negotiated Rate Loans shall, prior
to or concurrently with the making thereof, provide Agent with written notice of
the amount, the date of Borrowing and maturity date of such Negotiated Rate
Loans, and the US Borrower and Revolving Lenders will, from time to time,
furnish such information to the Administrative Agent as the Administrative Agent
may reasonably request relating to the making of Negotiated Rate
33
Loans, including, without limitation, confirmation of amounts, the date of
Borrowing and maturities (and, upon the occurrence and during the continuance of
any Event of Default or Default only, applicable interest rates), for the
purpose of determining the Outstanding Revolving Credit Obligations and the
allocation of amounts received from the US Borrower for payment of all amounts
owing hereunder.
(c) Whenever the US Borrower desires that a Revolving Lender make a
Negotiated Rate Loan, it shall deliver to the Administrative Agent and the
applicable Revolving Lender a Notice of Borrowing no later than 12:00 noon (
New
York time) on the proposed Borrowing date. Promptly after receipt by the
Administrative Agent of a Notice of Borrowing (or telephonic notice in lieu
thereof) requesting Negotiated Rate Loans, the Administrative Agent shall
forward a copy of such notice to the applicable Revolving Lender(s) specified
therein. Upon satisfaction or waiver of the conditions precedent specified in
Article IV, the Revolving Lender funding any Negotiated Rate Loan shall make the
proceeds of such Negotiated Rate Loan available to the US Borrower on the
applicable Borrowing date by causing an amount equal to the proceeds of such
Loan in same day funds to be credited to such account of the US Borrower as may
be agreed to by the US Borrower and the Revolving Lender.
(d) On the Effective Date, the US Borrower shall execute and deliver to
each Revolving Lender making a request therefor (or to the Administrative Agent
for that Revolving Lender) a Negotiated Rate Loan Note to evidence the
Negotiated Rate Loans which may be advanced by such Revolving Lender.
(e) The US Borrower shall compensate each Revolving Lender, upon
written request by such Revolving Lender (which request shall set forth in
reasonable detail the basis for requesting such amounts), for all reasonable
losses or expenses (other than lost profits) arising from the liquidation or
redeployment of funds obtained by it to maintain such Loan or from fees payable
to terminate the deposits from which such funds were obtained, which such
Revolving Lender may actually incur with respect to Negotiated Rate Loans: (i)
if for any reason (other than a default or error by such Revolving Lender) a
Borrowing of any Negotiated Rate Loan does not occur on the date specified
therefor in a Notice of Borrowing, (ii) if any prepayment or other principal
payment of any of such Revolving Lender's Negotiated Rate Loans occurs on a date
prior to the last day of the interest period applicable to that Negotiated Rate
Loan, (iii) if any prepayment of any of such Revolving Lender's Negotiated Rate
Loans is not made on any date specified in a notice of prepayment given by the
US Borrower and consented to by such Revolving Lender, or (iv) as a consequence
of any other default by the US Borrower to repay such Revolving Lender's
Negotiated Rate Loans when required by the terms of this Agreement.
(f) The US Borrower may not prepay any Negotiated Rate Loan without the
consent of the applicable Revolving Lender; provided that the US Borrower shall
deliver to the Administrative Agent a notice of any prepayment of any Negotiated
Rate Loan on or prior to the date of such prepayment.
2.04 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
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(i) Subject to the terms and conditions set forth herein, (A)
each L/C Issuer agrees, in reliance upon the agreements of the other
Revolving Lenders set forth in this Section 2.04, (1) from time to time
on any Business Day during the period from the Effective Date until the
Letter of Credit Expiration Date, to issue Letters of Credit
denominated in Dollars for the account of the US Borrower, and to amend
or renew Letters of Credit previously issued by it, in accordance with
subsection (b) below, and (2) to honor drafts under the Letters of
Credit; and (B) the Revolving Lenders severally agree to participate in
Letters of Credit issued for the account of the US Borrower; provided
that no L/C Issuer shall be obligated to make any L/C Credit Extension
with respect to any Letter of Credit, and no Lender shall be obligated
to participate in, any Letter of Credit if as of the date of such L/C
Credit Extension, (x) the Dollar Equivalent of the Outstanding
Revolving Credit Obligations would exceed the combined Revolving Loan
Commitments, (y) such Lender's Pro Rata Share of the Dollar Equivalent
of the Outstanding Revolving Credit Obligations would exceed such
Lender's Revolving Loan Commitment, or (z) the Outstanding Amount of
the L/C Obligations would exceed the Letter of Credit Sublimit. Within
the foregoing limits, and subject to the terms and conditions hereof,
the US Borrower's ability to obtain Letters of Credit shall be fully
revolving, and accordingly the US Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed. As of the
Effective Date, each of the letters of credit listed on Schedule 1.01
hereto shall be deemed to be Letters of Credit issued pursuant hereto.
(ii) An L/C Issuer shall be under no obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain such L/C Issuer from issuing such Letter of
Credit, or any Law applicable to such L/C Issuer or any
request or directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over such
L/C Issuer shall prohibit, or request that such L/C Issuer
refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such
L/C Issuer with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which such
L/C Issuer is not otherwise compensated hereunder) not in
effect on the Effective Date, or shall impose upon such L/C
Issuer any unreimbursed loss, cost or expense which was not
applicable on the Effective Date and which such L/C Issuer in
good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) subject to Section 2.04(b)(iii), the expiry date
of such requested Letter of Credit would occur more than
twelve months after the date of issuance or last renewal,
unless the applicable L/C Issuer has approved such expiry
date;
(C) the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date,
unless all the Lenders have approved such expiry date;
(D) the purpose or form of such Letter of Credit
would violate one or more policies of such L/C Issuer;
35
(E) such Letter of Credit is to be denominated in a
currency other than Dollars; or
(F) the US Borrower shall not have agreed to pay the
applicable L/C Issuer such fees and expenses with respect to
such Letter of Credit as such L/C Issuer is customarily paid
in similar situations in connection with the issuance,
negotiation, processing and/or administration of letters of
credit or as otherwise agreed to by such L/C Issuer and the US
Borrower.
(iii) An L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) such L/C Issuer would have no obligation at
such time to issue such Letter of Credit in its amended form under the
terms hereof, or (B) the beneficiary of such Letter of Credit does not
accept the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the US Borrower delivered to the
applicable L/C Issuer (with a copy to the Administrative Agent) in the
form of a Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of the US Borrower. Such L/C
Application must be received by such L/C Issuer and the Administrative
Agent not later than noon,
New York time, at least two Business Days
(or such later date and time as such L/C Issuer may agree in a
particular instance in its sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of
a request for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail reasonably
satisfactory to such L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the
amount thereof; (C) the expiry date thereof; (D) the name and address
of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as such L/C Issuer may
reasonably require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to such L/C Issuer (1) the
Letter of Credit to be amended; (2) the proposed date of amendment
thereof (which shall be a Business Day); (3) the nature of the proposed
amendment; and (4) such other matters as such L/C Issuer may reasonably
require.
(ii) Promptly after receipt of any Letter of Credit
Application, each L/C Issuer will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received
a copy of such Letter of Credit Application from the US Borrower and,
if not, such L/C Issuer will provide the Administrative Agent with a
copy thereof. Upon receipt by such L/C Issuer of confirmation from the
Administrative Agent that the requested issuance or amendment is
permitted in accordance with the terms hereof, then, subject to the
terms and conditions hereof, such L/C Issuer shall, on the requested
date, issue a Letter of Credit for the account of the US Borrower or
enter into the applicable amendment, as the case may be, in each case
in accordance with such
36
L/C Issuer's usual and customary business practices. Immediately upon
the issuance of each Letter of Credit, each Revolving Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from such L/C Issuer a risk participation in such Letter of
Credit in an amount equal to the product of such Lender's Pro Rata
Share times the amount of such Letter of Credit.
(iii) If the US Borrower so requests in any applicable Letter
of Credit Application, any L/C Issuer may, in it sole and absolute
discretion, agree to issue a Letter of Credit that has automatic
renewal provisions (each, an "Auto-Renewal Letter of Credit"); provided
that any such Auto-Renewal Letter of Credit must permit such L/C Issuer
to prevent any such renewal at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day
(the "Nonrenewal Notice Date") in each such twelve-month period to be
agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by such L/C Issuer, the US Borrower shall not be
required to make a specific request to such L/C Issuer for any such
renewal. Once an Auto-Renewal Letter of Credit has been issued, the
Revolving Lenders shall be deemed to have authorized (but may not
require) such L/C Issuer to permit the renewal of such Letter of Credit
at any time to a date not later than the Letter of Credit Expiration
Date; provided, however, that such L/C Issuer shall not permit any such
renewal if (A) such L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its renewed form under the terms hereof,
or (B) it has received notice (which may be by telephone or in writing)
on or before the Business Day immediately preceding the Nonrenewal
Notice Date from the Administrative Agent, any Lender or the US
Borrower that one or more of the applicable conditions specified in
Section 4.02 is not then satisfied. Notwithstanding anything to the
contrary contained herein, no L/C Issuer shall have any obligation to
permit the renewal of any Auto-Renewal Letter of Credit at any time.
(iv) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the applicable L/C Issuer will
also deliver to the US Borrower and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon any drawing under any Letter of Credit, the
applicable L/C Issuer shall notify the US Borrower and the
Administrative Agent thereof. Not later than 12:00 noon,
New York time,
on the date of any payment by such L/C Issuer under a Letter of Credit
(each such date, an "Honor Date"), the US Borrower shall reimburse such
L/C Issuer through the Administrative Agent in Dollars in an amount
equal to the amount of such drawing. If the US Borrower fails to so
reimburse such L/C Issuer by such time, the Administrative Agent shall
promptly notify each Revolving Lender of the Honor Date, the amount of
the unreimbursed drawing (the "Unreimbursed Amount"), and such Lender's
Pro Rata Share thereof. In such event, the US Borrower shall be deemed
to have requested a Revolving Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but
37
subject to the amount of the unutilized portion of the combined
Revolving Loan Commitments. Any notice given by an L/C Issuer or the
Administrative Agent pursuant to this Section 2.04(c)(i) may be given
by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) Each Revolving Lender (including each Lender acting as
L/C Issuer) shall upon any notice pursuant to Section 2.04(c)(i) (and
without respect to whether the conditions of Section 4.02 have been
complied with) make funds available to the Administrative Agent for the
account of the applicable L/C Issuer at the Administrative Agent's
Office in an amount equal to its Pro Rata Share of the Unreimbursed
Amount not later than 1:00 p.m.,
New York time, on the Business Day
specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.04(c)(iii), each Lender that so
makes funds available shall be deemed to have made a Base Rate Loan to
the US Borrower in such amount as part of a Revolving Loan Borrowing.
The Administrative Agent shall remit the funds so received to the
applicable L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully paid or refinanced by a Revolving Borrowing of Base Rate Loans
for any reason, the US Borrower shall be deemed to have incurred from
the applicable L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so paid or refinanced, which L/C
Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, each
Revolving Lender's payment to the Administrative Agent for the account
of the applicable L/C Issuer pursuant to Section 2.04(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing
and shall constitute an L/C Advance from such Lender in satisfaction of
its participation obligation under this Section 2.04.
(iv) Until each Revolving Lender funds its Revolving Loan or
L/C Advance pursuant to this Section 2.04(c) to reimburse the
applicable L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender's Pro Rata Share of such amount
shall be solely for the account of such L/C Issuer.
(v) Each Revolving Lender's obligation to make Revolving Loans
or L/C Advances to reimburse the applicable L/C Issuer for amounts
drawn under Letters of Credit, as contemplated by this Section 2.04(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against such L/C
Issuer, the US Borrower or any other Person for any reason whatsoever;
(B) the occurrence or continuance of a Default or Event of Default, or
(C) any other occurrence, event or condition, whether or not similar to
any of the foregoing. Any such reimbursement shall not relieve or
otherwise impair the obligation of the US Borrower to reimburse such
L/C Issuer for the amount of any payment made by such L/C Issuer under
any Letter of Credit, together with interest as provided herein.
(vi) If any Revolving Lender fails to make available to the
Administrative Agent for the account of the applicable L/C Issuer any
amount required to be paid by
38
such Lender pursuant to the foregoing provisions of this Section
2.04(c) by the time specified in Section 2.04(c)(ii), such L/C Issuer
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which
such payment is immediately available to such L/C Issuer at a rate per
annum equal to the Federal Funds Rate from time to time in effect. A
certificate of such L/C Issuer submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after an L/C Issuer has made a payment under
any Letter of Credit and has received from any Lender such Lender's Pro
Rata Share of any Unreimbursed Amount or L/C Advance in respect of such
payment in accordance with Section 2.04(c), if the Administrative Agent
receives for the account of such L/C Issuer any payment related to such
Letter of Credit (whether directly from the US Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by the
Administrative Agent), or any payment of interest thereon, the
Administrative Agent will promptly distribute to such Lender its Pro
Rata Share thereof in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the account of such L/C Issuer pursuant to Section 2.04(c)(i) is
required to be returned, each Revolving Lender shall pay to the
Administrative Agent for the account of the applicable L/C Issuer its
Pro Rata Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount
is returned by such Lender, at a rate per annum equal to the Federal
Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the US Borrower to
reimburse an L/C Issuer for each drawing under each Letter of Credit, and to
repay each L/C Borrowing and each drawing under a Letter of Credit that is
refinanced by a Borrowing of Revolving Loans, shall be absolute, unconditional
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) the existence of any claim, counterclaim, set-off,
defense or other right that the US Borrower may have at any time
against any beneficiary or any transferee of such Letter of Credit (or
any Person for whom any such beneficiary or any such transferee may be
acting), the applicable L/C Issuer or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or
by such Letter of Credit or any agreement or instrument relating
thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such 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; or any loss or delay in the
39
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by the applicable L/C Issuer under such
Letter of Credit against presentation of a draft or certificate that
does not strictly comply with the terms of such Letter of Credit; or
any payment made by the applicable L/C Issuer under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law;
provided that any such payment does not constitute bad faith on the
part of such L/C Issuer or its officers, directors, employees or
agents; or
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, the US Borrower;
provided, that nothing herein shall constitute a waiver of liability of an L/C
Issuer or any other Person for gross negligence or willful misconduct.
The US Borrower shall promptly examine a copy of each Letter of Credit
and each amendment thereto that is delivered to it and, in the event of any
claim of noncompliance with the US Borrower's instructions or other
irregularity, the US Borrower will promptly notify the applicable L/C Issuer.
(f) Role of L/C Issuer. Each Lender and the US Borrower agree that, in
paying any drawing under a Letter of Credit, no L/C Issuer shall have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. No Agent-Related Person
nor any of the respective correspondents, participants or assignees of an L/C
Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the
Required Lenders, as applicable; (ii) any action taken or omitted in the absence
of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Letter of Credit Application. The US Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the US Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. No Agent-Related Person, nor any
of the respective correspondents, participants or assignees of an L/C Issuer,
shall be liable or responsible for any of the matters described in clauses (i)
through (v) of Section 2.04(e); provided, however, that anything in such clauses
to the contrary notwithstanding, the US Borrower may have a claim against an L/C
Issuer, and an L/C Issuer may be liable to the US Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the US Borrower which the US Borrower proves were caused by
such L/C Issuer's willful misconduct or gross negligence or the willful
misconduct or gross negligence of the officers, directors, employees or agents
of the
40
applicable L/C Issuer or such L/C Issuer's willful failure to pay under any
Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions of a
Letter of Credit. In furtherance and not in limitation of the foregoing, unless
such actions constitute willful misconduct or gross negligence, an L/C Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and such L/C Issuer shall not be responsible for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a 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.
(g) Cash Collateral. Upon the request of the Administrative Agent, if,
as of the Revolving Loan Termination Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the US Borrower shall
immediately Cash Collateralize in Dollars the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount in Dollars determined
as of the date of the Revolving Loan Termination Date).
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed
by the applicable L/C Issuer and the US Borrower when a Letter of Credit is
issued, (i) the rules of the "International Standby Practices 1998" published by
the Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance) shall apply to each standby
Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of
Commerce (the "ICC") at the time of issuance (including the ICC decision
published by the Commission on Banking Technique and Practice on April 6, 1998
regarding the European single currency (euro)) shall apply to each commercial
Letter of Credit.
(i) Letter of Credit Fees. The US Borrower shall pay to the
Administrative Agent for the account of each Revolving Lender in accordance with
its Pro Rata Share a Letter of Credit fee for each Letter of Credit equal to the
then effective Applicable Rate in respect of Revolving Loans which are
Eurodollar Loans times the actual daily maximum amount available to be drawn
under each such Letter of Credit. Such fee for each Letter of Credit shall be
due and payable on the first Business Day of each April, July, October and
January, commencing with the first such date to occur after the issuance of such
Letter of Credit, and on the Letter of Credit Expiration Date. If there is any
change in the Applicable Rate during any quarter, the actual daily amount of
each Letter of Credit shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect.
(j) Fronting Fee and Administrative Fees to L/C Issuers. The US
Borrower shall pay directly to an L/C Issuer for its own account a fronting fee
in such amount and at such times as may be separately agreed to between the US
Borrower and such L/C Issuer from time to time, and such other fees and expenses
as each L/C Issuer and the US Borrower shall agree.
(k) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
41
2.05 PREPAYMENTS.
(a) The Borrowers may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Revolving Loans or Offshore
Currency Loans as the US Borrower may direct in whole or in part without premium
or penalty; provided that (i) such notice must be received by the Administrative
Agent not later than noon,
New York time, (A) three Business Days prior to any
date of prepayment of Eurodollar Rate Loans, (B) four Business Days prior to any
date of prepayment of Offshore Currency Loans and (C) on the date of prepayment
of Base Rate Loans and (ii) any prepayment of Loans of any Type shall be in a
Dollar Equivalent principal amount of $2,500,000 or a whole Dollar Equivalent
multiple of $500,000 in excess thereof or less if paying the applicable Loan in
full. Each such notice shall specify the date and amount of such prepayment and
the Type(s) of Loans to be prepaid. The Administrative Agent will promptly
notify each Lender of its receipt of each such notice, and of such Lender's Pro
Rata Share of such prepayment. Any prepayment of a Loan shall be accompanied by
all accrued interest thereon, together, in the case of any Fixed Rate Loan, with
any additional amounts required pursuant to Section 3.05. Each such prepayment
shall be applied to the applicable Loans of the Lenders in accordance with their
respective Pro Rata Shares thereof.
(b) No Negotiated Rate Loan may be prepaid without the prior consent of
the applicable Lender.
(c) Either Borrower may, upon notice to the Swing Line Lender (with a
copy to the Administrative Agent), at any time or from time to time, voluntarily
prepay its respective Swing Line Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the Swing Line Lender
at the Applicable Swing Line Funding Office and the Administrative Agent not
later than (x) 1:00 p.m. New York time for US Swing Line Loans and (y) 11:00
a.m. London time for Offshore Currency Swing Line Loans, on the date of the
prepayment, and (ii) any such prepayment shall be in a minimum principal Dollar
Equivalent principal amount of $100,000 or less if paying the applicable Loan in
full. Each such notice shall specify the date and amount of such prepayment.
(d) If the Administrative Agent notifies the US Borrower at any time
that the Dollar Equivalent of the Outstanding Offshore Currency Obligations at
such time exceeds an amount equal to 105% of the Offshore Currency Sublimit then
in effect, or the Swing Line Lender notifies the Dutch Borrower that the
Outstanding Amount of Offshore Currency Swing Line Loans exceeds the Offshore
Currency Swing Line Loan Sublimit then in effect, then within five Business Days
after receipt of such notice, either (i) the Dutch Borrower shall prepay
Offshore Currency Loans in an aggregate amount sufficient, together with any
corresponding prepayment described in clause (ii), to reduce the Dollar
Equivalent of such Outstanding Offshore Currency Obligations to an amount not to
exceed 100% of the Offshore Currency Sublimit then in effect or (ii) the Dutch
Borrower shall prepay Offshore Currency Swing Line Loans in an aggregate amount
sufficient (x) to reduce the Dollar Equivalent of such Outstanding Amount to an
amount not to exceed 100% of the Offshore Currency Swing Line Loan Sublimit then
in effect and/or (y) to reduce, together with any corresponding prepayments
described in clause (i), the Dollar Equivalent of Outstanding Offshore Currency
Obligations in an aggregate amount sufficient to
42
reduce the Dollar Equivalent of such Outstanding Offshore Currency Obligations
to an amount not to exceed 100% of the Offshore Currency Sublimit then in
effect, or both, as applicable.
2.06 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees to make (i) loans in Dollars to the US
Borrower (each such Loan, a "US Swing Line Loan") and (ii) loans in euro to the
Dutch Borrower (each such Loan, an "Offshore Currency Swing Line Loan") from
time to time on any Business Day during the period from the Funding Date to the
Revolving Loan Maturity Date in an aggregate amount not to exceed at any time
outstanding (x) as to all US Swing Line Loans, the amount of the US Swing Line
Loan Sublimit and (y) as to Offshore Currency Swing Line Loans, the Offshore
Currency Swing Line Loan Sublimit, notwithstanding the fact that such Swing Line
Loans, when aggregated with the Dollar Equivalent of the Outstanding Amount of
Revolving Loans, Offshore Currency Loans and Negotiated Rate Loans plus the Pro
Rata Share of the Outstanding Amount of L/C Obligations of the Swing Line Lender
in its capacity as a Lender of Revolving Loans and Negotiated Rate Loans, may
exceed the amount of such Lender's Revolving Loan Commitment; provided, however,
that after giving effect to any Swing Line Loan, (i) the Dollar Equivalent of
the aggregate Outstanding Revolving Credit Obligations shall not exceed the
combined Revolving Loan Commitments, (ii) the Dollar Equivalent of the
Outstanding Offshore Currency Obligations shall not exceed the Offshore Currency
Sublimit, and (iii) other than the Swing Line Lender, no Revolving Lender's Pro
Rata Share of the Dollar Equivalent of the aggregate Outstanding Revolving
Credit Obligations shall exceed such Lender's Revolving Loan Commitment. Within
the foregoing limits, and subject to the other terms and conditions hereof, each
of the US Borrower, as to US Swing Line Loans, and the Dutch Borrower as to
Offshore Currency Swing Line Loans, may borrow under this Section 2.06, prepay
under Section 2.05, and reborrow under this Section 2.06. Each US Swing Line
Loan shall bear interest at the Base Rate plus the Applicable Rate for Revolving
Loans that are Base Rate Loans and each Offshore Currency Swing Line Loan shall
bear interest at the Offshore Currency Swing Line Rate plus the Applicable Rate
for Offshore Currency Swing Line Loans. Immediately upon the making of a Swing
Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Lender's Pro Rata Share times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon
the applicable Borrower's irrevocable notice to the Swing Line Lender at the
applicable Swing Line Funding Office and to the Administrative Agent, which may
be given by telephone. Each such notice must be received by the Swing Line
Lender and the Administrative Agent not later than 1:00 p.m., New York time (or
as to Offshore Currency Swing Line Loans, 11:00 a.m. London time), on the
requested Borrowing date, and shall specify (i) the amount to be borrowed, which
shall be (x) in the case of a US Swing Line Loan, a minimum amount $100,000 and
(y) in the case of an Offshore Currency Swing Line Loan, a minimum Dollar
Equivalent amount of $500,000 or a whole Dollar Equivalent multiple of $100,000
in excess thereof, and (ii) the proposed Borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by delivery
to the Swing Line Lender at the applicable Swing Line Funding Office and to the
Administrative Agent of a written Swing Line Loan Notice, appropriately
43
completed and signed by a Responsible Officer of the applicable Borrower or a
Person designated in writing to the Administrative Agent by such Responsible
Officer (and with respect to which specimen signatures have been provided) to
request applicable Swing Line Loans. If requested to do so (either generally or
in a specific instance) by the Administrative Agent, promptly after receipt by
the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line
Lender will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has also received such Swing Line Loan Notice and,
if not, the Swing Line Lender will notify the Administrative Agent (by telephone
or in writing) of the contents thereof. Unless the Swing Line Lender has
received notice (by telephone or in writing) from the Administrative Agent
(including at the request of any Lender) prior to 2:00 p.m., New York time (or
as to Offshore Currency Swing Line Loans, 11:00 a.m. London time), on the date
of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to
make such Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of Section 2.06(a), or (B) that one or more of the
applicable conditions specified in Article IV is not then satisfied, then,
subject to the terms and conditions hereof, the Swing Line Lender will, not
later than 3:00 p.m., New York time (or as to Offshore Currency Swing Line
Loans, 12:00 noon London time), on the borrowing date specified in such Swing
Line Loan Notice, make the amount of its Swing Line Loan available to the
applicable Borrower (x) in the case of a US Swing Line Loan, at the Applicable
Swing Line Funding Office by crediting the account of the US Borrower on the
books of the Swing Line Lender in immediately available funds or as otherwise
directed by the US Borrower, and (y) in the case of an Offshore Currency Swing
Line Loan, by transferring the amount of such Swing Line Loan to an account of
the Dutch Borrower in The Netherlands designated by the Dutch Borrower or
otherwise as directed by the Dutch Borrower. Notwithstanding the foregoing
provisions of this subsection (b), the Swing Line Lender and the Dutch Borrower
make such arrangements with respect to borrowing procedures for Offshore
Currency Swing Line Loans as shall be mutually agreeable, subject in any event
to the Swing Line Lender not having received prior to the time of any such Swing
Line Borrowing a notice or direction described in clause (A) or (B) of the
preceding sentence.
