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Exhibit 10.25
EXECUTION COPY
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 23, 1997
AMONG
LIBBEY GLASS INC.
and
LIBBEY CANADA INC.,
as Borrowers,
THE LENDERS LISTED HEREIN,
as Lenders,
THE BANK OF NOVA SCOTIA,
as Canadian Agent,
THE FIRST NATIONAL BANK OF CHICAGO,
as Syndication Agent,
NATIONSBANK, N.A.,
as Documentation Agent,
THE BANK OF NEW YORK,
THE BANK OF NOVA SCOTIA,
CAISSE NATIONALE DE CREDIT AGRICOLE,
FLEET BANK, N.A. and
KEYBANK NATIONAL ASSOCIATION
as Co-Agents,
and
BANKERS TRUST COMPANY,
as Administrative Agent
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LIBBEY GLASS INC.
and
LIBBEY CANADA INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
TABLE OF CONTENTS
Page
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Section 1. DEFINITIONS..................................................................................... 2
1.1 Certain Defined Terms........................................................................... 2
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement................................................................................. 28
1.3 Other Definitional Provisions................................................................... 28
1.4 Appendices...................................................................................... 28
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS...................................................... 28
2.1 Commitments; Loans.............................................................................. 28
2.2 Interest on the Loans........................................................................... 35
2.3 Fees............................................................................................ 38
2.4 Prepayments and Reductions in Commitments; General Provisions
Regarding Payments.............................................................................. 38
2.5 Use of Proceeds................................................................................. 43
2.6 Special Provisions Governing Eurodollar Rate Loans.............................................. 44
2.7 Letters of Credit............................................................................... 44
2.8 Canadian Dollar Loans to Libbey Canada.......................................................... 47
2.9 Bankers' Acceptances............................................................................ 57
2.10 Canadian Letters of Credit...................................................................... 62
2.11 Negotiated Rate Loans........................................................................... 65
Section 3. CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND TO
LOANS AND LETTERS OF CREDIT..................................................................... 66
3.1 Conditions to Effectiveness..................................................................... 66
3.2 Conditions to All Loans......................................................................... 69
3.3 Conditions to All Letters of Credit and Canadian Letters of Credit.............................. 70
Section 4. REPRESENTATIONS AND WARRANTIES.................................................................. 70
4.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries.................................................................................... 71
4.2 Authorization of Borrowing, etc................................................................. 72
4.3 Financial Condition............................................................................. 72
4.4 No Material Adverse Change; No Restricted Junior Payments....................................... 73
4.5 Title to Properties; Liens...................................................................... 73
4.6 Litigation; Adverse Facts....................................................................... 73
4.7 Payment of Taxes................................................................................ 74
4.8 Performance of Agreements; Materially Adverse Agreements........................................ 74
(i)
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Page
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4.9 Governmental Regulation......................................................................... 74
4.10 Securities Activities........................................................................... 74
4.11 Employee Benefit Plans.......................................................................... 75
4.12 Certain Fees.................................................................................... 75
4.13 Environmental Protection........................................................................ 75
4.14 Employee Matters................................................................................ 77
4.15 Solvency........................................................................................ 77
4.16 Disclosure...................................................................................... 77
Section 5. AFFIRMATIVE COVENANTS........................................................................... 78
5.1 Financial Statements and Other Reports.......................................................... 78
5.2 Corporate Existence, etc........................................................................ 82
5.3 Payment of Taxes and Claims; Tax Consolidation.................................................. 82
5.4 Maintenance of Properties; Insurance............................................................ 82
5.5 Inspection...................................................................................... 83
5.6 Compliance with Laws, etc....................................................................... 83
5.7 Environmental Disclosure and Inspection......................................................... 83
5.8 Company's Remedial Action Regarding Hazardous Materials......................................... 84
Section 6. NEGATIVE COVENANTS.............................................................................. 84
6.1 Indebtedness.................................................................................... 85
6.2 Liens and Related Matters....................................................................... 86
6.3 Investments; Joint Ventures..................................................................... 87
6.4 Contingent Obligations.......................................................................... 90
6.5 Restricted Junior Payments...................................................................... 91
6.6 Financial Covenants............................................................................. 91
6.7 Restriction on Fundamental Changes; Asset Sales................................................. 92
6.8 Sale or Discount of Receivables................................................................. 93
6.9 Transactions with Shareholders and Affiliates................................................... 93
6.10 Disposal of Subsidiary Stock.................................................................... 93
6.11 Conduct of Business............................................................................. 94
6.12 Receivables Programs............................................................................ 94
Section 7. EVENTS OF DEFAULT............................................................................... 94
7.1 Failure to Make Payments When Due............................................................... 94
7.2 Default in Other Agreements..................................................................... 94
7.3 Breach of Certain Covenants..................................................................... 95
7.4 Breach of Warranty.............................................................................. 95
7.5 Other Defaults Under Loan Documents............................................................. 95
7.6 Involuntary Bankruptcy; Appointment of Receiver, etc............................................ 95
7.7 Voluntary Bankruptcy; Appointment of Receiver, etc.............................................. 96
7.8 Judgments and Attachments....................................................................... 96
7.9 Dissolution..................................................................................... 96
7.10 Employee Benefit Plans.......................................................................... 96
(ii)
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Page
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7.11 Change in Control............................................................................... 97
Section 8. GUARANTY OF COMPANY............................................................................. 98
8.1 Guaranty by Company............................................................................. 98
8.2 Terms of Guaranty............................................................................... 99
Section 9. AGENT AND CO-AGENTS............................................................................. 101
Section 10. MISCELLANEOUS................................................................................... 102
10.1 Assignments and Participations in Loans and Letters of Credit................................... 102
10.2 Expenses........................................................................................ 104
10.3 Indemnity....................................................................................... 105
10.4 Set Off......................................................................................... 106
10.5 Ratable Sharing................................................................................. 106
10.6 Amendments and Waivers.......................................................................... 107
10.7 Increased Costs; Taxes; Capital Adequacy........................................................ 109
10.8 Lenders' Obligation to Mitigate; Replacement of Lender.......................................... 112
10.9 Change in Accounting Principles................................................................. 114
10.10 Intercreditor Agreement......................................................................... 114
10.11 Independence of Covenants....................................................................... 115
10.12 Notices......................................................................................... 115
10.13 Survival of Representations, Warranties and Agreements.......................................... 115
10.14 Failure or Indulgence Not Waiver; Remedies Cumulative........................................... 116
10.15 Marshalling; Payments Set Aside................................................................. 116
10.16 Severability.................................................................................... 116
10.17 Obligations Several; Independent Nature of Lenders' Rights...................................... 116
10.18 Headings........................................................................................ 117
10.19 Applicable Law.................................................................................. 117
10.20 Successors and Assigns.......................................................................... 117
10.21 Consent to Jurisdiction and Service of Process.................................................. 117
10.22 Waiver of Jury Trial............................................................................ 118
10.23 Confidentiality................................................................................. 119
10.24 Entire Agreement................................................................................ 119
10.25 Counterparts; Effectiveness..................................................................... 119
Signature pages ................................................................................... S-1
(iii)
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APPENDICES
A SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE
LOANS
B ADDITIONAL PROVISIONS GOVERNING LETTERS OF
CREDIT
C PROVISIONS RELATING TO AGENT AND CO-AGENTS
D ADDITIONAL PROVISIONS GOVERNING CANADIAN LETTERS OF
CREDIT
(iv)
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EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NEGOTIATED RATE LOAN NOTE
IV-A FORM OF REVOLVING NOTE
IV-B FORM OF CANADIAN LOAN NOTE
V FORM OF SWING LINE NOTE
VI FORM OF COMPLIANCE CERTIFICATE
VII-A FORM OF OPINIONS OF XXXXXX & XXXXXXX
VII-B FORM OF OPINIONS OF XXXXXX X. XXXXX
VIII FORM OF OPINION OF GOWLING, STRATHY & XXXXXXXXX
IX FORM OF OPINION OF O'MELVENY & XXXXX LLP
X FORM OF ASSIGNMENT AND ACCEPTANCE
XI FORM OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT
XII FORM OF DRAWING NOTICE
XIII-A FORM OF DRAFT
XIII-B FORM OF ACCEPTANCE
(v)
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SCHEDULES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
2.7 EXISTING LETTERS OF CREDIT
2.10 EXISTING CANADIAN LETTERS OF CREDIT
3.1A(i) EXCEPTIONS TO GOOD STANDING CERTIFICATES
4.1 SUBSIDIARIES OF COMPANY
4.6 LITIGATION
4.11 CERTAIN EMPLOYEE BENEFIT PLANS
4.13 ENVIRONMENTAL MATTERS
6.1 CERTAIN EXISTING INDEBTEDNESS
6.2 CERTAIN EXISTING LIENS
6.3 CERTAIN EXISTING INVESTMENTS
6.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS
(vi)
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LIBBEY GLASS INC.
AND
LIBBEY CANADA INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is dated as
of April 23, 1997 and entered into by and among LIBBEY GLASS INC., a Delaware
corporation ("COMPANY"), LIBBEY CANADA INC., a corporation organized under the
Province of Ontario ("LIBBEY CANADA"), THE FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF (each individually referred to herein as a "LENDER" and
collectively as "LENDERS"), THE BANK OF NOVA SCOTIA ("NOVA SCOTIA"), as lender
to Libbey Canada ("CANADIAN AGENT"), THE FIRST NATIONAL BANK OF CHICAGO, as
Syndication Agent ("SYNDICATION AGENT"), NATIONSBANK, N.A., as Documentation
Agent ("DOCUMENTATION AGENT"), THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA,
CAISSE NATIONALE DE CREDIT AGRICOLE, FLEET BANK, N.A. and KEYBANK NATIONAL
ASSOCIATION as co-agents for Lenders (each individually referred to herein as a
"CO-AGENT" and collectively as "CO-AGENTS"), and BANKERS TRUST COMPANY
("BANKERS"), as Administrative Agent for Lenders ("AGENT"). Capitalized terms
used herein and not otherwise defined shall have the meanings set forth in
subsection 1.1 of this Agreement.
R E C I T A L S
- - - - - - - -
WHEREAS, pursuant to that certain Amended and Restated Credit
Agreement dated as of August 24, 1994, as amended by the First Amendment thereto
dated as of July 17, 1995 (the "EXISTING CREDIT AGREEMENT") among Company,
Libbey Canada, the lenders ("EXISTING LENDERS") and lead managers listed on the
signature pages thereof, Nova Scotia as a lender to Libbey Canada ("EXISTING
CANADIAN AGENT"), the coagents listed on the signature pages thereof and Bankers
as Agent, Existing Lenders have made certain credit facilities available to
Company and Existing Canadian Agent has made certain credit facilities available
to Libbey Canada in accordance with the terms thereof.
WHEREAS, the parties to the Existing Credit Agreement desire to
amend and restate the Existing Credit Agreement for the purposes of, among other
things, increasing the amount of the available facilities, reducing the interest
rate applicable to the Loans, providing greater operating flexibility and
amending certain covenants as described herein.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company, Libbey Canada,
Lenders, Syndication
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Agent, Documentation Agent, Co-Agents and Agent agree that the Existing Credit
Agreement is hereby amended and restated as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the
following meanings:
"ACCEPTANCE USAGE" means, as at any date of determination, the
aggregate Face Amount of all completed Bankers' Acceptances which have not been
repaid by Libbey Canada whether or not due and whether or not held by Canadian
Agent. For purposes of this definition, any Bankers' Acceptance for which
security has been given to Canadian Agent for the full amount thereof shall not
be deemed to be outstanding and all Bankers' Acceptances shall be valued in
Dollar Equivalents as of such date of determination.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate
Determination Date with respect to a Eurodollar Rate Loan, the rate obtained by
DIVIDING (i) the arithmetic average (rounded upward to the nearest 1/16 of one
percent) of the offered quotation, if any, to first class banks in the interbank
Eurodollar market by each of the Reference Lenders for U.S. dollar deposits of
amounts in same day funds comparable to the principal amount of the Eurodollar
Rate Loan of that Reference Lender for which the Adjusted Eurodollar Rate is
then being determined with maturities comparable to the Interest Period for
which such Adjusted Eurodollar Rate will apply as of approximately 10:00 A.M.
(New York time) on such Interest Rate Determination Date by (ii) a percentage
equal to 100% MINUS the stated maximum rate of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves) applicable to any member bank of the Federal Reserve System
in respect of "Eurocurrency liabilities" as defined in Regulation D (or any
successor category of liabilities under Regulation D); PROVIDED that if any
Reference Lender fails to provide Agent with its aforementioned quotation then
the Adjusted Eurodollar Rate shall be determined based on the quotation(s)
provided to Agent by the other Reference Lender(s).
"AGENT" means Bankers and any successor thereto appointed
administrative agent pursuant to section 6 of Appendix C annexed hereto.
"AFFECTED LENDER" has the meaning assigned to that term in
section C of Appendix A annexed hereto.
"AFFECTED LOANS" has the meaning assigned to that term in
section C of Appendix A annexed hereto.
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the
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purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling", "controlled by" and "under common control with"), as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or by contract or
otherwise.
"AGREEMENT" means this Second Amended and Restated Credit
Agreement dated as of April 23, 1997, as it may be amended, restated,
supplemented or otherwise modified from time to time.
"APPLICABLE EURODOLLAR MARGIN" means, as of any date of
determination, a percentage per annum determined by the Level in effect on such
date as shown below:
LEVEL APPLICABLE EURODOLLAR MARGIN
Level I 0.500%
Level II 0.425%
Level III 0.350%
Level IV 0.275%
Level V 0.225%
; PROVIDED that for the period commencing on the Effective Date to and including
December 31, 1997, the Applicable Eurodollar Margin for Level II shall be
0.350%.
"ASSET SALE" means the sale by Company or any of its
Subsidiaries to any Person other than Company or any of its wholly-owned
Subsidiaries of (i) any of the stock of any of Company's Subsidiaries, (ii)
substantially all of the assets of any division or line of business of Company
or any of its Subsidiaries, or (iii) any other assets (whether tangible or
intangible) of Company or any of its Subsidiaries outside of the ordinary course
of business; PROVIDED that neither (a) the sale of worn or obsolete equipment in
the ordinary course of business nor (b) the sale of account receivables pursuant
to a Receivables Program shall be deemed to be an "Asset Sale".
"ASSET SALE THRESHOLD AMOUNT" means 15% of Consolidated Assets
as at the end of the fiscal quarter most recently concluded prior to the most
recent date on which a mandatory reduction of the Revolving Loan Commitments has
been required to be made pursuant to subsection 2.4A(iii)(a) or, if no such
mandatory reduction has yet been required to be made, the most recent fiscal
quarter concluded prior to the Effective Date.
"ASSIGNMENT AND ACCEPTANCE" means an Assignment and Acceptance
entered into by a Lender and an Eligible Assignee, and accepted by Agent, in
substantially the form of EXHIBIT X annexed hereto.
"BANKERS" has the meaning assigned to that term in the
introduction to this Agreement.
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"BANKERS' ACCEPTANCE" has the meaning assigned to that term in
subsection 2.9A.
"BANKERS' ACCEPTANCE FACILITY" means the facility established
by subsection 2.9.
"BANKRUPTCY CODE" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any successor statute.
"BUSINESS DAY" means (i) for all purposes other than as
covered by clauses (ii) and (iii) below, any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the State of New York or is a
day on which banking institutions located in such state are authorized or
required by law or other governmental action to close, (ii) with respect to all
notices, determinations, findings and payments in connection with Canadian
Loans, Canadian Letters of Credit and the Bankers' Acceptance Facility, any day
excluding Saturday, Sunday and any day which is a legal holiday under the laws
of the Province of Ontario, Canada or is a day on which banking institutions
located in such Province are authorized or required by law or other governmental
action to close and (iii) (A) with respect to all notices, determinations,
fundings and payments in connection with the Adjusted Eurodollar Rate or any
Eurodollar Rate Loans, any day that is a Business Day described in clause (i)
above and that is also a day for trading by and between banks in Dollar deposits
in the applicable interbank Eurodollar market and (B) with respect to all
notices, determinations, findings and payments in connection with the Canadian
Eurodollar Rate or any Canadian Eurodollar Rate Loans, any day that is a
Business Day described in clause (ii) above and that is also a day for trading
by and between banks in Canadian Dollar deposits in the applicable interbank
Canadian Eurodollar market.
"CANADIAN AGENT" means Nova Scotia, in its capacity as lender
to Libbey Canada pursuant to subsection 2.8, as the acceptor and/or purchaser of
Drafts pursuant to subsection 2.9 and as the issuer of Canadian Letters of
Credit pursuant to subsection 2.10, together with its successors and permitted
assigns pursuant to subsection 10.1.
"CANADIAN DOLLAR EQUIVALENTS" means, with respect to any
amount of Dollars, the amount of Canadian Dollars which is equivalent to such
amount of Dollars determined at the rate of exchange quoted by Bankers in New
York City at 9:00 A.M. (New York time) on the date of determination, to prime
banks in New York City for the spot purchase in the New York foreign exchange
market of Canadian Dollars with Dollars.
"CANADIAN DOLLARS" or "CDN.$" means the lawful money of
Canada.
"CANADIAN EURODOLLAR RATE" means, with respect to each
Interest Period to be applicable to a Canadian Eurodollar Rate Loan, the offered
quotation to first-class banks in the interbank Canadian Eurodollar market by
Canadian Agent for Canadian Dollar deposits of an amount in immediately
available funds approximately equal to the principal amount of the Canadian
Eurodollar Rate Loan to be made by Canadian Agent for a period approximately
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equal to such Interest Period determined as of 10:00 A.M. (New York time) two
Business Days prior to the commencement of such Interest Period.
"CANADIAN EURODOLLAR RATE LOANS" means any Canadian Loan
denominated in Canadian Dollars made by Canadian Agent pursuant to subsection
2.8A and bearing interest at a rate determined with reference to the Canadian
Eurodollar Rate as provided in subsection 2.8F.
"CANADIAN LETTER OF CREDIT" or "CANADIAN LETTERS OF CREDIT"
means Commercial Letters of Credit or Standby Letters of Credit issued, or
deemed issued, by Canadian Agent for the account of Libbey Canada pursuant to
subsection 2.10A.
"CANADIAN LETTER OF CREDIT USAGE" means, as at any date of
determination, the sum of (i) the maximum aggregate amount which is or at any
time thereafter may become available for drawing under all Canadian Letters of
Credit then outstanding PLUS (ii) the aggregate amount of all drawings under all
Canadian Letters of Credit honored by Canadian Agent and not theretofore
reimbursed by Libbey Canada.
"CANADIAN LOAN COMMITMENT" means the commitment of Canadian
Agent to make or maintain Canadian Loans pursuant to subsection 2.8A, to accept
Drafts and purchase Bankers' Acceptances pursuant to subsection 2.9 and to issue
Canadian Letters of Credit pursuant to subsection 2.10.
"CANADIAN LOAN EXPOSURE" means, with respect to Canadian Agent
as of any date of determination, the sum of (A)(i) prior to the termination of
the Canadian Loan Commitment, Canadian Agent's Canadian Loan Commitment and (ii)
after the termination of the Canadian Loan Commitment, the sum of the aggregate
outstanding principal amount of the Canadian Loans of Canadian Agent PLUS (B)
the Acceptance Usage with respect to Canadian Agent PLUS (C) the Canadian Letter
of Credit Usage with respect to Canadian Agent.
"CANADIAN LOANS" means the Loans denominated in Canadian
Dollars made by Canadian Agent pursuant to subsection 2.8A.
"CANADIAN OBLIGATIONS" has the meaning assigned to that term
in subsection 8.1.
"CANADIAN PRIME RATE" means, with respect to any Canadian
Loan, the rate which Canadian Agent announces from time to time as its prime
lending rate per annum with respect to demand loans to customers denominated in
Canadian Dollars, as in effect from time to time. As to any loan, the Canadian
Prime Rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer by Canadian Agent for loans
denominated in Canadian Dollars. Canadian Agent may make commercial loans or
other loans denominated in Canadian Dollars at rates of interest at, above or
below the Canadian Prime Rate.
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"CANADIAN PRIME RATE LOANS" means Canadian Loans denominated
in Canadian Dollars made by Canadian Agent pursuant to subsection 2.8A and
bearing interest at rates determined by reference to the Canadian Prime Rate as
provided in subsection 2.8F.
"CAPITAL LEASE", as applied to any Person, means any lease of
any property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CASH" means money, currency or a credit balance in a Deposit
Account.
"CASH EQUIVALENTS" means (i) marketable direct obligations
issued or unconditionally guaranteed by the United States Government or issued
by any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having the highest rating obtainable
from either Standard & Poor's Ratings Group or Xxxxx'x Investors Service, Inc.;
(iii) commercial paper maturing no more than one year from the date of creation
thereof and, at the time of acquisition, having a rating of at least A-1 from
Standard & Poor's Ratings Group or at least P-1 from Xxxxx'x Investors Service,
Inc.; (iv) certificates of deposit or bankers' acceptances maturing within one
year from the date of acquisition thereof issued by any Lender or any commercial
bank organized under the laws of the United States of America or any state
thereof or the District of Columbia having unimpaired capital and surplus of not
less than $250,000,000; (v) Eurodollar time deposits having a maturity of less
than one year purchased directly from any Lender or an Affiliate of a Lender
(whether such deposit is with such Lender or such Affiliate); and (vi)
repurchase agreements and reverse repurchase agreements with any Lender relating
to marketable direct obligations issued or unconditionally guarantied by the
United States Government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within one year
from the date of acquisition thereof.
"CASH PROCEEDS" means, with respect to any Asset Sale, Cash
payments (including any Cash received by way of deferred payment pursuant to, or
monetization of, a note receivable or otherwise, but only as and when so
received, other than the portion of such deferred payment constituting interest,
which interest shall be deemed not to constitute "Cash Proceeds") received by
Company or any of its Subsidiaries from such Asset Sale.
"CO-AGENTS" means the Lenders having that title as so
identified in the introduction to this Agreement and for all other purposes
shall include the Documentation Agent and the Syndication Agent.
"COLI DEBT" means all Indebtedness of the Company or any of
its Subsidiaries to the insurance company issuing the COLI Policies, if and for
so long as:
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(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 the Company 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 the Company and such Subsidiaries for the payment of
such Indebtedness to the ownership interest of the Company and its
Subsidiaries in the COLI Policies.
"COLI POLICIES" means all corporate-owned life insurance
policies now or hereafter purchased and maintained by the Company or any of its
Subsidiaries to insure the lives of certain employees of the Company and its
Subsidiaries, which policies name the Company or such Subsidiary as the
beneficiary upon the death of such employee.
"COMMERCIAL LETTER OF CREDIT" means any letter of credit or
similar instrument issued for the purpose of providing the primary payment
mechanism in connection with the purchase of any materials, goods or services by
Company or any of its Subsidiaries in the ordinary course of business of Company
or such Subsidiary.
"COMMITMENT FEE PERCENTAGE" means, as at any date of
determination, a percentage per annum determined by the Level in effect on such
date as shown below:
LEVEL COMMITMENT FEE PERCENTAGE
----- -------------------------
Level I .250%
Level II .200%
Level III .200%
Level IV .150%
Level V .125%
"COMMITMENTS" means the commitments of Lenders to make
Revolving Loans and the commitment of Bankers to make Swing Line Loans as set
forth in subsection 2.1A and the commitment of Canadian Agent to make Canadian
Loans as set forth in subsection 2.8A.
"COMPANY" has the meaning assigned to that term in the
introduction to this Agreement.
"COMPANY COMMON STOCK" means the common stock of Company, par
value $.01 per share.
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of EXHIBIT VI annexed hereto delivered to Lenders by Company pursuant
to subsection 5.1(iii).
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"CONSOLIDATED ADJUSTED EBITDA" means, for any period, the sum
of the amounts for such period of (i) Consolidated Net Income, (ii) Consolidated
Interest Expense, (iii) provisions for taxes based on income, (iv) total
depreciation expense, (v) total amortization expense, (vi) other non-cash items
reducing Consolidated Net Income, and (vii) aggregate amount of any discount on
the sale of accounts receivables by Company or any of its Subsidiaries pursuant
to a Receivables Program LESS other non-cash items increasing Consolidated Net
Income, all of the foregoing as determined on a consolidated basis for Company
and its Subsidiaries in conformity with GAAP.
"CONSOLIDATED ASSETS" means, as at any date of determination,
the aggregate stated balance sheet amount of total assets of Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability but excluding capitalized interest and that portion of
Capital Leases which is capitalized on the consolidated balance sheet of Company
and its Subsidiaries and excluding expenditures made in connection with the
replacement, substitution or restoration of assets (A) to the extent financed
from insurance proceeds paid on account of the loss or damage to the assets
being replaced or restored or (B) with awards of compensation arising from the
taking by eminent domain or condemnation of the assets being replaced) by
Company and its Subsidiaries during that period that, in conformity with GAAP,
are included in "additions to property, plant or equipment" or comparable items
reflected in the consolidated statement of cash flows of Company and its
Subsidiaries; PROVIDED that expenditures relating to acquisitions of Securities
or other assets permitted under subsection 6.7(iv) shall not constitute
"Consolidated Capital Expenditures".
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the sum
of (i) total interest expense (including that portion attributable to Capital
Leases in accordance with GAAP and capitalized interest) of Company and its
Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of Company and its Subsidiaries, including, without limitation, all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing and net costs under Interest Rate
Agreements, but excluding any interest expense of any of Company's Subsidiaries
to the extent (A) the income of such Subsidiary is excluded from the calculation
of Consolidated Net Income pursuant to clause (iii) of the definition of
Consolidated Net Income and (B) the obligation of such Subsidiary related to
such interest expense is non-recourse to Company or Libbey Canada PLUS (ii) the
aggregate amount of any discount on the sale of accounts receivables by Company
or any of its Subsidiaries pursuant to a Receivables Program.
"CONSOLIDATED NET INCOME" means, for any period, the net
income (or loss) of Company and its Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in conformity with
GAAP; PROVIDED that there shall be excluded (i) the income (or loss) of any
Person (other than a Subsidiary of Company) in which any other Person (other
than Company or any of its Subsidiaries) has a joint interest, except to the
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extent of the amount of dividends or other distributions actually paid to
Company or any of its Subsidiaries by such Person during such period, (ii) the
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
of Company or is merged into or consolidated with Company or any of its
Subsidiaries or that Person's assets are acquired by Company or any of its
Subsidiaries, (iii) the income of any Subsidiary of Company to the extent that
the declaration or payment of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Subsidiary, (iv) any
after-tax gains or losses attributable to Asset Sales or returned surplus assets
of any Pension Plan, and (v) (to the extent not included in clauses (i) through
(iv) above) any net extraordinary gains or net extraordinary losses.
"CONSOLIDATED RENTAL PAYMENTS" means, for any period, the
aggregate amount of all rents paid under all Capital Leases and Operating Leases
of Company and its Subsidiaries as lessee (net of sublease income).
"CONSOLIDATED TOTAL DEBT" means, as at any date of
determination, the aggregate stated balance sheet amount of all Indebtedness of
Company and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP.
"CONTINGENT OBLIGATION", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person (i) with
respect to any Indebtedness, lease, dividend or other obligation of another if
the primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such obligation of another
that such obligation of another will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected (in whole or in part) against loss in respect
thereof, (ii) with respect to any letter of credit issued for the account of
that Person or as to which that Person is otherwise liable for reimbursement of
drawings, or (iii) under Interest Rate Agreements, Currency Agreements and
futures contracts or options for futures contracts for commodities. Contingent
Obligations shall include, without limitation, (a) the direct or indirect
guaranty, endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse
by such Person of the obligation of another, (b) the obligation to make
take-or-pay or similar payments if required regardless of non-performance by any
other party or parties to an agreement, and (c) any liability of such Person for
the obligation of another through any agreement (contingent or otherwise) (X) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (Y) to maintain the solvency or any balance sheet item, level
of income or financial condition of another if, in the case of any agreement
described under subclauses (X) or (Y) of this sentence, the primary purpose or
intent thereof is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited. "Contingent Obligations" shall
not include COLI Debt.
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"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Securities issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other material
instrument to which that Person is a party or by which it or any of its
properties is bound or to which it or any of its properties is subject.
"COVERED TAX" means any Tax that is not an Excluded Tax.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement, futures contract, option contract, synthetic cap or
other similar agreement or arrangement designed to protect Company or any of its
Subsidiaries against fluctuations in currency values.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or
like account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DOCUMENTATION AGENT" has the meaning assigned to that term in
the introduction to this Agreement.
"DOLLAR EQUIVALENTS" means, with respect to any amount of
Canadian Dollars, the amount of Dollars which is equivalent to such amount of
Canadian Dollars determined at the rate of exchange quoted by Bankers in New
York City, at 9:00 A.M. (New York time) on the date of determination, to prime
banks in New York City for the spot purchase in the New York foreign exchange
market of Dollars with Canadian Dollars.
"DOLLARS" and the sign "$" mean the lawful money of the United
States of America.
"DRAFT" means, at any time, a xxxxx xxxx of exchange, within
the meaning of the Bills of Exchange Act (Canada), in substantially the form of
EXHIBIT XIII-A annexed hereto, issued by Libbey Canada to be accepted by
Canadian Agent (which, upon such acceptance will be a Bankers' Acceptance) and
bearing such distinguishing letters and numbers as Canadian Agent may determine,
but which at such time, except as otherwise provided herein, has not been
completed or accepted by Canadian Agent.
"DRAWING" means an acceptance of completed Drafts by Canadian
Agent or by any other Person pursuant to subsection 2.9.
"DRAWING DATE" means any Business Day fixed pursuant to
subsection 2.9B for a Drawing.
"DRAWING FEE" means, with respect to the Drafts issued by
Libbey Canada hereunder and accepted as provided herein on any Drawing Date, an
amount equal to the aggregate Face Amount of such Drafts MULTIPLIED BY the
Applicable Eurodollar Margin,
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calculated, in each case, on the basis of the term to maturity of such Draft and
a year of 365 days; PROVIDED that the amount of the Drawing Fee may be revised
from time to time pursuant to the written agreement of Company and Canadian
Agent, with a copy of such agreement delivered to Agent.
"DRAWING NOTICE" has the meaning assigned to that term in
subsection 2.9B(1).
"DRAWING PURCHASE PRICE" means, in respect of Bankers'
Acceptances to be purchased by Canadian Agent or any other Person, the
difference between (i) the result (rounded to the nearest whole cent, with
one-half of one cent being rounded up) obtained by dividing the aggregate Face
Amount of such Bankers' Acceptances by the sum of one plus the product of (x)
the Effective Discount Rate multiplied by (y) a fraction the numerator of which
is the term of maturity of such Bankers' Acceptances and the denominator of
which is 365; and (ii) the applicable Drawing Fee.
"EFFECTIVE DATE" means the date on which all conditions to the
effectiveness of this Agreement set forth in subsection 3.1 are satisfied or
waived.
"EFFECTIVE DISCOUNT RATE" means, in respect of any Bankers'
Acceptances to be purchased by Canadian Agent or any other Person pursuant
hereto, the discount rate at which Canadian Agent would purchase, on the
relevant Drawing Date, its own Bankers' Acceptances having an aggregate Face
Amount equal to and with a term to maturity the same as the Bankers' Acceptances
to be acquired by Canadian Agent or other Person on such Drawing Date.