44
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender (A) at any time in its sole and
absolute discretion may request and (B) unless otherwise directed in
writing by the applicable Borrower, on the due date of any outstanding
Swing Line Loan shall request, in each case, on behalf of the
applicable Borrower (which hereby irrevocably requests the Swing Line
Lender to so request on its behalf), that each Lender make a Revolving
Loan, as to US Swing Line Loans, or an Offshore Currency Loan, as to
Offshore Currency Swing Line Loans, in an amount equal to such Lender's
Pro Rata Share of the amount of applicable Swing Line Loans then
outstanding. Each such Revolving Loan shall be a Base Rate Loan, and
each such Offshore Currency Loan shall have an interest period of one
month. Such request shall be made in accordance with the requirements
of Section 2.02, without regard to the minimum and multiples specified
therein for the principal amount of Base Rate Loans, but subject to the
unutilized portion of the Revolving Loan Commitments and the Offshore
Currency Sublimit, as applicable, and the conditions set forth in
Section 4.02. The Swing Line Lender shall furnish the applicable
Borrower with a copy of the applicable Notice of Borrowing promptly
after delivering such notice to the Administrative Agent. Each
Revolving Lender shall make an amount equal to its Pro Rata Share of
the amount specified in such Notice of Borrowing available to the
Administrative Agent in immediately available funds for the account of
the Swing Line Lender at the Administrative Agent's Office not later
than 1:00 p.m., New York time, on the day specified in such Notice of
Borrowing, whereupon, subject to Section 2.06(c)(ii), each Lender that
so makes funds available shall be deemed to have made, as applicable, a
Revolving Loan to the US Borrower in such amount or an Offshore
Currency Loan to the Dutch Borrower in such amount. The Administrative
Agent shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Borrowing cannot be requested in
accordance with Section 2.06(c)(i) or any Swing Line Loan cannot be
refinanced by such a Borrowing, the Notice of Borrowing submitted by
the Swing Line Lender shall be deemed to be a request by the Swing Line
Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender's payment to the
Administrative Agent for the account of the Swing Line Lender pursuant
to Section 2.06(c)(i) shall be deemed payment in respect of such
participation.
(iii) If any Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any
amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.06(c) by the time specified in Section
2.06(c)(i), the Swing Line Lender shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment
is required to the date on which such payment is immediately available
to the Swing Line Lender at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. A certificate of the Swing
Line Lender submitted to any Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.
45
(iv) Each Lender's obligation to make Revolving Loans or
Offshore Currency Loans, or to purchase and fund risk participations in
Swing Line Loans, pursuant to this Section 2.06(c) shall be absolute
and unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the Swing Line Lender, either
Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default or Event of Default, or (C) any
other occurrence, event or condition, whether or not similar to any of
the foregoing. Any such purchase of participations shall not relieve or
otherwise impair the obligation of the applicable Borrower to repay
Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a
participation in a Swing Line Loan, if the Swing Line Lender receives
any payment on account of such Swing Line Loan, the Swing Line Lender
will promptly distribute to such Lender its Pro Rata Share of such
payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participation was
outstanding and funded) in the same funds as those received by the
Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required to
be returned by the Swing Line Lender, each Lender shall pay to the
Swing Line Lender its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned, at a rate per annum equal
to the applicable Overnight Rate. The Administrative Agent will make
such demand upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender
shall be responsible for invoicing the applicable Borrower for interest on the
Swing Line Loans. Until each Lender funds its Base Rate Loan, Offshore Currency
Loan or participation pursuant to this Section 2.06 to refinance such Lender's
Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata
Share shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. Each of the Borrowers shall
make all payments of principal and interest in respect of their respective Swing
Line Loans directly to the Swing Line Lender at the Applicable Swing Line
Funding Office (x) with respect to US Swing Line Loans, in Dollars and in
immediately available funds not later than 1:00 p.m., New York time, and (y)
with respect to Offshore Currency Swing Line Loans, in euro in immediately
available funds not later than 11:00 a.m., London time, on the applicable dates
specified herein. All payments received by the Swing Line Lender after the
specified time shall in each case be deemed received on the next succeeding
Business Day and any applicable interest or fee shall continue to accrue.
46
2.07 REDUCTION OR TERMINATION OF COMMITMENTS; OPTIONAL INCREASE IN
COMMITMENTS.
(a) The US Borrower may, upon notice to the Administrative Agent,
terminate the Revolving Loan Commitments, or permanently reduce the Revolving
Loan Commitments to an amount not less than the Dollar Equivalent of the then
Outstanding Revolving Credit Obligations; provided that (i) any such notice
shall be received by the Administrative Agent not later than noon, two Business
Days prior to the date of termination or reduction, and (ii) any such partial
reduction shall be in an aggregate Dollar Equivalent amount of $5,000,000 or any
whole Dollar Equivalent multiple of $500,000 in excess thereof. The
Administrative Agent shall promptly notify the Lenders of any such notice of
reduction or termination of the Revolving Loan Commitments. Once reduced in
accordance with this Section, the Revolving Loan Commitments may not be
increased, except pursuant to subsection 2.07(b) below. Any reduction of the
Revolving Loan Commitments shall be applied to the Commitment of each Lender
according to its Pro Rata Share. All Facility Fees accrued until the effective
date of any termination of the Revolving Loan Commitments shall be paid on the
effective date of such termination. If, after any reduction of the Revolving
Loan Commitments in accordance with this section, the aggregate Dollar
Equivalent amount of the Revolving Loan Commitments is less than the Dollar
Equivalent amount of the Offshore Currency Sublimit, the Offshore Currency
Sublimit shall be reduced to an amount not greater than the Dollar Equivalent of
the Revolving Loan Commitments.
(b) The US Borrower may, from time to time, at its option, subject to
the last sentence hereof, seek to increase the Aggregate Commitments by up to
$100,000,000 in the aggregate (i.e., the Aggregate Commitments shall not exceed
the Dollar Equivalent of $350,000,000) upon at least three (3) Business Days'
prior notice to the Administrative Agent, which notice shall specify the amount
of any such requested increase (which shall be in an amount not less than
$15,000,000) and shall be delivered at a time when no Default or Event of
Default has occurred and is continuing. The US Borrower may offer the increase
in the Aggregate Commitments to any of the existing Lenders and/or to other
banks, financial institutions or other entities acceptable to the Administrative
Agent on a non pro-rata basis in such amounts as determined by the US Borrower
and agreed to by the Administrative Agent (such acceptance not to be
unreasonably withheld or delayed); provided that no existing Lender shall be
under any obligation to accept such offer to increase its Commitment. The US
Borrower may elect to accept an increase in the Aggregate Commitments in an
amount equal to $15,000,000 or more. No increase in the Aggregate Commitment
shall become effective until the existing or new Lender extending such
incremental commitment amount and the Borrowers shall have executed and
delivered to the Administrative Agent an agreement in writing in form and
substance reasonably acceptable to the Administrative Agent pursuant to which
such Lender states its Commitment amount and agrees to assume and accept the
obligations and rights of a Lender hereunder. In conjunction with such increase,
the Lenders (new or existing) shall accept (and the existing Lenders shall make)
an assignment at par of an interest in the Loans and L/C Obligations outstanding
at the time of such Aggregate Commitment increase such that, after giving effect
thereto, all Loans (other than Negotiated Rate Loans) and L/C Obligations are
held by the Lenders on a pro rata basis. The Borrowers shall make any payments
under Section 3.05 resulting from such assignments. No more than two increases
in the Aggregate Commitment
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pursuant to this Section 2.07(b) shall be permitted in any single calendar year
unless the Administrative Agent and the US Borrower otherwise agree.
2.08 REPAYMENT OF LOANS.
(a) The US Borrower shall repay to the Lenders on the Revolving Loan
Termination Date the aggregate principal amount of Revolving Loans outstanding
on such date and the Dutch Borrower shall repay to the Lenders on the Revolving
Loan Termination Date the aggregate principal amount of Offshore Currency Loans
outstanding on such date.
(b) If for any reason, the Dollar Equivalent of the aggregate
Outstanding Revolving Credit Obligations exceed the combined Revolving Loan
Commitments as in effect from time to time in accordance with the terms hereof,
the applicable Borrower shall immediately prepay Revolving Loans, Offshore
Currency Loans and/or Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess.
(c) The US Borrower shall repay each Negotiated Rate Loan on the
earlier to occur of (i) the date agreed to by the US Borrower and the applicable
Lender but no later than 180 days after such Loan is made and (ii) the Revolving
Loan Termination Date.
(d) The applicable Borrower shall repay each Swing Line Loan on the
earlier to occur of (i) the date seven Business Days after such Loan is made and
(ii) the Revolving Loan Termination Date.
(e) Notwithstanding any of the foregoing terms of this Section 2.08 to
the contrary, the Dutch Borrower shall have no obligation to repay any Loans
other than Offshore Currency Loans and Offshore Currency Swing Line Loans.
2.09 INTEREST.
(a) Subject to the provisions of subsection (b) below, the applicable
Borrower shall pay interest on the unpaid principal amount of each Revolving
Loan and each Offshore Currency Loan from the date borrowed until paid in full
(whether by acceleration or otherwise) on each Interest Payment Date at a rate
per annum equal to the interest rate determined in accordance with the
definition of such Type of Loan plus the Applicable Rate for each such Type of
Loan. Each Negotiated Rate Loan shall bear interest at the Negotiated Rate
applicable thereto.
(b) While any Event of Default exists under Section 8.01(a), the
applicable Borrower shall pay interest on the principal amount of all
outstanding Obligations at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Law.
Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
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2.10 FEES.
In addition to certain fees described in subsections (i) and (j) of
Section 2.04:
(a) Facility Fee. The US Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share a facility
fee in Dollars (the "Facility Fee") equal to the Applicable Rate times such
Lender's Pro Rata Share of the combined Revolving Loan Commitments (regardless
of utilization). The Facility Fee shall accrue at all times from the Effective
Date until the Revolving Loan Termination Date and shall be due and payable
quarterly in arrears on the first Business Day of each January, April, July and
October, commencing with the first such date to occur after the Effective Date,
and on the Revolving Loan Termination Date. The Facility Fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.
(b) Arrangement and Agency Fees. The US Borrower shall cause to be paid
to Bank of America fees in the amounts and at the times specified in the letter
agreement, dated February 3, 2003 (the "Fee Letter"), among the US Borrower,
Bank of America and Banc of America Securities LLC.
2.11 COMPUTATION OF INTEREST AND FEES.
Interest on Base Rate Loans shall be calculated on the basis of a year
of 365 or 366 days, as the case may be, and the actual number of days elapsed.
Interest on the Negotiated Rate Loans shall be computed on such basis as is
agreed by the US Borrower and the Lender advancing such Loan. Computation of all
other types of interest and all fees shall be calculated on the basis of a year
of 360 days and the actual number of days elapsed, which results in a higher
yield to the payee thereof than a method based on a year of 365 or 366 days.
Interest shall accrue on each Loan for the day on which the Loan is made, and
shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is repaid on the same
day on which it is made shall bear interest for one day.
2.12 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be presumptively correct absent
manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrowers and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrowers hereunder to pay any amount owing with respect to the Loans or
L/C Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, such Lender's Loans may be
evidenced by a Revolving Loan Note, an Offshore Currency Loan Note, a Negotiated
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Rate Loan Note and/or a Swing Line Note, as applicable, in addition to such
accounts or records. Each Lender may attach schedules to its Note(s) and endorse
thereon the date, Type (if applicable), amount and maturity of the applicable
Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
2.13 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the US Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 1:00 p.m.,
New York time, on the date specified herein. Except as otherwise expressly
provided for herein, all payments made by the Dutch Borrower hereunder with
respect to principal and interest on Offshore Currency Loans shall be made to
the Administrative Agent, for the account of the respective Lenders to which
such payment is owed, at the applicable Administrative Agent's Office in euro in
immediately available funds not later than 1:00 p.m., New York time, on the date
specified herein. The Administrative Agent will promptly distribute to each
Lender its Pro Rata Share (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by the Administrative Agent after 1:00 p.m., New
York time, shall in each case be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue. All payments of
principal and interest in respect of (i) US Swing Line Loans shall be in Dollars
and (ii) Offshore Currency Swing Line Loans, shall be made in euro.
(b) Subject to the definition of "Interest Period," if any payment to
be made by the Borrowers shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient funds are received by, and available
to, the Administrative Agent to pay fully all amounts of principal, L/C
Borrowings, interest, fees and undisputed costs and expenses then due hereunder,
such funds shall be applied (i) first, toward undisputed costs and expenses
(including Attorney Costs and amounts payable under Article III) incurred by the
Administrative Agent and each Lender, (ii) second, toward repayment of interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(iii) third, toward repayment of principal and L/C Borrowings then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and L/C Borrowings then due to such parties.
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Notwithstanding the foregoing, payments to Non-Continuing Lenders may be made on
a non-ratable basis pursuant to Section 2.15.
(d) Unless the US Borrower or any Lender has notified the
Administrative Agent prior to the date any payment is required to be made by it
to the Administrative Agent hereunder, that the applicable Borrower or such
Lender, as the case may be, will not make such payment, the Administrative Agent
may assume that such Borrower or such Lender, as the case may be, has timely
made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled thereto.
If and to the extent that such payment was not in fact made to the
Administrative Agent in immediately available funds, then:
(i) if a Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds, at
the applicable Overnight Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest thereon
for the period from the date such amount was made available by the
Administrative Agent to the applicable Borrower to the date such amount
is recovered by the Administrative Agent (the "Compensation Period") at
a rate per annum equal to the applicable Overnight Rate from time to
time in effect. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan, included
in the applicable Borrowing. If such Lender does not pay such amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent may make a demand therefor upon the applicable
Borrower, and the applicable Borrower shall pay such amount to the
Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Borrowing. Nothing herein shall be deemed
to relieve any Lender from its obligation to fulfill its Commitment or
to prejudice any rights which the Administrative Agent or the
applicable Borrower may have against any Lender as a result of any
default by such Lender hereunder.
A notice of the Administrative Agent to any Lender with respect to any
amount owing under this subsection (d) shall be conclusive, absent manifest
error.
(e) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and the conditions to the applicable Loan set forth in Article
IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
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(f) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not
joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan or purchase
its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.14 SHARING OF PAYMENTS.
If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof,
such Lender shall immediately (a) notify the Administrative Agent of such fact,
and (b) purchase from the other Lenders such participations in the Loans made by
them and/or such subparticipations in the participations in L/C Obligations or
in Swing Line Loans held by them, as the case may be, as shall be necessary to
cause such purchasing Lender to share the excess payment in respect of such
Loans or such participations, as the case may be, pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender, such purchase shall to that
extent be rescinded and each other Lender shall repay to the purchasing Lender
the purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrowers
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09) with respect to
such participation as fully as if such Lender were the direct creditor of the
applicable Borrower in the amount of such participation. The Administrative
Agent will keep records (which shall be conclusive and binding in the absence of
manifest error) of participations purchased under this Section and will in each
case notify the Lenders following any such purchases or repayments. Each Lender
that purchases a participation pursuant to this Section shall from and after
such purchase have the right to give all notices, requests, demands, directions
and other communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
2.15 EXTENSIONS OF REVOLVING LOAN TERMINATION DATE.
(a) On up to two occasions, the US Borrower on behalf of both Borrowers
may, by written notice to the Administrative Agent (a "Notice of Extension")
given not more than eighteen months before nor less than sixty days before the
then effective Revolving Loan Termination Date (the "Existing Termination
Date"), request an extension of the Existing
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Termination Date by one year; provided, however, no Existing Termination Date
shall be extended past April 30, 2007 (each period from an Existing Termination
Date to the date to which the Aggregate Commitments are proposed to be extended
being the "Extension Period"). Each Notice of Extension shall specify the date
to which the Existing Termination Date is to be extended. Each Notice of
Extension shall constitute a representation by the US Borrower that (i) no
Default or Event of Default has occurred and is continuing and (ii) the
representations and warranties contained in Article IV are correct on and as of
the date of such Notice of Extension as though made on and as of such date
(except to the extent that such representations and warranties refer to an
earlier date, in which case they shall be true and correct as of such earlier
date).
(b) The Administrative Agent shall promptly provide the Lenders with a
copy of each Notice of Extension within five Business Days and shall identify as
the response date the date agreed to by the US Borrower and the Administrative
Agent (the "Response Date") which shall be at least thirty days prior to the
Existing Termination Date. Each Lender shall by written notice to the
Administrative Agent on or before the Response Date advise the Administrative
Agent whether or not such Lender consents to the requested extension. Any Lender
that fails to deliver a timely written consent to extension to the
Administrative Agent shall be deemed not to have consented to such extension
(all Lenders that have timely and expressly consented to such extension being,
collectively, the "Continuing Lenders," and all other Lenders being,
collectively, the "Non-Consenting Lenders"). If the Continuing Lenders hold
Commitments aggregating at least 75% of the Aggregate Commitments then in effect
and on the Response Date, the US Borrower delivers to the Administrative Agent a
certificate of a Responsible Officer certifying that as of such date that (i) no
Default or Event of Default has occurred and is continuing and (ii) the
representations and warranties contained in Article IV are correct on and as of
such date as though made on and as of such date (except to the extent that such
representations and warranties refer to an earlier date, in which case they
shall be true and correct as of such earlier date), then, effective as of the
close of business on the Response Date, the Revolving Loan Termination Date
shall be extended to the last day of the Extension Period; provided, however,
that on the Existing Termination Date (determined without giving effect to the
applicable requested extension) the Non-Consenting Lenders shall be entitled to
payments as provided in Section 2.15(c).
(c) On the Existing Termination Date (determined without giving effect
to the applicable requested extension) (i) the US Borrower shall repay (with the
proceeds of Loans hereunder or otherwise) in full all Loans (other than Offshore
Currency Loans and Offshore Currency Swing Line Loans) and other amounts due to
the Non-Consenting Lenders (in connection with Loans other than Offshore
Currency Loans and Offshore Currency Swing Line Loans) hereunder and (ii) the
Dutch Borrower shall repay (with the proceeds of Loans hereunder or otherwise)
in full all Offshore Currency Loans and Offshore Currency Swing Line Loans and
other amounts due to the Non-Consenting Lenders in connection with Offshore
Currency Loans and Offshore Currency Swing Line Loans hereunder. At the close of
business on the Existing Termination Date (i) the Commitments of the
Non-Consenting Lenders shall terminate, the Non-Consenting Lenders shall cease
to be Lenders under this Agreement (but shall continue to be entitled to the
benefit of the indemnification provisions hereof and the provisions of Article
III hereof) and (ii) the Aggregate Commitments shall be adjusted to an amount
equal to the sum of the Commitments of the Continuing Lenders. Also as of the
close of business on the Existing
53
Termination Date, the participation interest of each Continuing Lender in all
outstanding Letters of Credit shall be adjusted to equal its Pro Rata Share
thereof (determined giving effect to the Commitment reductions of the
Non-Consenting Lenders). On the Existing Termination Date, the US Borrower shall
also repay Loans (other than Offshore Currency Loans and Offshore Currency Swing
Line Loans) and the Dutch Borrower shall repay Offshore Currency Loans and
Offshore Currency Swing Line Loans owing to the Continuing Lenders to the
extent, if any, that the Aggregate Outstanding Revolving Credit Obligations are
greater than the combined Commitments of the Continuing Lenders.
(d) In the event an Existing Termination Date is extended pursuant to
this Section 2.14, the Administrative Agent shall promptly after the applicable
Response Date provide the Continuing Lenders and the Borrowers with a notice of
such extension and of (i) the Aggregate Commitments of the Continuing Lenders,
(ii) the identity of the Continuing Lenders and (iii) the Commitment of each
Continuing Lender.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrowers to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, Excluded Taxes (all such non-Excluded
Taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and liabilities being hereinafter referred to as "Taxes"). If a
Borrower shall be required by any Laws to deduct any Taxes from or in respect of
any sum payable under any Loan Document to the Administrative Agent or any
Lender, (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section), the Administrative Agent and such Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Borrower shall make such deductions, (iii) such Borrower shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Laws, and (iv) within 30 days after the
date of such payment, such Borrower shall furnish to the Administrative Agent
(which shall forward the same to such Lender) the original or a certified copy
of a receipt evidencing payment thereof if reasonably available; provided,
however that no such additional amount shall be required to be paid to any
Lender under clause (i) above except to the extent that the Tax resulted from
any change after the date hereof in any requirement (including, without
limitation, any introduction of or enactment of or interpretation of or other
change in any Law after the date hereof) for a deduction, withholding or
payment.
(b) In addition, the Borrowers agree to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery,
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performance, enforcement or registration of, or otherwise with respect to, any
Loan Document (hereinafter referred to as "Other Taxes").