"ELIGIBLE ASSIGNEE" means (A)(i) a commercial bank organized
under the laws of the United States or any state thereof; (ii) a savings and
loan association or savings bank organized under the laws of the United States
or any state thereof; (iii) a commercial bank organized under the laws of any
other country or a political subdivision thereof; PROVIDED that (x) such bank is
acting through a branch or agency located in the United States or (y) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an "accredited investor" (as defined
in Regulation D under the Securities Act) which extends credit or buys loans as
one of its businesses including, but not limited to, insurance companies, mutual
funds and lease financing companies, in each case (under clauses (i) through
(iv) above) that is reasonably acceptable to Agent; and (B) any Lender and any
Affiliate of any Lender; PROVIDED that no Affiliate of Company shall be an
Eligible Assignee; PROVIDED FURTHER that, only with respect to assignments of a
Lender's Revolving Loan Commitment or Revolving Loans or Canadian Agent's
Canadian Loan Commitment or Canadian Loans, in order to be an Eligible Assignee
a Person must have at the time of determination unimpaired capital and surplus
of not less than $100,000,000.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as
defined in Section 3(3) of ERISA (a) which is, or was within the past six years,
maintained or
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contributed to by Company or any of its ERISA Affiliates or (b) with respect to
which Company or any of its ERISA Affiliates retains any liability.
"ENVIRONMENTAL CLAIM" means any accusation, allegation, notice
of violation, claim, demand, abatement order or other order or direction
(conditional or otherwise) by any governmental authority or any 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 Company, any of
its Subsidiaries, any of their respective Affiliates or any Facility.
"ENVIRONMENTAL LAWS" means all statutes, ordinances, orders,
rules, regulations, plans or decrees relating to (i) environmental matters,
including, without limitation, those relating to fines, injunctions, penalties,
damages, contribution, cost recovery compensation, losses or injuries resulting
from the Release or threatened Release of Hazardous Materials, (ii) the
generation, use, storage, transportation or disposal of Hazardous Materials, or
(iii) occupational safety and health, industrial hygiene, land use or the
protection of human, plant or animal health or welfare, in any manner applicable
to Company or any of its Subsidiaries or any or their respective properties,
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. 9601 ET SEQ.), the Hazardous
Materials Transportation Act (49 U.S.C. 1801 ET SEQ.), the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 ET SEQ.), the Federal Water Pollution
Control Act ( 33 U.S.C. Section 1251 ET SEQ.), the Clean Air Act (42 U.S.C.
Section 7401 ET SEQ.), the Toxic Substances Control Act (15 U.S.C. Section 2601
ET SEQ.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C.
Section 136 ET SEQ.), the Occupational Safety and Health Act (29 U.S.C. Section
651 ET SEQ.) and the Emergency Planning and Community Right-to-Know Act (42
U.S.C. Section 11001 ET SEQ.), each as amended or supplemented, and any
analogous future or present local, state and federal statutes and regulations
promulgated pursuant thereto, each as in effect as of the date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA AFFILIATE", as applied to any Person, means (i) any
corporation which is, or was at any time, a member of a controlled group of
corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is, or was at any time, a member; (ii) any trade or
business (whether or not incorporated) which is, or was at any time, a member of
a group of trades or businesses under common control within the meaning of
Section 414(c) of the Internal Revenue Code of which that Person is, or was at
any time, a member; and (iii) any member of an affiliated service group within
the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that
Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is, or was at any time, a member.
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"ERISA EVENT" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued thereunder with
respect to any Pension Plan (excluding those for which the provision for 30-day
notice to the PBGC has been waived by regulation); (ii) the failure to meet the
minimum funding standard of Section 412 of the Internal Revenue Code with
respect to any Pension Plan (whether or not waived in accordance with Section
412(d) of the Internal Revenue Code) or the failure to make by its due date a
material required installment under Section 412(m) of the Internal Revenue Code
with respect to any Pension Plan or the failure to make any material required
contribution to a Multiemployer Plan; (iii) the provision by the administrator
of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of
intent to terminate such plan in a distress termination described in Section
4041(c) of ERISA; (iv) the withdrawal by Company or any of its ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan resulting in material liability pursuant to Sections
4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
would reasonably be expected to constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan;
(vi) the imposition of material liability on Company or any of its ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal by Company or any
of its ERISA Affiliates in a complete or partial withdrawal (within the meaning
of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan, or the receipt
by Company or any of its ERISA Affiliates of notice from any Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA, or that it intends to terminate or has terminated under Section 4041A or
4042 of ERISA, in any such case if such event would reasonably be expected to
result in material liability to Company or its ERISA Affiliates; (viii) the
occurrence of an act or omission which could give rise to the imposition on
Company or any of its ERISA Affiliates of material fines, penalties, taxes or
related charges under Chapter 43 of the Internal Revenue Code or under Section
409 or 502(c), (i) or (l) or 4071 of ERISA in respect of any Employee Benefit
Plan; (ix) the assertion of a material claim (other than routine claims for
benefits) against any Employee Benefit Plan other than a Multiemployer Plan or
the assets thereof, or against Company or any of its ERISA Affiliates in
connection with any such Employee Benefit Plan; (x) receipt from the Internal
Revenue Service of notice of the failure of any Pension Plan (or any other
Employee Benefit Plan intended to be qualified under Section 401(a) of the
Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue
Code, or the failure of any trust forming part of any Pension Plan to qualify
for exemption from taxation under Section 501(a) of the Internal Revenue Code;
or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.
"EURODOLLAR RATE LOANS" means Loans bearing interest at rates
determined by reference to the Adjusted Eurodollar Rate as provided in
subsection 2.2A.
"EVENT OF DEFAULT" means each of the events set forth in
Section 7.
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXCLUDED TAX" means any of the following taxes, levies,
imposts, duties, deductions, withholdings or charges, and all liabilities with
respect thereto: (i) Taxes imposed on the net income of a Lender, Agent, a
Co-Agent or Tax Transferee (including without limitation branch profits taxes,
minimum taxes and taxes computed under alternative methods, at least one of
which is based on net income (collectively referred to as "net income taxes") by
(A) the jurisdiction under the laws of which such Lender, Agent, such Co-Agent
or Tax Transferee is organized or any political subdivision thereof or (B) the
jurisdiction of such Lender's, Tax Transferee's, such Co-Agent's or Agent's
applicable lending office or any political subdivision thereof or (C) any
jurisdiction in which the Lender, Agent, the Co-Agent or Tax Transferee is doing
business (other than solely by virtue of being a Lender under this Agreement),
(ii) any Taxes to the extent that they are in effect and would apply to a
payment to such Lender, Agent or such Co-Agent, as applicable, as of the
Effective Date, or as of the date such Person becomes a Lender, in the case of
any assignee pursuant to subsection 10.1, (iii) any Taxes that are in effect and
would apply to a payment to a Tax Transferee as of the date of acquisition of
the Loans by such Tax Transferee or the date of the change of lending office of
such Tax Transferee, as the case may be (PROVIDED, HOWEVER, that a Person shall
not be considered a Tax Transferee for purposes of this clause (iii) as a result
of a change of its lending office or the taking of any other steps pursuant to
subsection 10.8), (iv) with respect to any Taxes for which any credit or other
Tax benefit, in the reasonable good faith judgment of such Lender, Tax
Transferee, such Co-Agent or Agent, as the case may be, is available to such
Lender, Tax Transferee, such Co-Agent or Agent, as applicable, as a result
thereof and is allocable to the transactions contemplated by this Agreement, the
amount of such credit or other Tax benefit or (v) any Taxes that would not have
been imposed but for (A) the failure by Agent, such Co-Agent or such Lender or
Tax Transferee, as applicable, to provide and keep current any certification or
other documentation required to qualify for an exemption from or reduced rate of
any Tax or (B) the gross negligence or willful misconduct of Agent, a Co-Agent
or a Lender.
"EXISTING CANADIAN AGENT" has the meaning assigned to that
term in the Recitals to this Agreement.
"EXISTING CANADIAN LETTERS OF CREDIT" means the letters of
credit issued by the Existing Canadian Letter pursuant to the Existing Credit
Agreement for the account of Libbey Canada outstanding on the Effective Date and
as described in Schedule 2.10 annexed hereto, which letters of credit shall be
deemed to be Canadian Letters of Credit under this Agreement as of the Effective
Date. The aggregate Canadian Letters of Credit Usage relating to the Existing
Canadian Letters of Credit on the Effective Date is as specified in Schedule
2.10.
"EXISTING CANADIAN LOANS" means the loans outstanding under
the Existing Credit Agreement on or prior to the Effective Date as the Canadian
Loans (as such term is defined in the Existing Credit Agreement).
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"EXISTING CREDIT AGREEMENT" has the meaning assigned to that
term in the Recitals to this Agreement.
"EXISTING LENDERS" has the meaning assigned to that term in
the Recitals to this Agreement.
"EXISTING LETTERS OF CREDIT" means the letters of credit
issued by Bankers pursuant to the Existing Credit Agreement for the account of
Company outstanding on the Effective Date and as described in Schedule 2.7
annexed hereto, which letters of credit shall be deemed to be Letters of Credit
under this Agreement as of the Effective Date. The aggregate Letters of Credit
Usage relating to the Existing Letters of Credit on the Effective Date is as
specified in Schedule 2.7.
"EXISTING LOANS" means the loans outstanding under the
Existing Credit Agreement on or prior to the Effective Date, including the
Revolving Loans and Swing Line Loans (as such terms are defined in the Existing
Credit Agreement) but excluding the Existing Canadian Loans.
"EXISTING NOTES" means the promissory notes issued by Company
under the Existing Credit Agreement and outstanding on the Effective Date which
evidence the obligations of Company to repay the Existing Loans, including the
Revolving Notes and the Swing Line Note (as such terms are defined in the
Existing Credit Agreement).
"FACE AMOUNT" means, in respect of a Draft or a Bankers'
Acceptance as the case may be, the amount payable to the holder thereof on its
maturity.
"FACILITIES" means any and all real property (including,
without limitation, all buildings, fixtures or other improvements located
thereon) now, hereafter or heretofore owned, leased, operated or used by Company
or any of its Subsidiaries or any of their respective predecessors or
Affiliates.
"FIRST AMENDMENT" means that certain First Amendment to
Amended and Restated Credit Agreement dated as of July 17, 1995 by and among
Company, Libbey Canada, Agent and Lenders.
"FISCAL YEAR" means the fiscal year of Company ending on
December 31 of each calendar year.
"FUNDING DATE" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, generally accepted accounting principles
set forth in opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant
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segment of the accounting profession, in each case as the same are applicable to
the circumstances as of the date of determination.
"GOVERNMENTAL AUTHORIZATION" means any permit, license,
authorization, plan, directive, consent order or consent decree of or from any
foreign, federal, state or local governmental authority, agency or court.
"GOVERNMENT ACTS" has the meaning assigned to that term in
section C of Appendix B annexed hereto.
"GUARANTY" has the meaning assigned to that term in subsection
8.1.
"HAZARDOUS MATERIALS" means (i) any chemical, material or
substance at any time defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely hazardous
waste", "restricted hazardous waste", "infectious waste", "toxic substances" or
any other formulations intended to define, list or classify substances by reason
of deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, "TCLP toxicity" or "EP
toxicity" or words of similar import under any applicable Environmental Laws or
publications promulgated pursuant thereto; (ii) any oil, petroleum, petroleum
fraction or petroleum derived substance; (iii) any drilling fluids, produced
waters and other wastes associated with the exploration, development or
production of crude oil, natural gas or geothermal resources; (iv) any flammable
substances or explosives; (v) any radioactive materials; (vi) asbestos in any
form; (vii) urea formaldehyde foam insulation; (viii) electrical equipment which
contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million; and (ix) pesticides.
"INDEBTEDNESS", as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) that portion of obligations with respect
to Capital Leases that is properly classified as a liability on a balance sheet
in conformity with GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred purchase price of
property or services, which purchase price is (A) due more than six months from
the date of incurrence of the obligation in respect thereof or (B) evidenced by
a note or similar written instrument, and (v) all indebtedness secured by any
Lien on any property or asset owned or held by that Person regardless of whether
the indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person, but "Indebtedness" shall not include
COLI Debt. Obligations under Interest Rate Agreements, Currency Agreements,
futures contracts or options for futures contracts in commodities constitute
Contingent Obligations and not Indebtedness.
"INDEMNITEE" has the meaning assigned to that term in
subsection 10.3.
"INTELLECTUAL PROPERTY" means all patents, trademarks,
tradenames, copyrights, technology, know-how and processes used in or necessary
for the conduct of the business of Company and its Subsidiaries as currently
conducted that are material to the condition
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(financial or otherwise), business or operations of Company and its
Subsidiaries, taken as a whole.
"INTEREST COVERAGE RATIO" means, as at any date of
determination, the ratio of (i) Consolidated Adjusted EBITDA to (ii)
Consolidated Interest Expense for the four fiscal quarter period ending as of
the last day of the fiscal quarter immediately preceding the fiscal quarter
during which such date of determination occurs; except that, if the date of
determination is the last day of a fiscal quarter, the four fiscal quarter
period tested shall include the preceding three fiscal quarters and the fiscal
quarter then ending.
"INTEREST PAYMENT DATE" means (i) with respect to any Prime
Rate Loan or Canadian Prime Rate Loan, each January 1, April 1, July 1 and
October 1 of each year, commencing on the first such date to occur after the
Effective Date, (ii) with respect to any Eurodollar Rate Loan or Canadian
Eurodollar Rate Loan, the last day of each Interest Period applicable to such
Loan; PROVIDED that in the case of each Interest Period of longer than three
months, "Interest Payment Date" shall also include each three month anniversary
of the commencement of such Interest Period, and (iii) in the case of any
Negotiated Rate Loans, the last day of each month or such other dates as are
mutually agreed upon by Company and the applicable Lender.
"INTEREST PERIOD" means, with respect to each Eurodollar Rate
Loan, a period of time of one, two, three, six, nine or twelve months to be
selected by Company and, with respect to each Canadian Eurodollar Rate Loan, a
period of time of one, two, three, six and, if available, nine or twelve months
to be selected by Libbey Canada, in each case pursuant to a Notice of Borrowing
or a Notice of Conversion/Continuation.
"INTEREST RATE AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement designed to protect Company or any of its
Subsidiaries against fluctuations in interest rates.
"INTEREST RATE DETERMINATION DATE" means each date for
calculating the Adjusted Eurodollar Rate, for purposes of determining the
interest rate in respect of an Interest Period. The Interest Rate Determination
Date shall be the second Business Day prior to the first day of the related
Interest Period for a Eurodollar Rate Loan.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended to the date hereof and from time to time hereafter.
"INVESTMENT" means (i) any direct or indirect purchase or
other acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, stock or other Securities of any other Person (other than of a
Person which immediately prior to the time of such purchase or other acquisition
is a wholly-owned Subsidiary of Company), or (ii) any direct or indirect loan,
advance (other than advances to employees for moving, entertainment and travel
expenses, drawing accounts and similar expenditures in the ordinary course of
business) or capital contribution by Company or any of its Subsidiaries to any
other Person (other than a
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Subsidiary of Company) including all indebtedness and accounts receivable from
that other Person that are not current assets or did not arise from sales to
that other Person in the ordinary course of busineSection The amount of any
Investment shall be the original cost of such Investment plus the cost of all
additions thereto, without any adjustments for increases or decreases in value,
or write-ups, write-downs or write-offs with respect to such Investment.
"JOINT VENTURE" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership or other legal form;
PROVIDED that in no event shall any corporate Subsidiary of any Person be
considered to be a Joint Venture to which such Person is a party.
"LENDER" and "LENDERS" means the persons identified as
"Lenders" and listed on the signature pages of this Agreement (including
Canadian Agent), together with their successors and permitted assigns pursuant
to subsection 10.1; PROVIDED that the term "Lenders", when used in the context
of a particular Commitment, shall mean Lenders having that Commitment.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Commercial
Letters of Credit or Standby Letters of Credit issued, or deemed issued, by
Bankers for the account of Company or any of its Subsidiaries pursuant to
subsection 2.7A.
"LETTER OF CREDIT USAGE" means, as at any date of
determination, the sum of (i) the maximum aggregate amount which is or at any
time thereafter may become available for drawing under all Letters of Credit
then outstanding PLUS (ii) the aggregate amount of all drawings under all
Letters of Credit honored by Bankers and not theretofore reimbursed by Company.
"LETTER OF CREDIT FEE PERCENTAGE" means, as of any date of
determination, a percentage per annum determined by the Level in effect on such
date as shown below:
LEVEL LETTER OF CREDIT FEE PERCENTAGE
----- -------------------------------
Level I .375%
Level II .300%
Level III .225%
Level IV .150%
Level V .100%
; PROVIDED that for the period commencing on the Effective Date to and including
December 31, 1997, the Letter of Credit Fee Percentage for Level II shall be
0.225%.
"LEVEL" means Xxxxx X, Xxxxx XX, Xxxxx XXX, Xxxxx XX or Level
V, whichever is in effect on the date of determination. The applicable Level for
any date shall be determined by the most recent Level Determination Certificate
delivered pursuant to subsection 3.1E or 5.1(xii), as the case may be; PROVIDED
that if a Level Determination Certificate is not
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delivered at the time required pursuant to subsection 3.1E or 5.1(xii), Level I
shall be applicable from such time until delivery of a succeeding Level
Determination Certificate; PROVIDED FURTHER that if a Level Determination
Certificate erroneously indicates a Level more favorable to Company than should
be afforded by the actual calculation of the Total Leverage Ratio, Company shall
promptly pay additional interest, commitment fees and letter of credit fees to
correct for such error.
"LEVEL I" means such periods as the Total Leverage Ratio is
greater than 3.50:1.00.
"LEVEL II" means such periods as the Total Leverage Ratio is
less than or equal to 3.50:1.00 but greater than 3.00:1.00.
"LEVEL III" means such periods as the Total Leverage Ratio is
less than or equal to 3.00:1.00 but greater than 2.50:1.00.
"LEVEL IV" means such periods as the Total Leverage Ratio is
less than or equal to 2.50:1.00 but greater than 2.00:1.00.
"LEVEL V" means such periods as the Total Leverage Ratio is
less than or equal to 2.00:1.00.
"LEVEL DETERMINATION CERTIFICATE" means an Officers'
Certificate of Company delivered on the Effective Date and thereafter pursuant
to subsection 5.1(xii) setting forth in reasonable detail the Total Leverage
Ratio which is applicable as of the date on which such Officers' Certificate is
delivered.
"LIBBEY" means Libbey Inc.
"LIBBEY CANADA" has the meaning assigned to that term in the
introduction of this Agreement.
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any other agreement intended to
create any of the foregoing.
"LOANS" means one or more of the Revolving Loans, Swing Line
Loans, Canadian Loans, Negotiated Rate Loans or any combination thereof.
"LOAN DOCUMENTS" means this Agreement, any applications,
reimbursement agreements and other documents or certificates executed in favor
of Bankers relating to the Letters of Credit, the Drafts, Bankers' Acceptances
and the Notes.
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"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System (or any
successor thereto) as in effect from time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect
upon the business, operations, properties, assets or condition (financial or
otherwise) of Company and its Subsidiaries, taken as a whole, or (ii) a material
adverse effect on the ability of Company to perform, or of Agent, Co-Agents or
Lenders to enforce, the Obligations.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", as defined
in Section 3(37) of ERISA, (a) to which Company or any of its ERISA Affiliates
is contributing, or within the past six years has contributed, or (b) to which
Company or any of its ERISA Affiliates has, or within the past six years has
had, an obligation to contribute, or (c) with respect to which Company or any of
its ERISA Affiliates retains any liability.
"NEGOTIATED RATE" means, with respect to any Negotiated Rate
Loans, the fixed rate of interest per annum agreed upon by Company and the
Lender funding such Loan.
"NEGOTIATED RATE LOANS" means a Loan made by a Lender to
Company pursuant to subsection 2.11, in each case, bearing interest at the
Negotiated Rate for such Loan.
"NEGOTIATED RATE LOAN NOTES" means the promissory notes of
Company issued pursuant to subsection 2.11D, substantially in the form of
Exhibit III annexed hereto, as they may be amended, supplemented or otherwise
modified from time to time.
"NET CASH PROCEEDS" means, with respect to any Asset Sale,
Cash Proceeds of such Asset Sale net of bona fide direct costs of sale including
(i) income taxes reasonably estimated to be actually payable as a result of such
Asset Sale within two years of the date of such Asset Sale, (ii) payment of the
outstanding principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Loans) required to be repaid under the terms
thereof as a result of such Asset Sale, (iii) all legal, title and recording tax
expenses, commissions and other fees and expenses incurred, and all federal,
state, provincial, foreign and local taxes payable as a consequence of such
Asset Sale, (iv) a reasonable reserve determined in good faith by Company for
the after-tax cost of any indemnification payments (fixed and contingent)
attributable to seller's indemnities to the purchaser undertaken by Company or
any of its Subsidiaries in connection with such Asset Sale and (v) all
distributions and other payments made to minority interest holders in
Subsidiaries as a result of such Asset Sale attributable to the interest of such
minority interest holders in such Subsidiaries.
"NOTES" means one or more of the Revolving Notes, Swing Line
Note or Negotiated Rate Loan Notes or any combination thereof.
"NOTICE OF BORROWING" means a notice substantially in the form
of EXHIBIT I annexed hereto (i) delivered by Company to Agent pursuant to
subsection 2.1B with respect to
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a proposed borrowing of Revolving Loans, Swing Line Loans or Negotiated Rate
Loans or (ii) delivered by Company and Libbey Canada to Canadian Agent (with a
copy to Agent) pursuant to subsection 2.8B with respect to a proposed borrowing
of Canadian Loans.
"NOTICE OF CONVERSION/CONTINUATION" means a notice
substantially in the form of EXHIBIT II annexed hereto (i) delivered by Company
to Agent pursuant to subsection 2.2C or (ii) delivered by Company and Libbey
Canada to Canadian Agent (with a copy to Agent) pursuant to subsection 2.8C, in
each case with respect to a proposed conversion or continuation of the
applicable basis for determining the interest rate with respect to the Loans
specified therein.
"NOVA SCOTIA" has the meaning assigned to that term in the
introduction to this Agreement.
"OBLIGATIONS" means all obligations of every nature of Libbey,
Company and/or Libbey Canada from time to time owed to Agent, Co-Agents,
Canadian Agent, Lenders or any of them under the Loan Documents, whether for
principal, interest, reimbursement of amounts drawn under Letters of Credit,
fees, expenses, indemnification or otherwise.
"OFFICERS' CERTIFICATE" means, as applied to any corporation,
a certificate executed on behalf of such corporation by its chairman of the
board (if an officer) or its president or one of its vice presidents and by its
chief financial officer or its treasurer or an assistant treasurer; PROVIDED
that every Officers' Certificate with respect to the compliance with a condition
precedent to the making of any Loans hereunder shall include (i) a statement
that the officer or officers making or giving such Officers' Certificate have
read such condition and any definitions or other provisions contained in this
Agreement relating thereto, (ii) a statement that, in the opinion of the
signers, they have made or have caused to be made such examination or
investigation as is necessary to enable them to express an informed opinion as
to whether or not such condition has been complied with, and (iii) a statement
as to whether, in the opinion of the signers, such condition has been complied
with.
"OPERATING LEASE" means, as applied to any Person, any lease
(including, without limitation, leases that may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) that is not a
Capital Lease other than any such lease under which that Person is the lessor.
"ORIGINAL CLOSING DATE" means June 24, 1993.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
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"PERMITTED ENCUMBRANCES" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by subsection
5.3, other than any Lien imposed pursuant to Section 401(a)(29) or
412(n) of the Internal Revenue Code or by any statutory provisions
under ERISA;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent
or being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made
therefor;
(iii) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(iv) any attachment or judgment Lien not constituting an Event
of Default under subsection 7.8;
(v) leases or subleases granted to others not interfering in
any material respect with the ordinary conduct of the business of
Company or any of its Subsidiaries;
(vi) easements, rights-of-way, restrictions, minor defects,
encroachments or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the ordinary
conduct of the business of Company or any of its Subsidiaries;
(vii) any interest or title of a lessor or sublessor under any
lease not prohibited by this Agreement;
(viii) Liens arising from filing UCC financing statements
relating solely to leases permitted by this Agreement; and
(ix) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection
with the importation of goods.
"PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability companies, joint
stock companies, Joint Ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts
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or other organizations, whether or not legal entities, and governments and
agencies and political subdivisions thereof.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that,
after notice or lapse of time or both, would constitute an Event of Default.
"PRIME RATE" means the rate that Bankers announces from time
to time as its prime lending rate, as in effect from time to time. The Prime
Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. Bankers or any other Lender may make
commercial loans or other loans at rates of interest at, above or below the
Prime Rate.
"PRIME RATE LOANS" means Loans bearing interest at rates
determined by reference to the Prime Rate as provided in subsection 2.2A.
"PRO RATA SHARE" means (i) with respect to all payments,
computations and other matters relating to the Revolving Loan Commitment or the
Revolving Loans of any Lender or any Letters of Credit issued or participations
therein purchased by any Lender, the percentage obtained by DIVIDING (x) the
Revolving Loan Exposure of that Lender BY (y) the aggregate Revolving Loan
Exposure of all Lenders, and (ii) for all other purposes with respect to each
Lender, the percentage obtained by DIVIDING (x) the sum of the Revolving Loan
Exposure of that Lender PLUS the Canadian Loan Exposure of that Lender BY (y)
the sum of the aggregate Revolving Loan Exposure of all Lenders PLUS the
aggregate Canadian Loan Exposure of all Lenders, in any such case as the
applicable percentage may be adjusted by assignments permitted pursuant to
subsection 10.1B. The Pro Rata Share of each Lender as of the Effective Date for
purposes of each of clauses (i) and (ii) of the preceding sentence is set forth
opposite the name of that Lender in SCHEDULE 2.1 annexed hereto.
"RECEIVABLES PROGRAM" has the meaning set forth in subsection
6.12.
"REFERENCE LENDERS" means Bankers, The First National Bank of
Chicago and NationsBank, N.A.
"REFUNDED SWING LINE LOANS" has the meaning assigned to that
term in subsection 2.1A(iii).
"REGISTER" has the meaning assigned to that term in subsection
2.1D.
"REGULATION D" means Regulation D of the Board of Governors of
the Federal Reserve System (or any successor thereto), as in effect from time to
time.
"RELEASE" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including, without limitation, the abandonment or disposal of any
barrels, containers or other closed receptacles containing any
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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.
"REPLACED LENDER" has the meaning assigned to such term in
subsection 10.8.
"REPLACEMENT LENDER" has the meaning assigned to such term in
subsection 10.8.
"REQUEST FOR ISSUANCE OF LETTER OF CREDIT" means a request in
the form of EXHIBIT XI annexed hereto, with appropriate insertions and
deletions, with respect to the proposed issuance or amendment of a Letter of
Credit.
"REQUISITE LENDERS" means Lenders having or holding 51% or
more of the sum of (i) the aggregate Revolving Loan Exposure of all Lenders PLUS
(ii) the aggregate Canadian Loan Exposure of Canadian Agent.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Company now or hereafter outstanding, except a dividend payable solely in
shares of that class of stock to the holders of that class, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock of Company now or
hereafter outstanding, and (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock of Company now or hereafter outstanding.
"RESPONSIBLE OFFICER" means, with respect to any Person, any
one of the president, vice presidents and the treasurer of such Person.
"REVOLVING LOAN COMMITMENT" or "REVOLVING LOAN COMMITMENTS"
means the commitment or commitments of a Lender or Lenders to make Revolving
Loans, participate in Swing Line Loans and issue or participate in Letters of
Credit as set forth in subsections 2.1A(ii), 2.1A(iii) and 2.7A, respectively.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means May 1,
2002.
"REVOLVING LOAN EXPOSURE" means, with respect to any Lender as
of any date of determination (i) prior to the termination of the Revolving Loan
Commitments, that Lender's Revolving Loan Commitment and (ii) after the
termination of the Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Revolving Loans of that Lender PLUS (b) in
the case of Bankers, the aggregate amount of all drawings under Letters of
Credit honored by Bankers and not theretofore reimbursed by Company (in each
case net of any participations purchased by other Lenders in the applicable
Letters of Credit) PLUS (c) the aggregate amount of all participations purchased
by that Lender in (X) any drawings under Letters of Credit honored by Bankers
and not theretofore reimbursed by Company and (Y) any Swing Line Loans made by
Bankers PLUS (d) the aggregate outstanding
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principal amount of the Negotiated Rate Loans of that Lender PLUS (e) in the
case of Bankers, the aggregate outstanding principal amount of Swing Line Loans
(net of any participations purchased by other Lenders in Swing Line Loans).
"REVOLVING LOANS" means the Loans made by Lenders to Company
pursuant to subsection 2.1A(ii).
"REVOLVING NOTES" means the promissory notes of Company issued
pursuant to subsection 2.1E substantially in the form of Exhibit IV annexed
hereto and the promissory notes of Company issued pursuant to the First
Amendment to this Agreement substantially in the form of Exhibit IV annexed
hereto, as they may be amended, supplemented or otherwise modified from time to
time.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SOLVENT" means, with respect to any Person, that as of the
date of determination (i) the then fair saleable value of the property of such
Person as a going concern is (y) greater than the total amount of liabilities
(including anticipated Contingent Obligations and other contingent liabilities
only to the extent of the probable liability with respect to such Contingent
Obligations and other contingent liabilities) of such Person and (z) greater
than the amount that will be required to pay the probable liabilities of such
Person's then existing debts as they become absolute and matured; (ii) such
Person's capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person does not intend to
incur, or believe that it will incur, debts beyond its ability to pay such debts
as they become due.
"STANDBY LETTER OF CREDIT" means any standby letter of credit
or similar instrument issued for the purpose of supporting (i) Indebtedness of
Company or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings, (ii) workers' compensation liabilities of
Company or any of its Subsidiaries, (iii) the obligations of third party
insurers of Company or any of its Subsidiaries arising by virtue of the laws of
any jurisdiction requiring third party insurers, (iv) obligations with respect
to Capital Leases or Operating Leases of Company or any of its Subsidiaries, (v)
performance, payment, deposit or surety obligations of Company or any of its
Subsidiaries, in any case if required by law or governmental rule or regulation
or in accordance with custom and practice in the industry, (vi) obligations of
Company or any of its Subsidiaries imposed by statute or by a court of
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competent jurisdiction to post appeal bonds or other security in connection with
litigation appeals and (vii) other obligations of Company or any of its
Subsidiaries approved by Agent in its sole discretion; PROVIDED that Standby
Letters of Credit may not be issued for the purpose of supporting (x) trade
payables in any amount or (y) Indebtedness (other than Indebtedness described in
clause (i) above) in an aggregate amount at any one time in excess of
$20,000,000.
"SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, association, Joint Venture or other business entity of
which more than 50% of the total voting power of shares of stock or other
ownership interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
"SWING LINE LOAN COMMITMENT" means the commitment of Bankers
to make or to maintain Swing Line Loans pursuant to subsection 2.1A(iii).