(c) If a Borrower shall be required to deduct or pay any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, such Borrower shall also pay to the
Administrative Agent (for the account of such Lender) or to such Lender, at the
time interest is paid, such additional amount that such Lender reasonably
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes), including taxes imposed on or measured by net income) such Lender would
have received if such Taxes or Other Taxes had not been imposed.
(d) The Borrowers agree to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) and (iii) unless resulting from the gross
negligence or willful misconduct of the applicable Lender, any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority; provided,
however, that the Dutch Borrower shall only have indemnification obligations
under this Section 3.10(a), (b), (c) or (d) for Taxes and Other Taxes in
connection with Offshore Currency Loans and Offshore Currency Swing Line Loans
made to the Dutch Borrower. Payment under subsection (c) and this subsection (d)
shall be made within 30 days after the date the Lender or the Administrative
Agent makes a reasonably detailed written demand therefor.
(e) If either Borrower determines in good faith that a reasonable basis
exists for contesting a Tax, the relevant Lender or the Administrative Agent, as
applicable, shall (unless the Lender or the Administrative Agent determines in
good faith that contesting a Tax will have an adverse effect on the Lender)
cooperate with such Borrower (but shall have no obligation to disclose any
confidential information, unless arrangements satisfactory to the relevant
Lender or the Administrative Agent, in each case, in its reasonable discretion,
have been made to preserve the confidential nature of such information) in
challenging such Tax at the Borrowers' expense if requested by the Borrowers (it
being understood and agreed that neither the Administrative Agent nor any Lender
shall have any obligation to contest, or any responsibility for contesting, any
Tax). If any Lender or the Administrative Agent, as applicable, receives a
refund (whether by way of a direct payment, credit or by offset) of any Tax for
which a payment has been made pursuant to this subsection 3.01 which, in the
good faith judgment of such Lender or the Administrative Agent, as the case may
be, is allocable to such payment made under subsection 3.01, the amount of such
refund (together with any interest received thereon) shall be paid to the
Borrowers to the extent payment has been made in full as and when required
pursuant to this subsection 3.01. The Borrowers agree to return any refund to
any Lender or the Administrative Agent at the request of such party (together
with any interest, penalties, or other charges thereon) in the event the Lender
or the Administrative Agent is required to return such refund to the applicable
taxing authority.
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3.02 ILLEGALITY.
If any Lender determines in good faith that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for such Lender or its applicable Lending Office to make, maintain or fund any
Fixed Rate Loans or Offshore Currency Swing Line Loans, or to determine or
charge interest rates based upon any Fixed Rate or the Offshore Currency Swing
Line Rate, then, on notice thereof by such Lender to the Borrowers through the
Administrative Agent, any obligation of such Lender to make or continue such
Fixed Rate Loans or Offshore Currency Swing Line Loans or to convert Base Rate
Loans to Eurodollar Rate Loans (if such Eurodollar Loans are so affected) shall
be suspended until such Lender notifies the Administrative Agent and the
Borrowers that the circumstances giving rise to such determination no longer
exist (which such Lender shall do promptly after such circumstances no longer
exist). Upon receipt of such notice, the applicable Borrower shall, upon demand
from such Lender (with a copy to the Administrative Agent), prepay all affected
Fixed Rate Loans and Offshore Currency Swing Line Loans or, if applicable,
convert all affected Eurodollar Rate Loans of such Lender to Base Rate Loans,
either on the last day of the Interest Period thereof, if such Lender may
lawfully continue to maintain such Fixed Rate Loans to such day, or immediately,
if such Lender may not lawfully continue to maintain such Fixed Rate Loans. Upon
any such prepayment or conversion, the applicable Borrower shall also pay
accrued interest on the amount so prepaid or converted. Each Lender agrees to
designate a different Lending Office if such designation will avoid the need for
such notice and will not, in the good faith judgment of such Lender, otherwise
be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES.
If the Administrative Agent or, as to Offshore Currency Swing Line
Loans, the Swing Line Lender, determines in connection with any request for a
Fixed Rate Loan or Offshore Currency Swing Line Loans, a continuation thereof,
or a conversion of a Eurodollar Rate Loan that (a) deposits in Dollars or euro
are not being offered to banks in the applicable offshore interbank market for
such currency for the applicable amount and Interest Period of such Fixed Rate
Loan, (b) adequate and reasonable means do not exist for determining the Fixed
Rate for such Fixed Rate Loan or Offshore Currency Swing Line Rate for such
Offshore Currency Swing Line Loan, or (c) the Fixed Rate for such Fixed Rate
Loan or Offshore Currency Swing Line Rate for such Offshore Currency Swing Line
Loan does not adequately and fairly reflect the cost to the applicable Lenders
of funding such Loan, the Administrative Agent will promptly notify the affected
Borrower and all Lenders. Thereafter, the obligation of the Lenders to make or
maintain affected Fixed Rate Loans or Offshore Currency Swing Line Loans shall
be suspended until the Administrative Agent or Swing Line Lender revokes such
notice which it shall do promptly once such circumstances no longer exist. Upon
receipt of such notice, the Borrowers may revoke any pending request for a
Borrowing, conversion or continuation of affected Fixed Rate Loans or Offshore
Currency Swing Line Loans, failing that, with respect to Eurodollar Rate Loans
in Dollars, will be deemed to have converted such request into a request for a
Revolving Borrowing of Base Rate Loans in the amount specified therein and, with
respect to Offshore Currency Loans or Offshore Currency Swing Line Loans in
euro, will be deemed to have revoked such pending request for a Borrowing.
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3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES ON
FIXED RATE LOANS.
(a) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation of any Law, in each case first made after
the date hereof, or such Lender's compliance therewith, there shall be any
increase in the cost to such Lender of agreeing to make or making, funding or
maintaining Fixed Rate Loans or Offshore Currency Swing Line Loans or (as the
case may be) issuing or participating in Letters of Credit, or a reduction in
the amount received or receivable by such Lender in connection with any of the
foregoing (excluding for purposes of this subsection (a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes or Excluded
Taxes (as to which Section 3.01 shall govern), (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
any foreign jurisdiction or any political subdivision of either thereof under
the Laws of which such Lender is organized or has its Lending Office, and (iii)
reserve requirements contemplated by Section 3.04(c)), then within ten Business
Days after receipt of a reasonably detailed written notice from such Lender
(with a copy of such notice to the Administrative Agent), the US Borrower with
respect to Eurodollar Rate Loans, and the Dutch Borrower with respect to
Offshore Currency Loans and Offshore Currency Swing Line Loans, shall pay to
such Lender such additional amounts as will compensate such Lender for such
increased cost or reduction.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, in each
case first made after the date hereof, or compliance by such Lender (or its
Lending Office) therewith, has the effect of reducing the rate of return on the
capital of such Lender or any corporation controlling such Lender as a
consequence of such Lender's obligations hereunder (taking into consideration
its policies with respect to capital adequacy) then within ten Business Days
after receipt of a reasonably detailed written notice from such Lender (with a
copy of such notice to the Administrative Agent), the applicable Borrower shall
pay to such Lender such additional amounts as will compensate such Lender for
such reduction.
(c) The applicable Borrower shall pay to each Lender, as long as such
Lender shall be required to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency funds or deposits (currently
known as "Eurocurrency liabilities"), additional interest on the unpaid
principal amount of each applicable Fixed Rate Loan and Offshore Currency Swing
Line Loan (to the extent not reflected in the determination of the Offshore
Currency Swing Line Rate) equal to the actual costs of such reserves allocated
to such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be presumptively correct absent manifest error), which shall
be due and payable on each date on which interest is payable on such Loan,
provided the US Borrower or behalf of the applicable Borrower shall have
received at least 15 days' prior notice (with a copy to the Administrative
Agent) of such additional interest from such Lender. If a Lender fails to give
notice 15 days prior to the relevant Interest Payment Date, such additional
interest shall be due and payable 15 days from receipt of such notice.
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3.05 FUNDING LOSSES.
Within ten Business Days following receipt of a reasonably detailed
written notice from any Lender (with a copy to the Administrative Agent), the
applicable Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense (other than lost profits)
actually incurred by it (giving effect to the following paragraph) as a result
of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise);
(b) any failure by the applicable Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or convert
any Loan other than a Base Rate Loan on the date or in the amount notified by
the applicable Borrower; or
(c) any assignment of a Fixed Rate Loan on a day other than the last
day of the Interest Period therefor as a result of a request by the applicable
Borrower pursuant to Section 10.16;
including any loss or expense (other than lost profits) arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
For purposes of calculating amounts payable by the applicable Borrower to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Fixed Rate Loan made by it at the Fixed Rate for such Loan by a matching deposit
or other borrowing in the applicable interbank market for Dollars or euro for a
comparable amount and for a comparable period, whether or not such Fixed Rate
Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder shall be presumptively correct in the absence
of manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section
3.01 or 3.04 or refusing to make or maintain Loans pursuant to Section 3.02, the
US Borrower may replace such Lender in accordance with Section 10.16.
3.07 SURVIVAL.
All of the Borrowers' obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations.
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ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF EFFECTIVENESS OF AMENDMENT AND RESTATEMENT AND
CREDIT EXTENSION ON THE AMENDMENT AND RESTATEMENT EFFECTIVENESS DATE.
The effectiveness of the amendment and restatement of the Original
Credit Agreement and the obligation of each Lender to make Credit Extensions on
the Amendment and Restatement Effectiveness Date hereunder are subject to
satisfaction of the following conditions precedent:
(a) The Administrative Agent's receipt of the following, each of which
shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Amendment and Restatement Effectiveness Date
(or, in the case of certificates of governmental officials, a recent date before
the Amendment and Restatement Effectiveness Date) and each in form reasonably
satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement, sufficient in
number for distribution to the Administrative Agent, each Lender and
the Borrowers;
(ii) executed counterparts of the Libbey Glass Guaranty and
the Consolidated Amendment to Guaranties;
(iii) (a) Revolving Loan Notes executed by the US Borrower in
favor of each Lender requesting such a Note, issued in replacement of
the Original Revolving Loan Notes, (b) Offshore Currency Loan Notes
executed by the Dutch Borrower in favor of each Lender requesting such
a Note, and (c) Swing Line Notes executed by (i) the US Borrower in
favor the Swing Line Lender, issued in replacement of the Original
Swing Line Notes and (ii) the Dutch Borrower in favor of the Swing Line
Lender;
(iv) certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each
Loan Party, all in form and substance reasonably satisfactory to the
Administrative Agent, which establish the identity and verify the
authority and capacity of each Responsible Officer thereof authorized
to act as a Responsible Officer in connection with this Agreement and
the other Loan Documents to which such Loan Party is a party;
(v) with respect to the Dutch Borrower, (A) a copy of its deed
of incorporation (akte van oprichting) as filed with the trade register
at the applicable chamber of commerce, and (B) a copy of its articles
of association (statuten) as currently in force and as filed with the
trade register at the applicable chamber of commerce and certified by
one of its directors;
(vi) with respect to each Loan Party other than the Dutch
Borrower, a certificate of its secretary or assistant secretary that
its certificate of incorporation or similar charter document and its
by-laws have not changed since the Effective Date (or providing copies
of all such changes);
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(vii) a certificate signed by a Responsible Officer on behalf
of each Borrower certifying (A) that the conditions specified in
Sections 4.01 and 4.02 have been satisfied, and (B) that there has been
no event or circumstance since December 31, 2001 (after giving effect
as of such date to the write-off of expenses related to the Proposed AH
Acquisition not to exceed $20,000,000 in the aggregate) which has or
could be reasonably expected to have a Material Adverse Effect;
(viii) an opinion of US counsel to each Loan Party in
substance reasonably satisfactory to the Administrative Agent; and
(ix) an opinion of Dutch counsel to the Dutch Borrower in
substance reasonably satisfactory to the Administrative Agent.
(b) Any fees required to be paid on or before the Amendment and
Restatement Effectiveness Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have
paid all Attorney Costs of the Administrative Agent relating to this Agreement
to the extent invoiced prior to or on the Amendment and Restatement
Effectiveness Date.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS.
The obligation of each Lender to honor any Request for Credit Extension
(other than a Notice of Borrowing requesting only a conversion of Loans to a
different Type, or a continuation of Loans as the same Type) is subject to the
following conditions precedent:
(a) The representations and warranties of the US Borrower contained in
Article V, or which are contained in any document furnished at any time under or
in connection herewith, shall be true and correct in all material respects on
and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date.
(b) No Default or Event of Default shall exist, or would result from
such proposed Credit Extension.
(c) The Administrative Agent and, if applicable, the applicable L/C
Issuer, the Swing Line Lender or the Negotiated Lender shall have received a
Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Notice of Borrowing
requesting only a conversion of Loans to the other Type or a continuation of
Loans as the same Type) submitted by a Borrower shall be deemed to be a
representation and warranty that the conditions specified in Section 4.02 have
been satisfied on and as of the date of the applicable Credit Extension.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The US Borrower represents and warrants to the Administrative Agent and
the Lenders that as of the Amendment and Restatement Effectiveness Date and as
of each Credit Extension thereafter:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS.
Each Loan Party (a) is a corporation or limited liability company, as
applicable, duly organized or formed, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b) has
all requisite power and authority and all governmental licenses, authorizations,
consents and approvals to own its assets, carry on its business and to execute,
deliver, and perform its obligations under the Loan Documents to which it is a
party, (c) is duly qualified and is licensed and in good standing under the Laws
of each jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualification or license, and (d) is
in compliance with all Laws, except in each case referred to in clause (b), (c)
or this clause (d), to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION.
The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a)
contravene the terms of any of such Person's Organization Documents, (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, any material Contractual Obligation to which such Person is a
party or any order, injunction, writ or decree of any Governmental Authority to
which such Person or its property is subject except as would not have a Material
Adverse Effect, or (c) violate any Law applicable to such Person except as would
not have a Material Adverse Effect.
5.03 GOVERNMENTAL AUTHORIZATION.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority is necessary or required
in connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document.
5.04 BINDING EFFECT.
This Agreement has been, and each other Loan Document, when delivered
hereunder or under the Original Credit Agreement, will have been, duly executed
and delivered by each Loan Party that is party thereto. This Agreement
constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each
Loan Party that is party thereto in accordance with its terms except as may be
limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the enforcement of creditors' rights generally which may
be in effect and to general principles of equity.
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5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (ii) fairly present in all material
respects the financial condition of Holdings and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein.
(b) Since December 31, 2001 (after giving effect as of such date to the
write-off of expenses not to exceed $20,000,000 in the aggregate related to the
Proposed AH Acquisition), there has been no event or circumstance that has had a
Material Adverse Effect.
5.06 LITIGATION.
There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the US Borrower, threatened, at law, in equity, in
arbitration or before any Governmental Authority, by or against any Loan Party
or any of its Subsidiaries or against any of their properties or revenues that
(a) enjoin or restrict the consummation or performance of this Agreement or any
other Loan Document, or (b) could reasonably be expected to have a Material
Adverse Effect (after giving effect to the write off of expenses not to exceed
$20,000,000 in the aggregate related to the Proposed AH Acquisition).
5.07 NO DEFAULT.
No Default or Event of Default has occurred and is continuing or would
result from the making of the Credit Extensions hereunder.
5.08 OWNERSHIP OF PROPERTY; LIENS.
Each of the Loan Parties has good record and marketable title in fee
simple to, or valid leasehold interests in, all real property necessary in the
ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. As of the Amendment and Restatement Effectiveness Date, the
property of each of the Loan Parties is subject to no Liens, other than
Permitted Liens.
5.09 ENVIRONMENTAL COMPLIANCE.
Except as set forth in Schedule 5.09 hereto or as could not reasonably
be expected to have a Material Adverse Effect:
(a) the operations of each Loan Party and each of its Restricted
Subsidiaries comply in all material respects with all Environmental Laws;
(b) each Loan Party and each of its Restricted Subsidiaries have
obtained all Governmental Authorizations under Environmental Laws necessary to
their respective operations, and all such Governmental Authorizations are in
good standing, and each Loan Party
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and each of its Restricted Subsidiaries are in compliance with all material
terms and conditions of such Governmental Authorizations;
(c) (i) no Loan Party nor any of its Restricted 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 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 (ii) to the best of the US
Borrower's knowledge, none of the operations of any Loan Party or any of its
Restricted 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;
(d) none of the operations of any Loan Party or any of its Restricted
Subsidiaries is subject to any judicial or administrative proceeding alleging
the violation of or liability under any Environmental Laws;
(e) no Loan Party nor any of its Restricted 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;
(f) no Loan Party nor any of its Restricted Subsidiaries nor, to the
best knowledge of the US Borrower, any predecessor of any Loan Party or any of
its Restricted Subsidiaries has filed any notice under any Environmental Law
indicating past or present treatment or Release of Hazardous Materials at any
Facility;
(g) no Hazardous Materials exist on, under or about any Facility in a
manner that would reasonably be expected to result in an Environmental Claim,
and no Loan Party nor any of its Restricted Subsidiaries has filed any notice or
report of a Release of any Hazardous Materials that could reasonably be expected
to result in an Environmental Claim;
(h) no Loan Party nor any of its Restricted Subsidiaries nor, to the
best knowledge of the US Borrower, any of their respective predecessors has
disposed of any Hazardous Materials in a manner that could reasonably be
expected to result in an Environmental Claim;
(i) no underground storage tanks or surface impoundments are on or at
any Facility currently owned/or operated by any Loan Party or any of its
Restricted Subsidiaries; and
(j) 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.
Notwithstanding anything in this Section 5.09 to the contrary, no event
or condition has occurred with respect to any Loan Party or any of its
Restricted 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 a Material Adverse Effect.
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5.10 INSURANCE.
The properties of the Loan Parties (and, in the case of any Restricted
Subsidiary which is not a Loan Party, only to the extent that the failure to be
so insured could reasonably be expected to have a Material Adverse Effect) are
insured with financially sound and reputable insurance companies not Affiliates
of any Loan Party, in such amounts, with such deductibles and covering such
risks as are customarily carried by companies engaged in similar businesses and
owning similar properties in localities where the Loan Parties operate (subject
to self-insurance with respect to workers' compensation and related health
benefits in a manner consistent with past practice but subject to modifications
based upon current market conditions).
5.11 TAXES.
The Loan Parties and their respective Restricted Subsidiaries have
filed all Federal, state and other material tax returns and reports required to
be filed, and have paid all Federal, state and other material taxes,
assessments, fees and other governmental charges shown on such returns, reports
or final assessments as due and payable, except those which would not have a
Material Adverse Effect or which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been provided to
the extent required by GAAP.
5.12 ERISA COMPLIANCE. Except as set forth on Schedule 5.12 hereto or
as could not reasonably be expected to have a Material Adverse Effect:
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto or the remedial
amendment period applicable thereto has not yet expired, and, to the best
knowledge of the US Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. The US Borrower and each ERISA Affiliate have
made all required contributions to each Plan subject to Section 412 of the Code,
and no application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code has been made with respect to any
Plan.
(b) There are no pending or, to the best knowledge of the US Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan. There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with
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respect to a Multiemployer Plan; and (v) neither Borrower nor any ERISA
Affiliate has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA.
5.13 SUBSIDIARIES.
As of the date hereof, the US Borrower has no Subsidiaries other than
those specifically disclosed in Part (a) of Schedule 5.13 and has no equity
investments in any other corporation or entity other than those specifically
disclosed in Part (b) of Schedule 5.13. As of the date hereof, there are no
Unrestricted Subsidiaries.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) Neither Borrower is engaged nor will engage, in each case,
principally or as one of its important activities, in the business of purchasing
or carrying margin stock (within the meaning of Regulation U issued by the FRB),
or extending credit for the purpose of purchasing or carrying margin stock.
(b) None of the Loan Parties is subject to regulation under the Public
Utility Holding Company Act of 1935 or under the Investment Company Act of 1940.
5.15 DISCLOSURE.
The statements, information, reports, representations, or warranties
made by the Loan Parties in the Loan Documents or furnished to the
Administrative Agent or any Lender by or on behalf of any Loan Party in
connection with the Loan Documents, taken as a whole, do not contain any untrue
statement of a material fact or omit any material fact (known to the Loan
Parties) required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
5.16 INTELLECTUAL PROPERTY; LICENSES, ETC.Except as could not
reasonably be expected to have a Material Adverse Effect, the Loan Parties and
their respective Restricted Subsidiaries own, or possess the right to use, all
of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights that are
reasonably necessary for the operation of their respective businesses, without,
to the knowledge of the US Borrower, conflict with the rights of any other
Person. To the best knowledge of the US Borrower, no slogan or other advertising
device, product, process, method, substance, part or other material now employed
by any Loan Party or any Restricted Subsidiary of any Loan Party infringes upon
any rights held by any other Person, which infringement could reasonably be
expected to have a Material Adverse Effect. No claim or litigation regarding any
of the foregoing is pending or, to the best knowledge of the US Borrower,
threatened, and no patent, invention, device, application or principle is
pending or, to the knowledge of the US Borrower, proposed, which, in either
case, could reasonably be expected to have a Material Adverse Effect.
5.17 SOLVENCY.
Each Loan Party is Solvent.
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ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the US Borrower shall, and shall (except in the case
of the covenants set forth in Sections 6.01, 6.02 and 6.03) cause each
Restricted Subsidiary to:
6.01 FINANCIAL STATEMENTS.
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:
(a) (i) as soon as available, but in any event within 105 days after
the end of each fiscal year of the US Borrower, a consolidated balance sheet of
Holdings and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income, shareholders' equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, audited and accompanied by a
report and opinion of Ernst & Young LLP, any Qualified Accounting Firm or any
other independent certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion shall be
prepared in accordance with GAAP and shall not be subject to any qualifications
or exceptions as to the scope of the audit nor to any qualifications and
exceptions not reasonably acceptable to the Required Lenders. Notwithstanding
the foregoing, in the event that the US Borrower delivers an Annual Report on
Form 10-K of Holdings for such fiscal year as filed with the Securities and
Exchange Commission to each Lender within 105 days after the end of such fiscal
year, such Form 10-K shall satisfy all requirements of this Section 6.01(a)(i);
and
(i) at any time that an Unrestricted Subsidiary is in existence at the
end of the applicable period, as soon as available, but in any event within 105
days after the end of each fiscal year of the US Borrower, a consolidated
balance sheet of Holdings and its Subsidiaries (excluding the Unrestricted
Subsidiaries) as at the end of such fiscal year, and the related consolidated
statements of income, shareholders' equity and cash flows for such fiscal year
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail, audited and accompanied by a report and
opinion of Ernst & Young LLP, any Qualified Accounting Firm or any other
independent certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion shall be
prepared in accordance with GAAP and shall not be subject to any qualifications
or exceptions as to the scope of the audit nor to any qualifications and
exceptions not reasonably acceptable to the Required Lenders.
(b) (i) as soon as available, but in any event within 60 days after the
end of each of the first three fiscal quarters of each fiscal year of the US
Borrower, a consolidated balance sheet of Holdings and its Subsidiaries as at
the end of such fiscal quarter, and the related consolidated statements of
income, shareholders' equity and cash flows for such fiscal quarter and for the
portion of the US Borrower's fiscal year then ended, setting forth in each case
in comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the
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corresponding portion of the previous fiscal year, all in reasonable detail and
certified by a Responsible Officer of the US Borrower on behalf of the US
Borrower as fairly presenting the financial condition, results of operations and
cash flows of Holdings and its Subsidiaries in accordance with GAAP, subject
only to normal year-end audit adjustments and the absence of footnotes.