"SWING LINE LOANS" means the Loans to Company Bankers has
agreed to make or maintain pursuant to subsection 2.1A(iii).
"SWING LINE NOTE" means a promissory note issued by Company to
Bankers pursuant to subsection 2.1E, substantially in the form of EXHIBIT V
annexed hereto, as it may be amended, supplemented or otherwise modified from
time to time.
"SYNDICATION AGENT" has the meaning assigned to that term in
the introduction to this Agreement.
"TAX" or "TAXES" means any present or future tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied, collected,
withheld or assessed; PROVIDED that "TAX ON THE OVERALL NET INCOME" of a Person
shall be construed as a reference to a tax imposed by the jurisdiction in which
that Person's principal office (and/or, in the case of a Lender, its lending
office) is located on all or part of the net income, profits or gains of that
Person (whether worldwide, or only insofar as such income, profits or gains are
considered to arise in or to relate to a particular jurisdiction, or otherwise).
"TAX TRANSFEREE" means any Person who acquires any interest in
the Loans (whether or not by operation of law) or the office to which a Lender,
Agent or a Co-Agent has transferred its Loans for purposes of determining where
the Loans are made, accounted for or booked.
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"TERM LOANS" means the Term Loans (as defined in the Existing
Credit Agreement) made by the Existing Lenders to Company pursuant to the
Existing Credit Agreement.
"TERM NOTES" means the promissory notes of Company issued
pursuant to subsection 2.1E of the Existing Credit Agreement.
"TOTAL LEVERAGE RATIO" means, as at any date of determination,
the ratio of (i) the sum of (without duplication) (A) Consolidated Total Debt
PLUS (B) the net sales proceeds of accounts receivables sold by the Company or
any of its Subsidiaries pursuant to a Receivables Program MINUS any collections
thereon to (ii) Consolidated Adjusted EBITDA for the four fiscal quarter period
ending as of the last day of the fiscal quarter immediately preceding the fiscal
quarter during which such date of determination occurs; except that, if the date
of determination is the last day of a fiscal quarter, the four fiscal quarter
period tested shall include the preceding three fiscal quarters and the fiscal
quarter then ending; PROVIDED that if any Person is acquired by Company or its
Subsidiaries as permitted under subsection 6.7(iv) and thereby becomes a
Subsidiary of Company, Consolidated Total Debt and Consolidated Adjusted EBITDA
shall be calculated as if such person was a Subsidiary of Company for the
preceding four fiscal quarter period; PROVIDED FURTHER that if any Investments
in Joint Ventures are made by Company or its Subsidiaries as permitted under
subsection 6.3, Consolidated Total Debt and Consolidated Adjusted EBITDA shall
be calculated as if such Investments were made at the beginning of such four
fiscal quarter period.
"TOTAL UTILIZATION OF CANADIAN LOAN COMMITMENT" means, as at
any date of determination, the sum of (i) the aggregate principal amount of all
outstanding Canadian Loans PLUS (ii) the Acceptance Usage PLUS (iii) the
Canadian Letter of Credit Usage, in each case valued in Dollar Equivalents.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as at
any date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans, Swing Line Loans and Negotiated Rate Loans PLUS
(ii) the Letter of Credit Usage.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS
UNDER AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to clauses (i), (ii) and
(xii) of subsection 5.1 shall be prepared in accordance with GAAP as in effect
at the time of such preparation (and, if necessary, delivered together with the
written statements provided for in subsection 5.1(iv)). Notwithstanding the
foregoing, if any changes in accounting principles from those used in the
preparation of the financial statements referred to in subsection 5.1 hereafter
occasioned by the promulgation of rules, regulations, pronouncements or opinions
by or required by the Financial Accounting Standards Board or the American
Institute of Certified Public Accountants (or successors
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thereto or agencies with similar functions) result in the inclusion of any
interest expense associated with the COLI Debt in the method of calculation of
financial covenants, standards or terms found in Sections 1, 5 and 6 hereof, the
parties hereto agree that notwithstanding such change in accounting principles,
any and all interest expense associated with the COLI Debt shall not be
included in the method of calculation of financial covenants, standards or terms
found in Sections 1, 5 and 6 hereof.
1.3 OTHER DEFINITIONAL PROVISIONS.
References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement unless otherwise
specifically provided. Any of the terms defined in subsection 1.1 may, unless
the context otherwise requires, be used in the singular or the plural, depending
on the reference.
1.4 APPENDICES.
Each Appendix annexed to this Agreement forms a part of this
Agreement and is incorporated herein by this reference. Each provision set forth
in such Appendices shall have the same force and effect as if it were set forth
in this Agreement.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; LOANS.
A. COMMITMENTS; REPAYMENT OF LOANS ON THE EFFECTIVE DATE.
(i) [Intentionally omitted].
(ii) REVOLVING LOANS. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties
of Company herein set forth, as of the Effective Date, each Lender
hereby severally agrees to lend to Company, subject to the limitations
set forth below with respect to the maximum amount of Revolving Loans
permitted to be outstanding from time to time, from time to time during
the period from the Effective Date to but excluding the Revolving Loan
Commitment Termination Date an aggregate amount not exceeding its
Revolving Loan Commitment to be used for the purposes identified in
subsection 2.5A. The principal amount of each Lender's Revolving Loans
outstanding as of the Effective Date and the aggregate principal amount
of the Revolving Loans outstanding as of the Effective Date are set
forth on Schedule 2.1 annexed hereto. The initial amount of each
Lender's Revolving Loan Commitment is set forth opposite its name on
Schedule 2.1 annexed hereto, and the aggregate initial amount of the
Revolving Loan Commitments is $365,000,000; PROVIDED that the amount of
the Revolving Loan Commitments shall be reduced from time to time by
the amount of any reductions thereto made pursuant to subsection
2.4A(ii) and 2.4A(iii). Each Lender's Revolving Loan Commitment
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shall expire on the Revolving Loan Commitment Termination Date and all
Revolving Loans and all other amounts owed hereunder with respect to
the Revolving Loans and the Revolving Loan Commitments shall be paid in
full no later than that date. Amounts borrowed under this subsection
2.1A(ii) may be repaid and reborrowed to but excluding the Revolving
Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving Loan Commitments
shall be subject to the following limitations:
(a) The amount otherwise available for borrowing
under the Revolving Loan Commitments as of any time of determination
(other than to repay the Swing Line Loans or Negotiated Rate Loans and
accrued and unpaid interest thereon and to reimburse Bankers for the
amount of any drawings under any Letters of Credit honored by Bankers
and not theretofore reimbursed by Company) shall be reduced by an
amount equal to the sum of (1) the principal amount of all Swing Line
Loans then outstanding PLUS (2) the Letter of Credit Usage as of such
time of determination PLUS (3) the principal amount of all outstanding
Negotiated Rate Loans; and
(b) The Total Utilization of Revolving Loan
Commitments shall not exceed the aggregate Revolving Loan Commitments.
(iii) SWING LINE LOANS. Bankers hereby agrees, subject to the
limitations set forth below with respect to the maximum amount of Swing
Line Loans permitted to be outstanding from time to time, (A) to
maintain its outstanding Swing Line Loans and (B) to make a portion of
the Revolving Loan Commitments available to Company from time to time
during the period from the Effective Date through but excluding the
Revolving Loan Commitment Termination Date in an aggregate principal
amount of up to $25,000,000 by making Swing Line Loans to Company,
notwithstanding the fact that such Swing Line Loans, when aggregated
with Bankers' outstanding Revolving Loans may exceed Bankers' Revolving
Loan Commitment. In no event shall (a) the aggregate principal amount
of Swing Line Loans outstanding at any time exceed the Swing Line Loan
Commitment, (b) the aggregate principal amount of Revolving Loans,
Swing Line Loans and Negotiated Rate Loans outstanding at any time
exceed the aggregate Revolving Loan Commitments as reduced by the
Letter of Credit Usage, or (c) the Swing Line Loan Commitment exceed
the aggregate Revolving Loan Commitments. Any reduction of the
Revolving Loan Commitments made pursuant to subsection 2.4A(ii) or
2.4A(iii) which reduces the Revolving Loan Commitments below the then
current amount of the Swing Line Loan Commitment shall result in an
automatic corresponding reduction of the Swing Line Loan Commitment to
the amount of the Revolving Loan Commitments, as so reduced, without
any further action on the part of Bankers. Bankers' Swing Line Loan
Commitment shall expire on the Revolving Loan Commitment Termination
Date and Swing Line Loans shall be paid in full no later than the
Revolving Loan Commitment Termination Date.
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Amounts borrowed by Company under this subsection 2.1A(iii)
may be repaid and, to but excluding the Revolving Loan Commitment
Termination Date, reborrowed. All Swing Line Loans shall be made as
Prime Rate Loans and shall not be entitled to be converted into
Eurodollar Rate Loans. Swing Line Loans made on any Funding Date may be
in any amount.
Bankers may, at any time in its sole and absolute discretion
and shall, no later than the fifteenth Business Day after the Funding
Date of any Swing Line Loan, require each Lender, including Bankers,
and each Lender hereby agrees, subject to this subsection 2.1A(iii), to
make a Revolving Loan (which shall initially be funded as a Prime Rate
Loan) in an amount equal to such Lender's Revolving Loan Commitment Pro
Rata Share of the amount of the Swing Line Loans ("REFUNDED SWING LINE
LOANS") outstanding on the date notice is given which Bankers requests
Lenders to pay; PROVIDED, HOWEVER, that the obligation of each Lender
to make any such Revolving Loan is subject to the satisfaction of one
of the following: (i) Bankers believed in good faith that all
conditions under Section 3 to the making of such Swing Line Loan were
satisfied at the time such Swing Line Loan was made; or (ii) such
Lender had actual knowledge, by receipt of the statements required
pursuant to subsection 5.1 or otherwise, that any such condition had
not been satisfied and failed to notify Bankers and Agent in writing
that it had no obligation to make Revolving Loans until such condition
was satisfied (which notice shall be effective as of the date of
receipt by Bankers and Agent); or (iii) the satisfaction of any such
condition not satisfied had been waived by Requisite Lenders prior to
or at the time such Swing Line Loan was made. In the case of Revolving
Loans made by Lenders other than Bankers under the immediately
preceding sentence, each such Lender shall make the amount of its
Revolving Loan available to Agent, in same day funds, at the office of
Agent located at One Bankers Trust Plaza, New York, New York, not later
than 12:00 Noon (New York time) on the Business Day next succeeding the
fifth Business Day after the date such notice is given. The proceeds of
such Revolving Loans shall be immediately delivered to Bankers (and not
to Company) and applied to repay the Refunded Swing Line Loans. On the
day such Revolving Loans are made, Bankers' Pro Rata Share of the
Refunded Swing Line Loans shall be deemed to be paid with the proceeds
of a Revolving Loan made by Bankers and such portion of the Swing Line
Loans deemed to be so paid shall no longer be outstanding as Swing Line
Loans and shall be due as a Revolving Loan made by Bankers. Company
authorizes Agent and Bankers to charge Company's accounts with Agent
and Bankers (up to the amount available in each such account) in order
to immediately pay Bankers the amount of such Refunded Swing Line Loans
to the extent amounts received from Lenders, including amounts deemed
to be received from Bankers, are not sufficient to repay in full such
Refunded Swing Line Loans; PROVIDED that Agent or Bankers, as the case
may be, shall give Company prior notice of such charges or as soon as
reasonably practicable thereafter. If any portion of any amount paid
(or deemed to be paid) to Bankers should be recovered from Bankers by
or on behalf of Company in bankruptcy, by assignment for the benefit of
creditors or otherwise, the loss of the amount so recovered shall be
ratably shared among all Lenders proportionately in accordance with
their respective Revolving Loan
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Commitment Pro Rata Shares; PROVIDED, HOWEVER, that in the case of
amounts recovered from Bankers in respect of amounts charged against
Company's accounts, the loss of the amount so recovered shall be shared
ratably by all Lenders whose Revolving Loans made pursuant to this
paragraph were less than each such respective Lender's Revolving Loan
Commitment Pro Rata Share of the Refunded Swing Line Loan. Subject to
the proviso contained in the first sentence of this paragraph, each
Lender's obligation to make the Revolving Loans referred to in this
paragraph shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender may
have against Bankers, Company or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of an Event of Default
or a Potential Event of Default; (iii) any adverse change in the
condition (financial or otherwise) of Company or any of its
Subsidiaries; (iv) the acceleration or maturity of any Loans or the
termination of the Revolving Loan Commitments after the making of any
Swing Line Loan; (v) any breach of this Agreement by any party to this
Agreement, Agent or any other Lender; or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing.
In the event that Company or any of its Subsidiaries has filed
for protection under the Bankruptcy Code or otherwise if Bankers
requests and, in any event, subject to satisfaction of the conditions
set forth in the PROVISO to the first sentence of the preceding
paragraph, each Lender shall acquire without recourse or warranty an
undivided participation interest equal to such Lender's Revolving Loan
Commitment Pro Rata Share of any Swing Line Loan otherwise required to
be repaid by such Lender pursuant to the preceding paragraph by paying
to Bankers on the date on which such Lender would otherwise have been
required to make a Revolving Loan in respect of such Swing Line Loan
pursuant to the preceding paragraph, in immediately available funds, an
amount equal to such Lender's Revolving Loan Commitment Pro Rata Share
of such Swing Line Loan, and no Revolving Loans shall be made by such
Lender pursuant to the preceding paragraph. If such amount is not in
fact made available to Bankers by that Lender on the date when
Revolving Loans would otherwise be required to be made pursuant to the
preceding paragraph, Bankers shall be entitled to recover such amount
on demand from that Lender together with interest accrued from such
date at the customary rate set by Bankers for the correction of errors
among banks for three Business Days and thereafter at the rate of
interest then applicable to Prime Rate Loans. From and after the date
on which any Lender purchases an undivided participation interest in a
Swing Line Loan pursuant to this paragraph, Bankers shall promptly
distribute to such Lender such Lender's Revolving Loan Commitment Pro
Rata Share of all payments of principal and interest in respect of such
Swing Line Loan.
A copy of each notice given by Bankers to Lenders pursuant to
the second preceding paragraph shall be promptly delivered by Bankers
to Company. Upon the making of a Revolving Loan by a Lender pursuant to
this subsection 2.1A(iii), the
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amount so funded shall become due under such Lender's Revolving Note
(if any) and shall no longer be owed under the Swing Line Note (if
any).
Notwithstanding anything herein to the contrary, Bankers shall
not be obligated to make any Swing Line Loans if it has elected after
the occurrence and during the continuation of a Potential Event of
Default or Event of Default not to make Swing Line Loans and has
notified Company in writing or by telephone (promptly confirmed in
writing) of such election. Bankers shall promptly give notice to
Lenders of such election not to make Swing Line Loans.
B. BORROWING MECHANICS. Revolving Loans made on any Funding Date (other
than Revolving Loans made pursuant to 2.1A(iii) for the purpose of refunding
Swing Line Loans or subsection 2.7C for the purpose of reimbursing Bankers for
the amount of a drawing under a Letter of Credit issued by it and Negotiated
Rate Loans) shall be in an aggregate minimum amount of $2,500,000 and integral
multiples of $500,000 in excess of that amount. A Negotiated Rate Loan shall be
in such minimum amounts as may be mutually agreed upon by Company and the
applicable Lender. A Swing Line Loan made on any date shall not be subject to a
minimum amount. Whenever Company desires that Lenders make Revolving Loans it
shall deliver to Agent a Notice of Borrowing no later than 12:00 Noon (New York
time) at least three Business Days in advance of the proposed Funding Date (in
the case of a Eurodollar Rate Loan), or at least one Business Day in advance of
the proposed Funding Date (in the case of a Prime Rate Loan). Whenever Company
desires that a Lender make a Negotiated Rate Loan under subsection 2.11, it
shall deliver to Agent and such Lender a Notice of Borrowing no later than 12:00
Noon (New York time) on the proposed Funding Date. Whenever Company desires that
Bankers make a Swing Line Loan under subsection 2.1A(iii), it shall deliver to
Agent a Notice of Borrowing no later than 12:00 Noon (New York time) on the
proposed Funding Date. The Notice of Borrowing shall specify (i) the proposed
Funding Date (which shall be a Business Day), (ii) the amount and type of Loans
requested, (iii) whether such Loans shall be Prime Rate Loans, Eurodollar Rate
Loans or Negotiated Rate Loans, (iv) in the case of Revolving Loans and Swing
Line Loans, that the amount of the proposed borrowing will not cause the Total
Utilization of Revolving Loan Commitments to exceed the aggregate Revolving Loan
Commitments, (v) in the case of any Loans requested to be made as Eurodollar
Rate Loans, the initial Interest Period requested therefor, (vi) in the case of
Swing Line Loans, that the amount of the proposed borrowing will not cause the
aggregate principal amount of Swing Line Loans outstanding to exceed the Swing
Line Loan Commitment then in effect, and (vii) or in the case of Negotiated Rate
Loans, that the aggregate outstanding principal amount of Negotiated Rate Loans
will not exceed $190,000,000 and the proposed maturity date therefor. Revolving
Loans (other than Negotiated Rate Loans) may be continued as or converted into
Prime Rate Loans and Eurodollar Rate Loans in the manner provided in subsection
2.2C. In lieu of delivering the above-described Notice of Borrowing, Company
may give Agent telephonic notice by the required time of any proposed borrowing
under this subsection 2.1B; PROVIDED that such notice shall be promptly
confirmed in writing by delivery of a Notice of Borrowing to Agent on or before
the applicable Funding Date.
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Neither Agent nor any Lender shall incur any liability to
Company in acting upon any telephonic notice referred to above that Agent
believes in good faith to have been given by a duly authorized officer or other
person authorized to borrow on behalf of Company or for otherwise acting in good
faith under this subsection 2.1B, and upon funding of Loans by Lenders in
accordance with this Agreement pursuant to any such telephonic notice Company
shall have effected Loans hereunder.
Except as otherwise provided in sections B, C and G of
Appendix A annexed hereto, a Notice of Borrowing for a Eurodollar Rate Loan (or
telephonic notice in lieu thereof) shall be irrevocable on and after the related
Interest Rate Determination Date, and Company shall be bound to make a borrowing
in accordance therewith, unless Company pays to Lenders such amounts as may be
due under section D of Appendix A annexed hereto for failure of a borrowing of a
Eurodollar Rate Loan to occur on the date specified therefor in a Notice of
Borrowing (or telephonic notice in lieu thereof).
C. DISBURSEMENT OF FUNDS. All Loans (other than Swing Line Loans,
Negotiated Rate Loans and Canadian Loans) under this Agreement shall be made by
Lenders simultaneously and proportionately to their respective Pro Rata Shares
of the Commitments for the particular type of Loans requested, it being
understood that no Lender shall be responsible for any default by any other
Lender in that other Lender's obligation to make a Loan requested hereunder nor
shall the Commitment of any Lender to make the particular type of Loan requested
be increased or decreased as a result of a default by any other Lender in that
other Lender's obligation to make a Loan requested hereunder. Promptly after
receipt by Agent of a Notice of Borrowing pursuant to subsection 2.1B (or
telephonic notice in lieu thereof), Agent shall notify each Lender of the
proposed borrowing. Each Lender shall make the amount of its Loan (other than
Canadian Loans) available to Agent, in same day funds, at the office of Agent
located at One Bankers Trust Plaza, New York, New York, not later than 12:00
Noon (New York time) on the applicable Funding Date. Except with respect to the
repayment of Refunded Swing Line Loans, as provided in subsection 2.1A(iii), the
reimbursement of Bankers for a drawing on a Letter of Credit, as provided in
subsection 2.7C, or any Canadian Loans, upon satisfaction or waiver of the
conditions precedent specified in subsections 3.1 and 3.2, Agent shall make the
proceeds of such Loans available to Company on the applicable Funding Date by
causing an amount of same day funds equal to the proceeds of all such Loans
received by Agent from Lenders to be credited to the account of Company at the
office of Agent specified in the preceding sentence.
Except with respect to Negotiated Rate Loans, unless Agent
shall have been notified by any Lender prior to the Funding Date for any Loans
that such Lender does not intend to make available to Agent the amount of such
Lender's Loan requested on such Funding Date, Agent may assume that such Lender
has made such amount available to Agent on such Funding Date and Agent may, in
its sole discretion, but shall not be obligated to, make available to Company a
corresponding amount on such Funding Date. If such corresponding amount is not
in fact made available to Agent by such Lender, Agent shall be entitled to
recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from such Funding Date until the date such amount
is paid to
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Agent, at the customary rate set by Agent for the correction of errors among
banks for three Business Days and thereafter at the Prime Rate. If such Lender
does not pay such corresponding amount forthwith upon Agent's demand therefor,
Agent shall promptly notify Company and Company shall immediately pay such
corresponding amount to Agent together with interest thereon, for each day from
such Funding Date until the date such amount is paid to Agent, at the rate
payable under this Agreement at such time for Prime Rate Loans that are
Revolving Loans. Nothing in this subsection 2.1C shall be deemed to relieve any
Lender from its obligation to fulfill its Commitments hereunder or to prejudice
any rights that Company may have against any Lender as a result of any default
by such Lender hereunder.
D. THE REGISTER.
(i) Agent shall maintain, at its address referred to in
subsection 10.12, a register for the recordation of the names and
addresses of Lenders and the Commitments and Loans of each Lender from
time to time (the "REGISTER"). Company, Agent, Co-Agents and Lenders
may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall
be available for inspection by Company, Agent, any Co-Agent or any
Lender at any reasonable time and from time to time upon reasonable
prior notice.
(ii) Agent shall record in the Register the Commitments and
the Loans from time to time of each Lender and each repayment or
prepayment in respect of the principal amount of the Loans of each
Lender. Any such recordation shall be conclusive and binding on Company
and each Lender, absent manifest or demonstrable error; PROVIDED that
failure to make any such recordation, or any error in such recordation,
shall not affect Company's or Libbey Canada's Obligations in respect of
the applicable Loans.
(iii) Each Lender shall record on its internal records
(including, without limitation, any promissory note described in
subsection 2.1E) the amount of each Loan made by it and each payment in
respect thereof; PROVIDED that in the event of any inconsistency
between the Register and any Lender's records, the recordations in the
Register shall govern, absent manifest or demonstrable error.
E. NOTE OPTION. If so requested by any Lender by written notice to
Company (with a copy to Agent) at least two Business Days' prior to the
Effective Date or at any time thereafter, Company shall execute and deliver to
such Lender (and/or, if so specified in such notice, any Person who is an
assignee of such Lender pursuant to subsection 10.1 hereof) on the Effective
Date (or, if such notice is delivered after the Effective Date, within three
Business Days of Company's receipt of such notice) a promissory note or
promissory notes to evidence such Lender's Revolving Loans or Swing Line Loans,
substantially in the form of EXHIBIT IV-A, EXHIBIT IV-B or EXHIBIT V hereto,
respectively.
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2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of Appendix A annexed
hereto and subsection 10.7, each Revolving Loan shall bear interest on the
unpaid principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Prime Rate
or the Adjusted Eurodollar Rate, as the case may be. The applicable basis for
determining the rate of interest with respect to any such Loan shall be selected
by Company initially at the time a Notice of Borrowing is given with respect to
such Loan pursuant to subsection 2.1B. The basis for determining the interest
rate with respect to any such Loan may be changed from time to time pursuant to
subsection 2.2C. If on any day any such Loan is outstanding with respect to
which notice has not been delivered to Agent in accordance with the terms of
this Agreement specifying the applicable basis for determining the rate of
interest, then for that day that Loan shall bear interest as determined by
reference to the Prime Rate. Subject to the provisions of subsection 10.7, each
Swing Line Loan shall bear interest on the unpaid principal amount thereof from
the date made through maturity (whether by acceleration or otherwise) at a rate
determined by reference to the Prime Rate.
Subject to the provisions of subsections 2.2D and 10.7, from
and after the Effective Date the Revolving Loans shall bear interest through
maturity as follows:
(i) if a Prime Rate Loan, then at the Prime Rate per annum
MINUS the applicable Commitment Fee Percentage; or
(ii) if a Eurodollar Rate Loan, then at the sum of the
Adjusted Eurodollar Rate plus the Applicable Eurodollar
Margin; and
subject to the provisions of subsections 2.2D and 10.7, the Swing Line Loans
shall bear interest through maturity at the Prime Rate MINUS the applicable
Commitment Fee Percentage.
Upon delivery of the Level Determination Certificate by
Company to Agent pursuant to subsection 5.1(xii), the Applicable Eurodollar
Margin shall automatically be adjusted in accordance with the Level in effect as
determined by such Level Determination Certificate, such adjustment to become
effective on the next succeeding Business Day after the receipt by Agent of such
Level Determination Certificate; PROVIDED that on the Effective Date, the
Applicable Eurodollar Margin shall be determined in accordance with the Level in
effect as determined by the Level Determination Certificate delivered by Company
to Agent pursuant to subsection 3.1E.
Subject to the provisions of subsection 2.2D and 10.7, each
Negotiated Rate Loan shall bear interest at the Negotiated Rate applicable
thereto.
B. INTEREST PAYMENTS. Subject to the provisions of subsection
2.2D, interest on each Revolving Loan and Swing Line Loan shall be payable in
arrears on and to each Interest Payment Date applicable to that Loan, upon any
prepayment of that Loan (if such Loan is a
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Eurodollar Rate Loan (to the extent accrued on the amount being prepaid)) and at
maturity (including final maturity).
C. CONVERSION OR CONTINUATION. Subject to the provisions of subsection
2.6, Company shall have the option (i) to convert at any time all or any part of
its outstanding Revolving Loans (but not Swing Line Loans or Negotiated Rate
Loans) equal to $2,500,000 and integral multiples of $500,000 in excess of that
amount from Loans bearing interest at a rate determined by reference to one
basis to Loans bearing interest at a rate determined by reference to an
alternative basis or (ii) upon the expiration of any Interest Period applicable
to a Eurodollar Rate Loan, to continue all or any portion of such Loan equal to
$2,500,000 and integral multiples of $500,000 in excess of that amount as a
Eurodollar Rate Loan; PROVIDED, HOWEVER, that a Eurodollar Rate Loan may only be
converted into a Prime Rate Loan on the expiration date of an Interest Period
applicable thereto, unless Company pays to Lenders such amounts as may be due
under section D of Appendix A annexed hereto for failure of a conversion to or
continuation of any Eurodollar Rate Loan to occur on the date specified therefor
in a Notice of Conversion/Continuation (or telephonic notice in lieu thereof);
PROVIDED FURTHER that Swing Line Loans shall only bear interest as Prime Rate
Loans and Company shall not have any right to convert outstanding Swing Line
Loans which are Prime Rate Loans into Swing Line Loans bearing interest at a
rate determined by reference to the Adjusted Eurodollar Rate; and PROVIDED
FURTHER that no Loan may be made as (other than the making of Swing Line Loans)
or converted into a Prime Rate Loan during the period from December 24 of any
year to and including January 7 of the immediately succeeding year for the
purpose of investing in securities bearing interest at a rate determined by
reference to any other basis for the purpose of arbitrage or speculation.
Negotiated Rate Loans may not be converted or continued but shall at all times
bear interest at the applicable Negotiated Rate.
Company shall deliver a Notice of Conversion/Continuation to
Agent no later than 12:00 Noon (New York time) at least one Business Day in
advance of the proposed conversion/continuation date (in the case of a
conversion to a Prime Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). A Notice of Conversion/Continuation
shall specify (i) the proposed conversion/continuation date (which shall be a
Business Day), (ii) the amount of the Loan to be converted/continued, (iii) the
nature of the proposed conversion/continuation, (iv) in the case of a conversion
to or a continuation of a Eurodollar Rate Loan, the requested Interest Period,
and (v) in the case of a conversion to, or a continuation of a Eurodollar Rate
Loan, that no Potential Event of Default or Event of Default has occurred and is
continuing. In lieu of delivering the above-described Notice of
Conversion/Continuation, Company may give Agent telephonic notice by the
required time of any proposed conversion/continuation under this subsection
2.2C; PROVIDED that such notice shall be promptly confirmed in writing by
delivery of a Notice of Conversion/Continuation to Agent on or before the
proposed conversion/continuation date.
Neither Agent nor any Lender shall incur any liability to
Company in acting upon any telephonic notice referred to above that Agent
believes in good faith to have been given by a duly authorized officer or other
person authorized to act on behalf of Company or
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for otherwise acting in good faith under this subsection 2.2C, and upon
conversion or continuation of the applicable basis for determining the interest
rate with respect to any Loans in accordance with this Agreement pursuant to any
such telephonic notice Company shall have effected a conversion or continuation,
as the case may be, hereunder.
Except as otherwise provided in sections B, C and G of
Appendix A annexed hereto, a Notice of Conversion/Continuation for conversion
to, or continuation of a Eurodollar Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to effect a conversion or
continuation in accordance therewith, unless Company pays to Lenders such
amounts as may be due under section D of Appendix A annexed hereto for failure
of a conversion to or continuation of any Eurodollar Rate Loan to occur on the
date specified therefor in a Notice of Conversion/Continuation (or telephonic
notice in lieu thereof).
D. POST-MATURITY INTEREST. Any principal payments on the Loans not paid
when due and, to the extent permitted by applicable law, any interest payments
on the Loans owed hereunder not paid when due, in each case whether at stated
maturity, by notice of prepayment, by acceleration or otherwise, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand
at a rate which is 2% per annum in excess of the interest rate otherwise payable
under this Agreement at such time for Prime Rate Loans that are Revolving Loans;
PROVIDED that, in the case of Eurodollar Rate Loans, upon the expiration of the
Interest Period in effect at the time any such increase in interest rate is
effective, such Eurodollar Rate Loans shall thereupon become Prime Rate Loans
and shall thereafter bear interest payable upon demand at a rate which is 2% per
annum in excess of the interest rate otherwise payable under this Agreement at
such time for Prime Rate Loans that are Revolving Loans. Payment or acceptance
of the increased rates of interest provided for in this subsection 2.2D is not a
permitted alternative to timely payment and shall not constitute a waiver of any
Event of Default or otherwise prejudice or limit any rights or remedies of
Agent, any Co-Agent or any Lender.
E. COMPUTATION OF INTEREST. Interest on the Loans shall be computed on
the basis of a 360-day year, in each case for the actual number of days elapsed
in the period during which it accrues. In computing interest on any Loan, the
date of the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Prime Rate Loan being converted
from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan
to such Prime Rate Loan, shall be included, and the date of payment of such Loan
or the expiration date of an Interest Period applicable to such Loan or, with
respect to a Prime Rate Loan being converted to a Eurodollar Rate Loan, the date
of conversion of such Prime Rate Loan to such Eurodollar Rate Loan, shall be
excluded; PROVIDED that if a Loan is repaid on the same day on which it is made,
one day's interest shall be paid on that Loan. Notwithstanding the foregoing,
interest on the Negotiated Rate Loans shall be computed on such basis as is
agreed upon by Company and the Lender advancing such Loan.
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2.3 FEES.
A. COMMITMENT FEES. Company agrees to pay to Agent for distribution to
each Lender in proportion to that Lender's Pro Rata Share of the Revolving Loan
Commitments, commitment fees for the period from and after the Effective Date to
and excluding the Revolving Loan Commitment Termination Date, equal to the
quarterly average (but if not for a full quarter, then the average for the
applicable portion of such quarter) of the Revolving Loan Commitments MULTIPLIED
BY the Commitment Fee Percentage, such commitment fees in each case to be
calculated on the basis of a 360-day year and the actual number of days elapsed
and to be payable quarterly in arrears on January 1, April 1, July 1 and October
1 of each year and on the Revolving Loan Commitment Termination Date (or, if
earlier, on the date on which the Revolving Loan Commitments are terminated).
B. FACILITY FEES. Company agrees to pay to Agent for distribution to
each Lender on the Effective Date, a facility fee equal to the amount set forth
in a letter from Company and Agent to such Lender.
C. OTHER FEES. Company agrees to pay to Agent the fees agreed to and in
the amounts and at the times set forth in writing between Company and Agent.
2.4 PREPAYMENTS AND REDUCTIONS IN COMMITMENTS; GENERAL PROVISIONS REGARDING
PAYMENTS.
A. PREPAYMENTS; REDUCTIONS IN COMMITMENTS; CASH COLLATERALIZATION OF
STANDBY LETTERS OF CREDIT.
(i) VOLUNTARY PREPAYMENTS.
(a) Company may, upon written or telephonic notice to
Agent on or prior to 12:00 Noon (New York time) on the date of
prepayment, which notice, if telephonic shall be promptly confirmed in
writing, at any time and from time to time prepay any Swing Line Loan
in whole or in part in any aggregate amount. Company may, upon not less
than one Business Day's (in the case of Prime Rate Loans) or three
Business Days' (in the case of Eurodollar Rate Loans) prior written or
telephonic notice confirmed in writing to Agent (which notice Agent
will promptly transmit by telecopy, telex or telephone to each Lender),
at any time and from time to time prepay any Loans (other than Swing
Line Loans and Negotiated Rate Loans, which Negotiated Rate Loans are
prepayable only upon such terms and conditions as are agreed to between
the Company and the Lender funding such Negotiated Rate Loans) in whole
or in part on any Business Day in an aggregate minimum amount of
$2,500,000 and integral multiples of $500,000 in excess of that amount;
PROVIDED, HOWEVER, that if a Eurodollar Rate Loan is prepaid on a date
other than the last day of the Interest Period applicable thereto,
Company shall be liable for any payments required by section D of
Appendix A annexed hereto. Notice of prepayment having been given as
aforesaid, the principal amount of the Loans specified in such notice
shall become due and
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payable on the prepayment date specified therein. Any such voluntary
prepayment shall be applied as specified in subsection 2.4A(iv).
(b) In the event Company is entitled to replace a
non-consenting Lender pursuant to subsection 10.6B, Company shall have
the right, upon five Business Days' written notice to Agent (which
notice Agent shall promptly transmit to each of the Lenders), to prepay
all Loans, together with accrued and unpaid interest, fees and other
amounts owing to such Lender in accordance with subsection 10.6B so
long as (1) in the case of the prepayment of the Revolving Loans of any
Lender pursuant to this subsection 2.4A(i)(b), the Revolving Loan
Commitment of such Lender is terminated concurrently with such
prepayment pursuant to subsection 2.4A(ii)(b) (at which time SCHEDULE
2.1 shall be deemed modified to reflect the changed Revolving Loan
Commitments), and (2) in the case of the prepayment of the Loans of any
Lender, the consents required by subsection 10.6B in connection with
the prepayment pursuant to this subsection 2.4A(i)(b) shall have been
obtained, and at such time, such Lender shall no longer constitute a
"Lender" for purposes of this Agreement, except with respect to
indemnifications under this Agreement (including, without limitation,
Section D of Appendix A annexed hereto, Section C of Appendix B annexed
hereto and in subsections 10.2, 10.3 and 10.7), which shall survive as
to such Lender.
(ii) (a) VOLUNTARY REDUCTIONS OF REVOLVING LOAN COMMITMENTS.
Company may, upon not less than three Business Days' prior written or
telephonic notice confirmed in writing to Agent (which notice Agent
will promptly transmit by telecopy, telex or telephone to each Lender),
at any time and from time to time terminate in whole or permanently
reduce in part, without premium or penalty, the Revolving Loan
Commitments in an amount up to the amount by which the Revolving Loan
Commitments exceed the Total Utilization of Revolving Loan Commitments
at the time of such proposed termination or reduction; PROVIDED that
any such partial reduction of the Revolving Loan Commitments shall be
in an aggregate minimum amount of $2,500,000 and integral multiples of
$500,000 in excess of that amount; PROVIDED FURTHER that at the time
Company effects any permanent reduction in the Revolving Loan
Commitments, unless otherwise agreed to in writing by Canadian Agent,
it shall also effect a permanent reduction in the Canadian Loan
Commitment in a proportionate amount equal to the proportion that the
Revolving Loan Commitments bear to the Canadian Loan Commitment at such
time. Company's notice to Agent shall designate the date (which shall
be a Business Day) of such termination or reduction and the amount of
any partial reduction, and such termination or reduction of the
Revolving Loan Commitments shall be effective on the date specified in
Company's notice and shall reduce the Revolving Loan Commitment of each
Lender proportionately to its Pro Rata Share.
(b) In the event Company is entitled to replace a
non-consenting Lender pursuant to subsection 10.6B, Company shall have
the right, upon five Business Days' written notice to Agent (which
notice Agent shall promptly transmit to
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each of the Lenders), to terminate the entire Revolving Loan Commitment
of such Lender, so long as (1) all Loans, together with accrued and
unpaid interest, fees and other amounts owing to such Lender are
repaid, including without limitation amounts owing to such Lender
pursuant to subsection Section D of Appendix A, pursuant to subsection
2.4A(i)(b) concurrently with the effectiveness of such termination (at
which time SCHEDULE 2.1 shall be deemed modified to reflect such
changed amounts) and (2) the consents required by subsection 10.6B in
connection with the prepayment pursuant to subsection 2.4A(i)(b) shall
have been obtained, and at such time, such Lender shall no longer
constitute a "Lender" for purposes of this Agreement, except with
respect to indemnifications under this Agreement (including, without
limitation, Section D of Appendix A annexed hereto, Section C of
Appendix B annexed hereto and in subsections 10.2, 10.3 and 10.7),
which shall survive as to such Lender; PROVIDED that at the time
Company effects any permanent reduction in the Revolving Loan
Commitment of a nonconsenting Lender pursuant to subsection 10.6B,
unless otherwise agreed to in writing by Canadian lender, it shall also
effect a permanent reduction in the Canadian Loan Commitment in a
proportionate amount equal to the proportion that the Revolving Loan
Commitments bear to the Canadian Loan Commitment at such time.
(iii) MANDATORY PREPAYMENTS OF REVOLVING LOANS AND MANDATORY
REDUCTIONS OF REVOLVING LOAN COMMITMENTS.
(a) PREPAYMENTS AND REDUCTIONS FROM ASSET SALES.
Following the receipt by Company or any of its Subsidiaries of
Cash Proceeds relating to one or more Asset Sales or a series
of related Asset Sales by Company and its Subsidiaries on and
after the Effective Date in excess of the Asset Sale Threshold
Amount, Company shall FIRST prepay the Swing Line Loans in an
amount equal to the Net Cash Proceeds of such Asset Sale,
SECOND, to the extent the Net Cash Proceeds of such Asset Sale
exceed the aggregate outstanding principal amount of the Swing
Line Loans, permanently reduce the Revolving Loan Commitments
and the Canadian Loan Commitment on a PRO rata basis in an
amount equal to the excess of the Net Cash Proceeds of such
Asset Sale over the aggregate outstanding principal amounts of
the Swing Line Loans, THIRD, (X) to the extent the Total
Utilization of Revolving Loan Commitments exceeds the
Revolving Loan Commitments as so reduced, prepay the Revolving
Loans in an amount equal to the excess of the Total
Utilization of Revolving Loan Commitments over the Revolving
Loan Commitments and (Y) to the extent the Total Utilization
of Canadian Loan Commitment exceeds the Canadian Loan
Commitment as so reduced, prepay the Canadian Loans and/or
cash collateralize outstanding Bankers' Acceptances in an
amount equal to the excess of the Total Utilization of
Canadian Loan Commitment over the Canadian Loan Commitment and
FOURTH, (X) to the extent that the Revolving Loan Commitments
as reduced are less than the Letter of Credit Usage, cash
collateralize Letters of Credit outstanding and (Y) to the
extent that the Canadian Loan Commitment as so reduced is less
than the Canadian Letter of
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Credit Usage, cash collateralize Canadian Letters of Credit
outstanding. Concurrently with any prepayment of the Loans
and/or reduction of the Revolving Loan Commitments and the
Canadian Loan Commitment and/or cash collateralization of
Bankers' Acceptances and Letters of Credit and Canadian
Letters of Credit pursuant to this subsection 2.4A(iii)(a),
Company shall deliver to Agent an Officers' Certificate
demonstrating the derivation of the Net Cash Proceeds of each
Asset Sale from the gross sales price thereof. In the event
that Company shall, at any time after the prepayment or a
reduction of the Revolving Loan Commitments and the Canadian
Loan Commitment pursuant to this subsection 2.4A(iii)(a),
determine that the prepayments and/or reductions of the
Revolving Loan Commitments and the Canadian Loan Commitment
previously made were in an aggregate amount less than that
required by the terms of this subsection 2.4A(iii)(a), Company
shall promptly make an additional prepayment of the Swing Line
Loans, the Revolving Loans and/or the Canadian Loans, as the
case may be (and, if applicable, shall permanently reduce the
Revolving Loan Commitments and the Canadian Loan Commitment
and cash collateralize Bankers' Acceptances, Letters of Credit
and Canadian Letters of Credit), in the manner described above
in an amount equal to the amount of any such deficit, and
Company shall concurrently therewith deliver to Agent an
Officers' Certificate demonstrating the derivation of the
additional Net Cash Proceeds resulting in such deficit. Any
mandatory prepayments made pursuant to this subsection
2.4A(iii)(a) shall be applied as specified in subsection
2.4A(iv).
(b) PREPAYMENTS DUE TO REDUCTIONS OR RESTRICTIONS OF
REVOLVING LOAN COMMITMENTS. Company shall from time to time
prepay the Swing Line Loans, Revolving Loans and Negotiated
Rate Loans (with the consent of the Lender funding such
Negotiated Rate Loans) to the extent necessary (1) so that the
aggregate outstanding principal amount of the Swing Line
Loans, Revolving Loans and Negotiated Rate Loans shall not at
any time exceed the Revolving Loan Commitments then in effect
and (2) to give effect to the other limitations set forth in
the second paragraph of subsection 2.1A(ii), in the first
paragraph of subsection 2.1A(iii) and in the proviso of
subsection 2.11A, as applicable. Any such mandatory
prepayments shall be applied first to the Swing Line Loans,
next to the Revolving Loans and then to the Negotiated Rate
Loans, and otherwise as specified in subsection 2.4A(iv).
(iv) APPLICATION OF PREPAYMENTS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY TYPE OF
LOANS AND ORDER OF MATURITY. Any voluntary prepayments
pursuant to subsection 2.4A(i)(a) shall be applied to the
Swing Line Loans and/or the Revolving Loans as specified by
Company in the applicable notice of prepayment; PROVIDED that
in the event Company fails to specify the Loans to which any
such prepayment shall be applied, such prepayment shall be
applied FIRST to repay outstanding
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Swing Line Loans to the full extent thereof, and SECOND to
repay outstanding Revolving Loans to the full extent thereof.
(b) APPLICATION OF PREPAYMENTS TO PRIME RATE LOANS
AND EURODOLLAR RATE LOANS. Any prepayment shall be applied
first to Prime Rate Loans to the full extent thereof before
application to Eurodollar Rate Loans, in each case in a manner
which minimizes the amount of any payments required to be made
by Company pursuant to section D of Appendix A annexed hereto.
B. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) MANNER AND TIME OF PAYMENT. All payments by Company of
principal, interest, fees and other Obligations hereunder and under the
Notes shall be made in same day funds and without defense, setoff or
counterclaim, free of any restriction or condition, and delivered to
Agent not later than 12:00 Noon (New York time) on the date due at its
office located at One Bankers Trust Plaza, New York, New York, or such
other place as Agent shall designate in writing to Company for the
account of Lenders; funds received by Agent after that time on such due
date shall be deemed to have been paid by Company on the next
succeeding Business Day. Company hereby authorizes Agent to charge its
accounts with Agent in order to cause timely payment to be made to
Agent of all principal, interest, fees and expenses due hereunder
(subject to sufficient funds being available in its accounts for that
purpose); PROVIDED that Agent shall give Company prior notice of such
charges or as soon as reasonably practicable thereafter.
Notwithstanding the foregoing, all payments by Company of principal,
interest, fees and other Obligations under the Negotiated Rate Loan
Notes shall be made and delivered directly to the applicable Lender on
the date due in the manner, by such time and at such place as may be
agreed to between the Company and such Lender.
(ii) APPLICATION OF PAYMENTS TO PRINCIPAL AND INTEREST. All
payments in respect of the principal amount of any Loan shall include
payment of accrued interest on the principal amount being repaid or
prepaid, and all such payments shall be applied to the payment of
interest before application to principal.
(iii) APPORTIONMENT OF PAYMENTS. Aggregate principal and
interest payments shall be apportioned among all outstanding Loans to
which such payments relate, in each case proportionately to each
Lender's respective Pro Rata Share of such Loans. Subject to the last
sentence of subsection 2.7D, Agent (or, in the case of payments
received by Bankers (in its capacity as issuer of a Letter of Credit)
from Company after payments have been made to Bankers by Lenders
pursuant to subsection 2.7D, Bankers) shall promptly distribute to each
Lender, at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such
Lender may request, its Pro Rata Share of all such payments received by
Agent (or Bankers) (other than Swing Line Loans and Negotiated Rate
Loans) and the commitment fees of such Lender when received by Agent
pursuant to subsection 2.3.
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Notwithstanding the foregoing provisions of this subsection 2.4B(iii),
if, pursuant to the provisions of section C of Appendix A annexed
hereto, any Notice of Conversion/Continuation is withdrawn as to any
Affected Lender or if any Affected Lender makes Prime Rate Loans in
lieu of its Pro Rata Share of any Eurodollar Rate Loans, Agent shall
give effect thereto in apportioning payments received thereafter.
(iv) PAYMENTS ON BUSINESS DAYS. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a
Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder or of the commitment
fees hereunder, as the case may be.
(v) NOTATION OF PAYMENT. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other than by
granting participations therein), that Lender will make a notation
thereon of all Loans evidenced by that Note and all principal payments
previously made thereon and of the date to which interest thereon has
been paid; PROVIDED that the failure to make (or any error in the
making of) a notation of any Loan made under such Note shall not limit
or otherwise affect the obligations of Company hereunder or under such
Note with respect to any Loan or any payments of principal or interest
on such Note.
2.5 USE OF PROCEEDS.
A. REVOLVING LOANS, SWING LINE LOANS, NEGOTIATED RATE LOANS AND LETTERS
OF CREDIT. The proceeds of any Revolving Loans, Swing Line Loans, Negotiated
Rate Loans and Letters of Credit made on and after the Effective Date shall be
applied by Company for working capital purposes, letter of credit requirements
and any general corporate purposes, which may include, without limitation, the
making of intercompany loans to any of Company's wholly-owned Subsidiaries, in
accordance with subsection 6.1(iv), for their own working capital purposes,
letter of credit requirements, making of Restricted Junior Payments as permitted
under Section 6.5 and other general corporate purposes.
B. CANADIAN LOANS. The proceeds of the Canadian Loans and of all
Bankers' Acceptances shall be applied by Libbey Canada to repay certain
intercompany indebtedness owing by Libbey Canada to Company which was incurred
to provide funds for Libbey Canada's acquisition of certain assets of Libbey-St.
Clair, a Canadian glass tableware manufacturer, and for general corporate
purposes of Libbey Canada.
C. MARGIN REGULATIONS. No portion of the proceeds of any borrowing
under this Agreement shall be used by Company or any of its Subsidiaries in any
manner that might cause the borrowing or the application of such proceeds to
violate Regulation G, Regulation U, Regulation T or Regulation X of the Board of
Governors of the Federal Reserve System (or any successor thereto) or any other
regulation of such Board (or any successor thereto) or to violate the Exchange
Act, in each case as in effect on the date or dates of such borrowing and such
use of proceeds.
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2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
Notwithstanding any other provision of this Agreement to the
contrary, the provisions set forth in Appendix A annexed hereto shall govern
with respect to Eurodollar Rate Loans as to the matters covered.
2.7 LETTERS OF CREDIT
A. LETTERS OF CREDIT. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Company set
forth herein, Bankers hereby agrees to (A) maintain the Existing Letters of
Credit set forth on Schedule 2.7 hereto which shall be deemed to have been
issued pursuant to the terms of this Agreement, as of the Effective Date and to
(B) issue Standby Letters of Credit and Commercial Letters of Credit for the
account of Company and its Subsidiaries denominated in Dollars as Company may
request in accordance with the provisions of this subsection 2.7A on and after
the Effective Date. Issuances of Letters of Credit shall be subject to the
following limitations:
(i) Company shall not request that Bankers issue any Standby
Letter of Credit or Commercial Letter of Credit if, after giving effect
to such issuance, (x) the Total Utilization of Revolving Loan
Commitments would exceed the Revolving Loan Commitments, as the amount
available under such Revolving Loan Commitments may be limited from
time to time pursuant to the second paragraph of subsection 2.1A(ii) or
(y) the Letter of Credit Usage would exceed $35,000,000; and
(ii) In no event shall Bankers issue, amend or permit the
extension of: (x) any Letter of Credit having an expiration date later
than the Revolving Loan Commitment Termination Date in effect at the
time of issuance, amendment or extension (automatic or otherwise)
thereof; (y) subject to the foregoing clause (x), any Standby Letter of
Credit having an expiration date later than the earlier of (1) the date
which is five Business Days prior to the Revolving Loan Commitment
Termination Date and (2) the date which is one year from the date of
issuance of such Standby Letter of Credit; PROVIDED that subject to the
foregoing clause (x), this clause (y) shall not prevent Bankers from
agreeing that a Standby Letter of Credit will automatically be extended
annually for a period not to exceed one year if Bankers does not cancel
such extension; or (z) any Commercial Letter of Credit having an
expiration date which is not acceptable to Bankers in its reasonable
discretion or which is more than 180 days after its date of issuance.
It shall be a condition precedent to the issuance of any Standby Letter
of Credit or Commercial Letter of Credit in accordance with the provisions of
this subsection 2.7 that each condition set forth in subsections 3.2 and 3.3
shall have been satisfied.
Immediately upon the issuance of each Standby Letter of Credit or
Commercial Letter of Credit, each Lender shall be deemed to, and hereby agrees
to, have irrevocably purchased from Bankers a participation in such Letter of
Credit and drawings thereunder in an amount
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equal to such Lender's Pro Rata Share of the maximum amount which is or at any
time may become available to be drawn thereunder.
Each Standby Letter of Credit and Commercial Letter of Credit may
provide that Bankers may (but shall not be required to) pay the beneficiary
thereof upon the occurrence of an Event of Default and the acceleration of the
maturity of the Loans or, if payment is not then due to the beneficiary, provide
for the deposit of funds in an account to secure payment to the beneficiary and
that any funds so deposited shall be paid to the beneficiary of the Letter of
Credit if conditions to such payment are satisfied or returned to Bankers for
distribution to Lenders (or, if all Obligations shall have been indefeasibly
paid in full, to Company) if no payment to the beneficiary has been made and 30
days after the final date available for drawings under the Letter of Credit have
passed. Each payment or deposit of funds by Bankers as provided in this
paragraph shall be treated for all purposes of this Agreement as a drawing duly
honored by Bankers under the related Letter of Credit.
B. REQUEST FOR ISSUANCE. Whenever Company desires the issuance of a
Letter of Credit, it shall deliver to Bankers a Request for Issuance of Letter
of Credit in the form of EXHIBIT XI hereto no later than 1:00 P.M. (New York
time) at least five Business Days or such shorter period as may be agreed to by
Bankers in any particular instance, in advance of the proposed date of issuance.
The Request for Issuance of Letter of Credit shall specify (i) the proposed date
of issuance (which shall be a Business Day), (ii) the face amount of the Letter
of Credit, (iii) the expiration date of the Letter of Credit, (iv) the name and
address of the beneficiary, and (v) a summary of the purpose and the verbatim
text of such Letter of Credit. Prior to the date of issuance, Company shall
specify a precise description of the documents and the proposed text of any
certificate to be presented by the beneficiary which, if presented by the
beneficiary prior to the expiration date of the Letter of Credit, would require
Bankers to make payment under the Letter of Credit; PROVIDED that Bankers, in
its sole reasonable judgment, may require changes in any such documents and
certificates. In determining whether to pay under any Letter of Credit, Bankers
shall be responsible only to determine that the documents and certificates
required to be delivered under that Letter of Credit have been delivered and
that they comply on their face with the requirements of that Letter of Credit.
If so requested by any other Lender, Bankers shall promptly
after issuance of a Letter of Credit, or any amendment, payment or cancellation
thereto, furnish such Lender with a copy of such Letter of Credit or of such
amendment, payment or cancellation, as the case may be.
C. PAYMENT OF AMOUNTS DRAWN UNDER LETTERS OF CREDIT. In the event
Bankers has determined to honor any drawing under any Letter of Credit issued by
it, Bankers shall promptly notify Company, and Company shall reimburse Bankers
on the date on which such drawing is honored in an amount in same day funds
equal to the amount of such drawing; PROVIDED that, anything contained in this
Agreement to the contrary notwithstanding, (i) unless Company shall have
notified Agent prior to 11:00 a.m. (New York time) on the Business Day
immediately prior to the date which Bankers intends to honor the drawing that
Company
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intends to reimburse Bankers for the amount of such drawing with funds other
than the proceeds of Swing Line Loans and/or Revolving Loans, Company shall be
deemed to have given a Notice of Borrowing to Agent requesting Bankers to make
Swing Line Loans to the extent of the unused Swing Line Loan Commitment and, if
required, requesting Lenders to make Revolving Loans to the extent of the unused
Revolving Loan Commitments on the date on which such drawing is honored in an
amount equal to the amount of such drawing, and (ii) subject to satisfaction or
waiver of the conditions specified in subsection 3.2, Bankers and/or Lenders
shall, on the date of such drawing, make Swing Line Loans and/or Revolving
Loans, respectively, in the aggregate amount of such drawing, the proceeds of
which shall be applied directly by Agent to reimburse Bankers for the amount of
such drawing; and FURTHER PROVIDED that, if Revolving Loans are required to be
made and for any reason proceeds of Revolving Loans are not received by Bankers
on such date in an amount, together with Swing Line Loans made on such date,
equal to the amount of such drawing, Company shall reimburse Bankers, on the
Business Day immediately following the date of such drawing, in an amount in
same day funds equal to the excess of the amount of such drawing over the amount
of such Swing Line Loans and Revolving Loans, if any, which are so received,
plus accrued interest on such amount at the rate set forth in subsection
2.7E(iii).
D. PAYMENT BY LENDERS WITH RESPECT TO LETTERS OF CREDIT. In the event
that Company shall fail to reimburse Bankers as provided in subsection 2.7C in
an amount equal to the amount of any drawing honored by Bankers under a Letter
of Credit issued by it, Bankers shall promptly notify each Lender of the
unreimbursed amount of such drawing and of such Lender's respective
participation therein, which participation shall be equal to such Lender's Pro
Rata Share of the unreimbursed amount of such drawing. Each Lender shall make
available to Bankers an amount equal to its respective participation in same day
funds, at the office of Bankers specified in such notice, not later than 1:00
P.M. (New York time) on the Business Day after the date notified by Bankers. In
the event that any Lender fails to make available to Bankers the amount of such
Lender's participation in such Letter of Credit as provided in this subsection
2.7D, Bankers shall be entitled to recover such amount on demand from such
Lender together with interest at the customary rate set by Bankers for the
correction of errors among banks for three Business Days and thereafter at the
Prime Rate. Nothing in this subsection 2.7 shall be deemed to prejudice the
right of any Lender to recover from Bankers any amounts made available by such
Lender to Bankers pursuant to this subsection 2.7D in the event that it is
determined by a court of competent jurisdiction that the payment with respect to
a Letter of Credit by Bankers in respect of which payment was made by such
Lender constituted gross negligence or willful misconduct on the part of
Bankers. Bankers shall distribute to each other Lender which has paid all
amounts payable by it under this subsection 2.7D with respect to any Letter of
Credit issued by Bankers such other Lender's Pro Rata Share of all payments
received by Bankers from Company in reimbursement of drawings honored by Bankers
under such Letter of Credit when such payments are received. Notwithstanding
anything to the contrary herein, each Lender which has paid all amounts payable
by it under this subsection 2.7D shall have a direct right to reimbursement of
such amounts from Company, subject to the procedures for reimbursing Lenders set
forth in this subsection 2.7.
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E. COMPENSATION. Company agrees to pay, without duplication, the
following amounts to Bankers with respect to each Letter of Credit issued by it:
(i) with respect to each Letter of Credit, an administrative
fee payable to Bankers equal to the greater of (x) .125% per annum of
the maximum amount available from time to time to be drawn under such
Letter of Credit, calculated in on and through the last day of each
calendar quarter and on the basis of a 360-day year and the actual
number of days elapsed and (y) $500 (or, in the case of either (x) or
(y), such lesser amount as is agreed to between Company and Bankers),
payable quarterly in arrears on January 1, April 1, July 1 and October
1 of each calendar year in immediately available funds;
(ii) with respect to each Letter of Credit, a letter of credit
fee payable to Bankers equal to the product of (a) the Letter of Credit
Fee Percentage MULTIPLIED BY (b) the maximum amount available from time
to time to be drawn under such Letter of Credit, in each case
calculated on the basis of a 360-day year and the actual number of days
elapsed and payable quarterly in arrears on January 1, April 1, July 1
and October 1 of each calendar year and upon expiration of such Letter
of Credit in immediately available funds;
(iii) with respect to payment made under any Letter of Credit,
interest, payable in immediately available funds on demand, on the
amount paid by Bankers in respect of each such payment from the date of
the payment through the date such amount is reimbursed by Company (but
only if not reimbursed when due) at a rate which is 2% per annum in
excess of the rate of interest otherwise payable under this Agreement
for Prime Rate Loans which are Revolving Loans; and
(iv) with respect to the issuance, amendment or transfer of
each Letter of Credit and each payment made thereunder, documentary and
processing charges in accordance with Bankers' standard schedule for
such charges in effect at the time of such issuance, amendment,
transfer or payment, as the case may be.
Promptly upon receipt by Bankers of any amount described in subdivision
(ii) or (iii) of this subsection 2.7E, Bankers shall distribute to each Lender
its Pro Rata Share of such amount.
F. ADDITIONAL PROVISIONS. Additional provisions governing the Letters
of Credit are set forth in Appendix B annexed hereto.
2.8 CANADIAN DOLLAR LOANS TO LIBBEY CANADA
Notwithstanding any other provision of this Agreement to the contrary,
the following provisions shall govern with respect to Canadian Loans as to the
matters covered:
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A. CANADIAN LOAN COMMITMENT.
(i) Notwithstanding anything to the contrary in this
Agreement, subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Libbey Canada
herein set forth, as of the Effective Date, Canadian Agent hereby
agrees (A) to maintain its Existing Canadian Loans as Canadian Loans
hereunder and (B) to make revolving credit loans in Canadian Dollars to
Libbey Canada from time to time from the Effective Date to but
excluding the Revolving Loan Commitment Termination Date in an
aggregate principal amount at any one time outstanding not to exceed
the Canadian Dollar Equivalent of $15,000,000, as such amount may be
reduced as provided herein. Libbey Canada may use the Canadian Loan
Commitment by borrowing, prepaying the Canadian Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions
hereof. The Canadian Loan Commitment shall expire on the Revolving Loan
Commitment Termination Date and all Canadian Loans and all other
amounts owed hereunder with respect to the Canadian Loans shall be paid
in full no later than that date.
(ii) The Canadian Loans may be (a) Canadian Eurodollar Rate
Loans, (b) Canadian Prime Rate Loans or (c) a combination thereof, as
determined by Libbey Canada and notified to Canadian Agent in
accordance with subsection 2.8B; PROVIDED, HOWEVER, that no Canadian
Eurodollar Rate Loan shall be made after the day that is one month
prior to the Revolving Loan Commitment Termination Date. Until Canadian
Agent designates in writing to Libbey Canada a different lending office
in Canada, Canadian Loans shall be made and maintained by Canadian
Agent at its lending office at County Fair Mall, 00-00 XxXxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxx X0X0X0, Xxxxxx (such office, or such other
office of Canadian Agent as may be mutually agreed by Libbey Canada and
Canadian Agent, the "CANADIAN LENDING OFFICE").
(iii) Anything contained in this Agreement to the contrary
notwithstanding, the Canadian Loans and the Canadian Loan Commitment
shall be subject to the following limitations:
(a) The amount otherwise available for borrowing
under the Canadian Loan Commitment as of any time of
determination shall be reduced by an amount equal to the sum
of the Acceptance Usage PLUS the Canadian Letter of Credit
Usage as of such time of determination; and
(b) The Total Utilization of Canadian Loan Commitment
shall not exceed the Canadian Loan Commitment then in effect.
B. PROCEDURE FOR BORROWING. Libbey Canada may borrow under the Canadian
Loan Commitment on any Business Day; PROVIDED, HOWEVER, that Company and Libbey
Canada shall have given Canadian Agent (with a copy to Agent) a Notice of
Borrowing in writing at the Canadian Lending Office (which notice must be
received by Canadian Agent
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prior to 11:00 A.M., (Toronto time), (A) on the requested Funding Date (in the
case of requests for Canadian Prime Rate Loans of less than Cdn.$ 5,000,000),
(B) at least one Business Day prior to the requested Funding Date (in the case
of requests for Canadian Prime Rate Loans of Cdn.$5,000,000 or more but of less
than Cdn.$10,000,000) and at least two Business Days prior to the requested
Funding Date (in the case of requests for Canadian Prime Rate Loans of
Cdn.$10,000,000 or more) or (C) three Business Days prior to the requested
Funding Date (in the case of a Canadian Eurodollar Rate Loan) specifying (i) the
amount to be borrowed, (ii) the requested Funding Date, (iii) whether the
borrowing is to be a Canadian Eurodollar Rate Loan, a Canadian Prime Rate Loan
or a combination thereof and (iv) if the Canadian Loan is to be entirely or
partly a Canadian Eurodollar Rate Loan, the length of the Interest Period for
such Loan which shall be periods of one, two, three, six or, if available, nine
or twelve months. If an Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next succeeding
Business Day. No Interest Period with respect to any Canadian Loan shall extend
beyond the Revolving Loan Commitment Termination Date. Each borrowing pursuant
to the Canadian Loan Commitment shall be in a principal amount equal to
Cdn.$1,000,000 or a whole multiple of Cdn.$10,000 in excess thereof; PROVIDED
that the minimum amount for a borrowing of a Canadian Prime Rate Loan of less
than Cdn.$5,000,000 requested on a same day basis shall be in a principal amount
equal to Cdn.$100,000 or a whole multiple of Cdn.$10,000 in excess thereof. The
amount of the borrowing for each Canadian Eurodollar Rate Loan shall be made
available to Libbey Canada on the Funding Date requested by Libbey Canada in the
required Notice of Borrowing in immediately available funds at such account of
Libbey Canada in Canada as Libbey Canada shall have previously notified to
Canadian Agent in writing. The amount of borrowing for each Canadian Prime Rate
Loan shall be made available by funding to Libbey Canada's current account
maintained at the office of Canadian Agent located at Xxxxxx Xxxx Xxxx, 00-00
XxXxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx X0X0X0, Xxxxxx or such other office of
Canadian Agent as may be mutually agreed by Libbey Canada and Canadian Agent.