Notwithstanding the foregoing, in the event that the US Borrower delivers a
Quarterly Report on Form 10-Q of Holdings for such fiscal quarter as filed with
the Securities and Exchange Commission to each Lender within 60 days after the
end of such fiscal quarter, such Form 10-Q shall satisfy all requirements of
this Section 6.01(b)(i); and
(i) at any time that an Unrestricted Subsidiary is in existence at the
end of the applicable period, as soon as available, but in any event within 60
days after the end of each of the first three fiscal quarters of each fiscal
year of the US Borrower, a consolidated balance sheet of Holdings and its
Subsidiaries (excluding the Unrestricted Subsidiaries) as at the end of such
fiscal quarter, and the related consolidated statements of income, shareholders'
equity and cash flows for such fiscal quarter and for the portion of the US
Borrower's fiscal year then ended, setting forth in each case in comparative
form the figures for the corresponding fiscal quarter of the previous fiscal
year and the corresponding portion of the previous fiscal year all in reasonable
detail and certified by a Responsible Officer of the US Borrower on behalf of
the US Borrower as fairly presenting the consolidated financial condition,
results of operations and cash flows of Holdings and its Subsidiaries (excluding
the Unrestricted Subsidiaries) in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes.
6.02 CERTIFICATES; OTHER INFORMATION.
Deliver to the Administrative Agent for its delivery to each Lender, in
form and detail satisfactory to the Administrative Agent:
(a) concurrently with the delivery of the financial statements referred
to in Section 6.01(a), a certificate of its independent certified public
accountants certifying such financial statements and stating that in making the
examination necessary therefor no knowledge was obtained of any Default or Event
of Default or, if any such Default or Event of Default shall exist, stating the
nature and status of such event, provided that such accountants shall not be
liable by reason of any failure to obtain knowledge of any such Default or Event
of Default;
(b) concurrently with the delivery of the financial statements referred
to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed
by a Responsible Officer of the US Borrower on behalf of the US Borrower;
(c) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication made
generally available to the stockholders of Holdings, and copies of all annual,
regular, periodic and special reports and registration statements which Holdings
may file with the Securities and Exchange Commission under Section 13 or 15(d)
of the Securities Exchange Act of 1934, and not otherwise required to be
delivered to the Administrative Agent pursuant hereto; and
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(d) promptly, such additional information regarding the business,
financial or corporate affairs of Holdings or any Subsidiary as the
Administrative Agent may from time to time request.
6.03 NOTICES.
Promptly upon any Responsible Officer of Holdings or the US Borrower
obtaining knowledge thereof, notify the Administrative Agent (and the
Administrative Agent shall promptly provide copies of such notices to the
Lenders):
(a) of the occurrence of any Default or Event of Default;
(b) of any matter that has resulted or may reasonably be expected to
result in a Material Adverse Effect;
(c) of any litigation, investigation or proceeding affecting any Loan
Party in which the amount involved exceeds the Threshold Amount, or in which
injunctive relief or similar relief is sought, which relief, if granted, could
reasonably be expected to have a Material Adverse Effect; and
(d) of the occurrence of any ERISA Event.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer on behalf of the US Borrower setting forth
details of the occurrence referred to therein and stating what action the US
Borrower has taken and proposes to take with respect thereto.
6.04 PAYMENT OF OBLIGATIONS.
Pay and discharge prior to the expiration of any applicable grace or
cure periods all material tax liabilities, assessments and governmental charges
or levies upon it or its properties or assets shown on federal, state or other
material tax returns, reports or final assessments unless the same are being
contested in good faith by appropriate proceedings and adequate reserves to the
extent required by GAAP are being maintained by the US Borrower or such
Restricted Subsidiary.
6.05 PRESERVATION OF EXISTENCE, ETC.
(a) Preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its
organization, except in a transaction permitted by Section 7.04 or 7.05; (b)
take all reasonable action to maintain all rights, privileges, permits, licenses
and franchises necessary in the normal conduct of its business, except in a
transaction permitted by Section 7.04 or 7.05 or where failure to maintain such
rights, privileges, permits, licenses or franchises could not reasonably be
expected to have a Material Adverse Effect; and (c) preserve or renew all of its
registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material
Adverse Effect.
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6.06 MAINTENANCE OF PROPERTIES.
Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; and make all necessary repairs
thereto and renewals and replacements thereof, in each case, except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.07 MAINTENANCE OF INSURANCE.
Maintain with financially sound and reputable insurance companies not
Affiliates of the US Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons, subject to self-insurance with respect to workers compensation and
related health benefits in a manner consistent with past practice but subject to
modifications based upon current market conditions.
6.08 COMPLIANCE WITH LAWS.
Comply in all material respects with the requirements of all Laws
applicable to it or to its business or property, except in such instances in
which the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
6.09 BOOKS AND RECORDS.
Maintain proper books of record and account, in which full, true and
correct entries in all material respects in conformity with GAAP consistently
applied shall be made of all financial transactions and material matters
involving the assets and business of the US Borrower or such Restricted
Subsidiary, as the case may be.
6.10 INSPECTION RIGHTS.
Permit agents and representatives of the Administrative Agent and each
Lender to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom,
and to discuss its affairs, finances and accounts with its directors, officers,
and independent public accountants, and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the US Borrower; provided, however, that when an Event of
Default exists the Administrative Agent or any Lender (or any of their
respective agents or representatives) may do any of the foregoing at the expense
of the Borrowers at any time during normal business hours and with reasonable
(or, in the case of the Administrative Agent, with or without) advance notice.
6.11 COMPLIANCE WITH ERISA.
Do, and cause each of its ERISA Affiliates to do, each of the following
except where the failure to take such action or cause any ERISA Affiliate to
take such action would not have a
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Material Adverse Effect: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other Federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.
6.12 USE OF PROCEEDS.
Use the proceeds of the Loans, to refinance Indebtedness of the US
Borrower and its Subsidiaries and for other general corporate purposes including
stock buy-backs, Acquisitions, working capital and capital expenditures not in
violation of any Loan Document.
6.13 ENVIRONMENTAL DISCLOSURE AND INSPECTION.
(a) Exercise reasonable diligence in order to comply and cause all
tenants under any leases or occupancy agreements with the US Borrower or any of
its Restricted Subsidiaries and all other Persons on or occupying such property,
to comply with all Environmental Laws except where such failure could 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 the US Borrower or any of its Subsidiaries,
promptly advise the Administrative Agent in writing and in reasonable detail of
(i) any Release of any Hazardous Materials which is material and 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 the US Borrower 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 Effect, (iv) the US Borrower's
discovery of any occurrence or condition on any real property adjoining or in
the vicinity of any Facility that has caused such Facility or any part thereof
to be subject to any restrictions on the ownership, occupancy, transferability
or use thereof under any Environmental Laws that could reasonably be expected to
result in a Material Adverse Effect, and (v) any notice from a governmental
agency stating that the US Borrower or any of its Restricted Subsidiaries has
been named as a potentially responsible party under applicable Environmental
Laws or any other request for information from any governmental agency that
indicates such agency is investigating whether the US Borrower or any of its
Restricted Subsidiaries may be potentially responsible for a Release of
Hazardous Materials in either case that could reasonably be expected to result
in a Material Adverse Effect.
(c) Provide copies of such documents or information as Agent may
reasonably request in relation to any matters disclosed pursuant to this Section
6.13.
6.14 BORROWER'S REMEDIAL ACTION REGARDING HAZARDOUS MATERIALS.
Promptly take, and cause each of its Restricted Subsidiaries promptly
to take, any and all necessary remedial action in connection with the presence,
storage, use, disposal, transportation
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or Release of any Hazardous Materials on, under or about any Facility in order
to comply with all applicable material Environmental Laws and Governmental
Authorizations. In the event the US Borrower or any of its Restricted
Subsidiaries undertakes any remedial action with respect to any Hazardous
Materials on, under or about any Facility, the US Borrower or such Subsidiary
shall conduct and complete such remedial action in material compliance with all
applicable material Environmental Laws except when, and only to the extent that,
the US Borrower'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 either Borrower or such
Subsidiary.
6.15 FURTHER ASSURANCES.
(a) Cause each wholly-owned Subsidiary which is a Guarantor to remain a
wholly-owned Subsidiary, except as a result of a transaction permitted by
Section 7.04 or Section 7.05 hereunder.
(b) Promptly after any Person becomes a Restricted Material Subsidiary,
cause such Person to join as a Guarantor under the Subsidiary Guaranty pursuant
to joinder agreements in form and substance reasonably satisfactory to the
Administrative Agent. The US Borrower shall promptly notify the Administrative
Agent at any time at which, in accordance with this Section 6.15, any Material
Subsidiary shall be required to join as a Guarantor under the Subsidiary
Guaranty.
(c) At the time of any request for Offshore Currency Borrowing or a
Swing Line Borrowing of an Offshore Currency Swing Line Loan, and at all times
when there are Offshore Currency Loans or Offshore Currency Swing Line Loans
outstanding, cause the Dutch Borrower to be a Restricted Subsidiary.
ARTICLE VII
NEGATIVE COVENANTS
Commencing on the Amendment and Restatement Effectiveness Date, so long
as any Lender shall have any Commitment hereunder, any Loan or other Obligation
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding, the US Borrower shall not, nor shall it permit any Restricted
Subsidiary to, directly or indirectly:
7.01 LIENS.
Create, incur or assume any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than the following
("Permitted Liens"):
(a) Liens pursuant to any Loan Document;
(b) Liens other than those permitted by subsections (c) through (q)
that are existing on the date hereof and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that the property covered thereby is
not increased and any renewal or extension of the obligations secured or
benefited thereby is permitted by Section 7.03(b);
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(c) Liens for taxes, assessments or governmental charges not yet due or
which are being contested in good faith and by appropriate proceedings, if
adequate reserves with respect thereto are maintained on the books of the
applicable Person if and to the extent required by GAAP;
(d) (i) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens and (ii) customs and revenue authority liens
securing payment of customs duties, in either case arising in the ordinary
course of business which are not overdue for a period of more than 45 days or
which are being contested in good faith and by appropriate proceedings, if
adequate reserves with respect thereto are maintained on the books of the
applicable Person;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other social
security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), government contracts, tenders, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which do not materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money in an aggregate
amount not in excess of the Threshold Amount (except to the extent covered by
independent third-party insurance), unless any such judgment remains
undischarged for a period of more than 45 consecutive days during which
execution is not effectively stayed;
(i) Liens securing Indebtedness permitted under Section 7.03(d);
provided that) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness and proceeds thereof;
(j) Liens upon assets of any Receivables Subsidiary securing
Indebtedness permitted by Section 7.03(e);
(k) Liens upon assets of entities which become Restricted Subsidiaries
after the date of this Agreement pursuant to Section 7.02 and securing
Indebtedness permitted by Section 7.03(g); provided that such Liens existed at
the time the respective entities became Restricted Subsidiaries, were not
created in anticipation thereof and are limited to assets and proceeds thereof
of the respective entity at the time acquired;
(l) Liens on the interest of the US Borrower or any of its Restricted
Subsidiaries in the COLI Policies, which Liens secure COLI Debt permitted by
Section 7.03(j);
(m) leases or subleases granted to others not interfering in any
material respect with the ordinary conduct of the business of the US Borrower or
its Restricted Subsidiaries;
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(n) any interest or title of a lessor or sublessor under any lease not
prohibited by this Agreement;
(o) protective UCC filings with respect to personal property leased by,
or consigned to, either Borrower or any of its Restricted Subsidiaries;
(p) Liens granted by the US Borrower securing Indebtedness permitted by
Section 7.03(k); and
(q) other Liens securing obligations otherwise permitted hereunder
which do not exceed $15,000,000 in the aggregate at any one time outstanding.
7.02 INVESTMENTS.
Make any Investments, except:
(a) Investments that are existing on the date hereof listed on Schedule
7.02;
(b) Investments held by the US Borrower or such Restricted Subsidiary
in the form of cash equivalents;
(c) advances to officers, directors and employees of the US Borrower
and Restricted Subsidiaries (i) in an aggregate amount not to exceed $5,000,000
at any time outstanding, for travel, entertainment, relocation and analogous
ordinary business purposes and (ii) in an aggregate amount not to exceed
$10,000,000 at any time outstanding to enable such Persons to purchase stock of
Holdings;
(d) Investments of any Subsidiary in the US Borrower or another
Subsidiary which is a Guarantor;
(e) Investments by the US Borrower or any Subsidiary which is a
Guarantor in any other Subsidiary which is a Guarantor;
(f) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the sale or lease of goods
or services in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors;
(g) Guaranty Obligations permitted by Section 7.03 and Section 7.13;
(h) Investments permitted by Section 7.04;
(i) Investments incurred in order to consummate Acquisitions not
otherwise prohibited herein, provided that (i) such Acquisitions are undertaken
in accordance with all applicable Laws, (ii) the prior, effective written
consent or approval to such Acquisition of the board of directors or equivalent
governing body of the acquiree is obtained, (iii) the US Borrower provides the
Administrative Agent and the Lenders with a certificate at least five days prior
to the consummation of such
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Acquisition evidencing that, after giving effect to such Acquisition, the US
Borrower is in compliance with Section 7.14(a) and (b) (as determined on a Pro
Forma Basis as of the last day of the preceding fiscal quarter), and (iv) after
giving effect to such Acquisition, the US Borrower and its Restricted
Subsidiaries remain in compliance with Section 7.09;
(j) loans to Holdings (i) in an amount equal to the income taxes
attributable to Holdings' Investment in the US Borrower and its Restricted
Subsidiaries and other taxes attributable to the US Borrower and its Restricted
Subsidiaries which are then due and payable and (ii) in an amount up to
$2,000,000 per calendar year to pay expenses, provided that such loans shall
reduce dollar-for-dollar the amounts permitted to be paid to Holdings pursuant
to Section 7.07(c)(i)(A) and (B), respectively;
(k) the US Borrower may make and own Investments in Holdings' common
stock in connection with the administration of the 401K program for employees of
the US Borrower and its Affiliates and any deferred compensation plan for
executive officers of the US Borrower and its Affiliates, provided that the
aggregate fair value, as determined by the closing price on the New York Stock
Exchange for such equity securities on the Business Day prior to making the
Investment, of such equity securities at any one time held by the US Borrower
shall not exceed $10,000,000;
(l) Investments by the US Borrower or any Restricted Subsidiary in any
Foreign Subsidiary or in any Joint Venture in an aggregate amount not to exceed
(i) $75,000,000 or (ii) $125,000,000 if at the time of such Investment, the
Leverage Ratio is less than 2.25 to 1.00 (it being understood that Investments
permitted by this clause (ii) shall not cease to be allowed by virtue of changes
in the Leverage Ratio subsequent to the time of such Investment), plus, in the
case of either clause (i) or (ii), an amount (the "Incremental Amount") equal to
any cash dividends, other cash returns and the fair market value of other
distributions received after the date hereof with respect to the Investment
described in Section 7.02(n) (such Incremental Amount not to exceed the initial
amount of such Investment);
(m) Investments consisting of Permitted Swap Obligations;
(n) direct or indirect Investments of the US Borrower and its
Restricted Subsidiaries in existence on the date hereof in Vitrocrisa Holding S.
de ▇.▇. de C.V., Vitrocrisa S. de ▇.▇ de C.V., ▇▇▇▇▇ ▇▇▇▇▇▇ S.A. de C. V., Crisa
Industrial LLC and any affiliated entities therewith pursuant to a Joint Venture
entered into by the US Borrower and Vitro S.A. DE C.V. (it being understood that
additional Investments therein may be made to the extent otherwise permitted
another subsection of Section 7.02);
(o) Investments by the US Borrower in Unrestricted Subsidiaries to the
extent such Investments are permitted by Section 7.07(d) or (e); and
(p) other Investments not exceeding $35,000,000 in the aggregate at any
time.
7.03 INDEBTEDNESS.
Create, incur, assume or permit to exist any Indebtedness of the US
Borrower or such Restricted Subsidiary, as applicable, except:
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(a) Indebtedness under the Loan Documents;
(b) Indebtedness other than of the type permitted by subsections (c)
through (m) that is outstanding on the date hereof and listed on Schedule 7.03
and any refinancings, refundings, renewals or extensions thereof; provided that
the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder;
(c) Indebtedness consisting of Permitted Swap Obligations;
(d) Indebtedness in respect of capital leases, Synthetic Lease
Obligations and purchase money obligations for fixed or capital assets within
the limitations set forth in Section 7.01(i); provided, however, that the
aggregate amount of all such Indebtedness at any one time outstanding shall not
exceed $50,000,000;
(e) Receivables Facility Attributed Indebtedness in an aggregate amount
not to exceed $75,000,000 at any time;
(f) Indebtedness consisting of financial standby letters of credit
(other than any Letter of Credit) in which the US Borrower or any of its
Restricted Subsidiaries has any actual or contingent reimbursement obligations
in an aggregate amount not to exceed $15,000,000 at any time;
(g) Indebtedness which is secured by Liens upon assets of entities
which become Restricted Subsidiaries after the date of this Agreement pursuant
to Section 7.02 and which Liens are permitted by Section 7.01(k); provided that
such Indebtedness existed at the time the respective entities became Restricted
Subsidiaries, was not created in anticipation thereof and is limited to assets
of the respective entity at the time acquired and proceeds thereof;
(h) Intercompany Indebtedness to the extent permitted by Section 7.02;
provided, however, that in the event of any subsequent issuance or transfer of
any capital stock which results in the holder of such Indebtedness ceasing to be
a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other
than to the US Borrower or any of its Restricted Subsidiaries) such Indebtedness
shall be required to be permitted under another clause of this Section 7.03;
provided further, however, that in the case of Intercompany Indebtedness
consisting of a loan or advance to either Borrower, each such loan or advance
shall be subordinated to the indefeasible payment in full of all of such
Borrower's obligations pursuant to this Agreement and the other Loan Documents;
(i) Indebtedness permitted by Section 7.13;
(j) COLI Debt in an aggregate amount not to exceed $20,000,000 at any
time outstanding;
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(k) Indebtedness evidenced by that certain Promissory Note dated August
31, 2001 executed by the US Borrower in favor of ▇▇▇▇▇ Fargo Bank Nebraska
National Association, as trustee, in an aggregate principal amount not to exceed
$2,660,000 at any time outstanding;
(l) Indebtedness of Foreign Subsidiaries arising out of an Investment
permitted by Section 7.02(l), (o) or (p); and
(m) other unsecured Indebtedness of the US Borrower and/or its
Restricted Subsidiaries.
7.04 FUNDAMENTAL CHANGES.
Merge, consolidate with or into, or convey, transfer, lease or
otherwise dispose of (whether in one transaction or in a series of transactions)
all or substantially all of its assets (whether now owned or hereafter acquired)
to or in favor of any Person, except that, so long as no Default or Event of
Default would result therefrom:
(a) any Subsidiary may merge with (i) the US Borrower, provided that
the US Borrower shall be the continuing or surviving Person, or (ii) any one or
more Subsidiaries, provided that (A) when any wholly-owned Restricted Subsidiary
is merging with another Subsidiary, the wholly-owned Restricted Subsidiary shall
be the continuing or surviving Person and (B) when any Subsidiary which is a
Guarantor is merging with another Subsidiary, a Subsidiary which is a Guarantor
shall be the continuing or surviving Person;
(b) any Subsidiary may sell any of its stock or all or substantially
all of its assets (upon voluntary liquidation or otherwise), to the US Borrower
or to another Subsidiary; provided that (i) if the seller in such a transaction
is a wholly-owned Restricted Subsidiary, then the purchaser must also be a
wholly-owned Restricted Subsidiary or the US Borrower, as applicable, and (ii)
if the seller in such a transaction is a Subsidiary which is a Guarantor, then
the purchaser must also be a Subsidiary which is a Guarantor or the US Borrower,
as applicable;
(c) in connection with any Acquisition permitted by Section 7.02,
either Borrower or any Subsidiary may merge with another Person, provided that
(i) if a Borrower is a party to such merger, then such Borrower shall be the
continuing or surviving Person thereof and (ii) if any Subsidiary which is a
Guarantor is a party to such merger, then a Subsidiary which is a Guarantor
shall be the continuing or surviving Person thereof; and
(d) either Borrower or any Subsidiary may Dispose of assets to the
extent such Disposition is permitted by Section 7.05.
7.05 DISPOSITIONS.
Make any Disposition or enter into any agreement to make any
Disposition (other than agreements making the applicable Disposition subject to
the prior payment in full of the Obligations and termination of this Agreement
or to being consented to by the Required Lenders), except:
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(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i)
such property is exchanged for credit against the purchase price of similar
replacement property, (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property or (iii) the
board of directors or senior management of the US Borrower or such Restricted
Subsidiary has determined in good faith that the failure to replace such
property will not be detrimental to the business of the US Borrower or such
Restricted Subsidiary;
(d) Dispositions by the US Borrower and its Restricted Subsidiaries of
property pursuant to sale-leaseback transactions;
(e) Dispositions permitted by Section 7.04;
(f) Dispositions of Accounts Receivable pursuant to a Permitted
Receivables Purchase Facility;
(g) Disposition of real property near the location of the US Borrower's
City of Industry plant, provided that the aggregate amount of the proceeds
derived from such Disposition permitted by this subsection 7.05(g) shall not
exceed $7,000,000;
(h) Dispositions by any Loan Party to any other Loan Party;
(i) Dispositions of property among Restricted Subsidiaries which are
not Guarantors; and
(j) other Dispositions of property not otherwise permitted hereunder,
provided that (i) the consideration received for such assets shall have a value
at least equal to the fair market value of such assets, in each case as
determined in good faith by the US Borrower or the applicable Restricted
Subsidiary; and (ii) if the amount of the Net Proceeds of such Dispositions in
any Fiscal Year exceeds 15% of the assets of Holdings and its Subsidiaries
(other than the Unrestricted Subsidiaries) on a consolidated basis, the
Aggregate Commitments shall be permanently reduced by the amount of such excess
(and the US Borrower shall make the prepayment, if any, required in connection
with such commitment reduction pursuant to Section 2.08(b). .
7.06 LEASE OBLIGATIONS.
Create, incur or permit to exist any obligations of the US Borrower or
its Restricted Subsidiaries for the payment of rent for any property under lease
or agreement to lease, except:
(a) Leases other than of the type described in subsections (b) through
(d) in existence on the date hereof and listed on Schedule 7.06, and any
renewal, extension or refinancing thereof;
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(b) operating leases (other than those constituting Synthetic Lease
Obligations) entered into or assumed by either Borrower or any Restricted
Subsidiary in the ordinary course of business, provided that the aggregate lease
payments for all such operating leases in any fiscal year shall not exceed
$20,000,000;
(c) leases in connection with any sale-leaseback arrangement permitted
by Section 7.05(d); and
(d) capital leases and Synthetic Lease Obligations to the extent
permitted by Section 7.03.