C. CONVERSIONS OR CONTINUATIONS. Any Canadian Loan to Libbey Canada may
be converted from Canadian Loans bearing interest at a rate determined by
reference to one basis to Canadian Loans bearing interest at a rate determined
by reference to an alternative basis, or any Canadian Eurodollar Rate Loan may
be continued as such upon the expiration of an Interest Period with respect
thereto, by the giving of a Notice of Conversion/Continuation to Canadian Agent
by Company and Libbey Canada in compliance with the notice provisions contained
in subsection 2.8B; PROVIDED, HOWEVER, that no Canadian Loan may be continued
as, or be converted into, a Canadian Eurodollar Rate Loan when any Potential
Event of Default or Event of Default has occurred and is continuing, but shall
be automatically converted to a Canadian Prime Rate Loan on the last day of the
Interest Period in effect for such Canadian Eurodollar Rate Loan during which
such Potential Event of Default or Event of Default occurs; and PROVIDED FURTHER
that (subject to the preceding proviso) if Libbey Canada shall not have complied
with such notice provisions, Libbey Canada shall be deemed irrevocably to have
requested that such Canadian Eurodollar Rate Loan be continued as a Canadian
Eurodollar Rate Loan having an Interest Period of one month and in the same
principal amount, unless such time is less than one month from the Revolving
Loan
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Commitment Termination Date, then such Canadian Eurodollar Rate Loan shall
be converted to a Canadian Prime Rate Loan.
D. TERMINATION OR OPTIONAL REDUCTION OF CANADIAN LOAN COMMITMENT.
Libbey Canada shall have the right, upon not less than three Business Days'
notice to Canadian Agent in writing, to terminate the Canadian Loan Commitment
or, from time to time, reduce the amount of the Canadian Loan Commitment by an
amount not greater than the then unused portion of such Commitment after giving
effect to any contemporaneous prepayment thereof. Any reduction shall be in an
amount equal to the minimum borrowing amount with respect to Libbey Canada, as
provided pursuant to subsection 2.8B, and shall reduce permanently the amount of
the Canadian Loan Commitment then in effect. The Canadian Loan Commitment, once
terminated or reduced, may not be reinstated.
E. PREPAYMENTS.
(i) Libbey Canada may at any time and from time to time prepay
the Canadian Loans made to it hereunder, in whole or in part, upon at
least one Business Day's (in the case of Canadian Prime Rate Loans) or
three Business Days' (in the case of Canadian Eurodollar Rate Loans)
prior written or telephonic notice confirmed in writing to Canadian
Agent, specifying the date and amount of prepayment and whether the
prepayment is of Canadian Eurodollar Rate Loans or Canadian Prime Rate
Loans, or a combination thereof and, if a combination thereof, the
amount of prepayment allocable to each. If such notice is given, Libbey
Canada shall make such prepayment, and the principal amount specified
in such notice shall be due and payable on the date specified therein,
together with accrued interest to such date on the amount prepaid if
the prepayment is of Canadian Eurodollar Rate Loans, and any amounts
payable pursuant to subsection 2.8J in connection therewith. Partial
prepayments of Canadian Loans shall each be in a principal amount at
least equal to the minimum borrowing amount with respect to such Loans
as provided pursuant to subsection 2.8B.
(ii) If, after giving effect to any termination or reduction
of the Canadian Loan Commitment pursuant to subsection 2.8D or
subsection 2.4A(ii)(b), the sum of the aggregate outstanding principal
amount of the Canadian Loans PLUS the Acceptance Usage PLUS the
Canadian Letter of Credit Usage exceeds the amount of such Commitment
then in effect (giving effect to the Canadian Dollar Equivalent then in
effect), Libbey Canada shall prepay the Canadian Loans on the date of
such termination or reduction in an aggregate principal amount
sufficient to reduce the sum of the aggregate principal amount of the
then outstanding Canadian Loans PLUS the Acceptance Usage PLUS the
Canadian Letter of Credit Usage to an amount not in excess of the
amount of the Canadian Loan Commitment as so reduced, together with
interest thereon accrued to the date of such prepayment and any amounts
payable pursuant to subsection 2.8J in connection therewith.
(iii) If, at any time, the sum of the aggregate outstanding
principal amount of the Canadian Loans PLUS the Acceptance Usage PLUS
the Canadian Letter of Credit
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Usage exceeds the Canadian Loan Commitment then in effect (valued in
Dollar Equivalents) Canadian Agent shall promptly notify Libbey Canada
in writing of such exceSection Within five Business Days after receipt
of such notice, Libbey Canada shall prepay the Canadian Loans in an
aggregate principal amount sufficient to reduce the sum of the
aggregate principal amount of the Canadian Loans PLUS the Acceptance
Usage PLUS the Canadian Letter of Credit Usage to an amount not in
excess of the Canadian Loan Commitment then in effect (valued in Dollar
Equivalents on the date of such payment within such five Business Day
period).
(iv) The Canadian Loans are also subject to mandatory
prepayments as provided in subsection 2.4A(iii).
F. INTEREST RATES AND PAYMENT DATES.
(i) Each Canadian Eurodollar Rate Loan shall bear interest for
each Interest Period applicable thereto on the unpaid principal amount
thereof at a rate per annum equal to the applicable Canadian Eurodollar
Rate determined for such Interest Period PLUS the Applicable Eurodollar
Margin.
(ii) Each Canadian Prime Rate Loan shall bear interest on the
unpaid principal amount thereof at a rate per annum equal to the
Canadian Prime Rate per annum MINUS the applicable Commitment Fee
Percentage.
(iii) Any principal payments on the Canadian Loans not paid
when due and, to the extent permitted by applicable law, any interest
payments on the Canadian Loans payable hereunder not paid when due (the
"DUE DATE"), in each case whether at stated maturity, by notice of
prepayment, by acceleration or otherwise, shall upon delivery of
written notice to Libbey Canada from Canadian Agent bear interest from
and after the Due Date payable upon demand at a rate that is two
percent (2%) per annum in excess of the rate of interest otherwise
payable under this Agreement. The payment or acceptance of the
increased rate provided by this subsection 2.8F shall not constitute a
waiver of any Event of Default or an amendment to this Agreement or
otherwise prejudice or limit any rights or remedies of Agent, any
Co-Agent or any Lender.
(iv) If all or any part of any Canadian Eurodollar Rate Loan
shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such Loan shall be automatically converted
to a Canadian Prime Rate Loan at the end of the then current Interest
Period therefor.
(v) Interest on each Canadian Loan shall be payable in arrears
on and to each Interest Payment Date applicable to that Loan, upon any
prepayment of that Loan (if such Loan is a Canadian Eurodollar Rate
Loan (to the extent accrued on the amount being prepaid)) and at
maturity (including final maturity).
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(vi) Upon delivery of the Level Determination Certificate by
Company to Agent pursuant to subsection 5.1(xii), the Applicable
Eurodollar Margin shall automatically be adjusted in accordance with
the Level in effect as determined by such Level Determination
Certificate, such adjustment to become effective on the next succeeding
Business Day of the receipt by Agent of such Level Determination
Certificate; PROVIDED that on the Effective Date, the Applicable
Eurodollar Margin shall be determined in accordance with the Level in
effect as determined by the Level Determination Certificate delivered
by Company to Agent pursuant to subsection 3.1E.
G. INABILITY TO DETERMINE INTEREST RATE. In the event that Canadian
Agent shall have determined (which determination shall be conclusive absent
manifest error) that by reason of circumstances affecting the interbank Canadian
Eurodollar market generally, adequate and reasonable means do not exist for
ascertaining the Canadian Eurodollar Rate applicable pursuant to subsection 2.8F
for any Interest Period with respect to (i) proposed Canadian Loans that Libbey
Canada has requested be made as Canadian Eurodollar Rate Loans, (ii) Canadian
Eurodollar Rate Loans that will result from the requested conversion of Canadian
Prime Rate Loans into Canadian Eurodollar Rate Loans or (iii) the continuation
of Canadian Eurodollar Rate Loans beyond the expiration of the then current
Interest Period with respect thereto, Canadian Agent shall forthwith give
telecopy notice of such determination, confirmed in writing, to Libbey Canada at
least one Business Day prior to, as the case may be, the requested Funding Date
for such Canadian Eurodollar Rate Loans, the conversion date of such Canadian
Prime Rate Loans or the last day of such Interest Period. If such notice is
given to Libbey Canada (x) unless Libbey Canada requests immediately upon
receipt of such notice that such Canadian Eurodollar Rate Loans not be made as
Canadian Prime Rate Loans, any Canadian Eurodollar Rate Loans requested by
Libbey Canada shall be made as Canadian Prime Rate Loans, (y) any Canadian Prime
Rate Loans to Libbey Canada that were to have been converted to Canadian
Eurodollar Rate Loans shall be continued as Canadian Prime Rate Loans and (z)
any outstanding Canadian Eurodollar Rate Loans shall be converted, on the last
day of the then current Interest Period with respect thereto, to Canadian Prime
Rate Loans. Until any such notice with respect to Canadian Eurodollar Rate Loans
has been withdrawn by Canadian Agent, no further Canadian Eurodollar Rate Loans
shall be made, nor shall Libbey Canada have the right to convert Canadian Prime
Rate Loans to Canadian Eurodollar Rate Loans. Such notice shall be withdrawn
promptly by Canadian Agent when Canadian Agent shall reasonably determine that
adequate and reasonable means exist for ascertaining the applicable Canadian
Eurodollar Rate.
H. ILLEGALITY. Notwithstanding any other provisions herein, if at any
time Canadian Agent reasonably determines that any introduction of or change in
any applicable law, treaty, rule or regulation of any agency or any country or
state or in the interpretation or application thereof by any competent court or
other competent authority charged with the administration thereof (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful), shall make it unlawful in Canada, or Canadian Agent reasonably
determines it cannot comply thereby, in order to fund or allow to remain
outstanding all or part of the Canadian Loan Commitment, then, upon Canadian
Agent notifying Libbey Canada by telecopy of such circumstances giving
reasonable details thereof
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confirmed in writing, within thirty days of the occurrence of such circumstances
or such earlier date (if any) as Canadian Agent shall certify as necessary to
comply with the relevant law, treaty, rule or regulation, Libbey Canada shall
prepay any Canadian Loans then outstanding together with any accrued interest
thereon. Until such notice has been withdrawn by Canadian Agent, no further
Canadian Loans shall be made. Such notice shall be withdrawn promptly by
Canadian Agent when Canadian Agent shall reasonably determine that it shall no
longer be illegal in Canada for Canadian Agent to make or maintain Canadian
Loans.
If Libbey Canada receives a notice pursuant to this subsection
2.8H, so long as no Event of Default shall have occurred and be continuing and
Libbey Canada has obtained a commitment from another Lender or an Eligible
Assignee to become Canadian Agent for all purposes under this Agreement and to
assume all obligations of Canadian Agent, Libbey Canada may require Canadian
Agent to assign all of its Canadian Loans and Canadian Loan Commitment to such
other Lender or Eligible Assignee pursuant to the provisions of subsection
10.1B; PROVIDED that, prior to or concurrently with such replacement (i) Libbey
Canada has paid to Canadian Agent all principal, interest, fees and other
amounts owed to Canadian Agent through such date of replacement, (ii) Libbey
Canada has paid to Agent the processing and recordation fee required to be paid
by subsection 10.1B(i) and (iii) all of the requirements for such assignment
contained in subsection 10.1B, including, without limitation, the receipt by
Agent of an executed Assignment and Acceptance and other supporting documents,
have been fulfilled.
I. REQUIREMENTS OF LAW.
(i) If after the date hereof by reason of (x) the introduction
of or change in, or in the official interpretation of any applicable
law or regulation by the authority charged with the administration or
interpretation thereof or (y) compliance by Canadian Agent with any
guideline or request (whether or not having the force of law) imposed
or made after the date hereof from any central bank or other
governmental authority or quasi-governmental authority exercising
control over banks or financial institutions generally;
(a) Canadian Agent shall be subject to any increase
in the net amount of any tax, duty, charge or other cost with
respect to any Canadian Loan or to any change in the basis of
taxation of payments to Canadian Agent (except for any
increase or other change in or with respect to Excluded
Taxes); or
(b) any reserve, special deposit, compulsory loan or
similar requirement against assets held by, or deposits or
other liabilities in or for the account of, advances or loans
by, or other credit extended by, or any other acquisition of
funds by, Canadian Agent which is not otherwise included in
the determination of the Canadian Eurodollar Rate or Canadian
Prime Rate hereunder shall be imposed on Canadian Agent's
applicable lending office; PROVIDED, that with respect to the
determination of the Canadian Prime Rate,
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Canadian Agent shall have been prohibited by applicable law or
any guideline or request (whether or not having the force of
law) from any central bank or other governmental authority or
quasi-governmental authority exercising control over banks or
financial institutions generally from including such
requirement in its determination of the Canadian Prime Rate;
and, PROVIDED FURTHER that upon request from Libbey Canada,
Canadian Agent will provide a written explanation of such
requirement reasonably satisfactory to Libbey Canada;
and the result of any of the foregoing in the reasonable opinion of
Canadian Agent is (1) to increase the cost to Canadian Agent of making,
converting to, renewing or maintaining Canadian Loans to Libbey Canada,
or (2) to reduce any amount payable to Canadian Agent hereunder in
respect of Canadian Loans to Libbey Canada then, upon written notice
from and demand by Canadian Agent, Libbey Canada shall pay to Canadian
Agent, within five Business Days after receipt of such notice and
demand, any additional amounts necessary to compensate Canadian Agent
for such additional cost or reduced amount; PROVIDED that Canadian
Agent shall not be entitled to avail itself of the benefit of this
subsection 2.8I(i) to the extent that any such increased cost or
reduction was incurred more than six months prior to the time it gives
notice to Libbey Canada, unless such circumstances arose or became
applicable retrospectively, in which case no time limit shall apply
(PROVIDED that Canadian Agent has notified Libbey Canada within six
months from the date such circumstances arose or became applicable).
(ii) In the event that after the date hereof the adoption of
any law, treaty, governmental or quasi-governmental rule or regulation
regarding capital adequacy, or any change therein or in the
interpretation or application thereof or compliance by Canadian Agent
with any request or directive regarding capital adequacy (whether or
not having the force of law) from any central bank or governmental
authority, does or shall have the effect of reducing the rate of return
on Canadian Agent's capital as a consequence of its obligations
hereunder to a level below that which Canadian Agent could have
achieved but for such adoption, change or compliance (taking into
consideration Canadian Agent's policies with respect to capital
adequacy) by any amount reasonably deemed by Canadian Agent to be
material, then from time to time, within 15 days after written notice
from and demand by Canadian Agent, Libbey Canada shall pay to Canadian
Agent such additional amount or amounts as will compensate Canadian
Agent for such reduction; PROVIDED that Canadian Agent shall not be
entitled to avail itself of the benefit of this subsection 2.8I(i) to
the extent that any such increased cost or reduction was incurred more
than six months prior to the time it gives notice to Libbey Canada,
unless such circumstances arose or became applicable retrospectively,
in which case no time limit shall apply (PROVIDED that Canadian Agent
has notified Libbey Canada within six months from the date such
circumstances arose or became applicable). For the avoidance of doubt,
no amount shall be required to be paid to Canadian Agent under this
subsection 2.8 in respect of any increased cost or reduced return
arising from the implementation of, or compliance by Canadian Agent
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with, any rule, regulation, guideline, order or other request or
directive regarding capital adequacy which is in existence at the date
hereof.
(iii) If Canadian Agent becomes entitled to claim any
additional amounts pursuant to this subsection 2.8I, it shall notify
Libbey Canada thereof promptly after the event by reason of which it
has become so entitled. A certificate as to any additional amounts
payable pursuant to the foregoing sentence submitted by Canadian Agent
to Libbey Canada setting forth in reasonable detail a description of
such event and the basis of its calculation of such amounts shall be
conclusive in the absence of manifest or demonstrable error.
(iv) Canadian Agent agrees to use reasonable efforts to change
its applicable lending office to avoid or to minimize (1) any amounts
which might otherwise be payable pursuant to clause (i) or (ii) of this
subsection 2.8I or pursuant to subsection 2.8N or (2) the effect of any
event referred to in subsection 2.8H; PROVIDED, HOWEVER, that such
efforts shall not cause the imposition on Canadian Agent of any
additional cost or legal, regulatory or administrative burdens deemed
by Canadian Agent, in its sole discretion but in good faith, to be
material. Any payments to be made by Libbey Canada under subsections
2.8G, 2.8I, 2.8J or 2.8N are to be without duplication.
J. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
Libbey Canada shall compensate Canadian Agent, upon written request by Canadian
Agent (which request shall set forth the basis for requesting such amounts), for
all reasonable losses, expenses and liabilities (including, without limitation,
any interest paid by Canadian Agent to lenders of funds borrowed by it to make
or carry its Canadian Eurodollar Rate Loans and any loss, expense or liability
sustained by Canadian Agent in connection with the liquidation or re-employment
of such funds) which Canadian Agent may sustain: (i) if for any reason (other
than a default by Canadian Agent) a borrowing of any Canadian Eurodollar Rate
Loan does not occur on a date specified therefor in a Notice of Borrowing or a
telephonic request for borrowing, or a conversion to or continuation of any
Canadian Eurodollar Rate Loan does not occur on a date specified therefor in a
Notice of Conversion/Continuation or a telephonic request for conversion or
continuation, (ii) if any prepayment or conversion of any of its Canadian
Eurodollar Rate Loans occurs on a date that is not the last day of an Interest
Period applicable to that Loan, (iii) if any prepayment of any of its Canadian
Eurodollar Rate Loans is not made on any date specified in a notice of
prepayment given by Libbey Canada, or (iv) as a consequence of any other default
by Libbey Canada to repay its Canadian Eurodollar Rate Loans when required by
the terms of this Agreement.
K. PAYMENTS. All payments (including prepayments) by Libbey Canada on
account of principal, interest and fees shall be made without set-off or
counterclaim to Canadian Agent at the Canadian Lending Office or such other
office of Canadian Agent in Canada as Canadian Agent may designate in writing to
Libbey Canada, in each case in Canadian Dollars and in immediately available
funds. If any payment hereunder (other than payments of principal on the
Canadian Eurodollar Rate Loans) becomes due and payable on a day other than a
Business Day, the due date thereof shall be extended to the next succeeding
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Business Day, and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension. If any payment of
principal on a Canadian Eurodollar Rate Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day.
L. COMPUTATION OF INTEREST AND FEES.
(i) Interest in respect of Canadian Prime Rate Loans and all
fees shall be calculated on the basis of a 365-day year and interest in
respect of Canadian Eurodollar Rate Loans shall be calculated on the
basis of a 360-day year, in each case for the actual days elapsed.
Canadian Agent shall as soon as practicable notify Libbey Canada of
each determination of a Canadian Eurodollar Rate. Any change in the
interest rate on the Canadian Loans resulting from a change in the
Canadian Prime Rate shall become effective as of the opening of
business on the day on which such change in the Canadian Prime Rate
shall become effective.
(ii) Each determination of an interest rate by Canadian Agent
pursuant to any provision of this Agreement shall be conclusive absent
manifest or demonstrable error.
M. MINIMUM EURODOLLAR TRANCHES. All borrowings, conversions, partial
payments and partial prepayments hereunder shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, the unpaid
principal amount of any Canadian Eurodollar Rate Loan to Libbey Canada shall not
be less than the minimum borrowing amount applicable to Canadian Eurodollar Rate
Loans determined as provided in subsection 2.8B.
N. TAXES. All payments made by Libbey Canada under this Agreement shall
be made free and clear of, and without reduction for or on account of, any
present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any governmental authority excluding Excluded
Taxes (all such non-excluded taxes being called "FOREIGN TAXES"). If any Foreign
Taxes are required to be withheld from any amounts payable to Canadian Agent
hereunder, the amounts so payable to Canadian Agent shall be increased to the
extent necessary in order that the net amount received by Canadian Agent after
the required deduction of withholding shall equal the amount Canadian Agent
would have received had no such deduction or withholding been made. Whenever any
Foreign Tax is payable by Libbey Canada, as promptly as possible thereafter,
Libbey Canada shall send to Canadian Agent a certified copy of an original
official receipt showing payment thereof or a certificate of deduction by Libbey
Canada showing the amount paid by Libbey Canada. If Libbey Canada fails to pay
any Foreign Taxes when due to the appropriate taxing authority, Libbey Canada
shall indemnify Canadian Agent for any incremental taxes, interest or penalties
that may become payable by Canadian Agent as a result of any such failure.
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O. COMMITMENT FEE. Libbey Canada agrees to pay to Canadian Agent, until
the Canadian Loan Commitment terminates, commitment fees in Canadian Dollars
equal to the quarterly average of the Canadian Loan Commitment MULTIPLIED BY the
Commitment Fee Percentage, such commitment fees in each case to be calculated on
the basis of a 365-day year and the actual number of days elapsed and to be
payable in quarterly arrears on January 1, April 1, July 1 and October 1 of each
year and on the date the Canadian Loan Commitment expires.
2.9 BANKERS' ACCEPTANCES FOR LIBBEY CANADA
A. ACCEPTANCE COMMITMENT. (1) Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
Company and Libbey Canada set forth herein, Canadian Agent agrees, on the terms
and subject to the conditions set forth in this subsection 2.9; (i) if Canadian
Agent is willing and able to accept Drafts from Libbey Canada, to create
acceptances (each, a "BANKERS' ACCEPTANCE") by accepting Drafts from Libbey
Canada and to purchase such Bankers' Acceptances in accordance with subsection
2.9D; and (ii) if Canadian Agent has participated all or any part of its
interest in the Bankers' Acceptance Facilities to a participant which is willing
and able to accept Drafts from Libbey Canada, to arrange for the creation of
Bankers' Acceptances by such participant and for the purchase of such Bankers'
Acceptances by such participant, to the extent of such participation or
assignment, in accordance with subsection 2.9D. The Total Utilization of
Canadian Loan Commitment after any Drawing shall not exceed the Canadian Loan
Commitment then in effect.
(2) Each Drawing shall be in an aggregate Face Amount of not
less than Cdn.$500,000 and in integral multiples of Cdn.$100,000 and shall
consist of the creation and purchase of Bankers' Acceptances or the purchase of
Drafts on the same day, effected or arranged by Canadian Agent in accordance
with subsection 2.9D.
(3) Anything contained in this Agreement to the contrary
notwithstanding, the Bankers' Acceptance Facility and the Canadian Loan
Commitment shall be subject to the following limitations:
(a) The amount otherwise available for Drawing under
the Canadian Loan Commitment as of any time of determination shall be
reduced by an amount equal to the sum of the outstanding Canadian Loans
PLUS the Canadian Letter of Credit Usage as of such time of
determination; and
(b) The Total Utilization of Canadian Loan Commitment
shall not exceed the Canadian Loan Commitment then in effect.
B. DRAWING NOTICE. (1) Each Drawing shall be made on one Business Day's
(in the case of Drawings of less than Cdn.$10,000,000) or two Business Days' (in
the case of Drawings of Cdn.$10,000,000 or more) prior written notice specified
in relation to Bankers' Acceptances, given not later than 11:00 a.m. (Toronto
time), by Company and Libbey Canada
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to Canadian Agent (with a copy to Agent). Each such notice of a Drawing (a
"DRAWING NOTICE") shall be given in substantially the form of EXHIBIT XII
annexed hereto or by telephone confirmed promptly in writing, containing the
same information as would be contained in a Drawing Notice, and shall specify
therein (i) the Drawing Date; (ii) the aggregate Face Amount of Drafts to be
accepted; and (iii) the maturity date for such Drafts.
(2) Libbey Canada shall not request in a Drawing Notice a
maturity date for Drafts which would be subsequent to the Revolving Loan
Commitment Termination Date.
(3) Each Drawing Notice shall be irrevocable and binding on
Libbey Canada. Libbey Canada shall indemnify Canadian Agent against any loss or
expense incurred by Canadian Agent as a result of any failure by Libbey Canada
to fulfill or honor before the date specified for any Drawing, the applicable
conditions set forth in this subsection 2.9 or subsection 3.3, if the Drawing,
as a result of such failure, is not made on such date.
(4) Libbey Canada shall repay, and there shall become due and
payable, on the Drawing Date the principal amount of any Canadian Loans which
Libbey Canada seeks to convert, in whole or in part, to Bankers' Acceptances on
such Drawing Date.
(5) Canadian Agent shall not incur any liability to Libbey
Canada or Company in acting on the telephonic notice referred to above which
Canadian Agent believes in good faith to have been given by a duly authorized
officer or other person authorized to borrow on behalf of Libbey Canada or for
otherwise acting in good faith under this subsection 2.9 and upon the acceptance
of Drafts pursuant to any such telephonic notice, Libbey Canada shall be liable
with respect thereto as provided herein. In the event of a conflict between
Canadian Agent's record of the applicable terms of any Drawing and such Drawing
Notice, Canadian Agent's record shall prevail, absent manifest or demonstrable
error.
C. FORM OF BANKERS' ACCEPTANCES. (1) Each Draft presented by Libbey
Canada shall (i) be in an integral multiple of Cdn.$100,000; (ii) be dated the
date of the Drawing; (iii) mature and be payable by Libbey Canada (in common
with all other Drafts presented in connection with such Drawing) on a Business
Day which occurs approximately 7, 30, 60, 90, 120 or 180 days after the date
thereof; and (iv) be substantially in the form of EXHIBIT XIII-A annexed hereto.
The acceptance endorsed by Canadian Agent on any Draft shall be substantially in
the form of EXHIBIT XIII-B annexed hereto or such other form as may be agreed by
Libbey Canada and Canadian Agent.
(2) Libbey Canada hereby renounces, and shall not claim, any
days of grace for the payment of any Bankers' Acceptances.
D. ACCEPTANCE AND PURCHASE OF DRAFTS. (1) Not later than 11:00 a.m.
(Toronto time) on an applicable Drawing Date, Canadian Agent shall, as the case
may be, (i) complete one or more Drafts dated the date of such Drawing, with the
maturity date specified by Libbey Canada in the Drawing Notice, accept such
Drafts, and purchase the Bankers' Acceptances thereby created for the Drawing
Purchase Price and (ii) arrange for its participant
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to complete one or more Drafts dated the date of such Drawing, with the maturity
date specified by Libbey Canada in the Drawing Notice, to accept such Drafts and
to purchase the Bankers' Acceptances thereby created for the Drawing Purchase
Price.
(2) The failure of Canadian Agent to accept Drafts or purchase
Bankers' Acceptances as part of any Drawing shall not relieve it of its
obligation, if any, to accept Drafts and purchase Bankers' Acceptances
hereunder.
E. PAYMENT OF DRAWING PURCHASE PRICE. (1) Subject to subsection
2.9B(4), Canadian Agent shall, before 12:00 noon (Toronto time) on the
applicable Drawing Date, pay or cause to be paid, the Drawing Purchase Price in
respect of any Bankers' Acceptances which Canadian Agent has purchased or
arranged to have purchased pursuant to subsection 2.9D(1) by depositing or
crediting Libbey Canada's account, as to which Libbey Canada shall have notified
Canadian Agent prior thereto, maintained by Canadian Agent at County Fair Mall,
00-00 XxXxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx X0X0X0, Xxxxxx (or causing such
account to be credited) with like funds in the aggregate amount of such funds.
(2) Bankers' Acceptances purchased by Canadian Agent or its
participant hereunder may be held by it for its own account until maturity or
sold by it at any time prior thereto in any relevant market therefor in Canada,
in Canadian Agent's or its participant's sole discretion.
F. EFFECTIVE DISCOUNT RATE DETERMINATION. Canadian Agent shall give
prompt notice to Libbey Canada of the Effective Discount Rate determined by
Canadian Agent for an applicable Drawing Date.
G. PAYMENT AT MATURITY. (1) Libbey Canada shall pay to Canadian Agent,
and there shall become due and payable, at 12:00 noon (Toronto time) on the
maturity date for each Bankers' Acceptance an amount in Canadian Dollars in same
day funds equal to the Face Amount of such Bankers' Acceptance. Libbey Canada
shall make each payment hereunder in respect of Bankers' Acceptances by deposit
of the required funds to Canadian Agent at County Fair Mall, 00-00 XxXxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxx X0X0X0, Xxxxxx. Upon receipt of such payment,
Canadian Agent will promptly thereafter cause such payment to be distributed in
like funds in payment of Bankers' Acceptances ratably (based on the proportion
that the aggregate Face Amount of Bankers' Acceptances held by any participant
thereof maturing on the relevant date bears to the aggregate Face Amount of
Bankers' Acceptances held by all participants or assignees thereof maturing on
such date) for the account of any participant, to the extent of and in
accordance with their participation. Such payment to Canadian Agent shall
satisfy Libbey Canada's obligations under any Bankers' Acceptances to which it
relates and if Canadian Agent has accepted such Bankers' Acceptances Canadian
Agent shall thereafter be solely responsible for the payment of such Bankers'
Acceptances.
(2) If Libbey Canada fails to pay any Bankers' Acceptance when
due, or to convert or renew the Face Amount of such Bankers' Acceptance pursuant
to subsection 2.9I, the unpaid amount due and payable in respect thereof shall
be converted as of such date, and
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without any necessity for Libbey Canada to give a Notice of Borrowing in
accordance with subsection 2.8B, to, and thereafter be outstanding as, a
Canadian Prime Rate Loan made by, Canadian Agent and shall bear interest
calculated and payable as provided in subsection 2.8.
H. PRESIGNED DRAFT FORMS. To enable Canadian Agent to create Bankers'
Acceptances or complete Drafts in the manner specified in this subsection 2.9,
Company and Libbey Canada shall supply Canadian Agent with such number of Drafts
as Canadian Agent may reasonably request, duly endorsed and executed on behalf
of Company and Libbey Canada by any one or more of its authorized officers.
Canadian Agent shall exercise such care in the custody and safekeeping of Drafts
as it would exercise in the custody and safekeeping of similar property owned by
it. Canadian Agent will, upon request by Libbey Canada, promptly advise Libbey
Canada of the number and designations, if any, of the uncompleted Drafts then
held by it. The signatures of such officers may be mechanically reproduced in
facsimile and Drafts and Bankers' Acceptances bearing such facsimile signatures
shall be binding upon Libbey Canada as if they had been manually signed by such
officers. Notwithstanding that any of the individuals whose manual or facsimile
signature appears on any Draft or Bankers' Acceptance as one of such officers
may no longer hold office at the date thereof or at the date of its acceptance
by Canadian Agent or a participant hereunder or at any time thereafter, any
Draft or Bankers' Acceptance so signed shall be valid and binding upon Libbey
Canada.
I. CONVERSION OR RENEWAL OF BANKERS' ACCEPTANCES. Upon the maturity of
a Bankers' Acceptance, Company and Libbey Canada may elect to (i) renew such
Bankers' Acceptance, by giving a Drawing Notice in accordance with subsection
2.9(B)(1); or (ii) have all or a portion of the Face Amount of such Bankers'
Acceptance converted to a Canadian Prime Rate Loan, by giving a Notice of
Borrowing in accordance with subsection 2.8B. If the Bankers' Acceptances to be
converted cannot be converted into a Canadian Prime Rate Loan in an aggregate
amount which may be made as a Canadian Prime Rate Loan under this Agreement,
then the amount which cannot be so converted shall be repaid to Canadian Agent
on the date of such conversion.
J. CIRCUMSTANCES MAKING BANKERS' ACCEPTANCES UNAVAILABLE. (1) If
Canadian Agent determines in good faith, which determination shall be final,
conclusive and binding upon Libbey Canada, and notifies Libbey Canada that, by
reason of circumstances affecting the money market (i) there is no market for
Bankers' Acceptances; or (ii) the demand for Bankers' Acceptances is
insufficient to allow the sale or trading of the Bankers' Acceptances created
and purchased hereunder; then,
(a) the right of Libbey Canada to request a Drawing shall be
suspended until the Canadian Agent determines that the circumstances
causing such suspension no longer exist and Canadian Agent so notifies
Libbey Canada; and
(b) any Drawing Notice which is outstanding shall be cancelled
and the Drawing requested therein shall not be made.
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(2) Canadian Agent shall promptly notify Libbey Canada and
Agent of the suspension of Libbey Canada's right to request a Drawing and of the
termination of any such suspension.
K. PREPAYMENTS. Except as required or permitted by Section 7, no
repayment of a Bankers' Acceptance shall be made by Libbey Canada to Canadian
Agent prior to the maturity date thereof. Any such repayment, made as required
by Section 7, shall be made (unless such repayment has been rescinded or
otherwise is required to be returned by Canadian Agent to Libbey Canada for any
reason) in accordance with the provisions of subsection 2.9G(1). Any such
payment by Libbey Canada to Canadian Agent shall satisfy Libbey Canada's
obligations under the Bankers' Acceptance to which it relates and, in the case
of a Bankers' Acceptance which has been accepted by Canadian Agent or its
participant, Canadian Agent or such participant shall thereafter be solely
responsible for the payment of such Bankers' Acceptance and shall indemnify and
hold Libbey Canada harmless against any liabilities, costs or expenses incurred
by Libbey Canada as a result of any failure by Canadian Agent or such
participant to pay such Bankers' Acceptance in accordance with its terms.
L. INCREASED COSTS. If, by reason of (y) after the date hereof, the
introduction of or any change (including, without limitation, any change by way
of imposition or increase of reserve requirements) in or in the interpretation
of any law or regulation, or (z) the compliance with any guideline or request
imposed or made after the date hereof from any central bank or other
governmental authority or quasi-governmental authority exercising control over
banks or financial institutions generally (whether or not having the force of
law) any reserve (including, without limitation, any imposed under the Lender
Act (Canada) or the Regulations thereunder), special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, Canadian Agent's applicable lending office shall be imposed or
deemed applicable or any other condition affecting Drafts or Bankers'
Acceptances or Canadian Agent's obligation to accept Drafts shall be imposed on
Canadian Agent or its applicable lending office; and, as a result thereof, there
shall be any increase in the cost to such Lender of agreeing to accept or
accepting, funding or maintaining Drafts or Bankers' Acceptances, or there shall
be a reduction in the amount received or receivable by Canadian Agent or its
applicable lending office, then Libbey Canada shall from time to time, upon
written notice from and demand by Canadian Agent (with a copy of such notice to
Company and Agent), pay to Canadian Agent, within five Business Days after the
date specified in such notice and demand, additional amounts sufficient to
indemnify Canadian Agent against such increased cost; PROVIDED, HOWEVER, that
neither Libbey Canada nor Company shall have any liability to Canadian Agent
under this subsection 2.9L with respect to the imposition of any withholding tax
to the extent Company is not required to make payments to such Lender with
respect to the imposition of such withholding tax under subsection 10.7;
PROVIDED FURTHER that Canadian Agent shall not be entitled to avail itself of
the benefit of this subsection 2.9L to the extent that any such increased cost
or reduction was incurred more than six months prior to the time it gives notice
to Libbey Canada, unless such circumstance arose or became applicable
retrospectively, in which case no time limit shall apply (PROVIDED that Canadian
Agent has notified Libbey Canada within six months from the date such
circumstances arose or became applicable). A certificate as to the amount of
such increased
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cost submitted to Libbey Canada, Company and Agent by Canadian Agent, shall,
except for manifest or demonstrable error, be final, conclusive and binding for
all purposes.
2.10 CANADIAN LETTERS OF CREDIT
A. CANADIAN LETTERS OF CREDIT. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of
Company and Libbey Canada set forth herein, Canadian Agent hereby agrees to (A)
maintain the Existing Canadian Letters of Credit as of the Effective Date and to
(B) issue Standby Letters of Credit and Commercial Letters of Credit for the
account of Libbey Canada denominated in Canadian Dollars as Company and Libbey
Canada may request in accordance with the provisions of this subsection 2.10A on
and after the Effective Date. Issuances of Canadian Letters of Credit shall be
subject to the following limitations:
(i) Libbey Canada shall not request that Canadian Agent issue
any Standby Letter of Credit or Commercial Letter of Credit if, after
giving effect to such issuance, (x) the Total Utilization of Canadian
Loan Commitment would exceed the Canadian Loan Commitment, as the
amount available under such Canadian Loan Commitment may be limited
from time to time pursuant to subsection 2.8A(iii) or (y) the Canadian
Letter of Credit Usage would exceed the Canadian Dollar Equivalent of
$3,000,000; and
(ii) In no event shall Canadian Agent issue, reissue, amend or
permit the extension of: (x) any Canadian Letter of Credit having an
expiration date later than the Revolving Loan Commitment Termination
Date in effect at the time of issuance, reissuance, amendment or
extension (automatic or otherwise) thereof; (y) subject to the
foregoing clause (x), any Standby Letter of Credit having an expiration
date more than one year after its date of issuance; PROVIDED that
subject to the foregoing clause (x), this clause (y) shall not prevent
Canadian Agent from agreeing that a Standby Letter of Credit will
automatically be extended annually for a period not to exceed one year
if Canadian Agent does not cancel such extension; or (z) any Commercial
Letter of Credit having an expiration date which is not acceptable to
Canadian Agent in its reasonable discretion or which is more than 180
days after its date of issuance.
It shall be a condition precedent to the issuance of any Standby Letter
of Credit or Commercial Letter of Credit in accordance with the provisions of
this subsection 2.10 that each condition set forth in subsection 3.3 shall have
been satisfied.
Each Standby Letter of Credit and Commercial Letter of Credit may
provide that Canadian Agent may (but shall not be required to) pay the
beneficiary thereof upon the occurrence of an Event of Default and the
acceleration of the maturity of the Canadian Loans or, if payment is not then
due to the beneficiary, provide for the deposit of funds in an account to secure
payment to the beneficiary and that any funds so deposited shall be paid to the
beneficiary of the Canadian Letter of Credit if conditions to such payment are
satisfied or returned to Canadian Agent (or, if all Canadian Obligations shall
have been indefeasibly paid
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in full, to Libbey Canada) if no payment to the beneficiary has been made and 30
days after the final date available for drawings under the Canadian Letter of
Credit has passed. Each payment or deposit of funds by Canadian Agent as
provided in this paragraph shall be treated for all purposes of this Agreement
as a drawing duly honored by Canadian Agent under the related Canadian Letter of
Credit.
B. REQUEST FOR ISSUANCE. Whenever Libbey Canada desires the issuance of
a Canadian Letter of Credit, Company and Libbey Canada shall deliver to Canadian
Agent a Request for Issuance of Letter of Credit in the form of EXHIBIT XI
hereto no later than 1:00 P.M. (Toronto time) at least five Business Days or
such shorter period as may be agreed to by Canadian Agent in any particular
instance, in advance of the proposed date of issuance. The Request for Issuance
of Letter of Credit shall specify (i) the proposed date of issuance (which shall
be a Business Day), (ii) the face amount of the Canadian Letter of Credit, (iii)
the expiration date of the Canadian Letter of Credit, (iv) the name and address
of the beneficiary, and (v) a summary of the purpose and the verbatim text of
such Canadian Letter of Credit. Prior to the date of issuance, Libbey Canada
shall specify a precise description of the documents and the proposed text of
any certificate to be presented by the beneficiary which, if presented by the
beneficiary prior to the expiration date of the Canadian Letter of Credit, would
require Canadian Agent to make payment under the Canadian Letter of Credit;
PROVIDED that Canadian Agent, in its sole reasonable judgment, may require
changes in any such documents and certificates; PROVIDED FURTHER that no
Canadian Letter of Credit shall require payment against a conforming draft to be
made thereunder on the same Business Day that such draft is presented if such
presentation is made after 11:00 A.M. (Toronto time) on such Business Day. In
determining whether to pay under any Canadian Letter of Credit, Canadian Agent
shall be responsible only to determine that the documents and certificates
required to be delivered under that Canadian Letter of Credit have been
delivered and that they comply on their face with the requirements of that
Canadian Letter of Credit.
C. PAYMENT OF AMOUNTS DRAWN UNDER CANADIAN LETTERS OF CREDIT. In the
event of any drawing under any Canadian Letter of Credit by the beneficiary
thereof, Canadian Agent shall promptly notify Libbey Canada, and Libbey Canada
shall reimburse Canadian Agent on the date on which such drawing is honored in
an amount in same day funds equal to the amount of such drawing; PROVIDED that,
anything contained in this Agreement to the contrary notwithstanding, (i) unless
Libbey Canada shall have notified Canadian Agent prior to 11:00 a.m. (Toronto
time) on the Business Day immediately prior to the date of such drawing that
Libbey Canada intends to reimburse Canadian Agent for the amount of such drawing
with funds other than the proceeds of Canadian Loans, Company and Libbey Canada
shall be deemed to have given a Notice of Borrowing to Canadian Agent requesting
Canadian Agent to make Canadian Loans to the extent of the unused Canadian Loan
Commitment on the date on which such drawing is honored in an amount equal to
the amount of such drawing, and (ii) subject to satisfaction or waiver of the
conditions specified in subsection 3.2, Canadian Agent shall, on the date of
such drawing, make Canadian Loans in the aggregate amount of such drawing, the
proceeds of which shall be applied directly by Canadian Agent to reimburse
itself for the amount of such drawing; and FURTHER PROVIDED that, if Canadian
Loans are required to be made and for any reason proceeds of Canadian Loans
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are not received by Canadian Agent on such date in an amount equal to the amount
of such drawing, Libbey Canada shall reimburse Canadian Agent, on the Business
Day immediately following the date of such drawing, in an amount in same day
funds equal to the excess of the amount of such drawing over the Canadian Loans,
if any, which are so received, plus accrued interest on such amount at the rate
set forth in subsection 2.10D(iii).
D. COMPENSATION. Libbey Canada agrees to pay, without duplication, the
following amounts to Canadian Agent with respect to each Canadian Letter of
Credit issued by it:
(i) with respect to each Canadian Letter of Credit, an
administrative fee payable to Canadian Agent equal to the greater of
(x) .125% per annum of the maximum amount available from time to time
to be drawn under such Canadian Letter of Credit, calculated in arrears
on and through the last day of each Fiscal Quarter and on the basis of
a 365-day year and the actual number of days elapsed and (y) Cdn.$500
(or, in the case of either (x) or (y), such lesser amount as is agreed
to by Company and Canadian Agent), payable on the Business Day
immediately succeeding such date of calculation in immediately
available funds;
(ii) with respect to each Canadian Letter of Credit, a letter
of credit fee payable to Canadian Agent equal to the product of (a) the
Letter of Credit Fee Percentage MULTIPLIED BY (b) the maximum amount
available from time to time to be drawn under such Canadian Letter of
Credit, in each case calculated on the basis of a 365-day year and the
actual number of days elapsed and payable quarterly in arrears on
January 1, April 1, July 1 and October 1 of each Fiscal Year and upon
expiration of such Canadian Letter of Credit in immediately available
funds;
(iii) with respect to drawings made under any Canadian Letter
of Credit, interest, payable in immediately available funds on demand,
on the amount paid by Canadian Agent in respect of each such drawing
from the date of the drawing through the date such amount is reimbursed
by Libbey Canada (but only if not reimbursed when due) at a rate which
is 2% per annum in excess of the rate of interest otherwise payable
under this Agreement for Canadian Prime Rate Loans; and
(iv) with respect to the issuance, amendment or transfer of
each Canadian Letter of Credit and each drawing made thereunder,
documentary and processing charges in accordance with Canadian Agent's
standard schedule for such charges in effect at the time of such
issuance, amendment, transfer or drawing, as the case may be.
E. ADDITIONAL PROVISIONS. Additional provisions governing the Canadian
Letters of Credit are set forth in Appendix D annexed hereto.
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2.11 NEGOTIATED RATE LOANS
A. Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Company set forth herein, as
of the Effective Date, each Lender hereby severally agrees (A) to maintain its
outstanding Negotiated Rate Loans and (B) that from time to time during the
period from and including the Effective Date to but excluding the Revolving Loan
Commitment Termination Date, Company may request one or more Lenders, in the
sole discretion of each, to make one or more Loans to Company 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 Commitment Termination Date) and to bear interest at such rate as shall be
agreed to by Company and the applicable Lender (each such Loan being a
"NEGOTIATED RATE LOAN"); PROVIDED that in no event shall (i) the aggregate
principal amount of Negotiated Rate Loans outstanding at any time exceed
$190,000,000 or (ii) the Total Utilization of Revolving Loan Commitments exceed
the Revolving Loan Commitments then in effect. All Negotiated Rate Loans shall
be in such minimum amounts as may be mutually agreed upon by Company and the
applicable Lender. Company and Lenders acknowledge that (A) subject to the
proviso in the first sentence of this paragraph, notwithstanding the Revolving
Loan Commitment of any Lender, each Lender may, but shall not be obligated to,
make Negotiated Rate Loans as of any date in an aggregate amount that would not
cause the Total Utilization of Revolving Loan Commitments to exceed the
Revolving Loan Commitments then in effect (and for such purposes each Lender may
rely on the information provided by the Company in the Notice of Borrowing); and
(B) Negotiated Rate Loans need not be made in accordance with Lenders' Pro Rata
Shares.
B. Each Lender making any Negotiated Rate Loans shall, prior to or
concurrently with the making thereof, provide Agent with written notice of the
amount, Funding Date and maturity date of such Negotiated Rate Loans, and
Company and Lenders will, from time to time, furnish such information to Agent
as Agent may request relating to the making of Negotiated Rate Loans, including,
without limitation, confirmation of amounts, Funding Dates and maturities (and,
upon the occurrence and during the continuance of any Potential Event of Default
or Event of Default only, applicable interest rates), for the purpose of
determining the Total Utilization of Revolving Loan Commitments and the
allocation of amounts received from Company for payment of all amounts owing
hereunder.
C. Promptly after receipt by Agent of a Notice of Borrowing pursuant to
subsection 2.1B (or telephonic notice in lieu thereof) requesting Negotiated
Rate Loans, Agent shall forward a copy of such notice to the applicable
Lender(s) specified therein. Upon satisfaction or waiver of the conditions
precedent specified in subsection 3.2, the Lender funding any Negotiated Rate
Loan shall make the proceeds of such Negotiated Rate Loan available to the
Company on the applicable Funding Date by causing an amount equal to the
proceeds of such Loan in same day funds to be credited to such account of the
Company as may be agreed to by the Company and the Lender.
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D. On the Effective Date, Company shall execute and deliver to each
Lender (or to Agent for that Lender) a Negotiated Rate Loan Note to evidence the
Negotiated Rate Loans which may be advanced by such Lender.
E. Company shall compensate each Lender, upon written request by that
Lender (which request shall set forth in reasonable detail the basis for
requesting such amounts), for all reasonable losses, expenses and liabilities
(including, without limitation, any interest paid by that Lender to lenders of
funds borrowed by it to make or carry its Negotiated Rate Loans and any loss
sustained by that Lender in connection with re-employment of such funds), which
that Lender may sustain with respect to Negotiated Rate Loans: (i) if for any
reason (other than a default or error by that 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
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 Lender's Negotiated Rate Loans is not made on any date specified
in a notice of prepayment given by Company and consented to by such Lender, or
(iv) as a consequence of any other default by Company to repay such Lender's
Negotiated Rate Loans when required by the terms of this Agreement.
F. Company may not prepay any Negotiated Rate Loan without the consent
of the applicable Lender; PROVIDED that Company shall deliver to Agent a notice
of any prepayment of any Negotiated Rate Loan on or prior to the date of such
prepayment.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND TO LOANS
AND LETTERS OF CREDIT
3.1 CONDITIONS TO EFFECTIVENESS.
The effectiveness of this Agreement is subject to the prior or
concurrent satisfaction of the following conditions:
A. COMPANY DOCUMENTS. On or before the Effective Date, Company shall
deliver or cause to be delivered to Lenders (or to Agent for Lenders with
sufficient originally executed copies, where appropriate, for each Lender and
its counsel) the following, each, unless otherwise noted, dated the Effective
Date:
(i) Certified copies of its Certificate of Incorporation,
together with a good standing certificate from the Secretary of State
of the State of Delaware, and except as set forth on Schedule 3.1A(i),
each other state in which it is qualified as a foreign corporation to
do business, each dated a recent date prior to the Effective Date;
(ii) Copies of its Bylaws, certified by its corporate
secretary or an assistant secretary;
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(iii) Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this Agreement
and the other Loan Documents to which it is a party, and approving and
authorizing the incurrence of up to $365,000,000 of Revolving Loans and
up to $190,000,000 of Negotiated Rate Loans, certified as of the
Effective Date by its corporate secretary or an assistant secretary as
being in full force and effect without modification or amendment;
(iv) Signature and incumbency certificates of its officers
executing this Agreement and the other Loan Documents to which it is
a party;
(v) Executed copies of this Agreement, the Notes to be issued
by it (if so requested in accordance with subsection 2.1E), drawn to
the order of each Lender with appropriate insertions, and the other
Loan Documents to which it is a party; and
(vi) Such other documents as Agent may reasonably request.
X. XXXXXX CANADA DOCUMENTS. On or before the Effective Date, Company
shall deliver or cause to be delivered to Lenders (or to Agent for Lenders with
sufficient originally executed copies, where appropriate, for each Lender and
its counsel) the following, each, unless otherwise noted, dated the Effective
Date:
(i) Certified (or notarial) copies of Certificate or Article
of Incorporation of Libbey Canada, together with evidence of its
corporate status in the province of Ontario and each other jurisdiction
in which it is qualified as a foreign corporation to do business, each
dated a recent date prior to the Effective Date;
(ii) Copies of Bylaws of Libbey Canada, certified by its
corporate secretary or an assistant secretary;
(iii) Resolutions of the Board of Directors of Libbey Canada,
approving and authorizing the execution, delivery and performance of
this Agreement and the other Loan Documents to which it is a party,
certified as of the Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect without
modification or amendment;
(iv) Signature and incumbency certificates of officers of
Libbey Canada executing this Agreement and the other Loan Documents to
which it is a party;
(v) Executed copies of this Agreement and the other Loan
Documents to which it is a party; and
(vi) Such other documents as Agent may reasonably request.
C. CORPORATE PROCEEDINGS. On or before the Effective Date, all
corporate and other proceedings taken or to be taken in connection with the
transactions contemplated
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hereby and all documents incidental thereto not previously found acceptable by
Agent, acting on behalf of Lenders, and its counsel shall be satisfactory in
form and substance satisfactory to Agent and such counsel, and Agent and such
counsel shall have received all such counterpart originals or certified copies
of such documents as Agent may reasonably request.
D. OPINIONS OF AGENT'S COUNSEL. Agent on behalf of Lenders, with
sufficient originally executed copies for each Lender, shall have received
originally executed copies of one or more favorable written opinions of
O'Melveny & Xxxxx LLP, counsel to Agent, dated as of the Effective Date,
substantially in the form of EXHIBIT IX annexed hereto and as to such other
matters as Agent acting on behalf of Lenders may reasonably request.
E. DELIVERY OF LEVEL DETERMINATION CERTIFICATE. On the Effective Date,
Company shall deliver a Level Determination Certificate calculated utilizing the
most recent financial information available to Company and in any event taking
into effect the funding of the Loans by the Lenders to Company and Libbey
Canada, if any, pursuant to this Agreement on the Effective Date.
F. OPINIONS OF COMPANY'S AND LIBBEY CANADA'S COUNSEL. Agent on behalf
of Lenders, with sufficient numbers of originally executed copies for each
Lender, shall have received (i) originally executed copies of one or more
favorable written opinions of (a) Xxxxxx & Xxxxxxx, counsel for Company, and (b)
Xxxxxx X. Xxxxx, general counsel of Company, each in form and substance
reasonably satisfactory to Agent and its counsel, dated as of the Effective Date
and setting forth substantially the matters in the opinions designated in
EXHIBIT VII-A and EXHIBIT VII-B annexed hereto, respectively, and as to such
other matters as Agent may reasonably request, (ii) originally executed copies
of one or more favorable written opinions of Gowling, Strathy & Xxxxxxxxx
counsel for Libbey Canada, in form and substance reasonably satisfactory to
Agent and its counsel, dated as of the Effective Date and setting forth
substantially the matters designated in EXHIBIT VIII annexed hereto and as to
such other matters as Agent may reasonably request and (iii) evidence
satisfactory to Agent that Company and Libbey Canada have requested such counsel
to deliver such opinions to Lenders.
G. EXECUTION OF AGREEMENT. On or before the Effective Date, each Lender
shall have delivered to Agent originally executed copies of this Agreement.
H. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS. Each of
Company and Libbey Canada shall have delivered to Agent an Officers'
Certificate, in form and substance satisfactory to Agent, to the effect that the
representations and warranties in Section 4 hereof are true, correct and
complete in all material respects on and as of the Effective Date to the same
extent as though made on and as of that date and that each of Company and Libbey
Canada has performed in all material respects all agreements and satisfied all
conditions which each Loan Document to which it is a party provides shall be
performed or satisfied by it on or before the Effective Date except as otherwise
disclosed to and agreed to in writing by Agent and Co-Agents.
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I. FEES. Company shall have paid to Agent, for distribution (as
appropriate) to Lenders, the fees payable on the Effective Date referred to in
subsection 2.3.
J. COMPENSATION FOR BREAKAGE. Company shall have paid any applicable
fees and charges with respect to Eurodollar Rate Loans under the Existing Credit
Agreement which are not continued as Eurodollar Rate Loans under this Agreement
in accordance with section D of Appendix A of the Existing Credit Agreement.
K. OTHER DOCUMENTS. Each of Company and Libbey Canada shall have
delivered to Agent such other documents as Agent may reasonably request.
3.2 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date
are subject to the following further conditions precedent:
A. Agent shall have received before that Funding Date, in accordance
with the provisions of subsection 2.1B, on or before any Funding Date, an
originally executed Notice of Borrowing, signed by the chief executive officer,
the chief financial officer or the treasurer of Company and/or Libbey Canada, as
the case may be, or by any executive officer of Company and/or Libbey Canada, as
the case may be, designated by any of the above-described officers on behalf of
Company and/or Libbey Canada, as the case may be, in a writing delivered to
Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in
the other Loan Documents shall be true, correct and complete in all
material respects on and as of that Funding Date to the same extent as
though made on and as of that date, except (a) to the extent such
representations and warranties specifically relate to an earlier date,
in which case such representations and warranties shall have been true,
correct and complete in all material respects on and as of such earlier
date and (b) to the extent that changes in the facts and conditions on
which such representations and warranties are based are required or
permitted under this Agreement;
(ii) No event shall have occurred and be continuing or would
result from the consummation of the borrowing contemplated by such
Notice of Borrowing that would constitute an Event of Default or a
Potential Event of Default;
(iii) Each of Company and Libbey Canada shall have performed
in all material respects all agreements and satisfied all conditions
which this Agreement and the other Loan Documents provide shall be
performed or satisfied by it on or before that Funding Date; and
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(iv) There shall not be pending or, to the knowledge of
Company or Libbey Canada, threatened, any action, suit, proceeding,
governmental investigation or arbitration against or affecting Company
or any of its Subsidiaries or any property of Company or any of its
Subsidiaries that has not been disclosed by Company in writing pursuant
to subsection 4.6 or 5.1(ix) prior to the making of the last preceding
Loans (or, in the case of the initial Loans, prior to the execution of
this Agreement), and there shall have occurred no development not so
disclosed in any such action, suit, proceeding, governmental
investigation or arbitration so disclosed, that, in either event, in
the opinion of Requisite Lenders, would reasonably be expected to have
a Material Adverse Effect; and no injunction or other restraining order
shall have been issued and no hearing to cause an injunction or other
restraining order to be issued shall be pending or noticed with respect
to any action, suit or proceeding seeking to enjoin or otherwise
prevent the consummation of, or to recover any damages or obtain relief
as a result of, the transactions contemplated by this Agreement or the
making of Loans or the issuance of Letters of Credit hereunder.
3.3 CONDITIONS TO ALL LETTERS OF CREDIT AND CANADIAN LETTERS OF CREDIT
The obligation of Bankers to issue any Letter of Credit and of
Canadian Agent to issue any Canadian Letter of Credit hereunder is subject to
prior or concurrent satisfaction of all of the following conditions:
A. On or before the date of issuance of a Letter of Credit or a
Canadian Letter of Credit pursuant to this Agreement, each of the conditions set
forth in subsection 3.1 shall have been satisfied as of the Effective Date, and,
on such date of issuance, all conditions precedent described in subsection 3.2B
shall be satisfied to the same extent as though the issuance of such Letter of
Credit or Canadian Letter of Credit were the making of a Loan and the date of
issuance of such Letter of Credit were a Funding Date.
B. On or before the date of issuance of any Letter of Credit or
Canadian Letter of Credit hereunder, Bankers shall have received, in accordance
with the provisions of subsection 2.7B, a Request for Issuance of Letter of
Credit relating to the proposed Letter of Credit or Canadian Letter of Credit,
all other information specified in subsection 2.7B or 2.10B as the case may be,
and such other documents as Bankers or Canadian Agent may reasonably require in
connection with the issuance of such Letter of Credit or Canadian Letter of
Credit.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to
make the Loans, to induce Bankers to issue Letters of Credit and to induce
Lenders to purchase participations in Letters of Credit and to induce Canadian
Agent to issue Canadian Letters of Credit and create Bankers' Acceptances,
Company and Libbey Canada severally represent and warrant to each Lender, on the
date of this Agreement, on each Funding Date, each Drawing Date and
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on the date of issuance of each Letter of Credit and each Canadian Letter of
Credit, that the following statements are true, correct and complete, which
representations and warranties in the case of Libbey Canada shall be limited to
Libbey Canada and its Subsidiaries and other facts and circumstances known to
Libbey Canada:
4.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and Libbey Canada is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. Each of Company
and Libbey Canada has all requisite corporate power and authority to own and
operate its properties, to carry on its business as now conducted and as
proposed to be conducted, to enter into the Loan Documents to which it is a
party, to carry out the transactions contemplated thereby and to issue and pay
the Notes to be issued by it.
B. QUALIFICATION AND GOOD STANDING. Each of Company and Libbey Canada
is qualified to do business and in good standing in every jurisdiction where its
assets are located and wherever necessary to carry out its business and
operations, except in jurisdictions where the failure to be so qualified or in
good standing has not had and will not have a Material Adverse Effect.
C. CONDUCT OF BUSINESection Company and its Subsidiaries are engaged
only in the businesses permitted to be engaged in pursuant to subsection 6.11.
D. SUBSIDIARIES. All of the Subsidiaries of Company as of the Effective
Date are identified in SCHEDULE 4.1 annexed hereto (as SCHEDULE 4.1 may be
modified to reflect the creation of any new Subsidiary formed or the deletion of
any Subsidiary no longer existing, in each case to the extent permitted by
subsection 6.7; all references herein to SCHEDULE 4.1 shall be deemed to be
references to SCHEDULE 4.1 as it may be so modified at the time of delivery by
Company of quarterly financial statements pursuant to subsection 5.1(i)). The
capital stock of each of the Subsidiaries of Company identified in SCHEDULE 4.1
annexed hereto is duly authorized, validly issued, fully paid and nonassessable
and none of such capital stock constitutes Margin Stock. Each of the
Subsidiaries of Company identified in SCHEDULE 4.1 annexed hereto is validly
existing and in good standing under the laws of its respective jurisdiction of
incorporation set forth therein, has full corporate power and authority to own
its assets and properties and to operate its business as presently owned and
conducted, and is qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever necessary to carry out
its business and operations, in each case except where failure to be so
qualified or in good standing or a lack of such corporate power and authority
has not had and will not have a Material Adverse Effect. SCHEDULE 4.1 annexed
hereto correctly sets forth the ownership interest of Company in each of its
Subsidiaries identified therein.
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4.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and performance
of the Loan Documents and the issuance, delivery and payment of the Notes have
been duly authorized by all necessary corporate action on the part of Company
and Libbey Canada, as the case may be.
B. NO CONFLICT. The execution, delivery and performance by Company and
Libbey Canada, as the case may be, of the Loan Documents, the issuance, delivery
and payment of the Notes, and the incurrence and repayment of extensions of
credit pursuant to the Loan Documents do not and will not (i) violate any
provision of any law or any governmental rule or regulation applicable to
Company or any of its Subsidiaries, the Certificate or Articles of Incorporation
or Bylaws of Company or any of its Subsidiaries or any order, judgment or decree
of any court or other agency of government binding on Company or any of its
Subsidiaries, (ii) conflict with, result in a material breach of or constitute
(with due notice or lapse of time or both) a material default under any
Contractual Obligation of Company or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of Company or any of its Subsidiaries (other than any Liens created under
any of the Loan Documents in favor of Agent on behalf of Lenders), or (iv)
require any approval of stockholders of Company or any of its Subsidiaries or
any approval or consent of any Person under any Contractual Obligation of
Company or any of its Subsidiaries.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance by
Company and Libbey Canada, as the case may be, of the Loan Documents, the
issuance, delivery and payment of the Notes and the consummation of the
transactions contemplated by the Loan Documents do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body.
D. BINDING OBLIGATION. Each of the Loan Documents has been duly
executed and delivered by Company and Libbey Canada, as the case may be, and is
the legally valid and binding obligation of Company and Libbey Canada, as the
case may be, enforceable against Company and Libbey Canada, as the case may be
in accordance with its respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
4.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders'
request, the audited consolidated balance sheet of Libbey and its Subsidiaries
as at December 31, 1996 and the related consolidated statements of income,
stockholders' equity and cash flows of Libbey and its Subsidiaries for the
Fiscal Year then ended. All such statements were prepared in
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conformity with GAAP and fairly present the financial position (on a
consolidated basis) of the entities described in such financial statements as at
the date thereof and the results of operations and cash flows (on a consolidated
basis) of the entities described therein for the period then ended, and such
consolidated financial statements are not materially different from the
consolidated financial statements of Company and its Subsidiaries. Company does
not (and will not following the funding of the initial Loans) have any
Contingent Obligation, contingent liability or liability for taxes, long-term
lease or unusual forward or long-term commitment that is not reflected in the
foregoing financial statements or other financial statements delivered pursuant
to subsection 5.1(i) or (ii) or the notes thereto or otherwise permitted under
subsection 6.4 and which in any such case is material in relation to the
business, operations, properties, assets or condition (financial or otherwise)
of Company and its Subsidiaries, taken as a whole.