7.07 RESTRICTED PAYMENTS.
Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that:
(a) each Restricted Subsidiary may make Restricted Payments to the US
Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a
Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the US
Borrower and any Restricted Subsidiary and to each other owner of capital stock
of such Subsidiary on a pro rata basis based on their relative ownership
interests);
(b) the US Borrower and each Restricted Subsidiary may purchase, redeem
or otherwise acquire shares of its common stock or warrants or options to
acquire any such shares with the proceeds received from the substantially
concurrent issue of new shares of its common stock;
(c) the US Borrower may make Restricted Payments to Holdings (i) (A) in
an amount equal to the income taxes attributable to Holdings' Investment in the
US Borrower and its Restricted Subsidiaries and other taxes attributable to the
US Borrower and its Restricted Subsidiaries which are then due and payable and
(B) in an amount up to $2,000,000 per calendar year to pay expenses, provided
that such amounts shall reduce dollar-for-dollar the amounts permitted to be
paid to Holdings pursuant to Section 7.02(j)(i) and (ii), respectively, and (ii)
in an amount not in excess of the outstanding amount of loans previously made by
the US Borrower to Holdings pursuant to Section 7.02(j) so long as the proceeds
of such Restricted Payments are substantially contemporaneously used by Holdings
to repay such loans;
(d) the US Borrower may make Restricted Payments to Holdings and the US
Borrower and its Subsidiaries may make Restricted Payments in the form of
Investments in Unrestricted Subsidiaries, provided that (i) no Default or Event
of Default shall have occurred and be continuing or would result therefrom; (ii)
after giving effect to any such Restricted Payment, the aggregate of all
Restricted Payments made pursuant to this clause (d) on a cumulative basis (A)
from the Effective Date through December 31, 2002 would not exceed the sum
(without duplication) of (1) 50% of Adjusted Consolidated Net Income for any
fiscal quarter after December 31, 2001 through December 31, 2002, and (2)
$20,000,000 and (B) from January 1, 2003 would not exceed the sum (without
duplication) of (1) 50% of Adjusted Consolidated Net Income for any fiscal
quarter after December 31, 2002, and (2) $75,000,000 and; and (iii) and if
Holdings has transferred 100% of the equity interests of the Borrower to a
wholly-owned
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Subsidiary of Holdings and no Event of Default exists under Section 8.01(k),
then the US Borrower may make any Restricted Payment to such wholly-owned
Subsidiary to the extent that, had such transfer not occurred, the US Borrower
could have made such Restricted Payment to Holdings; and
(e) so long as no Default or Event of Default shall have occurred and
be continuing or would result therefrom, the US Borrower and its Restricted
Subsidiaries may make Restricted Payments in the form of Investments in
Unrestricted Subsidiaries in addition to those permitted under clause (d) above
in an amount equal to all cash dividends, cash returns and the fair market value
of other distributions received in respect of such Investments (not to exceed
the initial amount of such Investments in Unrestricted Subsidiaries).
7.08 ERISA.
At any time engage in a transaction which could be subject to Section
4069 or 4212(c) of ERISA, or permit any Plan to (a) engage in any non-exempt
"prohibited transaction" (as defined in Section 4975 of the Code); (b) fail to
comply with ERISA or any other applicable Laws; or (c) incur any material
"accumulated funding deficiency" (as defined in Section 302 of ERISA), which,
with respect to each event listed above, could reasonably be expected to have a
Material Adverse Effect.
7.09 CHANGE IN NATURE OF BUSINESS.
Engage in any material line of business such that the businesses of the
US Borrower and its Subsidiaries taken as a whole are substantially different
from those lines of business conducted by the US Borrower and its Subsidiaries
on the date hereof and businesses reasonably related thereto or reasonable
extensions thereof.
7.10 TRANSACTIONS WITH AFFILIATES.
Enter into any material transaction with any Affiliate of the US
Borrower, other than (a) transactions between the US Borrower and any Subsidiary
of the US Borrower which is a Guarantor or between Guarantors which are
Subsidiaries of the US Borrower, (b) transactions between the US Borrower and
Holdings, (c) arm's-length transactions with Affiliates that are otherwise
permitted hereunder, (d) transactions which, taken as a whole, are on an
arm's-length basis or, as to the US Borrower or the Guarantor involved, are more
favorable than arm's length, (e) transactions between Foreign Subsidiaries, (f)
transactions with Libbey Foreign Sales Corporation in a manner consistent with
past practices but subject to modifications based upon then current market
conditions and changes in applicable Laws, or (g) Investments otherwise
permitted hereby. For the purpose of this Section 7.10 only, "Affiliate" shall
mean, as to any Person, any Affiliate (as defined in Article I) and any other
Person which possesses, directly or indirectly, power to vote 10% or more of the
securities having ordinary voting power for the election of directors or
managing general partners.
7.11 BURDENSOME AGREEMENTS.
Enter into any Contractual Obligation that limits the ability (a) of
any Restricted Subsidiary to make Restricted Payments to the US Borrower or to
otherwise transfer property to
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the US Borrower or (b) of the US Borrower or any Restricted Subsidiary to
create, incur or assume Liens on property of such Person (in the case of (a) and
(b), other than (1) limitations placed on the Dutch Borrower or any of its
Subsidiaries, or any of their respective assets, pursuant to a working capital
facility of up to E10,000,000 of the Dutch Borrower and/or its Subsidiaries or
(2) property that is financed in a transaction governed by such Contractual
Obligations and not otherwise prohibited hereby).
7.12 USE OF PROCEEDS.
Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately in any manner
that might cause the Credit Extension or the application of such proceeds to
violate Regulations T, U or X of the FRB, in each case as in effect on the date
or dates of such Credit Extension and such use of proceeds.
7.13 CONTINGENT OBLIGATIONS.
Create, incur, assume or permit to exist any Contingent Obligations of
the US Borrower or its Restricted Subsidiaries, except:
(a) Contingent Obligations of the US Borrower and its Restricted
Subsidiaries other than those permitted by subsections (b) through (j) that are
existing as of the date hereof and listed on Schedule 7.13;
(b) Permitted Swap Obligations;
(c) endorsements for collection or deposit in the ordinary course of
business;
(d) Contingent Obligations with respect to Surety Instruments incurred
in the ordinary course of business, provided that the aggregate amount of such
Contingent Obligations consisting of financial standby letters of credit (other
than any Letter of Credit) in which either Borrower or any Restricted
Subsidiaries has any actual or contingent reimbursement obligations shall not
exceed $15,000,000 at any time;
(e) Guaranty Obligations of the US Borrower and its Restricted
Subsidiaries in an aggregate amount not to exceed $50,000,000 at any time;
(f) Guaranty Obligations of the US Borrower and its Restricted
Subsidiaries consisting of payment obligations incurred in connection with an
Acquisition permitted hereunder;
(g) Guaranty Obligations of the US Borrower consisting of a guarantee
by the US Borrower of obligations of a Restricted Subsidiary or by a Subsidiary
of obligations of the US Borrower or a Restricted Subsidiary of the US Borrower
under any agreement not otherwise prohibited hereby;
(h) Guaranty Obligations that are Investments permitted under Section
7.02 or Indebtedness permitted under Section 7.03;
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(i) Guaranty Obligations of the US Borrower and its Restricted
Subsidiaries of suppliers, customers, franchisees and licensees in the ordinary
course of business in an aggregate amount not to exceed $5,000,000 at any time
outstanding pursuant to this clause (i);
(j) Guaranty Obligations of the US Borrower not to exceed $5,000,000
pursuant to the US Borrower's guaranty in existence on the date hereof in favor
of Tractebel Energia de Monterrey, S. de ▇. ▇. de C.V. and its successors and
assigns; and
(k) Guaranty Obligations of the Guarantors pursuant to the Loan
Documents.
7.14 FINANCIAL COVENANTS.
(a) Leverage Ratio. Permit the Leverage Ratio at any time to be greater
than 3.25 to 1.00.
(b) Interest Coverage Ratio. Permit the Interest Coverage Ratio as of
the end of any fiscal quarter to be less than 3.00 to 1.00.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. Either Borrower fails to pay (i) when and as required
to be paid herein any amount of principal of any Loan, or (ii) within five days
after the same becomes due, any amount of interest on any Loan, or any L/C
Obligation, or any commitment or other fee due hereunder or any other amount
payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The US Borrower fails to perform or observe any
term, covenant or agreement contained in any of Section 6.03(a), 6.05(a) or 6.12
or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days (or, in the case of Section 6.01, 6.02 or 6.10, 10
days) after the date upon which written notice thereof is given to the US
Borrower by the Administrative Agent; or
(d) Representations and Warranties. Any representation or warranty made
or deemed made by the US Borrower or any other Loan Party herein, in any other
Loan Document, or in any document delivered in connection herewith or therewith
proves to have been incorrect in any material respect when made or deemed made;
or
(e) Cross-Default. Any Loan Party or any of its Restricted Subsidiaries
(i) fails to make any payment when due (after giving effect to any applicable
grace periods and whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness (other than
Indebtedness hereunder) having an aggregate principal amount
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(including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (ii) fails to observe
or perform any other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other event
is to cause, or to permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, such Indebtedness to be demanded or to become due or to
be repurchased or redeemed (automatically or otherwise) prior to its stated
maturity; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Restricted Material Subsidiaries institutes or consents to the institution of
any proceeding under any Debtor Relief Law, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of such Person and the appointment
continues undischarged or unstayed for 60 calendar days; or any proceeding under
any Debtor Relief Law relating to any such Person or to all or any part of its
property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any of
its Restricted Material Subsidiaries becomes unable or admits in writing its
inability or fails generally to pay its debts as they become due, or (ii) any
writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and
is not released, stayed, vacated or fully bonded within 30 days after its issue
or levy; or
(h) Judgments. There is entered against any Loan Party or any of its
Restricted Subsidiaries a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance) and there is a period of 10 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the US Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the US Borrower or any ERISA Affiliate fails to pay when due,
after the expiration of any applicable grace period, any installment payment
with respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents, Etc. Any Loan Document, at any time
after its execution and delivery and for any reason other than by its terms or
the agreement of the Required Lenders (subject to Section 10.01) or satisfaction
in full of all the Obligations, ceases to be in full force and effect, or is
declared by a court of competent jurisdiction to be null and void, invalid or
unenforceable in any material respect; or any Loan Party denies that it has any
or further liability or obligation under any Loan Document, or purports to
revoke, terminate or
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rescind any Loan Document; or an "Event of Default" under and as defined in any
other Loan Document shall occur; or
(k) Change of Control. There occurs any Change of Control of Holdings
or Holdings shall cease to own, directly or indirectly, 100% of the outstanding
equity interests in the US Borrower; provided, however, that the consummation of
any transaction as a result of which, or after giving effect to which, the US
Borrower is not a direct wholly-owned Subsidiary of Holdings shall constitute an
Event of Default unless, in connection therewith, each intermediate holding
company shall have become a Guarantor, in each case pursuant to documentation
reasonably satisfactory to the Administrative Agent.
8.02 REMEDIES UPON EVENT OF DEFAULT.
If any Event of Default occurs and is continuing, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders by written notice to the US Borrower,
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuers to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind except as
specified above, all of which are hereby expressly waived by the Borrowers;
(c) if all outstanding Loans have been accelerated, require that the US
Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then
Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any event specified in subsection
(f) of Section 8.01, the obligation of each Lender to make Loans and any
obligation of the L/C Issuers to make L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest
and other amounts as aforesaid shall automatically become due and payable, and
the obligation of the US Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived by
the Borrowers, in each case without further act of the Administrative Agent or
any Lender.
Notwithstanding anything contained in the preceding paragraph, if at
any time within 60 days after an acceleration of the Loans pursuant to such
paragraph the applicable Borrower shall pay all arrears of interest and all
payments on account of principal which shall have become due otherwise than as a
result of such acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified in this Agreement)
and all Events of
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Default and Defaults (other than non-payment of the principal of and accrued
interest on the Loans, in each case which is due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to Section 10.01, then the
Required Lenders, by written notice to the US Borrower, may at their option
rescind and annul such acceleration and its consequences; but such action shall
not affect any subsequent Event of Default or Default or impair any right
consequent thereon. The provisions of this paragraph are intended merely to bind
the Lenders to a decision which may be made at the election of the Required
Lenders and are not intended to benefit the Borrowers and do not grant either
Borrower the right to require the Lenders to rescind or annul any acceleration
hereunder, even if the conditions set forth herein are met.
8.03 JUDGMENT CURRENCY. The Borrowers, the Administrative Agent and
each Lender hereby agree that if, in the event that a judgment is given in
relation to any sum due to the Agent or any Lender hereunder, such judgment is
given in a currency (the "Judgment Currency") other than that in which such sum
was originally denominated (the "Original Currency"), the applicable Borrower
agrees to indemnify the Agent or such Lender, as the case may be, to the extent
that the amount of the Original Currency which could have been purchased thereby
in accordance with normal banking procedures on the Business Day following
receipt of such amount is less than the amount of the Original Currency which
could have been so purchased thereby had such purchase been made on the day on
which such judgment was given or, if such day is not a Business Day, on the
Business Day immediately preceding the giving of such judgment, and if the
amount so purchased exceeds the amount of the Original Currency which could have
been so purchased thereby had such purchase been made on the day on which such
judgment was given or, if such day is not a Business Day, on the Business Day
immediately preceding such judgment, the Agent or such Lender agrees to remit
such excess to the applicable Borrower. The agreements in this Section 8.03
shall survive payment of any such judgment.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF THE ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
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(b) Each L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith until
such time (and except for so long) as the Administrative Agent may agree at the
request of the Required Lenders to act for such L/C Issuer with respect thereto;
provided, however, that such L/C Issuer shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by such L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Administrative Agent" as used in this Article IX
included such L/C Issuer with respect to such acts or omissions, and (ii) as
additionally provided herein with respect to such L/C Issuer.
9.02 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
9.03 LIABILITY OF THE ADMINISTRATIVE AGENT.
No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by
any Loan Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Loan Party or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party or
any Affiliate thereof.
9.04 RELIANCE BY THE ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to any Loan Party), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to
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take any action under any Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders or all the Lenders, if required hereunder, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and participants. Where this Agreement expressly
permits or prohibits an action unless the Required Lenders otherwise determine,
the Administrative Agent shall, and in all other instances, the Administrative
Agent may, but shall not be required to, initiate any solicitation for the
consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Sections 4.01 or 4.02, each Lender that has signed this Agreement
shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter either sent by the Administrative Agent to
such Lender for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender.
9.05 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the US
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be directed by the Required Lenders in accordance with
Article VIII; provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY THE ADMINISTRATIVE
AGENT.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own
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decision to enter into this Agreement and to extend credit to the Borrowers
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrowers.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent herein, the Administrative
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any of the Loan
Parties or any of their respective Affiliates which may come into the possession
of any Agent-Related Person.
9.07 INDEMNIFICATION OF THE ADMINISTRATIVE AGENT.
Whether or not the transactions contemplated hereby are consummated,
the Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of any Loan Party and without limiting the
obligation of any Loan Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified
Liabilities determined in a final, nonappealable judgment by a court of
competent jurisdiction to have been caused primarily by such Person's own gross
negligence or willful misconduct; provided, however, that no action taken in
accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs and costs and expenses in
connection with the use of IntraLinks, Inc. or other similar information
transmission systems in connection with this Agreement) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrowers. The undertaking in this Section shall survive termination of the
Aggregate Commitments, the payment of all Obligations hereunder and the
resignation or replacement of the Administrative Agent or the Collateral Agent,
as applicable.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Loan Parties and their respective Affiliates
as though Bank of America were not the Administrative Agent or an L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject
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to confidentiality obligations in favor of such Loan Party or such Affiliate)
and acknowledge that the Administrative Agent shall not be under any obligation
to provide such information to them. With respect to its Loans, Bank of America
shall have the same rights and powers under this Agreement as any other Lender
and may exercise such rights and powers as though it were not the Administrative
Agent, or an L/C Issuer, and the terms "Lender" and "Lenders" include Bank of
America in its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign as Administrative Agent upon 90
days' notice to the Lenders; provided that any such resignation by Bank of
America shall also constitute its resignation as an L/C Issuer effective upon
its retirement. If the Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor administrative
agent for the Lenders which successor administrative agent shall be consented to
by the US Borrower (which consent of the US Borrower shall not be unreasonably
withheld or delayed). If no successor administrative agent is appointed prior to
the ninetieth (90th) day after the Administrative Agent's notice is given (it
being understood that such a successor may be appointed at any time after the
Administrative Agent's resignation notice is given), the Administrative Agent
may appoint, after consulting with the Lenders and the US Borrower, a successor
administrative agent from among the Lenders. Upon the acceptance of its
appointment as successor administrative agent hereunder, the Person acting as
such successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent, L/C Issuer and Swing Line Lender
and the respective terms "Administrative Agent," "L/C Issuer" and "Swing Line
Lender" shall mean such successor administrative agent, Letter of Credit issuer
and swing line lender, as applicable, and the retiring the Administrative
Agent's appointment, powers and duties as the Administrative Agent shall be
terminated and the retiring L/C Issuer's and Swing Line Lender's rights, powers
and duties as such shall be terminated, without any other or further act or deed
on the part of such retiring L/C Issuer or any other Lender or any other Swing
Line Lender, other than the obligation of the successor L/C Issuer to issue
letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession. After any retiring Administrative Agent's
resignation hereunder as the Administrative Agent, the provisions of this
Article IX and Sections 10.04 and 10.05 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative Agent
under this Agreement. If no successor administrative agent has accepted
appointment as the Administrative Agent by the date which is 90 days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.
9.10 SYNDICATION AGENTS; JOINT LEAD ARRANGERS; JOINT BOOK MANAGERS.
None of the Lenders identified on the facing page or signature pages of
this Agreement as a "syndication agent," "joint lead arranger," or "joint book
manager" shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders so identified shall have or
be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that
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it has not relied, and will not rely, on any of the Lenders so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE X
MISCELLANEOUS
10.01 AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by either Borrower or any other
Loan Party therefrom, shall be effective unless in writing signed by the
Required Lenders and the US Borrower or the applicable Loan Party, as the case
may be, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no such amendment, waiver or consent shall, unless in writing and signed by each
of the Lenders directly affected thereby and by the US Borrower, do any of the
following:
(a) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 2.07(a) or Section 8.02) except as
provided in Section 2.07(b) or Section 2.15;
(b) postpone any date fixed by this Agreement or any other Loan
Document for any scheduled payment of principal, interest, fees or other amounts
due to the Lenders (or any of them) hereunder or under any other Loan Document,
except as provided in Section 2.15;
(c) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (iv) of the proviso below)
any fees or other amounts payable hereunder or under any other Loan Document, or
change the manner of computation of any financial covenant used in determining
the Applicable Rate that would result in a reduction of any interest rate on any
Loan; provided, however, that only the consent of the Required Lenders shall be
necessary to amend the definition of "Default Rate" or to waive any obligation
of the Borrowers to pay interest at the Default Rate;
(d) change the percentage of the Aggregate Commitments or of the
aggregate unpaid principal amount of the Loans and L/C Obligations which is
required for the Lenders or any of them to take any action hereunder, except
that the Administrative Agent, the US Borrower and all Continuing Lenders may
amend Section 2.15 as among themselves;
(e) change the Pro Rata Share or Voting Percentage of any Lender
(except as provided in Section 2.07(b) or Section 2.15 or otherwise as a result
of an increase or decrease in commitments or loans or assignments hereunder);
(f) amend this Section, or any provision herein providing for consent
or other action by all the Lenders; or
(g) release Holdings from the Holdings Guaranty or US Borrower from the
Libbey Glass Guaranty; provided, however, that at such time all Obligations of
the Dutch Borrower, including all Offshore Currency Loans and all Offshore
Currency Swing Line Loans, are paid and satisfied in full and both the Offshore
Currency Sublimit and Offshore Currency Swing Line
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Loan Sublimit are terminated, the Libbey Glass Guaranty shall terminate
automatically (subject to reinstatement upon certain events as therein
provided);
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuers in addition to the Required Lenders or
each directly-affected Lender, as the case may be, affect the rights or duties
of the L/C Issuers under this Agreement or any Letter of Credit Application
relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Required Lenders or each directly-affected
Lender, as the case may be, affect the rights or duties of the Swing Line Lender
under this Agreement; (iii) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Required
Lenders or each directly-affected Lender, as the case may be, affect the rights
or duties of the Administrative Agent under this Agreement or any other Loan
Document; (iv) an amendment hereof (other than pursuant to Section 2.07(c))
increasing the Commitment of any Lender or adding a tranche of loans hereunder
may, notwithstanding the foregoing, be approved by the Required Lenders, the US
Borrower and the Lenders extending such additional credit; (v) the Fee Letter
may be amended, or rights or privileges thereunder waived, in a writing executed
only by the respective parties thereto; and (vi) notwithstanding the foregoing,
any matter which this Agreement expressly provides may be waived by the
Administrative Agent may be so waived. Notwithstanding anything to the contrary
herein, any Lender that has a Voting Percentage of zero shall not have any right
to approve or disapprove any amendment, waiver or consent hereunder, except that
the Pro Rata Share of such Lender may not be increased (except for any such
increase resulting from Section 3.06(b) or as otherwise set forth herein)
without the consent of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission) and mailed, faxed or delivered, to the address,
facsimile number or (subject to subsection (c) below) electronic mail address
specified for notices on Schedule 10.02; or, in the case of the Borrowers, the
Administrative Agent, the Swing Line Lender or the L/C Issuers, to such other
address as shall be designated by such party in a notice to the other parties,
and in the case of any other party, to such other address as shall be designated
by such party in a notice to the US Borrower, the Administrative Agent, the
Swing Line Lender or the L/C Issuers provided that the address for notices to
the Dutch Borrower shall always be the address of the US Borrower. All such
notices and other communications shall be deemed to be given or made upon the
earlier to occur of (i) actual receipt by the intended recipient and (ii) (A) if
delivered by hand or by courier, when signed for by the intended recipient; (B)
if delivered by mail, four Business Days after deposit in the mails, postage
prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed
by telephone; and (D) if delivered by electronic mail (which form of delivery is
subject to the provisions of subsection (c) below), when delivered; provided,
however, that notices and other communications to the Administrative Agent, the
L/C Issuers and the Swing Line Lender pursuant to Article II shall not be
effective until actually received by such Person. Any notice or other
communication permitted to be given, made or confirmed by telephone hereunder
shall be given, made or confirmed by means of a telephone call to the intended
recipient at the number specified on Schedule 10.02, it being understood and
agreed that a
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voicemail message shall in no event be effective as a notice, communication or
confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic Mail. Electronic mail and internet and
intranet websites may be used to distribute routine communications, such as
financial statements and other information, and to distribute Loan Documents for
execution by the parties thereto, and may not be used to satisfy any notice
requirements hereunder.
(d) Reliance by the Administrative Agent and Lenders. The
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Notices of Borrowing and Swing Line Loan Notices)
purportedly given by or on behalf of the Borrowers even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof,
provided, however, the Administrative Agent and/or the Lenders, as applicable,
shall use their best efforts to comply with any such confirmation upon receipt
thereof. Each Borrower shall indemnify each Agent-Related Person and each Lender
from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of such Borrower.