4.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS.
Since December 31, 1996, no event or change has occurred that
has caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect. Neither Company nor any of its Subsidiaries has directly or
indirectly declared, ordered, paid or made, or set apart any sum or property
for, any Restricted Junior Payment or agreed to do so except as permitted by
subsection 6.5.
4.5 TITLE TO PROPERTIES; LIENS.
Company and its Subsidiaries have good, sufficient and legal
title, subject to Permitted Encumbrances, to all of their respective properties
and assets reflected in the financial statements referred to in subsection 4.3
or in the most recent financial statements delivered pursuant to subsection 5.1,
except for assets disposed of since the date of such financial statements in the
ordinary course of business or as otherwise permitted under subsection 6.7 and
except for such defects that have not had, or would not reasonably be expected
to result in, a Material Adverse Effect. Except as permitted by this Agreement,
all such properties and assets are free and clear of Liens.
4.6 LITIGATION; ADVERSE FACTS.
Except as described in SCHEDULE 4.6 annexed hereto, there is
no action, suit, proceeding, arbitration or governmental investigation (whether
or not purportedly on behalf of Company or any of its Subsidiaries) at law or in
equity or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, pending or, to the knowledge of Company, threatened against or
affecting Company or any of its Subsidiaries or any property of Company or any
of its Subsidiaries that has had, or would reasonably be expected to result in,
a Material Adverse Effect. Neither Company nor any of its Subsidiaries is (i) in
violation of any applicable law that has had, or would reasonably be expected to
result in, a Material Adverse Effect or (ii) subject to or in default with
respect to any final judgment, writ, injunction, decree, rule or regulation of
any court or any federal, state, municipal or other governmental department,
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commission, board, bureau, agency or instrumentality, domestic or foreign, that
has had, or would reasonably be expected to result in, a Material Adverse
Effect.
4.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 5.3, all material
tax returns and reports of Company and its Subsidiaries required to be filed by
any of them have been timely filed, and all material taxes, assessments, fees
and other governmental charges upon Company and its Subsidiaries and upon their
respective properties, assets, income, businesses and franchises which are due
and payable have been paid when due and payable. Company knows of no proposed
tax assessment against Company or any of its Subsidiaries that would be material
for the condition (financial or otherwise) of Company and its Subsidiaries,
taken as a whole, which is not being actively contested by Company or such
Subsidiary in good faith and by appropriate proceedings; PROVIDED that such
reserves or other appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made or provided therefor.
4.8 PERFORMANCE OF AGREEMENTS; MATERIALLY ADVERSE AGREEMENTS.
A. Neither Company nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the material obligations,
covenants or conditions contained in any of its Contractual Obligations, and no
condition exists that, with the giving of notice or the lapse of time or both,
would constitute such a default, except where the consequences, direct or
indirect, of such default or defaults, if any, would not have a Material Adverse
Effect.
B. Neither Company nor any of its Subsidiaries is a party to or is
otherwise subject to any agreement or instrument or any charter or other
internal restriction which has had, individually or in the aggregate, a Material
Adverse Effect.
4.9 GOVERNMENTAL REGULATION.
Neither Company nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act or the Investment Company Act of 1940 or
under any other federal or state statute or regulation which may limit its
ability to incur Indebtedness for borrowed money.
4.10 SECURITIES ACTIVITIES.
Neither Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock.
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4.11 EMPLOYEE BENEFIT PLANS.
A. Company and each of its ERISA Affiliates are in compliance
with all applicable provisions and requirements of ERISA and the regulations and
published interpretations thereunder with respect to each Employee Benefit Plan
which could result in a material liability to Company, and have performed all
their material obligations under each Employee Benefit Plan.
B. Except as set forth on Schedule 4.11, no ERISA Event has
occurred or is reasonably expected to occur.
C. Except to the extent required under Section 4980B of the
Internal Revenue Code or except as described on SCHEDULE 4.11 annexed hereto, no
Employee Benefit Plan provides health or welfare benefits (through the purchase
of insurance or otherwise) for any retired or former employees of Company or any
of its ERISA Affiliates.
D. As of the most recent valuation date for any Pension Plan,
the amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities) as set forth in the most recent actuarial report
prepared for such Pension Plan, does not exceed $10,000,000.
4.12 CERTAIN FEES.
No broker's or finder's fee or commission will be payable with
respect to this Agreement or any of the transactions contemplated hereby, and
Company hereby indemnifies Lenders against, and agrees that it will hold Lenders
harmless from, any claim, demand or liability for any such broker's or finder's
fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
4.13 ENVIRONMENTAL PROTECTION.
Except as set forth in SCHEDULE 4.13 annexed hereto:
(i) the operations of Company and each of its Subsidiaries
(including, without limitation, all operations and conditions at or in
the Facilities) comply in all material respects with all Environmental
Laws;
(ii) Company and each of its Subsidiaries have obtained all
Governmental Authorizations under Environmental Laws necessary to their
respective operations, and all such Governmental Authorizations are in
good standing, and Company and each of its Subsidiaries are in
compliance with all material terms and conditions of such Governmental
Authorizations;
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(iii) neither Company nor any of its Subsidiaries has received
(a) any 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 which in either event
would reasonably be expected to result in a liability to Company or any
of its Subsidiaries in excess of $10,000,000, and, to the best of
Company's knowledge, none of the operations of Company or any of its
Subsidiaries is the subject of any federal or state investigation
relating to or in connection with any Hazardous Materials at any
Facility or at any other location which would reasonably be expected to
result in a liability to Company or any of its Subsidiaries in excess
of $10,000,000;
(iv) none of the operations of Company or any of its
Subsidiaries is subject to any judicial or administrative proceeding
alleging the violation of or liability under any Environmental Laws
which if adversely determined is reasonably likely to have a Material
Adverse Effect;
(v) neither Company nor any of its Subsidiaries nor any of
their respective Facilities or operations are subject to any
outstanding written order or agreement with any governmental authority
or private party relating to (a) any Environmental Laws or (b) any
Environmental Claims, in each case which would reasonably be expected
to result in a liability to Company or any of its Subsidiaries in
excess of $10,000,000;
(vi) neither Company nor any of its Subsidiaries has any
contractual undertaking which would create a liability in connection
with any Release of any Hazardous Materials by Company or any of its
Subsidiaries which would reasonably be expected to have a Material
Adverse Effect;
(vii) neither Company nor any of its Subsidiaries nor, to the
best knowledge of Company, any predecessor of Company or any of its
Subsidiaries has filed any notice under any Environmental Law
indicating past or present treatment or Release of Hazardous Materials
at any Facility which would reasonably be expected to result in a
liability to Company or any of its Subsidiaries in excess of
$10,000,000;
(viii) no Hazardous Materials exist on, under or about any
Facility in a manner that would reasonably be expected to result in an
Environmental Claim having a Material Adverse Effect, and neither
Company nor any of its Subsidiaries has filed any notice or report of a
Release of any Hazardous Materials that would reasonably be expected to
result in an Environmental Claim having a Material Adverse Effect;
(ix) neither Company nor any of its Subsidiaries nor, to the
best knowledge of Company, any of their respective predecessors has
disposed of any Hazardous Materials in a manner that would reasonably
be expected to result in an Environmental Claim having a Material
Adverse Effect;
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(x) no underground storage tanks or surface impoundments are
on or at any Facility currently owned/or operated by Company or any of
its Subsidiaries or, to the best of the knowledge of Company or any of
its Subsidiaries, were on or at any facility previously owned and/or
operated by any of them during or prior to the period of such ownership
or operation, except, in each case, in compliance with Environmental
Laws in all material respects; and
(xi) no Lien in favor of any Person relating to or in
connection with any Environmental Claim has been filed or has been
attached to any Facility which would reasonably be expected to have a
Material Adverse Effect.
Notwithstanding anything in this subsection 4.13 to the contrary, no event or
condition has occurred with respect to Company or any of its Subsidiaries
relating to any Environmental Laws or Release of Hazardous Materials at any
Facility or any other location which, individually, or in the aggregate, has had
a Material Adverse Effect.
4.14 EMPLOYEE MATTERS.
There is no strike or work stoppage in existence or, to
Company's knowledge, threatened involving Company or any of its Subsidiaries
that would reasonably be expected to have a Material Adverse Effect.
4.15 SOLVENCY.
Company and its Subsidiaries, taken as a whole, and Libbey
Canada are Solvent.
4.16 DISCLOSURE.
No representation or warranty of Company or any of its
Subsidiaries contained in any Loan Document or in any other document,
certificate or written statement furnished to Lenders by or on behalf of Company
or any of its Subsidiaries for use in connection with the transactions
contemplated by this Agreement contains any untrue statement of a material fact
or omits to state a material fact (known to Company, in the case of any document
not furnished by it) necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances in which the same were
made. Any projections and pro forma financial information contained in such
materials are based upon good faith estimates and assumptions believed by
Company to be reasonable at the time made, it being recognized by Lenders that
such projections as to future events are not to be viewed as facts and that
actual results during the period or periods covered by any such projections may
differ from the projected results. There is no fact known (or which should upon
the reasonable exercise of diligence be known) to Company (other than matters of
a general economic nature) that has had, or would reasonably be expected to
result in, a Material Adverse Effect and that has not been disclosed herein or
in such other documents, certificates and statements furnished to Lenders for
use in connection with the transactions contemplated hereby.
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SECTION 5. AFFIRMATIVE COVENANTS
Company and Libbey Canada severally covenant and agree that,
so long as any of the Commitments hereunder shall remain in effect and until
payment in full of all of the Loans and other Obligations, the cancellation or
expiration of all Letters of Credit and Canadian Letters of Credit and the
reimbursement of all amounts drawn thereunder, unless Requisite Lenders shall
otherwise give prior written consent, each of Company and Libbey Canada shall
perform all covenants in this Section 5 to be performed by it (including in the
case of Libbey Canada, covenants applicable to it in its capacity as a
Subsidiary of Company), and Company shall cause each of its Subsidiaries to
perform, all covenants in this Section 5 applicable to such Subsidiary.
5.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Company shall maintain, and cause each of its Subsidiaries to
maintain, a system of accounting established and administered in accordance with
sound business practices to permit preparation of consolidated financial
statements in conformity with GAAP. Company shall deliver to Lenders:
(i) QUARTERLY FINANCIALS: as soon as available and in any
event within 60 days after the end of each fiscal quarter of each
Fiscal Year, (a) the consolidated balance sheet of Company and its
Subsidiaries as at the end of such fiscal quarter and the related
consolidated statements of income, stockholders' equity and cash flows
of Company and its Subsidiaries for such fiscal quarter and for the
period from the beginning of the then current Fiscal Year to the end of
such fiscal quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous
Fiscal Year, all in reasonable detail and certified by the chief
financial officer of Company that they fairly present the financial
condition of Company and its Subsidiaries as at the dates indicated and
the results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end
adjustments, and (b) a narrative report describing the operations of
Company and its Subsidiaries in the form prepared for presentation to
senior management for such fiscal quarter and for the period from the
beginning of the then current Fiscal Year to the end of such fiscal
quarter. Notwithstanding the foregoing, in the event that Company
delivers a Quarterly Report on Form 10-Q 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 subsection 5.1(i); PROVIDED that in
the event such Form 10-Q delivered to the Lenders shall be the Form
10-Q filed with the Securities and Exchange Commission by Libbey, such
Form 10-Q shall be accompanied by (i) a written certification by the
chief executive officer, chief financial officer, controller, treasurer
or assistant treasurer of Company that the consolidated financial
statements contained in such Form 10-Q are not materially different
from the consolidated financial statements of Company and its
Subsidiaries or (ii) financial statements
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(certified by the chief financial officer of Company) that would
otherwise be in Form 10-Q if Company were to file a Form 10-Q with the
Securities and Exchange Commission;
(ii) YEAR-END FINANCIALS: as soon as available and in any
event within 105 days after the end of each Fiscal Year, (a) the
consolidated balance sheet of Company and its Subsidiaries as at the
end of such Fiscal Year and the related consolidated statements of
income, stockholders' equity and cash flows of Company and its
Subsidiaries for such Fiscal Year, setting forth in comparative form
the corresponding figures for the previous Fiscal Year, all in
reasonable detail and certified by the chief financial officer of
Company that they present fairly in all material respects the financial
condition of Company and its Subsidiaries as at the dates indicated and
the results of their operations and their cash flows for the periods
indicated, (b) a narrative report describing the operations of Company
and its Subsidiaries in the form prepared for presentation to senior
management for such Fiscal Year, setting forth in comparative form the
corresponding figures for the previous Fiscal Year, and (c) in the case
of such consolidated financial statements, a report thereon of Ernst &
Young or other independent auditors of recognized national standing
selected by Company and satisfactory to Agent, which report shall be
unqualified, shall not include any reference to doubts about the
ability of Company and its Subsidiaries to continue as a going concern,
and shall state that such consolidated financial statements present
fairly in all material respects the consolidated financial position of
Company and its Subsidiaries as at the dates indicated and the
consolidated results of their operations and their cash flows for the
periods indicated in conformity with GAAP and that the audit by such
auditors in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards.
Notwithstanding the foregoing, in the event that Company delivers an
Annual Report on Form 10-K 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 subsection 5.1(ii); PROVIDED that in the event
such Form 10-K delivered to the Lenders shall be the Form 10-K filed
with the Securities and Exchange Commission by Libbey, such Form 10-K
shall be accompanied by (i) a written certification by the chief
executive officer, chief financial officer, controller, treasurer or
assistant treasurer of Company that the consolidated financial
statements contained in such Form 10-K are not materially different
from the consolidated financial statements of Company and its
Subsidiaries or (ii) financial statements (certified by the chief
financial officer of Company) that would otherwise be in Form 10-K if
Company were to file a Form 10-K with the Securities and Exchange
Commission;
(iii) OFFICERS' AND COMPLIANCE CERTIFICATES: together with
each delivery of financial statements of Company and its Subsidiaries
pursuant to subdivisions (i) and (ii) above, (a) an Officers'
Certificate of Company stating that the signers have reviewed the terms
of this Agreement and have made, or caused to be made under their
supervision, a review in reasonable detail of the transactions and
condition of Company and its Subsidiaries during the accounting period
covered by such financial
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statements and that such review has not disclosed the existence during
or at the end of such accounting period, and that the signers do not
have knowledge of the existence as at the date of such Officers'
Certificate, of any condition or event that constitutes an Event of
Default or Potential Event of Default, or, if any such condition or
event existed or exists, specifying the nature and period of existence
thereof and what action Company has taken, is taking and proposes to
take with respect thereto; and (b) a Compliance Certificate
demonstrating in reasonable detail compliance during and at the end of
the applicable accounting periods with the restrictions contained in
subsections 6.1 through 6.8;
(iv) CHANGES IN ACCOUNTING PRINCIPLES: together with the
delivery of financial statements pursuant to subdivisions (i) or (ii)
of this subsection 5.1, a written statement from the chief accounting
officer or chief financial officer or treasurer of Company setting
forth, if necessary to explain any material changes in the consolidated
financial statements caused by the adoption of new accounting
principles, a comparison and reconciliation of the consolidated
financial statements with pro forma consolidated financial statements
prepared as if the new accounting principles had not been adopted (it
being understood that only one such statement shall be required with
respect to any particular adoption of any new accounting principles);
(v) ACCOUNTANTS' CERTIFICATION: together with each delivery of
consolidated financial statements pursuant to subdivision (ii) above, a
report by the independent auditors stating whether, in connection with
their audit, any condition or event that constitutes an Event of
Default or Potential Event of Default has come to their attention and,
if such a condition or event has come to their attention, specifying
the nature and period of existence thereof; PROVIDED that such
accountants shall not be liable by reason of any failure to obtain
knowledge of any such Event of Default or Potential Event of Default
that would not be disclosed in the course of their audit, and stating
that based on their audit nothing has come to their attention that
causes them to believe either or both that the financial information
contained in the certificates delivered therewith pursuant to
subdivision (iii) above is not correct or that the matters set forth in
the Compliance Certificates delivered therewith pursuant to clause (b)
of subdivision (iii) above for the applicable Fiscal Year are not
stated in accordance with the terms of this Agreement;
(vi) SEC FILINGS AND PRESS RELEASES: (a) promptly upon their
becoming available, copies of (1) all financial statements, reports,
notices and proxy statements sent or made available generally by Libbey
to its security holders or by any Subsidiary of Company to its security
holders other than Company or another Subsidiary of Company and (2) all
regular and periodic reports and all registration statements (other
than on Form S-8 or a similar form) and prospectuses, if any, filed by
Libbey or any of its Subsidiaries with any securities exchange or with
the Securities and Exchange Commission or any governmental or private
regulatory authority, and (b) immediately prior to or concurrently with
their being made available to intended recipients, all press releases
and other statements made available generally by Libbey or any of its
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Subsidiaries to the public concerning material developments in the
business of Libbey or any of its Subsidiaries;
(vii) EVENTS OF DEFAULT, ETC.: promptly upon any Responsible
Officer of Company or Libbey Canada obtaining knowledge (a) of any
condition or event that constitutes an Event of Default or Potential
Event of Default, or becoming aware that any Lender or any Agent has
given any notice or taken any other action with respect to a claimed
Event of Default or Potential Event of Default, (b) that any Person has
given any notice to Company or any of its Subsidiaries or taken any
other action with respect to a claimed default or event or condition of
the type referred to in subsection 7.2, (c) of any condition or event
that would be required to be disclosed in a current report filed by
Company with the Securities and Exchange Commission on Form 8-K (Items
1, 2, 4, 5 and 6 of such Form as in effect on the date hereof) if
Company were required to file such reports under the Exchange Act, or
(d) of the occurrence of any event or change that has caused or
evidences, either in any case or in the aggregate, a Material Adverse
Effect, an Officers' Certificate specifying the nature and period of
existence of such condition, event or change, or specifying the notice
given or action taken by any such Person and the nature of such claimed
Event of Default, Potential Event of Default, default, event or
condition, and what action Company has taken, is taking and proposes to
take with respect thereto;
(viii) LITIGATION: promptly upon any Responsible Officer of
Company or Libbey Canada obtaining knowledge of (X) the institution of,
or non-frivolous threat of, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries
(collectively, "PROCEEDINGS") not previously disclosed in writing by
Company to Lenders or (Y) any material development in any Proceeding
that, in the case of either clause (X) or (Y) if adversely determined,
would reasonably be expected to cause a Material Adverse Effect,
written notice thereof together with such other information as may be
reasonably available to Company to enable Lenders and their counsel to
evaluate such matters;
(ix) [Intentionally omitted];
(x) ENVIRONMENTAL AUDITS AND REPORTS: as soon as practicable
following receipt thereof, copies of all environmental audits and
reports, whether prepared by personnel of Company or any of its
Subsidiaries or by independent consultants, with respect to
environmental matters at any Facility or which relate to an
Environmental Claim which, in each case, would reasonably be expected
to result in a Material Adverse Effect;
(xi) BOARD OF DIRECTORS: with reasonable promptness, written
notice of any change in the Board of Directors of Libbey or any of its
Subsidiaries;
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(xii) LEVEL DETERMINATION CERTIFICATE: concurrently with the
delivery of the financial statements required under subsection 5.1(i)
and 5.1(ii), Company shall deliver a Level Determination Certificate;
PROVIDED that in addition thereto, Company may also deliver a Level
Determination Certificate at its option at any other time; and
(xiii) OTHER INFORMATION: with reasonable promptness, such
other information and data with respect to Company or any of its
Subsidiaries as from time to time may be reasonably requested by any
Lender.
5.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 6.7, Company will, and
will cause each of its Subsidiaries to, at all times preserve and keep in full
force and effect its corporate existence and all rights and franchises material
to the business of Company and its Subsidiaries, taken as a whole. So long as
the Canadian Loan Commitment is in effect and Libbey Canada has any Obligations
hereunder, Libbey Canada shall remain a wholly-owned Subsidiary of Company.
5.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Company will, and will cause each of its Subsidiaries to, pay all
taxes, assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or
franchises before any penalty accrues thereon, and all claims (including,
without limitation, claims for labor, services, materials and supplies) for sums
that have become due and payable and that by law have or may become a Lien upon
any of its properties or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto, except for such taxes, assessments,
governmental charges and claims which in the aggregate do not exceed $1,000,000;
PROVIDED that no such charge or claim need be paid if being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted
and if such reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made therefor.
B. Company will not, nor will it permit any of its Subsidiaries to,
file or consent to the filing of any consolidated income tax return with any
Person (other than Libbey, Company or any of its Subsidiaries) for any period
ending on or after the Effective Date.
5.4 MAINTENANCE OF PROPERTIES; INSURANCE.
Company will, and will cause each of its Subsidiaries to,
maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used or useful in the
business of Company and its Subsidiaries (including, without limitation,
Intellectual Property) and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof. Company will maintain or
cause to be maintained, with financially sound and reputable insurers, insurance
with respect to its properties and business and the properties and businesses of
its Subsidiaries
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against loss or damage of the kinds customarily carried or maintained under
similar circumstances by corporations of established reputation engaged in
similar businesses.
5.5 INSPECTION.
Company shall, and shall cause each of its Subsidiaries to,
permit any authorized representatives designated by any Lender to visit and
inspect any of the properties of Company or any of its Subsidiaries, including
its and their financial and accounting records, and to make copies and take
extracts therefrom, and to discuss its and their affairs, finances and accounts
with its and their officers and its and their accountants, all upon reasonable
notice and at such reasonable times during normal business hours and as often as
may be reasonably requested.
5.6 COMPLIANCE WITH LAWS, ETC.
Company shall, and shall cause each of its Subsidiaries to,
comply with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, noncompliance with which in any case or in
the aggregate would reasonably be expected to cause a Material Adverse Effect.
5.7 ENVIRONMENTAL DISCLOSURE AND INSPECTION.
A. Company shall, and shall cause each of its Subsidiaries to, exercise
all due diligence in order to comply and cause (i) all tenants under any leases
or occupancy agreements affecting any portion of the Facilities and (ii) all
other Persons on or occupying such property, to comply with all Environmental
Laws.
B. Except for the disclosure of matters as to which a legal privilege
is asserted in good faith by Company or any of its Subsidiaries, Company shall
promptly advise Lenders in writing and in reasonable detail of (i) any Release
of any Hazardous Materials required to be reported to any federal, state or
local governmental or regulatory agency under any applicable Environmental Laws,
(ii) any and all written communications with respect to any Environmental Claims
that would reasonably be expected to result in a Material Adverse Effect or with
respect to any Release of Hazardous Materials which is material in nature and is
required to be reported to any federal, state or local governmental or
regulatory agency, (iii) any remedial action taken by Company or any other
Person in response to (x) any Hazardous Materials on, under or about any
Facility, the existence of which would reasonably be expected to result in an
Environmental Claim having a Material Adverse Effect, or (y) any Environmental
Claim that would reasonably be expected to result in a Material Adverse Effect,
(iv) Company'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, and (v) any notice
from a governmental agency stating that Company or any of its Subsidiaries has
been named as a potentially responsible party under applicable Environmental
Laws or any other request for information from any governmental
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agency that indicates such agency is investigating whether Company or any of its
Subsidiaries may be potentially responsible for a Release of Hazardous Materials
that could reasonably be expected to result in a Material Adverse Effect.
C. Company shall promptly notify Lenders of any proposed acquisition of
stock, assets, or property by Company or any of its Subsidiaries that would
reasonably be expected to expose Company or any of its Subsidiaries to, or
result in, Environmental Claims that would reasonably be expected to result in a
Material Adverse Effect or that would reasonably be expected to have a material
adverse effect on any Governmental Authorization then held by Company or any of
its Subsidiaries.
D. Company shall, at its own expense, provide copies of such documents
or information as Agent may reasonably request in relation to any matters
disclosed pursuant to this subsection 5.7.
5.8 COMPANY'S REMEDIAL ACTION REGARDING HAZARDOUS MATERIALS.
Company shall promptly take, and shall cause each of its
Subsidiaries promptly to take, any and all necessary remedial action in
connection with the presence, storage, use, disposal, transportation or Release
of any Hazardous Materials on, under or about any Facility in order to comply
with all applicable material Environmental Laws and Governmental Authorizations.
In the event Company or any of its Subsidiaries undertakes any remedial action
with respect to any Hazardous Materials on, under or about any Facility, Company
or such Subsidiary shall conduct and complete such remedial action in material
compliance with all applicable material Environmental Laws, and in accordance
with the policies, orders and directives of all federal, state and local
governmental authorities except when, and only to the extent that, Company's or
such Subsidiary's liability, including with respect to such presence, storage,
use, disposal, transportation or discharge of any Hazardous Materials, is being
contested in good faith by Company or such Subsidiary.
SECTION 6. NEGATIVE COVENANTS
Company and Libbey Canada severally covenant and agree that,
so long as any of the Commitments hereunder shall remain in effect and until
payment in full of all of the Loans and other Obligations, the cancellation or
expiration of all Letters of Credit and Canadian Letters of Credit and the
reimbursement of all amounts drawn thereunder, unless Requisite Lenders shall
otherwise give prior written consent, each of Company and Libbey Canada shall
perform all covenants in this Section 6 to be performed by it (including, in the
case of Libbey Canada, covenants applicable to it in its capacity as a
Subsidiary of Company), and Company shall cause each of its Subsidiaries to
perform, all covenants in this Section 6 applicable to such Subsidiary.
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6.1 INDEBTEDNESS
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or guaranty, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Company and Libbey Canada may become and remain liable
with respect to their respective Obligations;
(ii) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations permitted by subsection 6.4 and,
upon any matured obligations actually arising pursuant thereto, the
Indebtedness corresponding to the Contingent Obligations so
extinguished and with respect to Letters of Credit;
(iii) Company and its Subsidiaries may become and remain
liable with respect to Indebtedness in respect of Capital Leases;
(iv) Company may become and remain liable with respect to
Indebtedness to any of its wholly-owned Subsidiaries, and any
wholly-owned Subsidiary of Company may become and remain liable with
respect to Indebtedness to Company or any other wholly-owned Subsidiary
of Company; PROVIDED that (a) all such intercompany Indebtedness shall
be evidenced by promissory notes, (b) all such intercompany
Indebtedness owed by Company to any of its Subsidiaries shall be
subordinated in right of payment to the payment in full of the
Obligations pursuant to the terms of the applicable promissory notes or
an intercompany subordination agreement, and (c) any payment by any
Subsidiary of Company under any guaranty of the Obligations shall
result in a PRO TANTO reduction of the amount of any intercompany
Indebtedness owed by such Subsidiary to Company or to any of its
Subsidiaries for whose benefit such payment is made;
(v) Company and its Subsidiaries, as applicable, may remain
liable with respect to, and may refinance, Indebtedness described in
SCHEDULE 6.1 annexed hereto;
(vi) Company and its Subsidiaries may become and remain liable
with respect to, and may refinance, Indebtedness (a) of a Person
existing at the time such Person becomes a Subsidiary of Company or its
Subsidiaries after the date hereof, or (b) secured by Liens (to the
extent such Liens are permitted under subsection 6.2) on specific
assets, in either case to the extent such Person or assets are acquired
pursuant to an acquisition permitted by subsection 6.7(iv);
(vii) Company and its Subsidiaries may become and remain liable
with respect to short-term Indebtedness commonly known as commercial
paper in an aggregate face amount not to exceed at any time
$100,000,000;
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(viii) Company and its Subsidiaries may become and remain liable
with respect to Indebtedness incurred by Company or its Subsidiaries as
a result of the transfer of assets and liabilities to Company and its
Subsidiaries in settlement of delinquent obligations and other disputes
with customers or suppliers in the ordinary course of business;
(ix) Company may become and remain liable with respect to
Indebtedness in an aggregate amount not to exceed $10,000,000 at any
one time outstanding represented by the obligations of Company to make
payments with respect to the cancellation or repurchase of certain
stock or stock options granted to employees of Company and its
Subsidiaries;
(x) Company and its Subsidiaries may become liable with
respect to additional Indebtedness incurred to finance Consolidated
Capital Expenditures (which Indebtedness may be secured by Liens on
real or personal property constituting such Consolidated Capital
Expenditures, to the extent such Liens are permitted under subsection
6.2) in the aggregate amount not to exceed 20% of the Consolidated
Assets (as determined by the most recent financial statements delivered
pursuant to subsection 5.1(i) or (ii)) and may thereafter remain liable
as to any such Indebtedness and may refinance such Indebtedness; and
(xi) Company and its Subsidiaries may become and remain liable
with respect to other Indebtedness in an aggregate principal amount not
to exceed the sum of (A) $150,000,000 PLUS (B) the aggregate amount by
which the Revolving Loan Commitments and the Canadian Loan Commitment
have been permanently reduced pursuant to subsection 2.4(A)(ii) at any
time outstanding.
6.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. Company shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the Uniform Commercial Code of any State or under any similar
recording or notice statute, except:
(i) Permitted Encumbrances and Liens on the interest of the
Company or any of its Subsidiaries in the COLI Policies, which Liens
secure COLI Debt;
(ii) Liens described in SCHEDULE 6.2 annexed hereto;
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(iii) Liens securing Indebtedness permitted to be outstanding
under subsection 6.1(vi) and (x), so long as the aggregate amount of
such Indebtedness so secured does not exceed $75,000,000; and
(iv) Liens securing any Indebtedness permitted to be
outstanding under subsection 6.1 (other than subsection 6.1(vi) and
(x)), so long as the aggregate amount of such Indebtedness so secured
does not exceed $10,000,000.
B. EQUITABLE LIEN IN FAVOR OF LENDERS. If Company or any of its
Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Liens excepted by
the provisions of subsection 6.2A or otherwise consented to by Requisite
Lenders, it shall make or cause to be made effective provision whereby the
Obligations will be secured by such Lien equally and ratably with any and all
other Indebtedness secured thereby as long as any such Indebtedness shall be so
secured; PROVIDED that, notwithstanding the foregoing, this covenant shall not
be construed as a consent by Requisite Lenders to the creation or assumption of
any such Lien not permitted by the provisions of subsection 6.2A.
C. NO FURTHER NEGATIVE PLEDGES. Except with respect to specific
property encumbered to secure payment of particular Indebtedness or to be sold
pursuant to an executed agreement with respect to an Asset Sale and property
subject to Liens permitted under subsection 6.2A, neither Company nor any of its
Subsidiaries shall enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired.
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO COMPANY OR OTHER
SUBSIDIARIES. Except as provided herein, Company will not, and will not permit
any of its Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any such Subsidiary to (i) pay dividends or make any other
distributions on any of such Subsidiary's capital stock owned by Company or any
other Subsidiary of Company, (ii) repay or prepay any Indebtedness owed by such
Subsidiary to Company or any other Subsidiary of Company, (iii) make loans or
advances to Company or any other Subsidiary of Company, or (iv) transfer any of
its property or assets to Company or any other Subsidiary of Company.