All telephonic notices to and other communications with the Administrative Agent
may be recorded by the Administrative Agent, and each of the parties hereto
hereby consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES.
No failure by any Lender or the Administrative Agent to exercise, and
no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein or therein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
10.04 ATTORNEY COSTS, EXPENSES AND TAXES.
Subject to the provisions of Section 10.22, the Borrowers agree (a) to
pay or reimburse the Administrative Agent for all reasonable costs and
out-of-pocket expenses incurred in connection with the development, preparation,
negotiation and execution of this Agreement and the other Loan Documents and any
amendment, waiver, consent or other modification of the provisions hereof and
thereof (whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated
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hereby and thereby, including all Attorney Costs and costs and out-of-pocket
expenses in connection with the use of IntraLinks, Inc. or other similar
information transmission systems in connection with this Agreement, and (b) to
pay or reimburse the Administrative Agent and each Lender for all costs and
out-of-pocket expenses incurred in connection with the enforcement or
preservation of any rights or remedies under this Agreement or the other Loan
Documents (including during any legal proceeding, including any proceeding under
any Debtor Relief Law), including all Attorney Costs. The foregoing costs and
expenses shall include all search, filing, recording, title insurance and
appraisal charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Administrative Agent and, during the continuance of an
Event of Default, the cost of independent public accountants and other outside
experts retained by the Administrative Agent. The agreements in this Section
shall survive the termination of the Aggregate Commitments and repayment of all
other Obligations.
10.05 INDEMNIFICATION BY THE BORROWERS.
Whether or not the transactions contemplated hereby are consummated,
the Borrowers agree to indemnify, save and hold harmless each Agent-Related
Person, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against: (a) any and all claims, demands, actions or
causes of action that are asserted against any Indemnitee by any Person (other
than the Administrative Agent or any Lender) relating directly or indirectly to
a claim, demand, action or cause of action that such Person asserts or may
assert against any Loan Party, any Affiliate of any Loan Party or any of their
respective officers or directors; (b) any and all claims, demands, actions or
causes of action that may at any time (including at any time following repayment
of the Obligations and the resignation of the Administrative Agent or the
replacement of any Lender) be asserted or imposed against any Indemnitee,
arising out of or relating to, the Loan Documents, any predecessor loan
documents, any Commitment, the use or contemplated use of the proceeds of any
Credit Extension, or the relationship of any Loan Party, the Administrative
Agent and the Lenders under this Agreement or any other Loan Document; (c) any
administrative or investigative proceeding by any Governmental Authority arising
out of or related to a claim, demand, action or cause of action described in
subsection (a) or (b) above; and (d) any and all liabilities (including
liabilities under indemnities), losses, and reasonable out-of-pocket costs or
expenses (including reasonable Attorney Costs) that any Indemnitee suffers or
incurs as a result of the assertion of any foregoing claim, demand, action,
cause of action or proceeding, or as a result of the preparation of any defense
in connection with any foregoing claim, demand, action, cause of action or
proceeding, in all cases, whether or not arising out of the negligence of an
Indemnitee, and whether or not an Indemnitee is a party to such claim, demand,
action, cause of action or proceeding (all the foregoing, collectively, the
"Indemnified Liabilities"); provided that no Indemnitee shall be entitled to
indemnification for any claim determined in a final, nonappealable judgment by a
court of competent jurisdiction to have been caused primarily by its own gross
negligence or willful misconduct or the gross negligence or willful misconduct
of its employees, officers or directors or for any loss asserted against it by
another Indemnitee. No Indemnitee shall be liable to any Loan Party for any
damages arising from the use by others of any information or other materials
obtained through IntraLinks, Inc. or other similar information transmission
systems in connection with this Agreement. Notwithstanding any of the foregoing
terms of Section 10.05 to the contrary, the Dutch Borrower shall only be
required to indemnify Indemnitees for Indemnified Liabilities which arise out of
or
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relate to Offshore Currency Loans or Offshore Currency Swing Line Loans. The
agreements in this Section shall survive the termination of the Aggregate
Commitments and repayment of all other Obligations.
10.06 PAYMENTS SET ASIDE.
To the extent that the Borrowers make a payment to the Administrative
Agent or any Lender, or the Administrative Agent or any Lender exercises its
right of set-off, and such payment or the proceeds of such set-off or any part
thereof (or the Dollar Equivalent amount thereof) is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Administrative Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid
by the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the applicable
Overnight Rate from time to time in effect, in the applicable currency of such
recovery or payment.
10.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that neither Borrower may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by either Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in L/C Obligations) at the time owing to it);
provided that (i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time owing to
it or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) of the assigning
Lender subject to each such assignment, determined as of the date the Assignment
and Assumption Agreement with respect to such assignment is delivered to the
Administrative Agent, shall not be less than $5,000,000, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the US Borrower for itself and on behalf of the Dutch Borrower
otherwise consent (each such consent not to be unreasonably withheld or
delayed), (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this
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Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to rights in respect of outstanding Swing Line
Loans, and (iii) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption Agreement, together with a
processing and recordation fee of $3,500 (such fee to be waived in the case of
assignments to an Approved Fund or an Affiliate of a Lender). Subject to
acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in
each Assignment and Assumption Agreement, the Eligible Assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption Agreement, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption Agreement, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption Agreement covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 3.07, 10.04 and
10.05). Upon request, the Borrowers (at its expense) shall execute and deliver
new or replacement Notes to the assigning Lender and the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this subsection (or Section 2.07(c) or Section 2.15,
as applicable) shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section. Notwithstanding anything herein to the contrary,
no Lender shall have the right to sell, assign, transfer, negotiate or sell
participations in all or any part of any Negotiated Rate Loan or Negotiated Rate
Loans made by such Lender; provided, however, in the event that a Lender assigns
the full amount of its Revolving Loans, Offshore Currency Loans, Revolving Loan
Commitments and other Obligations and such Lender has any outstanding Negotiated
Rate Loans at the time of such assignment, such Lender must also assign the full
amount of such Negotiated Rate Loans to such Eligible Assignee. Notwithstanding
anything to the contrary set forth above, any Lender may (without requesting the
consent of the Borrowers, the Administrative Agent) pledge its Loans to a
Federal Reserve Bank in accordance with applicable regulations. Notwithstanding
anything to the contrary contained herein, any Lender (a "Granting Lender") may
grant to a special purpose funding vehicle (an "SPC"), identified as such in
writing from time to time by the Granting Lender to the Administrative Agent and
the US Borrower, the option to provide to the Borrowers all or any part of any
Revolving Loan or Offshore Currency Loan that such Granting Lender would
otherwise be obligated to make to the Borrowers pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPC to
make any Revolving Loan or Offshore Currency Loan, (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such
Revolving Loan or Offshore Currency Loan, the Granting Lender shall be obligated
to make such Loan pursuant to the terms hereof, and (iii) the Granting Lender
shall be and remain obligated to the Borrowers, the Administrative Agent, and
the other Lenders for each and every one of the obligations of the Granting
Lender and its SPC with respect to this Agreement, including, without
limitation, any indemnification obligations hereunder and any sums otherwise
payable to the Borrowers by the SPC. Each Granting Lender shall on behalf of,
and to the exclusion of, the SPC give and receive all communications and notices
and take all actions hereunder, including, without limitation, votes, approvals,
waivers, consents and amendments under this Agreement or the other Loan
Documents. The making of a Loan by an SPC hereunder shall utilize the applicable
Commitment of the Granting Lender to the same
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extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPC, it
will not institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
10.07, any SPC may (i) with notice to, but without the prior written consent of,
the US Borrower and the Administrative Agent and without paying any processing
fee therefor, assign all or a portion of its interests in any Revolving Loans or
Offshore Currency Loans to the Granting Lender or to any financial institutions
(consented to by the US Borrower and the Administrative Agent) providing
liquidity and/or credit support to or for the account of such SPC to support the
funding or maintenance of Loans and (ii) disclose pursuant to a written
confidentiality agreement any non-public information relating to its Revolving
Loans or Offshore Currency Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC. This section may not be amended without the written consent of each
Granting Lender, all or any of whose Loans are being funded by an SPC at the
time of such amendment. It is understood and acknowledged that the Granting
Lender shall for all purposes, including, without limitation, the approval of
any amendment or waiver of any provision of any Loan Document or the obligation
to pay any amount otherwise payable by the Granting Lender under the Loan
Documents, continue to be the Lender of record hereunder.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption Agreement delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be presumptively correct absent manifest error,
and the Borrowers, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the Borrowers
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Any Lender may, without the consent of, or notice to, the Borrowers
or the Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and/or
obligations under this Agreement (including all or a portion of its Commitment
and/or the Loans (including such Lender's participations in L/C Obligations)
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrowers, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any
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provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification that would (i) postpone any date
upon which any payment of money is scheduled to be paid to such Participant, or
(ii) reduce the principal, interest, fees or other amounts payable to such
Participant. Subject to subsection (e) of this Section, the Borrowers agree that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.09
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.14 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the US Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the US
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section
10.15 as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its
Notes, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) If the consent of the US Borrower to an assignment or to an
Eligible Assignee is required hereunder (including a consent to an assignment
which does not meet the minimum assignment threshold specified in clause (i) of
the proviso to the first sentence of Section 10.07(b)), the US Borrower shall be
deemed to have given its consent ten Business Days after the date notice thereof
has been delivered by the assigning Lender (through the Administrative Agent)
unless such consent is expressly refused by the US Borrower prior to such tenth
Business Day.
(h) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural Person) approved by (i) the Administrative Agent, in the case
of any assignment of a Loan, (ii) any L/C Issuer, in the case of any
assignment of a Revolving Loan Commitment or any portion thereof, (iii)
the Swing Line Lender, in the case of any assignment of a Revolving
Loan Commitment or any portion thereof, and (iv) unless (A) such Person
is taking delivery of an assignment in connection with physical
settlement of a credit derivatives transaction or (B) an Event of
Default has occurred and is continuing, the US Borrower (each such
approval referred to in clauses (i) through (iv) not to be unreasonably
withheld or delayed); provided that any such Eligible Assignee must
also be able to lend in euro and in Dollars.
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"Fund" means any Person (other than a natural Person) that is
(or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the
ordinary course of its business.
"Approved Fund" means any Fund that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
(i) Notwithstanding anything to the contrary contained herein, if at
any time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may upon (i) 30 days' notice to the US
Borrower and the Lenders, resign as a L/C Issuer and/or (ii) upon 30 days notice
to the US Borrower, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or termination of the Swing Line, the US Borrower
shall be entitled to appoint from among the Lenders a successor L/C Issuer or
Swing Line Lender hereunder; provided, however, that no failure by the US
Borrower to appoint any such successor shall affect the resignation of Bank of
America as L/C Issuer or Swing Line Lender, as the case may be . Bank of America
shall retain all the rights and obligations of an L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Loans or fund
participations in Unreimbursed Amounts pursuant to Section 2.04(c)). If Bank of
America terminates the Swing Line, it shall retain all the rights of the Swing
Line Lender provided for hereunder with respect to Swing Line Loans made by it
and outstanding as of the effective date of such termination, including the
right to require the Lenders to make Base Rate Loans or Offshore Currency Loans
or fund participations in outstanding Swing Line Loans pursuant to Section
2.06(c).
10.08 CONFIDENTIALITY.
Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential); (b) to the extent requested by any regulatory
authority (with prior notice of such disclosure to the US Borrower to the extent
practicable and not in violation of any Laws); (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process (with
prior notice of such disclosure to the US Borrower to the extent practicable and
not in violation of any Laws); (d) to any other party to this Agreement; (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder;
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any Eligible Assignee of or Participant in, or any
prospective Eligible Assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Borrowers; (g) with the consent of
the US Borrower; (h) to the extent such Information becomes publicly available
other than as a result of a breach of this Section; or (i) to the National
Association of Insurance Commissioners or any
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other similar organization or any nationally recognized rating agency that
requires access to information about a Lender's or its Affiliates' investment
portfolio in connection with ratings issued with respect to such Lender or its
Affiliates. In addition, the Administrative Agent and the Lenders may disclose
the existence of this Agreement and the terms hereof and information about this
Agreement to market data collectors, similar service providers to the lending
industry, and service providers to the Administrative Agent and the Lenders in
connection with the administration and management of this Agreement, the other
Loan Documents, the Commitments, and the Credit Extensions. For the purposes of
this Section, "Information" means all information received from the Borrowers
relating to either Borrower or its business, other than any such information
that is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by such Borrower. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
10.09 SET-OFF.
In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each
Lender is authorized at any time and from time to time, without prior notice to
either of the Borrowers or any other Loan Party, any such notice being waived by
each of the Borrowers (on its own behalf and on behalf of each Loan Party) to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final (but not trust
accounts)) at any time held by, and other indebtedness at any time owing by,
such Lender to or for the credit or the account of the applicable Loan Party
against any and all Obligations then due and owing to such Lender by such Loan
Party, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document. Each Lender agrees promptly to notify the US
Borrower and the Administrative Agent after any such set-off and application
made by such Lender; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application.
10.10 INTEREST RATE LIMITATION.
Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall
not exceed the maximum rate of non-usurious interest permitted by applicable Law
(the "Maximum Rate"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the applicable Borrower. In determining whether the
interest contracted for, charged, or received by the Administrative Agent or a
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest without prejudice to the rights of
the Loan Parties under the Loan Documents, (b) exclude voluntary prepayments and
the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or
unequal parts the total amount of interest throughout the contemplated term of
the Obligations.
98
10.11 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
10.12 INTEGRATION.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in
favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was
drafted with the joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by
the Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or Event of Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.
10.14 SEVERABILITY.
Any provision of this Agreement and the other Loan Documents to which
either Borrower is a party that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions thereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.15 FOREIGN LENDERS.
Each Lender that is not a "United States person" within the meaning of
Section 7701(a)(30) of the Code (a "Foreign Lender") shall deliver to the
Administrative Agent, prior to receipt of any payment subject to withholding
under the Code (or upon accepting an assignment of an interest herein), two duly
signed completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Person and entitling it to an exemption from, or reduction of,
withholding tax on all payments to be made to such Person by the Borrowers
pursuant to this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Person by the Borrowers pursuant to
this Agreement) or such other evidence satisfactory
99
to the US Borrower and the Administrative Agent that such Person is entitled to
an exemption from, or reduction of, U.S. withholding tax. Thereafter and from
time to time, each such Person shall (a) promptly submit to the Administrative
Agent such additional duly completed and signed copies of one of such forms (or
such successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is satisfactory
to the US Borrower and the Administrative Agent of any available exemption from
or reduction of, United States withholding taxes in respect of all payments to
be made to such Person by the Borrowers pursuant to this Agreement, (b) promptly
notify the Administrative Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (c) take such
steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable
Laws that the Borrowers make any deduction or withholding for taxes from amounts
payable to such Person. If such Person fails to deliver the above forms or other
documentation, then the Administrative Agent may withhold from any interest
payment to such Person an amount equivalent to the applicable withholding tax
imposed by Sections 1441 and 1442 of the Code, without reduction. If any
Governmental Authority asserts that the Administrative Agent did not properly
withhold any tax or other amount from payments made in respect of such Person,
such Person shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation of the
Lenders under this Section shall survive the termination of the Aggregate
Commitments, repayment of all Obligations and the resignation or replacement of
the Administrative Agent.
10.16 REPLACEMENT OF LENDERS.
(a) Under any circumstances set forth herein providing that the
Borrowers shall have the right to replace a Lender as a party to this Agreement,
the US Borrower may, upon notice to such Lender and the Administrative Agent
replace such Lender by causing such Lender to assign its Commitment (without
payment of any assignment fee) pursuant to Section 10.07(b) to one or more other
Lenders or Eligible Assignees procured by the Borrowers; provided, however, that
if the US Borrower elects to exercise such right with respect to any Lender
pursuant to Section 3.06(b), it shall be obligated to replace all Lenders that
have made similar requests for similar relative amounts of compensation pursuant
to Section 3.01 or 3.04. The applicable Borrower shall (x) pay in full all
principal, interest, fees and other amounts owing to such Lender through the
date of replacement (including any amounts payable pursuant to Section 3.05),
(y) provide appropriate assurances and indemnities (which may include letters of
credit) to the L/C Issuers and the Swing Line Lender as each may reasonably
require with respect to any continuing obligation to purchase participation
interests in any L/C Obligations or any Swing Line Loans then outstanding, and
(z) release such Lender from its obligations under the Loan Documents. Any
Lender being replaced shall execute and deliver an Assignment and Assumption
Agreement with respect to such Lender's Commitment and outstanding Credit
Extensions. The Administrative Agent shall distribute an amended Schedule 2.01,
which shall be deemed incorporated into this Agreement, to reflect changes in
the identities of the Lenders and adjustments of their respective Commitments
and/or Pro Rata Shares resulting from any such replacement.
100
(b) This section shall supersede any provision in Section 10.01 to the
contrary.
10.17 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT,
EACH LENDER AND EACH LOAN PARTY SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL
LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
SITTING IN NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH
STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO. EACH BORROWER, THE ADMINISTRATIVE AGENT AND EACH
LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
Pursuant to the above submission to jurisdiction, the Dutch Borrower
agrees that service of all pleadings, complaints, writs, process or summonses in
any such suit, action or proceeding brought in such forum may be made upon the
U.S. Borrower at the address provided for such notices under this Agreement (the
"Process Agent"), and the Dutch Borrower hereby irrevocably appoints the Process
Agent as its agent and true and lawful attorney-in-fact in its name, place and
stead to accept and acknowledge on its behalf such service brought in any such
court. The Dutch Borrower agrees and consents that any such service upon the
Dutch Borrower shall be taken and held to be valid personal service upon the
Dutch Borrower and that the failure of the Process Agent to actually give notice
of any such service to the Dutch Borrower shall not impair or affect the
validity of such service or of any judgment based thereon, and the Dutch
Borrower waives all claim of error by reason of any such service. Any notice,
process, pleadings or other papers served upon the Process Agent for the Dutch
Borrower shall, at the same time, be sent by an authorized method described
above for the giving of notice hereunder to the Dutch Borrower at its address
set forth herein. The Dutch Borrower hereby further irrevocably consents to the
service of process in any suit, action or proceeding in said courts by the
mailing thereof by the Agent by registered or certified mail, postage prepaid,
to the Dutch Borrower at the address for the Dutch Borrower specified herein.
The Dutch Borrower acknowledges that, in appointing said agent, it is its
intention that such service shall be deemed to satisfy the requirements of all
laws and rules of each country in which the Dutch Borrower is organized and in
which it
101
maintains its chief executive office governing service of process, whether now
or hereafter in effect.
10.18 WAIVER OF RIGHT TO TRIAL BY JURY.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL
BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.19 ENTIRE AGREEMENT.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF OR THEREOF
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR OR CONTEMPORANEOUS WRITTEN
AGREEMENTS, OR SUBSEQUENT ORAL AGREEMENTS, OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
10.20 UNRESTRICTED SUBSIDIARIES.
(a) Subject to Section 6.15(c), the US Borrower may from time to time
after the Effective Date designate any Subsidiary which is not a Domestic
Subsidiary as an Unrestricted Subsidiary provided that (i) such designation
shall be made in writing to the Administrative Agent, (ii) no such designation
may be made if, as a result thereof, there would exist a breach of Section
7.07(c) or (d), (iii) no such designation may be made without the consent of the
Administrative Agent with respect to any Material Subsidiary, (iv) no Subsidiary
which holds any direct or indirect equity Investment in the US Borrower or any
Restricted Subsidiary may be designated as an Unrestricted Subsidiary, and (v)
no Subsidiary which has been designated as a Restricted Subsidiary pursuant to
the following sentence or any successor thereto may be designated as an
Unrestricted Subsidiary without the consent of the Administrative Agent. A
Subsidiary designated as an Unrestricted Subsidiary may be subsequently
redesignated as a Restricted Subsidiary only upon written notice to the
Administrative Agent.
(b) Notwithstanding any provision herein to the contrary, including any
requirement that relevant determinations be made in accordance with GAAP, all
financial calculations hereunder and financial statements delivered pursuant to
Section 6.01(a)(ii) and Section 6.01(b)(ii) (including all calculations relevant
to financial covenant compliance and Leverage
102
Ratio levels) shall be made or prepared, as applicable, excluding entirely the
assets, liabilities, income, loss, results of operations or other items of
financial accounting of any Unrestricted Subsidiary or the value of any
Investment therein.
10.21 CONSENT TO CONSOLIDATED AMENDMENT TO GUARANTIES. The Lenders and
the Administrative Agent hereby consent to the amendments to the Guaranties as
set forth in the Consolidated Amendment to Guaranties.
10.22 SEVERAL LIABILITY OF BORROWERS. The parties hereto acknowledge
and agree that the respective obligations of the Borrowers under this Agreement
and the Notes are several and not joint, and the Dutch Borrower shall not be
liable for Obligations other than those arising out of or relating to the
Offshore Currency Loans or Offshore Currency Swing Line Loans made to the Dutch
Borrower.
103
EXHIBIT A-1
FORM OF NOTICE OF BORROWING
______ __, 200_
Bank of America, N.A.,
as Administrative Agent for the Lenders party to the
Credit Agreement referred to below
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, Libbey Glass Inc., refers to the Amended and
Restated
Revolving Credit Agreement, dated as of February ___, 2003 (as the same
may be amended, restated, supplemented or otherwise modified from time to time,
the "Credit Agreement"; the terms defined therein being used herein as therein
defined), among the undersigned, Libbey Europe, B.V., the financial institutions
party thereto (the "Lenders"), Bank of America, N.A., as Administrative Agent,
as Swing Line Lender and as an L/C Issuer and Bank One, NA and Fleet National
Bank, as Syndication Agents and hereby gives you notice pursuant to Section 2.02
of the Credit Agreement that the undersigned hereby requests a Borrowing under
the Credit Agreement and, in that connection, sets forth below the information
relating to such Borrowing, as required by subsection 2.02(a) of the Credit
Agreement:
1. [INCLUDE IF LOANS BEING REQUESTED ARE REVOLVING
LOANS: The aggregate amount of the proposed Borrowing
is $______________.][INCLUDE IF LOANS BEING REQUESTED
ARE OFFSHORE CURRENCY LOANS: The aggregate amount of
the proposed Borrowing is $______________.](1)
2. The requested Borrowing date for the proposed
Borrowing (which is a Business Day) is
______________, ____.
3. [INCLUDE IF LOANS BEING REQUESTED ARE REVOLVING
LOANS: The Revolving Loans comprising the proposed
Borrowing are [Base] [Eurodollar] Rate Loans].
[INCLUDE IF LOANS BEING REQUESTED ARE NEGOTIATED RATE
LOANS: The Loans being requested shall be Negotiated
Rate Loans and shall mature on _______ __, ________.]
--------------
(1) In the case of Revolving Loans or Offshore Currency Loans, minimum of the
Dollar Equivalent of $2,500,000 or any Dollar Equivalent multiple of
$500,000 in excess thereof. In the case of Negotiated Rate Loans, minimum
amounts may be as agreed upon by the Borrower and the applicable Revolving
Lender.
4. [INCLUDE IF LOANS BEING REQUESTED ARE REVOLVING LOANS
OR OFFSHORE CURRENCY LOANS: The duration of the
Interest Period for each Fixed Rate Loan made as part
of the proposed Borrowing, if applicable, is
__________ months (which shall be 1, 2, 3 or 6 months
or, if available to all Lenders, 9 or 12 months)].
5. [INCLUDE IF LOANS BEING REQUESTED ARE NEGOTIATED RATE
LOANS: The institution providing such Negotiated Rate
Loan is _____________.]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the proposed
Borrowing, before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) The representations and warranties contained in
Article V of the Credit Agreement are true and
correct in all material respects as though made on
and as of such date (except (i) to the extent such
representations and warranties expressly refer to an
earlier date, in which case such representations and
warranties are true and correct as of such earlier
date) and (ii) to the extent that changes in the
facts and conditions upon which such representations
and warranties are based are required or permitted
under the Credit Agreement;
(b) No Default or Event of Default has occurred and is
continuing, or would result from such proposed
Borrowing; and
(c) The proposed Borrowing will not cause the amount of
all Outstanding Revolving Credit Obligations to
exceed the combined Revolving Loan Commitment.
[INCLUDE IF THE LOANS BEING REQUESTED ARE NEGOTIATED
RATE LOANS: The proposed Borrowing will not cause the
aggregate Outstanding Amount of Negotiated Rate Loans
to exceed the Negotiated Rate Loan Sublimit.]
[INCLUDE IF THE LOANS BEING REQUESTED ARE OFFSHORE
CURRENCY LOANS: The proposed Borrowing will not cause
the aggregate Outstanding Amount of Offshore Currency
Loans to exceed the Offshore Currency Sublimit.]
Very truly yours,
LIBBEY GLASS INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
- 2 -
EXHIBIT A-2
FORM OF NOTICE OF CONVERSION/CONTINUATION
________ __, 200_
Bank of America, N.A.,
as Administrative Agent for the Lenders party to the
Credit Agreement referred to below
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, Libbey Glass Inc., refers to the Amended and Restated
Revolving Credit Agreement, dated as of February ___, 2003 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
defined), among the undersigned, Libbey Europe B.V., the financial institutions
party thereto, Bank of America, N.A., as Administrative Agent, Swing Line Lender
and an L/C Issuer and Bank One, NA and Fleet National Bank, as Syndication
Agents and hereby gives you notice pursuant to Section 2.02 of the Credit
Agreement that the undersigned hereby requests a [[conversion] [continuation] of
Revolving Loans] [continuation of Offshore Currency Loans] under the Credit
Agreement, and in that connection sets forth below the information relating to
such [conversion] [continuation], as required by subsection 2.02(a) of the
Credit Agreement:
1. The date of the proposed [conversion] [continuation]
is _______________, (which shall be a Business Day).
2. The aggregate amount of the [Revolving
Loans][Offshore Currency Loans] proposed to be
[converted] [continued] is $__________________(2).
[Specify which part is to be converted and which part
is to be continued, if appropriate.]
3. [INCLUDE IF LOANS BEING CONVERTED OR CONTINUED ARE
REVOLVING LOANS: The Loans to be [continued]
[converted] are [Base Rate Loans] [Eurodollar Rate
Loans] and the Loans resulting from the proposed
[conversion] [continuation] will be [Base Rate Loans]
[Eurodollar Rate Loans].]
4. The duration of the requested Interest Period for
each Fixed Rate Loan made as part of the proposed
[conversion] [continuation] is months (which shall be
1, 2, 3, 6 months or, if available to all Lenders, 9
or 12 months).
-------------
(2) minimum of the Dollar Equivalent of $2,500,000 or any Dollar Equivalent
multiple of $500,000 in excess thereof.
The undersigned hereby certifies that before and after giving
effect to the proposed [conversion] [continuation] and to the application of the
proceeds therefrom, no Default or Event of Default has occurred and is
continuing or would result from such proposed [conversion] [continuation].
Very truly yours,
LIBBEY GLASS INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
- 3 -
The undersigned hereby certifies that before and after giving
effect to the proposed [conversion] [continuation] and to the application of the
proceeds therefrom, no Default or Event of Default has occurred and is
continuing or would result from such proposed [conversion] [continuation].
Very truly yours,
LIBBEY GLASS INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
- 4 -
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Swing Line Lender
Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated
Revolving Credit
Agreement, dated as of February ___, 2003 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined),
among Libbey Glass Inc., a Delaware corporation, Libbey Europe B.V., a company
organized and existing under the laws of the Netherlands, the Lenders from time
to time party thereto, Bank of America, N.A., as Administrative Agent, an L/C
Issuer and Swing Line Lender and Bank One, NA and Fleet National Bank, as
Syndication Agents.
The undersigned hereby requests [INCLUDE IF LOANS BEING REQUESTED ARE US SWING
LINE LOANS: a US Swing Line Loan][INCLUDE IF LOANS BEING REQUESTED ARE OFFSHORE
CURRENCY SWING LINE LOANS: an Offshore Currency Swing Line LOAN]:
1. On _____________ (a Business Day).
2. In the amount of [INCLUDE IF LOANS BEING REQUESTED ARE US SWING LINE LOANS:
$________________][INCLUDE IF LOANS BEING REQUESTED ARE OFFSHORE CURRENCY SWING
LINE LOANS: $________________].
The Swing Line Borrowing requested herein complies with the requirements of the
proviso to the first sentence of Section 2.06(a) of the Agreement.
[INCLUDE IF LOANS BEING
REQUESTED ARE US SWING LINE
LOANS:
LIBBEY GLASS INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
- 5 -
[INCLUDE IF LOANS BEING
REQUESTED ARE OFFSHORE
CURRENCY SWING LINE LOANS:
LIBBEY EUROPE B.V.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
- 6 -
EXHIBIT C-1
FORM OF REVOLVING LOAN NOTE
February ___, 2003
FOR VALUE RECEIVED, the undersigned, LIBBEY GLASS INC., a Delaware corporation
(the "US Borrower"), promises to pay to the order of __________________ (the
"Lender") on the Revolving Loan Termination Date (as such term is defined in the
Amended and Restated
Revolving Credit Agreement, dated as of February ___, 2003
(as amended or modified from time to time, the "Credit Agreement")), among the
US Borrower, Libbey Europe B.V. (the "Dutch Borrower"), Bank of America, N.A.,
as Administrative Agent, L/C Issuer and Swing Line Lender, and Bank One, NA and
Fleet National Bank, as Syndication Agents and the various financial
institutions (including the Lender) as are, or may become parties thereto, the
aggregate unpaid principal amount of all Revolving Loans made by the Lender to
the US Borrower from time to time pursuant to the Credit Agreement. A notation
indicating all Revolving Loans made by the Lender pursuant to the Credit
Agreement and payments on account of the principal of such Revolving Loans may,
from time to time, be made by the holder hereof on the grid attached to this
note (the "Note"). Unless defined herein or the context otherwise requires,
terms used herein have the meanings provided in the Credit Agreement.
Interest upon the unpaid principal amount hereof shall accrue at the
rates, shall be calculated in the manner and shall be payable on the dates set
forth in the Credit Agreement. Both principal and interest shall be payable in
accordance with the Credit Agreement to the account designated by the
Administrative Agent on behalf of the Lender.
This Note is one of the Notes referred to in, and evidences
indebtedness incurred in respect of the Loans under, the Credit Agreement, to
which reference is made for a statement of the terms and conditions on which the
US Borrower is permitted and required to make prepayments of principal of the
indebtedness evidenced by this Note and on which such indebtedness may be
declared to be immediately due and payable.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF
LAWS PROVISIONS, OF THE STATE OF NEW YORK BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
LIBBEY GLASS INC.
By:
--------------------------
Title:
-----------------------
- 7 -
REVOLVING LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF PRINCIPAL OR OUTSTANDING PRINCIPAL
DATE AMOUNT OF LOAN MADE INTEREST PAID THIS DATE BALANCE THIS DATE NOTATION MADE BY
-------------------- ---------------------- --------------------------- ------------------------------ -------------------------
- 8 -
EXHIBIT C-2
FORM OF NEGOTIATED RATE LOAN NOTE
--------- --, -----
FOR VALUE RECEIVED, LIBBEY GLASS INC., a Delaware corporation
("Borrower"), promises to pay to the order of ________________ ("Lender") the
unpaid principal amount of each advance made by Lender to Borrower as a
Negotiated Rate Loan under the Credit Agreement referred to below on the
maturity date set forth in the Notice of Borrowing relating to such Negotiated
Rate Loan.
Borrower also promises to pay interest on the unpaid principal
amount of each Negotiated Rate Loan from the date such Negotiated Rate Loan is
made until paid in full, at the rates and at the times agreed to between
Borrower and Lender in accordance with the provisions of the Credit Agreement
referred to below.
This Note is one of Borrower's "Negotiated Rate Loan Notes" and is
issued pursuant to and entitled to the benefits of the Amended and Restated
Revolving Credit Agreement dated as of February ___, 2003 (as such agreement may
be amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"; capitalized terms used herein without definition shall have
the meanings assigned those terms in the Credit Agreement) and entered into by
and among Borrower, the financial institutions party thereto (including Lender),
Bank of America, N.A., as administrative agent and Bank One NA and Fleet
National Bank, as syndication agents and to which reference is hereby made for a
more complete statement of the terms and conditions under which the Negotiated
Rate Loan evidenced hereby was made and is to be repaid.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF
LAWS PROVISIONS, OF THE STATE OF NEW YORK BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
LIBBEY GLASS INC.
By:
----------------------------
Title:
-------------------------
- 9 -
EXHIBIT C-3
FORM OF US SWING LINE NOTE
February ___, 2003
FOR VALUE RECEIVED, the undersigned (the "US Borrower"), hereby
promises to pay to the order of Bank of America, N.A. ("Swing Line Lender"), on
the date when due in accordance with the Agreement referred to below, the
aggregate unpaid principal amount of each US Swing Line Loan from time to time
made by the Swing Line Lender to the US Borrower under that certain Amended and
Restated Revolving Credit Agreement, dated as of February ___, 2003 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined), among the US Borrower, Libbey Europe B.V., the Lenders from time to
time party thereto, Bank of America, N.A., as Administrative Agent, an L/C
Issuer and Swing Line Lender and Bank One, NA and Fleet National Bank, as
Syndication Agents.
The US Borrower promises to pay interest on the unpaid principal amount
of each US Swing Line Loan from the date of such US Swing Line Loan until such
principal amount is paid in full, at such interest rates and at such times as
provided in the Agreement.
All payments of principal and interest shall be made to the Swing Line
Lender in Dollars in immediately available funds at its applicable Lending
Office as set forth in the Agreement.
If any amount is not paid in full when due hereunder, such unpaid
amount shall bear interest, to be paid upon demand, from the due date thereof
until the date of actual payment (and before as well as after judgment) computed
at the per annum rate set forth in the Agreement.
This Note is the US Swing Line Note referred to in the Agreement, is
entitled to the benefits thereof and is subject to optional prepayment in whole
or in part as provided therein. This Note is also entitled to the benefits of
the Loan Documents. Upon the occurrence and continuance of one or more of the
Events of Default specified in the Agreement, all amounts then remaining unpaid
on this Note shall become, or may be declared to be, immediately due and payable
all as provided in the Agreement. US Swing Line Loans made by the Swing Line
Lender shall be evidenced by one or more loan accounts or records maintained by
Swing Line Lender in the ordinary course of business. The Swing Line Lender may
also attach schedules to this Note and endorse thereon the date, amount and
maturity of the US Swing Line Loans and payments with respect thereto.
Except as expressly provided in the Agreement, the US Borrower, for
itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of
this Note.
- 10 -
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
LIBBEY GLASS INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
- 11 -
US SWING LINE LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF PRINCIPAL OR OUTSTANDING PRINCIPAL
DATE AMOUNT OF LOAN MADE INTEREST PAID THIS DATE BALANCE THIS DATE NOTATION MADE BY
-------------------- ---------------------- --------------------------- ------------------------------ -------------------------
- 12 -
EXHIBIT C-4
FORM OF OFFSHORE CURRENCY LOAN NOTE
February __, 2003
FOR VALUE RECEIVED, the undersigned LIBBEY EUROPE B.V., a company
organized and existing under the laws of the Netherlands (the "Dutch Borrower")
promises to pay to the order of __________________ (the "Lender") on the
Revolving Loan Termination Date (as such term is defined in the Amended and
Restated Revolving Credit Agreement, dated as of February ___, 2003 (as amended
or modified from time to time, the "Credit Agreement")), among the Dutch
Borrower, Libbey Glass Inc., Bank of America, N.A., as Administrative Agent, L/C
Issuer and Swing Line Lender, and Bank One, NA and Fleet National Bank, as
Syndication Agents and the various financial institutions (including the Lender)
as are, or may become parties thereto, the aggregate unpaid principal amount of
all Offshore Currency Loans made by the Lender to the Dutch Borrower pursuant to
the Credit Agreement. A notation indicating all Offshore Currency Loans made by
the Lender pursuant to the Credit Agreement and payments on account of the
principal of such Offshore Currency Loans may, from time to time, be made by the
holder hereof on the grid attached to this note (the "Note"). Unless defined
herein or the context otherwise requires, terms used herein have the meanings
provided in the Credit Agreement.
Interest upon the unpaid principal amount hereof shall accrue at the
rates, shall be calculated in the manner and shall be payable on the dates set
forth in the Credit Agreement. Both principal and interest shall be payable in
accordance with the Credit Agreement to the account designated by the
Administrative Agent on behalf of the Lender.
This Note is one of the Notes referred to in, and evidences
indebtedness incurred in respect of the Loans under, the Credit Agreement, to
which reference is made for a statement of the terms and conditions on which the
Dutch Borrower is permitted and required to make prepayments of principal of the
indebtedness evidenced by this Note and on which such indebtedness may be
declared to be immediately due and payable.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF
LAWS PROVISIONS, OF THE STATE OF NEW YORK BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
LIBBEY EUROPE B.V.
By:
--------------------------------
Title:
--------------------------
- 13 -
OFFSHORE CURRENCY LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF PRINCIPAL OR OUTSTANDING PRINCIPAL
DATE AMOUNT OF LOAN MADE INTEREST PAID THIS DATE BALANCE THIS DATE NOTATION MADE BY
-------------------- ---------------------- --------------------------- ------------------------------ -------------------------
- 14 -
EXHIBIT C-5
FORM OF OFFSHORE CURRENCY SWING LINE NOTE
February ___, 2003
FOR VALUE RECEIVED, the undersigned (the "Dutch Borrower"), hereby
promises to pay to the order of Bank of America, N.A. ("Swing Line Lender"), on
the date when due in accordance with the Agreement referred to below, the
aggregate unpaid principal amount of each Offshore Currency Swing Line Loan from
time to time made by the Swing Line Lender to the Dutch Borrower under that
certain Amended and Restated Revolving Credit Agreement, dated as of February
___, 2003 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among the Dutch Borrower, Libbey Glass Inc., the
Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent, an L/C Issuer and Swing Line Lender and Bank One, NA and
Fleet National Bank, as Syndication Agents.
The Dutch Borrower promises to pay interest on the unpaid principal
amount of each Offshore Currency Swing Line Loan from the date of such Offshore
Currency Swing Line Loan until such principal amount is paid in full, at such
interest rates and at such times as provided in the Agreement.
All payments of principal and interest shall be made to the Swing Line
Lender in euro in immediately available funds at its applicable Lending Office
as set forth in the Agreement.
If any amount is not paid in full when due hereunder, such unpaid
amount shall bear interest, to be paid upon demand, from the due date thereof
until the date of actual payment (and before as well as after judgment) computed
at the per annum rate set forth in the Agreement.
This Note is the Offshore Currency Swing Line Note referred to in the
Agreement, is entitled to the benefits thereof and is subject to optional
prepayment in whole or in part as provided therein. This Note is also entitled
to the benefits of the Loan Documents. Upon the occurrence and continuance of
one or more of the Events of Default specified in the Agreement, all amounts
then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Offshore Currency
Swing Line Loans made by the Swing Line Lender shall be evidenced by one or more
loan accounts or records maintained by Swing Line Lender in the ordinary course
of business. The Swing Line Lender may also attach schedules to this Note and
endorse thereon the date, amount and maturity of the Offshore Currency Swing
Line Loans and payments with respect thereto.
Except as expressly provided in the Agreement, the Dutch Borrower, for
itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of
this Note.
- 15 -
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
LIBBEY EUROPE B.V.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
- 16 -
OFFSHORE CURRENCY SWING LINE LOANS AND
PAYMENTS WITH RESPECT THERETO
AMOUNT OF PRINCIPAL OR OUTSTANDING PRINCIPAL
DATE AMOUNT OF LOAN MADE INTEREST PAID THIS DATE BALANCE THIS DATE NOTATION MADE BY
-------------------- ---------------------- --------------------------- ------------------------------ -------------------------
- 17 -
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ,
------------- ---
To: Bank of America, N.A.,
as Administrative Agent for the Lenders party to the
Credit Agreement referred to below
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Agency Management #10831
Mail Code CA5-701-05-19
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Revolving Credit
Agreement, dated as of February ___, 2003 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined),
among Libbey Glass Inc. (the "US Borrower"), Libbey Europe B.V., (the "Dutch
Borrower," and collectively with the US Borrower, the "Borrowers"), the Lenders
from time to time party thereto, Bank of America, N.A., as the Administrative
Agent, L/C Issuer and Swing Line Lender, and Bank One, NA and Fleet National
Bank, as Syndication Agents.
The undersigned Responsible Officer hereby certifies, in his/her
capacity as an officer of the US Borrower and not individually, as of the date
hereof that he/she is the _________________ of the US Borrower, and that, as
such, he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the US Borrower, and that:
[Use following for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the fiscal
year of the US Borrower ended as of the above date, together with the
report and opinion of an independent certified public accountant
required by such section.
[Use following for fiscal QUARTER-END financial statements]
2. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of
the US Borrower ended as of the above date. Such financial statements
fairly present the financial condition, results of operations and cash
flows of Holdings and its Restricted Subsidiaries in accordance with
GAAP as at such date and for such period, subject only to normal
year-end audit adjustments and the absence of footnotes.
- 18 -
3. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her
supervision, a detailed review of the transactions and condition
(financial or otherwise) of the Borrowers during the accounting period
covered by the attached financial statements.
4. A review of the activities of the Borrowers during such fiscal period
has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the US Borrower performed
and observed all its Obligations under the Loan Documents, and
5. [select one:]
[to the best knowledge of the undersigned during such fiscal period,
the US Borrower performed and observed each covenant and condition of
the Loan Documents applicable to it.]
--or--
[the following covenants or conditions have not been performed or
observed and the following is a list of each such Default or Event of
Default and its nature and status:]
4. The financial covenant analyses and information set forth on Schedule 2
attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of , .
------------------- ------------
LIBBEY GLASS INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
- 19 -
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. SECTION 7.14(a) - LEVERAGE RATIO.
A. Consolidated Total Indebtedness at Statement Date
1. The outstanding principal amount of all obligations,
whether current or long-term, for borrowed money
(including Obligations hereunder but excluding COLI
Debt), and all obligations evidenced by bonds,
debentures, notes, loan agreements or other similar
instruments, in each case determined in accordance with
GAAP:
$
-------
2. Receivables Facility Attributed Indebtedness
$
-------
3. Attributable Indebtedness in respect of capital leases
and Synthetic Lease Obligations
$
-------
4. Without duplication, all Guaranty Obligations with
respect to Indebtedness of the types specified in
sections (1) through (3) above of Persons other than
Holdings or any Restricted Subsidiary to the extent
the aggregate amount thereof exceeds $30,000,000
$
-------
5. Lines I.A.1+2+3+4
$
-------
B. Consolidated EBITDA for four consecutive fiscal quarters
ending on above date ("Subject Period"):
1. Consolidated Net Income for Subject Period:
$
-------
2. Consolidated Interest Charges for Subject Period:
$
-------
3. Provision for income taxes included in the
determination of Consolidated Net Income
for Subject Period:
$
-------
4. Depreciation and amortization expenses deducted
in determining such Consolidated Net Income for
Subject Period:
$
-------
5. Cash dividends received in respect of equity
investments for Subject Period:
$
-------
6. Restructuring Charge included in the determination of
Consolidated Net Income for the Subject Period:
$
-------
7. Other non-cash charges as disclosed in the financial
statements or footnotes thereto included in the
determination of Consolidated Net Income for
the Subject Period:
$
-------
8. Discounts on the sale of accounts receivable in
connection with Permitted Receivables Purchase
-20-
Facilities included in the determination of
Consolidated Net Income for the Subject Period: $
-------
9. Lines I.B.1 + 2 + 3 + 4 + 5 + 6 + 7 + 8
$
-------
10. Pre-tax earnings (with any pre-tax loss being treated
as a negative amount) from equity investments for
the Subject Period
$
-------
11. Non-cash gains as disclosed in the financial statements
or footnotes thereto included in the determination
of Consolidated Net Income for Subject Period
$
-------
12. Lines I.B.10+11
$
-------
13. Consolidated EBITDA (Line I.B.9 - Line I.B.12)
$
-------
C. Leverage Ratio (Line I.A.5) / (Line I.B.13) ___ to 1
Maximum permitted 3.25 to 1
II. SECTION 7.14(b) - INTEREST COVERAGE RATIO.
A. Consolidated EBITDA for Subject Period (Line I.B.13):
$
--------
B. Consolidated Interest Charges at Statement Date:
$
--------
C. Aggregate Receivables Discount Amount for
Subject Period
$
-------
D. Lines II.B + C
$
--------
E. Interest Coverage Ratio (Line II.A / Line II.D):
to 1
---
Minimum permitted:
3.00 to 1
IV. LIENS
A. 1. Aggregate amount of obligations secured by Liens as
described in subsection 7.01(q) $
--------
2. Maximum amount of Indebtedness secured by such Liens
permitted at any time under subsection 7.01(q)
$ 15,000
V. INVESTMENTS
A. 1. Aggregate amount of advances to officers, directors and
employees for travel, entertainment, relocation and
analogous ordinary business purposes $
--------
2. Maximum permitted at any time under subsection 7.02(c) $ 5,000
B. 1. Aggregate amount of advances to officers, directors and
employees to enable such Persons to purchase stock of
Holdings $
--------
2. Maximum permitted at any time under subsection 7.02(c) $ 10,000
-21-
C. 1. Aggregate amount of loans to Holdings for expenses $
--------
2. Maximum permitted per calendar year under subsection 7.02(j) $ 2,000
D. 1. Aggregate amount of Investments in Foreign Subsidiaries or
Joint Ventures under subsection 7.02(l) $
--------
2. Maximum permitted at any time under subsection 7.02(l) $75,000($125,000 if
Leverage Ratio is less
than 2.25 to 1.00 at time
of investment)
E. 1. Aggregate amount of other Investments $
--------
2. Maximum permitted at any time under subsection 7.02(p) $ 35,000
VI. INDEBTEDNESS
A. 1. Aggregate amount of Indebtedness in respect of capital
leases, Synthetic Lease Obligations and purchase money
obligations for fixed or capital assets as described in
subsection 7.03(d) $
--------
2. Maximum permitted under subsection 7.03(d) $ 50,000
B. 1. Receivables Facility Attributed Indebtedness as described in
subsection 7.03(e) $
--------
2. Maximum permitted under subsection 7.03(e) $ 75,000
C. 1. Indebtedness consisting of financial standby letters of
credit (other than any Letter of Credit) as described in
subsection 7.03(f) $
--------
2. Maximum permitted under subsection 7.03(f) $ 15,000
D. 1. COLI Debt as described in subsection 7.03(j) $
--------
2. Maximum permitted under subsection 7.03(j) $ 20,000
VII. LEASE OBLIGATIONS
A. 1. Aggregate amount of operating leases (other than those
constituting Synthetic Lease Obligations) in the ordinary
course of business $
--------
2. Maximum permitted in such fiscal year under subsection
7.06(b) $ 20,000
-22-
VIII. RESTRICTED PAYMENTS
A. 1. Aggregate amount of Restricted Payments to Holdings for
expenses under subsection 7.07(c) $
--------
2. Maximum permitted per calendar year under subsection 7.07(c) $ 2,000
B. 1. Aggregate amount of Restricted Payments by US Borrower to
Holdings and Restricted Payments in the form of Investments in
Unrestricted Subsidiaries by US Borrower and its Subsidiaries
under subsection 7.07(d) $
--------
2. Maximum permitted under subsection 7.07(d)
(A) If calculated during the period
December 31, 2001 through December
31, 2002, sum of (i) 50% of
Adjusted Consolidated Net Income
for any fiscal quarter after
December 31, 2001 and (ii) 20,000.
(B) If calculated on or after January
1, 2003 , sum of (i) 50% of
Adjusted Consolidated Net Income
for any fiscal quarter after
December 31, 2002 and (ii) 75,000.
IX. CONTINGENT OBLIGATIONS
A. 1. Aggregate amount of other Guaranty Obligations $
--------
2. Maximum permitted at any time under subsection
7.13(e) $ 50,000
B. 1. Aggregate amount of Contingent Obligations with respect to
Surety Instruments $
--------
2. Maximum permitted at any time under subsection
7.13(d) $ 15,000
C. 1. Aggregate amount of Guaranty Obligations of suppliers,
customers, franchisees, and licensees in the ordinary
course of business $
--------
2. Maximum permitted at any time
under subsection 7.13(i) $ 5,000
-23-
EXHIBIT E
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this "Assignment") is
dated as of the Assignment Effective Date set forth below and is entered into by
and between ______________ (the "Assignor") and _____________ (the "Assignee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (the "Credit Agreement"), receipt
of a copy of which is hereby acknowledged by the Assignee. The Standard Terms
and Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment as if set
forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably
sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases
and assumes from the Assignor, subject to and in accordance with the Standard
Terms and Conditions and the Credit Agreement, as of the Assignment Effective
Date inserted by the Administrative Agent as contemplated below, the interest in
and to all of the Assignor's rights and obligations under the Credit Agreement
and any other documents or instruments delivered pursuant thereto that
represents the amount and percentage interest identified below of all of the
Assignor's outstanding rights and obligations under the respective facilities
identified below (including, to the extent included in any such facilities,
Letters of Credit and Swing Line Loans) (the "Assigned Interest"). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided
in this Assignment, without representation or warranty by the Assignor.
1. Assignor:
------------------------------
2. Assignee:
------------------------------ [and is an
Affiliate/Approved Fund(3)]
3. Borrowers: Libbey Glass Inc. and Libbey Europe B.V.
4. Administrative Agent: Bank of America, N.A., as the Administrative
Agent under the Credit Agreement
5. Credit Agreement: The Amended and Restated Revolving Credit Agreement,
dated as of February ___, 2003 among Libbey Glass Inc., Libbey Europe
B.V., the Lenders parties thereto, Bank of America, N.A., as Administrative
Agent, Swing Line Lender and an L/C Issuer, and Bank One NA and Fleet National
Bank, as Syndication Agents
----------------------------------
(3) Select as and if applicable.
-24-
6. Assigned Interest:
Aggregate
Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
Facility Assigned for all Lenders Assigned Commitment/Loans(4)
----------------- --------------- -------- -------------------
------------------------------ ------------------------------- ----------------------------- --------------------------
Revolving Loan Commitment $________________ $________________ ______________%
------------------------------ ------------------------------- ----------------------------- --------------------------
Pro Rata Share of Offshore $________________ $________________ ______________%
Currency Loans
------------------------------ ------------------------------- ----------------------------- --------------------------
Assignment Effective Date: __________________, 20__ [TO BE INSERTED BY
ADMINISTRATIVE AGENT AND WHICH SHALL BE THE ASSIGNMENT EFFECTIVE DATE OF
RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR
--------
[NAME OF ASSIGNOR]
By:
-----------------------------
Title:
ASSIGNEE
--------
[NAME OF ASSIGNEE]
By:
-----------------------------
Title:
Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By:
-------------------------------------
Title:
Consented to:
LIBBEY GLASS INC., on behalf of the Borrowers
By:
-------------------------------------
Title:
------------------------------------------
(4) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
-25-
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION AGREEMENT
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that
(i) it is the legal and beneficial owner of the Assigned Interest, (ii)
the Assigned Interest is free and clear of any lien, encumbrance or
other adverse claim and (iii) it has full power and authority, and has
taken all action necessary, to execute and deliver this Assignment and
to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with any Credit Document, (ii)
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument or
document delivered pursuant thereto, other than this Assignment (herein
collectively the "Credit Documents"), (iii) the financial condition of
the Borrowers, any of their Subsidiaries or Affiliates or any other
Person obligated in respect of any Credit Document or (iv) the
performance or observance by the Borrowers, any of their Subsidiaries
or Affiliates or any other Person of any of their respective
obligations under any Credit Document.
1.2. Assignee. The Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and to consummate the
transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all requirements of an Eligible
Assignee under the Credit Agreement, (iii) from and after the Effective
Date, it shall be bound by the provisions of the Credit Agreement and,
to the extent of the Assigned Interest, shall have the obligations of a
Lender thereunder, (iv) it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered
pursuant to Section 6.01 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and to
purchase the Assigned Interest on the basis of which it has made such
analysis and decision, and (v) if it is a Foreign Lender, attached
hereto is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the
Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Documents, and (ii) it
will perform in accordance with their terms all of the obligations
which by the terms of the Credit Documents are required to be performed
by it as a Lender.
1.3 Assignee's Address for Notices, etc. Attached hereto as
Schedule 1 is all contact information, address, account and other
administrative information relating to the Assignee.
-26-
2. Payments. Payments made with respect to the Assigned
Interest which (a) accrued prior to the Assignment Effective
Date shall be remitted to the Assignor and (b) accrue from and after
the Assignment Effective Date shall be remitted to the Assignee.
3. General Provisions. This Assignment shall be binding upon,
and inure to the benefit of, the parties hereto and their respective
successors and assigns permitted under the Credit Agreement. This
Assignment may be executed in any number of counterparts, which
together shall constitute one instrument. Delivery of an executed
counterpart of a signature page of this Assignment by telecopy shall be
effective as delivery of a manually executed counterpart of this
Assignment. This Assignment shall be governed by, and construed in
accordance with, the law of the State of New York.
-27-
SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION AGREEMENT
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and facsimile
numbers, electronic mail addresses and account and payment information)
SCHEDULE 1.01
EXISTING LETTERS OF CREDIT
1) Beneficiary: Louisiana Department of Labor
Office of Workers' Compensation Administration
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇ ▇▇▇▇▇
Phone: #▇▇▇-▇▇▇-▇▇▇▇
APPLICANT(S): Libbey Glass Inc and Libbey Glass Inc.
on behalf of The ▇▇▇▇▇▇▇▇ Glass Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Amount: $1,000,000.00
2) Beneficiary: Self Insurance Plans
State of California
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
ATTN: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Phone: #▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇
APPLICANT(S): Libbey Glass Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Amount: $741,021.00
3) Beneficiary: State of New York-Chair
Workers' Compensation Board
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTN: Finance Office-Room 301
Phone#▇▇▇-▇▇▇-▇▇▇▇ (▇▇▇▇▇▇▇ ▇▇▇▇▇▇)
APPLICANT(S): Libbey Glass Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Amount: $2,941,647.00
4) Beneficiary: State of New York
Self Insurance ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTN: Finance Office-Room 301
Phone#▇▇▇-▇▇▇-▇▇▇▇ (▇▇▇▇▇▇▇ ▇▇▇▇▇▇)
APPLICANT(S): Libbey Glass Inc.
▇▇▇▇▇▇▇▇ Glass Company
Syracuse China Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Amount: $30,000.00
5) Beneficiary: DeutscheBank
Amount: $3,938,289.68(1)
-----------------------------------------
(1) This Letter of Credit was in effect as of the Effective Date, but terminated prior to the Amendment and Restatement Effective
Date.
SCHEDULE 2.01
REVOLVING LOAN COMMITMENTS AND PRO RATA SHARES
Revolving Loan
Name Of Lender Commitment Pro Rata Shares
-------------- ---------- ---------------
Bank of America, N.A. $ 29,000,000 11.60%
Bank One, NA $ 27,000,000 10.80%
Fleet National Bank $ 24,000,000 9.60%
The Bank of Tokyo-Mitsubishi, Ltd. Chicago Branch $ 22,000,000 8.80%
Credit Industriel et Commercial $ 22,000,000 8.80%
The Bank of New York $ 22,000,000 8.80%
Credit Lyonnais New York Branch $ 22,000,000 8.80%
▇▇ ▇▇▇▇▇▇ Chase Bank $ 22,000,000 8.80%
Fifth Third Bank $ 15,000,000 6.00%
National City Bank $ 15,000,000 6.00%
The Northern Trust Company $ 15,000,000 6.00%
The Bank of Nova Scotia $ 15,000,000 6.00%
Total $250,000,000 100.00%
SCHEDULE 5.09
ENVIRONMENTAL COMPLIANCE
1. ▇▇▇▇▇-Illinois, the predecessor of Libbey, has been named as a
potentially responsible party or other participant in connection with
certain waste disposal sites to which Libbey may also have shipped
wastes and bears some responsibility. Libbey and ▇▇▇▇▇-Illinois have
entered into an indemnification agreement with respect to these matters
in which ▇▇▇▇▇-Illinois has agreed to indemnify Libbey for amounts in
excess of $3 million. ▇▇▇▇▇- Illinois has agreed to defend and has
defended Libbey in a suit instituted by the Board of ▇▇▇▇▇ County Ohio
Commissioners against ▇▇▇▇▇- Illinois, Libbey and numerous other
defendants seeking to recover past and future cost incurred in response
to the release or threatened release of hazardous substances at the
King Road landfill. Libbey anticipates that costs related to the King
Road landfill would be less than $500,000. Additionally, Libbey was
named as a potentially responsible party at the Salco Superfund Site,
the Tyler Street Dump Site, the ▇▇▇▇▇▇▇▇ Avenue Landfill and the Dura
Landfill. These sites have been settled by Libbey for under $500,000,
and no further sums are expected to be paid with respect to these
sites.
2. Libbey's Toledo, Ohio manufacturing facility was assessed in 1985 by a
U.S. EPA contractor, and the assessment was made to designate the site
as a "low priority" site for further U.S. EPA activity. The Toledo site
was inspected by the Ohio Environmental Protection Agency in 1998 as a
routine follow up to the 1985 assessment. The Ohio Environmental
Protection Agency 1998 report and the administrative record have been
sent to the United States Environmental Protection Agency. Currently,
no further activities or actions have been required or requested of
Libbey and no further actions have been pursued by the Ohio
Environmental Protection Agency or the United States Environmental
Protection Agency with respect to the site. Libbey has no current
knowledge that any further action is required of Libbey by either
agency.
3. In 1996, a request for information was issued by the DEC with respect
to the operations at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ as they may
affect the Onondaga Lake Superfund Site. The operations at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ were acquired in 1995 from Pfaltzgraff Co.
and certain of its subsidiary corporations. Numerous other parties were
previously named in prior requests sent in the first and second waves
of notices to those parties believed most likely to be contributors to
the problems connected with Onondaga Lake and its tributaries. Libbey
believes that Allied Signal is the primary potentially responsible
party. Syracuse China responded to the original request in December
1996. In July 2000, the DEC requested some supplemental information
that Syracuse China furnished in September 2000. At this time it is not
certain the operations at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ had any
connection with the problems at this Superfund site. There is an
indemnification agreement with Pfaltzgraff for sharing any costs for
off premise liability up to an aggregate of $7,500,000. Under the
agreement, Libbey is responsible for the first $300,000, Pfaltzgraff is
responsible for the next $1.2 million and the two parties each pay 50%
of the next $6 million. Libbey has given notice
of the above matters to Pfaltzgraff to preserve its rights under this
indemnification agreement.
4. Syracuse China Company has been named as a potentially responsible
party by reason of its potential ownership of certain property to the
north, and adjacent but not contiguous to the plant premises, which has
been designated a sub-site of the Onondaga Lake Superfund Site. A
subsidiary of General Motors has taken title to the real estate on
which the sub-site is located and the DEC advised Libbey in writing
that General Motors has assumed responsibility for remediation of the
site without seeking participation and/or financing from other parties.
As Syracuse China Company never had legal ownership of the sub-site and
therefore does not appear in the chain of title for the sub-site,
Libbey expects that the sale of the sub-site to a General Motors'
subsidiary ends any potential liability of Syracuse China for the
sub-site or migrations off the sub-site.
5. The Pfaltzgraff Co. entered into an order of consent effective November
1, 1994 with the New York State Department of Environmental
Conservation which requires Pfaltzgraff to prepare a Remedial
Investigation and Feasibility Study to develop a remedial action plan
for a site in Syracuse New York and to remediate the site. As part of
the Asset Purchase Agreement through which Libbey acquired the assets
operated as Syracuse China, the Syracuse China Company agreed to share
as part of the remediation and related expense up to a maximum of fifty
percent of such costs with a maximum limit of $1,350,000. However,
Syracuse China Company is not part of the decree. The remediation at
the site is largely completed. Syracuse China has paid its full share
of the remediation expenses and expects no further liability related to
this site.
6. In May 1999, Libbey Canada closed its facility in Wallaceburg, Ontario.
In connection with the closure some remediation is required to prevent
substances from migrating off the property. The premises have been sold
to CRA Developments (1999) Ltd., an affiliate of Conestoga-Rovers &
Associates, Ltd., which has accepted the premises in "as is" condition
and agreed to perform all necessary remediation. CRA Holdings, Inc.,
the parent company, has guaranteed performance of its affiliate and a
policy of insurance in support of the affiliate's obligations has been
provided.
SCHEDULE 5.12
ERISA COMPLIANCE
None.
SCHEDULE 5.13(A)
SUBSIDIARIES AND OTHER EQUITY INVESTMENTS
ENTITY JURISDICTION OF DIRECT PARENT(s) OWNERSHIP BY COMPANY
INCORPORATION (DIRECT/INDIRECT)
------------------------------- ---------------------------- ---------------------------- ----------------------------
*The ▇▇▇▇▇▇▇▇ Glass Company Delaware Libbey Glass Inc. Direct 100%
("Libbey Glass")
------------------------------- ---------------------------- ---------------------------- ----------------------------
*World Tableware Inc. Delaware Libbey Glass Direct 100%
------------------------------- ---------------------------- ---------------------------- ----------------------------
*LGA3 Corp. Delaware Libbey Glass Direct 100%
------------------------------- ---------------------------- ---------------------------- ----------------------------
*LGA4 Corp. Delaware Libbey Glass Direct 100%
------------------------------- ---------------------------- ---------------------------- ----------------------------
Libbey Canada Inc. Ontario Libbey Glass Direct 100%
------------------------------- ---------------------------- ---------------------------- ----------------------------
*Syracuse China Company Delaware Libbey Glass Direct 100%
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇.▇▇▇ LLC Delaware Libbey Glass Direct 100%
------------------------------- ---------------------------- ---------------------------- ----------------------------
*LGFS Inc. Delaware Libbey Glass Direct 100%
------------------------------- ---------------------------- ---------------------------- ----------------------------
*LGAC LLC Delaware Libbey Glass Direct 100%
------------------------------- ---------------------------- ---------------------------- ----------------------------
LGMH S. de ▇.▇. de C.V. Mexico LGA3 Corp. Indirect 100%
------------------------------- ---------------------------- ---------------------------- ----------------------------
*Traex Company Delaware Libbey Glass Direct 100%
------------------------------- ---------------------------- ---------------------------- ----------------------------
*LGC Corporation Delaware Libbey Glass Direct 100%
------------------------------- ---------------------------- ---------------------------- ----------------------------
Libbey Europe B.V. The Netherlands Libbey Glass Direct 100%
------------------------------- ---------------------------- ---------------------------- ----------------------------
Royal Leerdam B.V. The Netherlands Libbey Europe B.V. Indirect 100%
------------------------------- ---------------------------- ---------------------------- ----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ B.V. Indirect 100%
------------------------------- ---------------------------- ---------------------------- ----------------------------
SCHEDULE 5.13(B)
SUBSIDIARIES AND OTHER EQUITY INVESTMENTS
ENTITY JURISDICTION OF DIRECT PARENT(s) OWNERSHIP BY COMPANY
INCORPORATION (DIRECT/INDIRECT)
--------------------------------------------- ---------------- ---------------------------- ---------------------------
Vitocrisa Holding S. de ▇.▇. de C.V. Mexico LGMH S. de ▇.▇. de C.V. Indirect 49%
--------------------------------------------- ---------------- ---------------------------- ---------------------------
Vitocrisa S. de ▇.▇. de C.V. Mexico Vitocrisa Holding S. de Indirect 49%
▇.▇. de C.V.
--------------------------------------------- ---------------- ---------------------------- ---------------------------
Vitrocrisa Comercial S. de ▇.▇. de C.V. Mexico Vitocrisa Holding S. de Indirect 49%
▇.▇. de C.V.
--------------------------------------------- ---------------- ---------------------------- ---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ S.A. de C.V. Mexico LGA3 Corp. Indirect 49%
--------------------------------------------- ---------------- ---------------------------- ---------------------------
Crisa Industrial LLC Delaware LGA4 Corp. Indirect 49%
--------------------------------------------- ---------------- ---------------------------- ---------------------------
Oneida Ltd. - Common stock investment valued at $15,050.00
SCHEDULE 7.01
CERTAIN EXISTING LIENS
None.
SCHEDULE 7.02
CERTAIN EXISTING INVESTMENTS
a. Loans to Holdings for dividends
1993 Q4 $1,125,000
1994 Q1 $1,125,000
Total $2,250,000
b. Other investments:
Company Description Amount
------- ----------- ------
Regale Advance for product and a convertible
instrument into equity $1,604,762
▇▇ ▇▇▇▇▇ Note receivable from a supplier $ 649,301
Oneida Ltd. Shares of common stock $ 15,050
Note: Amounts are as of 12/31/02
c. Existing investments in Subsidiaries -- see attached chart.
SUBSIDIARIES AND OTHER EQUITY INVESTMENTS
[FLOW CHART]
SCHEDULE 7.03
CERTAIN EXISTING INDEBTEDNESS
None.
SCHEDULE 7.06
CERTAIN EXISTING LEASE OBLIGATIONS
None.
SCHEDULE 7.13
CERTAIN EXISTING CONTINGENT OBLIGATIONS
None.
SCHEDULE 10.02
NOTICES
ADDRESS FOR NOTICES FOR BOTH BORROWERS
Libbey Glass Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
BANK OF AMERICA, NA
Requests for Credit Extensions:
------------------------------
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile: 888 969.2637
Electronic Mail: ▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Account No.: 3750836479
Ref: Libbey Glass
ABA# ▇▇▇▇▇▇▇▇▇
L/C Issuer for Standby Letters of Credit:
----------------------------------------
Bank of America, N.A.
Trade Operations-Los Angeles #22621
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Mail Code: CA9-703-19-23
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Vice President
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile: 213.345.6694
Electronic Mail: ▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
L/C Issuer for Commercial Letters of Credit:
-------------------------------------------
Bank of America, N.A.
Trade Operations
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Mail Code: CA9-703-19-15
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ Bellevue
Vice President
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile: 213.345.9665
Electronic Mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Notices (other than Requests for Credit Extensions):
---------------------------------------------------
Bank of America, N.A.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
Internet: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Bank of America, N.A.
Agency Management #10831
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Mail Code: CA5-701-05-19
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
BANK ONE, NA
Requests for Credit Extensions:
------------------------------
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇: ▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: April Yebd
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Notices (other than Requests for Credit Extensions):
---------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
FLEET NATIONAL BANK
Requests for Credit Extensions:
------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇▇_▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Account No. ▇▇▇▇▇▇▇-15901
Ref: Libbey Glass
ABA# ▇▇▇-▇▇▇-▇▇▇
Notices (other than Requests for Credit Extensions):
---------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇_▇_▇▇▇▇@▇▇▇▇▇.▇▇▇
THE BANK OF NOVA SCOTIA
Requests for Credit Extensions:
------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mystro ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Account No. ▇▇▇▇▇▇▇
Ref: Libbey Glass Inc.
ABA# ▇▇▇▇▇▇▇▇▇
Notices (other than Requests for Credit Extensions):
---------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
THE BANK OF TOKYO - MITSUBISHI, LTD., CHICAGO BRANCH
Requests for Credit Extensions:
------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Account No. 1525720230
Ref:
Libbey Inc.
ABA# ▇▇▇▇▇▇▇▇▇
Notices (other than Requests for Credit Extensions):
---------------------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
CREDIT INDUSTRIAL ET COMMERCIAL
Requests for Credit Extensions:
------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Notices (other than Requests for Credit Extensions):
---------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
CREDIT LYONNAIS NEW YORK BRANCH
Requests for Credit Extensions:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Account No. 01-00688-0001-00
Ref:
Libbey Inc.
ABA# ▇▇▇▇-▇▇▇▇-▇
Notices (other than Requests for Credit Extensions):
---------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
FIFTH THIRD BANK
Requests for Credit Extensions:
------------------------------
Attn: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Requests for Credit Extensions):
---------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇.▇▇▇▇▇▇@▇▇.▇▇▇
NATIONAL CITY BANK
Requests for Credit Extensions:
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇.#▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Requests for Credit Extensions):
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▇▇▇# ▇-▇▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
THE BANK OF NEW YORK
Requests for Credit Extensions:
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▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Account No. GLA/111556
Ref:
ABA# ▇▇▇▇▇▇▇▇▇
Notices (other than Requests for Credit Extensions):
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▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
THE NORTHERN TRUST COMPANY
Requests for Credit Extensions:
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▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Account No. 071000152
Ref:
Libbey Inc. Transaction/Facility
ABA# ▇▇▇▇▇▇▇▇▇
Notices (other than Requests for Credit Extensions):
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇@▇▇▇▇.▇▇▇
▇▇ ▇▇▇▇▇▇ CHASE
Requests for Credit Extensions:
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Account No. Commercial Loan Depart
Ref:
Libbey Inc. Transaction/Facility
ABA # ▇▇▇▇▇▇▇▇▇
Notices (other than Requests for Credit Extensions):
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇.▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