6.3 INVESTMENTS; JOINT VENTURES.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment in any
Person, including any Joint Venture, except:
(i) Company and its Subsidiaries may make and own Investments
in Cash Equivalents;
(ii) Company and its Subsidiaries may make intercompany loans
to the extent permitted under subsection 6.1(iv);
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(iii) Company and its Subsidiaries may make Consolidated
Capital Expenditures;
(iv) Company and its Subsidiaries may continue to own the
Investments owned by them and described in SCHEDULE 6.3 annexed hereto;
(v) Company and its Subsidiaries may make Investments in or
make acquisitions of businesses substantially similar to those
currently conducted by Company or in related industries and Company may
make Investments in new Subsidiaries; PROVIDED that any such
Investments are permitted by the provisions of subsection 6.7(iv);
(vi) Company and its Subsidiaries may acquire and retain
ownership of Investments in connection with Asset Sales permitted by
subsection 6.7(iii) and other asset sales (including of worn or
obsolete equipment) in the ordinary course of business; PROVIDED that
the aggregate fair value, as determined in good faith by senior
management of Company, of all such Investments in connection with Asset
Sales permitted by subsection 6.7(iv) shall not at any time exceed
$20,000,000; PROVIDED FURTHER, however, that for purposes of compliance
with this subsection 6.3(vi) Asset Sales involving the simultaneous
receipt of notes and sale of such notes to a third party shall be
excluded if such sale is permitted by subsection 6.8;
(vii) Company and its Subsidiaries may make and own
Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(viii) Company and its Subsidiaries may make and own
Investments with respect to Contingent Obligations which are permitted
by subsection 6.4 and, upon any Investment actually arising pursuant
thereto, the Investment corresponding to the Contingent Obligation so
extinguished;
(ix) Company and its Subsidiaries may make and own Investments
in equity securities listed on the New York Stock Exchange ("NYSE") or
the American Stock Exchange ("AMSE"), or of equity securities traded in
the NASDAQ National Market System ("NASDAQ"), in each case received in
transactions; PROVIDED that such equity securities are held for a
period not in excess of two weeks; and PROVIDED FURTHER that the
aggregate fair value, as determined by the closing price on the NYSE,
AMSE or NASDAQ for such equity securities on the Business Day prior to
making the Investment, of such equity securities at any one time held
by Company shall not exceed $10,000,000;
(x) Company and its Subsidiaries may (A) continue to own
Investments in, and may make and own Investments resulting from capital
calls, buyout obligations or similar requirements in respect of, Joint
Ventures operating outside of the United
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States which are in existence on the date hereof; (B) make and own
Investments in Joint Ventures operating outside of the United States if
such arrangement is required pursuant to the law of the jurisdiction in
which such Joint Venture is operating; and (C) continue to own and may
make and own Investments in Joint Ventures; PROVIDED that the aggregate
amount of such Investments referred to in clauses (A), (B) and (C)
(other than the Investments referred to in subsection 6.3(xvi)) shall
not at any one time exceed $75,000,000;
(xi) Company and its Subsidiaries may make and own Investments
arising in connection with agreements and arrangements designed to
protect Company or any of its Subsidiaries against fluctuations in the
prices of commodities entered into in accordance with current industry
practice or the past practices of Company and its Subsidiaries;
(xii) Company and its Subsidiaries may make and own
Investments in Margin Stock; PROVIDED that the aggregate fair value of
investments in Margin Stock permitted under this subsection 6.3(xii)
shall not at any time exceed $200,000;
(xiii) Company may make and own Investments in Libbey's common
stock in connection with the administration of Company's 401K program
and any deferred compensation plan of Company for its executive
officers; PROVIDED that the aggregate fair value, as determined by the
closing price on the NYSE for such equity securities on the Business
Day prior to making the Investment, of such equity securities at any
one time held by Company shall not exceed $10,000,000;
(xiv) Company may make and maintain loans to Libbey in an
aggregate amount at any one time outstanding not to exceed the amount
of Restricted Junior Payments Company may make on its capital stock
which are permitted under subsection 6.5 (without giving effect to the
reduction of the amount of Restricted Junior Payments permitted under
subsection 6.5 by the amount of loans made to Libbey) at the time any
such loan is made;
(xv) Company and its Subsidiaries may make and own other
Investments in an aggregate amount not to exceed at any time
$40,000,000; and
(xvi) Company or any of its Subsidiaries may make and own
Investments in Vitrocrisa S.A. DE C.V., Crisa Corporation, Vitrocrisa
Holding S.A. DE C.V. and any affiliated entities therewith pursuant to
a Joint Venture to be entered into by and between Company and Vitro
S.A. DE C.V.; PROVIDED that this clause (xvi) shall not apply to any
additional Investments to be made by the Company or any of its
Subsidiaries subsequent to the date of the making of the initial
Investments pursuant to such Joint Venture.
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6.4 CONTINGENT OBLIGATIONS.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or become or remain liable with
respect to any Contingent Obligation, except:
(i) Company and its Subsidiaries may become and remain liable
with respect to (a) Contingent Obligations in respect of Commercial
Letters of Credit and Standby Letters of Credit securing Company's
Indebtedness referred to in subsection 6.1(vii) (the "CP LETTERS OF
CREDIT") in an aggregate amount not to exceed at any time $100,000,000,
(b) Contingent Obligations in respect of Commercial Letters of Credit
and Standby Letters of Credit (which are not, in each case, Letters of
Credit or Canadian Letters of Credit or CP Letters of Credit) in an
aggregate amount not to exceed at any time $40,000,000 and (c)
Contingent Obligations in respect of Commercial Letters of Credit and
Standby Letters of Credit (in each case including Letters of Credit and
Canadian Letters of Credit issued hereunder but excluding CP Letters of
Credit) in an aggregate amount not to exceed at any time $60,000,000;
(ii) Company may become and remain liable with respect to
Contingent Obligations under Interest Rate Agreements with respect to
Indebtedness;
(iii) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations in respect of customary
indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of assets;
(iv) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations under guarantees in the ordinary
course of business of the obligations of suppliers, customers,
franchisees and licensees of Company and its Subsidiaries;
(v) Company and its Subsidiaries may become and remain liable
with respect to Contingent Obligations in respect of any obligation of
Company or any of its Subsidiaries permitted under this Agreement or
not regulated hereby;
(vi) Company and its Subsidiaries, as applicable, may remain
liable with respect to Contingent Obligations described in SCHEDULE 6.4
annexed hereto;
(vii) Company and its Subsidiaries may become and remain
liable with respect to Contingent Obligations in respect of (A)
Currency Agreements entered into by Company or any Subsidiary in the
ordinary course of business or in connection with Asset Sales and (B)
futures contracts or options for futures contracts entered into by
Company or any Subsidiary for commodities in the ordinary course of
business;
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(viii) Company may become and remain liable with respect to
Contingent Obligations relating to obligations of Company to make
payments with respect to the cancellation or repurchase of certain
stock or stock options granted to employees of Company in an aggregate
amount not to exceed $10,000,000;
(ix) Company may become and remain liable with respect to
Contingent Obligations in respect of the guaranty of the Canadian
Obligations set forth in Section 8 of this Agreement; and
(x) Company and its Subsidiaries may become and remain liable
with respect to other Contingent Obligations; PROVIDED that the maximum
aggregate liability, contingent or otherwise, of Company and its
Subsidiaries in respect of all such Contingent Obligations shall at no
time exceed $75,000,000.
6.5 RESTRICTED JUNIOR PAYMENTS.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart
any sum for any Restricted Junior Payment; PROVIDED that Company may make
Restricted Junior Payments to Libbey (i) in an amount equal to the income taxes
attributable to Libbey's Investment in Company and its Subsidiaries and
attributable to Company and its Subsidiaries which are then due and payable
(less the amount of loans made to Libbey for such purposes pursuant to
subsection 6.3(xiv) and still outstanding), (ii) in an amount not to exceed
$2,000,000 in any Fiscal Year to allow Libbey to pay expenses (less the amount
of loans made to Libbey for such purposes pursuant to subsection 6.3(xiv) and
still outstanding) and (iii) if, after giving effect thereto, (A) no Event of
Default or Potential Event of Default shall have occurred and be continuing and
(B) the aggregate of all such Restricted Junior Payments after the making of the
initial Loans (as defined in the Existing Credit Agreement) on the Original
Closing Date under the Existing Credit Agreement would not exceed the sum of (X)
50% of cumulative Consolidated Net Income since June 30, 1993 (including, for
purposes of this subsection 6.5, net extraordinary gains and net extraordinary
losses but not taking into account net extraordinary gains or net extraordinary
losses which result from one-time non-cash adjustments for accounting changes
and so long as there are no material cash receipts or payments during the term
of this Agreement relating to such accounting changes) PLUS (Y) $15,000,000.
6.6 FINANCIAL COVENANTS.
A. TOTAL LEVERAGE RATIO. Company shall not permit the Total Leverage
Ratio at any time to exceed 4.10 to 1.00.
B. [Intentionally omitted].
C. INTEREST COVERAGE RATIO. Company shall not permit the ratio of (i)
Consolidated Adjusted EBITDA to (ii) Consolidated Interest Expense for any four
fiscal quarter period ending as of the last day of any fiscal quarter of Company
to be less than 2.50
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to 1.00; PROVIDED that, for the purposes of this subsection 6.6C, if any Person
is acquired by Company or its Subsidiaries as permitted under subsection 6.7(v)
and thereby becomes a Subsidiary of Company, Consolidated Adjusted EBITDA and
Consolidated Interest Expense shall be calculated as if such Person was a
Subsidiary of Company for the preceding four fiscal quarter period; PROVIDED
FURTHER that for the purposes of calculating Consolidated Interest Expense under
this subsection 6.6C, acquisition of any such Person shall be deemed to have
been financed with the borrowings under this Agreement.
6.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES.
Company shall not, and shall not permit any of its Subsidiaries
to, sell or otherwise transfer a Subsidiary of Company to Libbey or one of its
Subsidiaries unless such Subsidiary remains a Subsidiary of Company, or enter
into any transaction of merger or consolidation, or liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, sub-lease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any substantial part of its business, property or
fixed assets, whether now owned or hereafter acquired, or acquire by purchase or
otherwise all or substantially all the business, property or fixed assets of, or
stock or other evidence of beneficial ownership of, any Person, except:
(i) any Subsidiary of Company may be merged or consolidated
with or into Company or any wholly-owned Subsidiary of Company, or be
liquidated, wound up or dissolved, or all or any part of its business,
property or assets may be conveyed, sold, leased, transferred or
otherwise disposed of, in one transaction or a series of transactions,
to Company or any wholly-owned Subsidiary of Company; PROVIDED that, in
the case of such a merger or consolidation, Company or a wholly-owned
Subsidiary of Company shall be the continuing or surviving corporation;
(ii) subject to subsection 6.10, Company and its Subsidiaries
may sell or otherwise dispose of assets in transactions that do not
constitute Asset Sales; PROVIDED that the consideration received for
such assets shall be in an amount at least equal to the fair market
value thereof;
(iii) Company and its Subsidiaries may make Asset Sales;
PROVIDED that (x) the consideration received for such assets shall be
in an amount at least equal to the fair market value thereof; (y) the
sole consideration received shall be cash or non-cash consideration
which constitutes Investments permitted under subsection 6.3(vi), (ix)
or (xv); and (z) the proceeds of such Asset Sales shall be applied as
required by subsection 2.4A(iii)(a); and
(iv) Company and its Subsidiaries may acquire stock or assets
of another Person or create additional Subsidiaries; PROVIDED that in
respect of all such acquisitions other than the acquisition of a
business known as "WorldCrisa" and the Investments to be made in
Vitrocrisa S.A. DE C.V., Crisa Corporation, Vitrocrisa Holding S.A. DE
C.V. and any affiliated entities therewith, (A) the Total Leverage
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Ratio (calculated on a pro forma basis and, if a Person which will be a
Subsidiary of Company is being acquired, considering such Person to be
a Subsidiary of Company in the calculation of Consolidated Total Debt
and of Consolidated Adjusted EBITDA, or if a Person is being acquired
pursuant to a Joint Venture, taking into effect the dividends or other
distributions to be paid to the Company or its Subsidiaries in the
calculation of Consolidated Adjusted EBITDA) shall be in compliance
with the requirement of subsection 6.6A and (B) in the case of an
acquisition of stock, the acquired Person will be a Subsidiary of
Company or a Joint Venture to which Company or any of its Subsidiaries
is a party.
6.8 SALE OR DISCOUNT OF RECEIVABLES.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, sell with recourse, or discount or otherwise sell
for less than the face value thereof, any of its notes or accounts receivable
unless Company or such Subsidiary, as the case may be, receives fair value for
such notes or accounts receivable, as determined in good faith by the board of
directors of Company, and such notes or accounts receivable are sold without
recourse in the ordinary course of business of Company or such Subsidiary.
6.9 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any holder of 5% or more of any
class of equity Securities of Company or with any Affiliate of Company or of any
such holder, on terms that are less favorable to Company or that Subsidiary, as
the case may be, than those that might be obtained at the time from Persons who
are not such a holder or Affiliate; PROVIDED that the foregoing restriction
shall not apply to (i) any transaction between Company and any of its
wholly-owned Subsidiaries or between any of its wholly-owned Subsidiaries or
(ii) reasonable and customary fees paid to members of the Boards of Directors of
Company and its Subsidiaries.
6.10 DISPOSAL OF SUBSIDIARY STOCK.
Except for any sale of 100% of the capital stock or other
equity Securities of any of its Subsidiaries in compliance with the provisions
of subsection 6.7(iv), Company shall not:
(i) directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of any shares of capital stock or other equity
Securities of any of its Subsidiaries, except to qualify directors if
required by applicable law; or
(ii) permit any of its Subsidiaries directly or indirectly to
sell, assign, pledge or otherwise encumber or dispose of any shares of
capital stock or other equity
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Securities of any of its Subsidiaries (including such Subsidiary),
except to Company, another Subsidiary of Company, or to qualify
directors if required by applicable law.
6.11 CONDUCT OF BUSINESS.
From and after the Effective Date, Company shall not, and shall
not permit any of its Subsidiaries to, engage in any business other than (i) the
businesses engaged in by Company and its Subsidiaries on the Effective Date and
similar or related businesses and (ii) such other lines of business as may be
consented to by Requisite Lenders; PROVIDED that the Company or any of its
Subsidiaries may acquire a business known as "WorldCrisa."
6.12 RECEIVABLES PROGRAMS.
Notwithstanding anything to the contrary contained in this
Agreement (including without limitation subsection 10.11), Company may, and may
permit its Subsidiaries to, enter into one or more transactions (each such
transaction being referred to herein as a "RECEIVABLES PROGRAM") involving the
sale or other financing by Company or any of its Subsidiaries, without recourse
based solely upon a default by one or more account debtors in the payment of any
accounts receivable included in the applicable Receivables Program, of accounts
receivable arising in the ordinary course of business of Company or any of its
Subsidiaries.
SECTION 7. EVENTS OF DEFAULT
IF any of the following conditions or events ("Events of
Default") shall occur:
7.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure to pay any installment of principal of any Loan when
due, whether at stated maturity, by acceleration, by notice of prepayment or
otherwise; failure to pay when due any amount payable to Bankers in
reimbursement of any drawing under any Letter of Credit issued pursuant to
subsection 2.7; or failure to pay any interest on any Loan or any fee or any
other amount due under this Agreement within five days after the date due; or
7.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of Company or any of its Subsidiaries to pay when
due (a) any principal of or interest on any Indebtedness (other than
Indebtedness referred to in subsection 7.1) in an individual principal amount of
$10,000,000 or more or (b) any Contingent Obligation in an individual principal
amount of $10,000,000 or more, in each case beyond the end of any grace period
provided therefor; or (ii) breach or default by Company or any of its
Subsidiaries with respect to any other material term of (a) any evidence of any
Indebtedness in an individual principal amount of $10,000,000 or more or any
Contingent Obligation in an individual principal amount of $10,000,000 or more
or (b) any loan agreement, mortgage,
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indenture or other agreement relating to such Indebtedness or Contingent
Obligation(s), if the effect of such breach or default is to cause, or to permit
the holder or holders of that Indebtedness or Contingent Obligation(s) (or a
trustee on behalf of such holder or holders) to cause, that Indebtedness or
Contingent Obligation(s) to become or be declared due and payable prior to its
stated maturity or the stated maturity of any underlying obligation, as the case
may be; PROVIDED that, in the case of clause (ii), such failure, default or
breach has not been waived by such holder or holders (or a trustee on behalf of
such holder or holders); or
7.3 BREACH OF CERTAIN COVENANTS.
Failure of Company or Libbey Canada, as the case may be, to
perform or comply with any term or condition contained in subsection 2.4, 2.5,
5.1(vii), 5.2 or Section 6 of this Agreement; or
7.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement
made by Company or any of its Subsidiaries in any Loan Document or in any
statement or certificate at any time given by Company or any of its Subsidiaries
in writing pursuant hereto or thereto or in connection herewith or therewith
shall be false in any material respect on the date as of which made; or
7.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Company or Libbey Canada, as the case may be, shall default in
the performance of or compliance with any term contained in this Agreement or
any of the other Loan Documents, other than any such term referred to in any
other subsection of this Section 7, and such default shall not have been
remedied or waived within 30 days after the earlier of (i) a Responsible Officer
of Company becoming aware of such default or (ii) receipt by Company of notice
from Agent or any Lender of such default; or
7.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of Company or any of its material
Subsidiaries in an involuntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect,
which decree or order is not stayed; or any other similar relief shall be
granted under any applicable federal or state law; or (ii) an involuntary case
shall be commenced against Company or any of its material Subsidiaries under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over
Company or any of its material Subsidiaries, or over all or a substantial part
of its property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian of
Company or any of its material
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Subsidiaries for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against any
substantial part of the property of Company or any of its material Subsidiaries,
and any such event described in this clause (ii) shall continue for 60 days
unless dismissed, bonded or discharged; or
7.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Company or any of its material Subsidiaries shall have an
order for relief entered with respect to it or commence a voluntary case under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or other custodian
for all or a substantial part of its property; or Company or any of its material
Subsidiaries shall make a general assignment for the benefit of creditors; or
(ii) Company or any of its material Subsidiaries shall be unable or shall fail,
or shall admit in writing its inability, to generally pay its debts as such
debts become due; or the Board of Directors of Company or any of its material
Subsidiaries (or any committee thereof) shall adopt any resolution or otherwise
authorize any action to approve any of the actions referred to in clause (i)
above or this clause (ii); or
7.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar
process involving (i) in any individual case an amount in excess of $4,000,000
or (ii) in the aggregate at any time an amount in excess of $10,000,000 (in
either case not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or
filed against Company or any of its Subsidiaries or any of their respective
assets and shall remain undischarged, unvacated, unbonded or unstayed for a
period of 60 days (or in any event later than five days prior to the date of any
proposed sale thereunder); or
7.9 DISSOLUTION.
Any order, judgment or decree shall be entered against Company
or any of its Subsidiaries decreeing the dissolution or split up of Company or
that Subsidiary and such order shall remain undischarged or unstayed for a
period in excess of 30 days; or
7.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which results in or
would reasonably be expected to result in liability of Company or any of its
ERISA Affiliates in an individual amount in excess of $4,000,000 or in an
aggregate amount in excess of $10,000,000 during the term of this Agreement; or
there shall exist an amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension
Plans (excluding for purposes of such computation any Pension
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Plans with respect to which assets exceed benefit liabilities) as set forth in
the most recent actuarial report prepared for such Pension Plans, which exceeds
$10,000,000; or
7.11 CHANGE IN CONTROL.
Libbey shall cease to beneficially own and control all of the
issued and outstanding shares of capital stock of Company; individuals who on
the Effective Date were members of the board of directors of Libbey (together
with any new directors whose election to such board of directors or whose
nomination for election by the shareholders of Libbey was approved by a vote of
a majority of the directors then still in office who were either directors on
the Effective Date or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of such board of
directors then in office; or any Person or any two or more Persons acting in
concert shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Exchange Act),
directly or indirectly, of Securities of Libbey (or other Securities convertible
into such Securities) representing 30% or more of the combined voting power of
all Securities of Libbey entitled to vote in the election of directors:
THEN (i) upon the occurrence and during the continuance of any Event of Default
described in the foregoing subsections 7.6 or 7.7 each of (x) the unpaid
principal amount of and accrued interest on the Loans, (y) an amount equal to
the maximum amount which may at any time be drawn under all Letters of Credit
then outstanding (whether or not any beneficiary under any Letter of Credit
shall have presented, or shall be entitled at such time to present, the drafts
or other documents required to draw under such Letter of Credit) and (z) all
other Obligations shall automatically become immediately due and payable,
without presentment, demand, protest or other requirements of any kind, all of
which are hereby expressly waived by Company and Libbey Canada and the
obligation of each Lender to make any Loan and the obligation of Bankers to
issue any Letter of Credit hereunder shall thereupon terminate, and (ii) upon
the occurrence and during the continuation of any other Event of Default, Agent
shall, upon the written request of Requisite Lenders, by written notice to
Company and Libbey Canada, declare all of the Loans to be, and an amount equal
to the amounts described in clauses (x) through (z) above to be, and the same
shall forthwith become, due and payable, together with accrued interest thereon,
and the obligation of each Lender to make any Loan and the obligation of Bankers
to issue any Letter of Credit hereunder shall thereupon terminate; PROVIDED that
the foregoing shall not affect in any way the obligations of Lenders to purchase
from Bankers participations in the unreimbursed amount of any drawings under any
Letters of Credit as provided in subsection 2.7D. So long as any Letter of
Credit shall remain outstanding, any amounts described in clause (y) above with
respect to such Letter of Credit, when received by Bankers, shall be held by
Bankers pursuant to such documentation as Bankers shall request, as cash
collateral for the obligation of Company to reimburse Bankers in the event of
any drawing under such Letter of Credit, and so much of such funds shall at all
times remain on deposit as cash collateral as aforesaid as shall equal the
maximum amount available at any time for drawing under all Letters of Credit
(the "MAXIMUM AVAILABLE AMOUNT"); PROVIDED that, in the event of cancellation or
expiration of any Letter of Credit or any reduction in the Maximum Available
Amount, Bankers shall apply the
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difference between the Maximum Available Amount immediately prior to such
cancellation, expiration or reduction and the Maximum Available Amount
immediately after such cancellation or reduction, FIRST, to the payment in full
of the outstanding Obligations, and THEN, to Company or to such other Person who
may be lawfully entitled to receive such funds or as a court of competent
jurisdiction may direct.
Notwithstanding anything contained in the preceding paragraph,
if at any time within 60 days after an acceleration of the Loans pursuant to
such paragraph Company and Libbey Canada 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 Default and Potential Events of Default (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 subsection 10.6, then Requisite Lenders, by written notice to
Company and Libbey Canada, may at their option rescind and annul such
acceleration and its consequences; but such action shall not affect any
subsequent Event of Default or Potential Event of Default or impair any right
consequent thereon. The provisions of this paragraph are intended merely to bind
Lenders to a decision which may be made at the election of Requisite Lenders and
are not intended to benefit Company or Libbey Canada and do not grant Company or
Libbey Canada the right to require Lenders to rescind or annul any acceleration
hereunder, even if the conditions set forth herein are met.
SECTION 8. GUARANTY OF COMPANY
Company hereby confirms that it will continue to guarantee all
Canadian Obligations. In furtherance of the foregoing, Company hereby agrees as
follows:
8.1 GUARANTY BY COMPANY
As consideration for Lenders and Canadian Agent agreeing to
enter into this Agreement and extend the Commitments hereunder, Company hereby
unconditionally and irrevocably guaranties the due and punctual payment when due
(whether by required prepayment, declaration, demand or otherwise) (including
amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a) or operation of
any stay under applicable Canadian law) of all Obligations of Libbey Canada
(including, without limitation, interest which, but for the filing of a petition
in bankruptcy with respect to Company, or a similar action with respect to
Libbey Canada, would accrue on such Obligations) and all obligations of Libbey
Canada in respect of the Drafts or Bankers' Acceptances or any Currency
Agreements or Interest Rate Agreements relating to Libbey Canada's Obligations
hereunder and to which Canadian Agent is a party (the "CANADIAN OBLIGATIONS").
For purposes of this Section 8, Company is referred to as a "GUARANTOR" and the
obligations of Company under this subsection 8.1 are referred to as this
"GUARANTY."
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8.2 TERMS OF GUARANTY
Guarantor agrees that the Obligations of Libbey Canada may be
extended or renewed, and the Canadian Loans repaid and reborrowed in whole or in
part, without notice or further assent from it, and that it will remain bound
upon this Guaranty notwithstanding any extension, renewal or other alteration of
any such Obligation or repayment and reborrowing of the Canadian Loans.
The Guarantor waives presentation of, demand of, payment from and
protest of any Obligation of Libbey Canada and also waives notice of protest for
nonpayment. The obligations of Guarantor under this Guaranty shall not be
affected by, and Guarantor hereby waives its rights (to the extent permitted by
law) in connection with:
(a) the failure of Agent, any Co-Agent, Canadian Agent or any
other Lender to assert any claim or demand or to enforce any right or
remedy against Libbey Canada or Company under the provisions of this
Agreement or any other agreement or otherwise,
(b) any extension or renewal of any provision thereof,
(c) any rescission, waiver, amendment or modification of any
of the terms or provisions of this Agreement or any instrument executed
pursuant hereto,
(d) the release of any of the security held by Agent or
Canadian Agent for the Obligations of Libbey Canada,
(e) the failure of Agent, any Co-Agent, Canadian Agent or any
other Lender to exercise any right or remedy against any other
guarantor of the Obligations of Libbey Canada or Company,
(f) Agent, any Co-Agent, Canadian Agent or any other Lender
taking and holding security or collateral for the payment of this
Guaranty, any other guaranties of the Canadian Obligations or other
liabilities of Libbey Canada and the Obligations guarantied hereby, and
exchanging, enforcing, waiving and releasing any such security or
collateral,
(g) Agent, any Co-Agent, Canadian Agent or any other Lender
applying any such security or collateral and directing the order or
manner of sale thereof as Agent in its discretion may determine, or
(h) Agent, any Co-Agent, Canadian Agent or any other Lender
settling, releasing, compromising, collecting or otherwise liquidating
the Obligations and any security or collateral therefor in any manner
determined by Agent, such Co-Agent, Canadian Agent or such Lender.
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Guarantor further agrees that this Guaranty constitutes a
guaranty of payment when due and not of collection and waives any right to
require that any resort be had by Canadian Agent, Agent or any other Person to
any security held for payment of the Obligations of Libbey Canada or to any
balance of any deposit account or credit on the books of Canadian Agent, Agent
or any other Person in favor of Libbey Canada or any other Person.
The obligations of Guarantor under this Guaranty shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Canadian Obligations, discharge of Libbey
Canada from the Canadian Obligations in a bankruptcy or similar proceeding or
otherwise. Without limiting the generality of the foregoing, the obligations of
Guarantor under this Guaranty shall not be discharged or impaired or otherwise
affected by the failure of Agent, any Co-Agent, Canadian Agent or any other
Lender to assert any claim or demand or to enforce any remedy under this
Agreement or any other agreement, by any waiver or modification of any provision
thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Obligations of Libbey Canada, or by any other act or thing or
omission or delay to do any other act or thing that may or might in any manner
or to any extent vary the risk of Guarantor or would otherwise operate as a
discharge of Guarantor as a matter of law or equity.
Agent and Canadian Agent may, at their election, foreclose on
any security held by Agent and Canadian Agent by one or more judicial or
nonjudicial sales, or exercise any other right or remedy Agent and Canadian
Agent may have against Libbey Canada or any security without affecting or
impairing in any way the liability of Guarantor hereunder except to the extent
the Canadian Obligations have been paid. Guarantor waives any defense arising
out of such election by Agent and Canadian Agent, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of Guarantor against Libbey Canada or any security, so
long as Agent and Canadian Agent have acted in a commercially reasonable manner.
Guarantor further agrees that this Guaranty shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of or interest on any Obligation of Libbey Canada
is rescinded or must otherwise be restored by Agent or Canadian Agent upon the
bankruptcy or reorganization of Libbey Canada or otherwise.
Guarantor further agrees, in furtherance of the foregoing and
not in limitation of any other right that Agent or Canadian Agent may have at
law or in equity against Guarantor by virtue hereof, upon the failure of Libbey
Canada to pay any of its Obligations when and as the same shall become due
(whether by required prepayment, declaration, demand or otherwise), Guarantor
will forthwith pay, or cause to be paid, in cash, to Agent an amount equal to
the sum of the unpaid principal amount of such Obligations, accrued and unpaid
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interest on such Obligations and all other Obligations of Libbey Canada to Agent
or Canadian Agent.
So long as any of the Obligations of Libbey Canada shall remain
outstanding hereunder, Guarantor hereby irrevocably waives any right of
subrogation, contribution, indemnity or otherwise against Libbey Canada that may
arise out of or be caused by this Guaranty, all rights and/or claims against
Libbey Canada which may arise against Libbey Canada by reason of this Guaranty,
any right to enforce any remedy that Agent or Canadian Agent now has or may
hereafter have against Libbey Canada and any benefit of, and any right to
participate in, any security now or hereafter held by Agent or Canadian Agent.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon any failure
of Libbey Canada to pay its Obligations when due (whether by required
prepayment, declaration, demand or otherwise) and consequent acceleration of the
Obligations pursuant to Section 7, Canadian Agent, upon the consent of Agent and
Requisite Lenders, is hereby authorized by Guarantor at any time or from time to
time, without notice to Guarantor or to any other Person, any such notice being
hereby expressly waived to the extent permitted by applicable law, to set off
and to appropriate and to apply any and all deposits (general or special,
including, not limited to, Indebtedness evidenced by certificates of deposit,
whether matured or unmatured, but not including trust accounts) and any other
Indebtedness at any time owing by Canadian Agent to or for the credit or the
account of Guarantor against and on account of the obligations and liabilities
of Guarantor to Canadian Agent under this Guaranty, including but not limited
to, all such obligations and liabilities with respect to all claims of any
nature or description arising out of or connected with this Agreement, this
Guaranty or the Letters of Credit or any of the other Loan Documents,
irrespective of whether or not Canadian Agent or Agent, with respect to any
Obligation owed under the Letters of Credit or this Agreement, shall have made
any demand hereunder. Each of Canadian Agent and Agent agrees promptly to notify
Guarantor after any such set-off and application is made by Canadian Agent or
Agent.
Notwithstanding anything contained in this Section 8 to the
contrary, this Guaranty shall not be effective or in full force and effect until
the Effective Date.
SECTION 9. AGENT AND CO-AGENTS
Provisions governing Agent, Co-Agents, Syndication Agent and
Documentation Agent are set forth in Appendix C annexed hereto.
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SECTION 10. MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT.
A. GENERAL. Each Lender shall have the right at any time to (i) sell,
assign, transfer or negotiate to any Eligible Assignee, or (ii) sell
participations to any Person in, all or any part of any Loan or Loans made by it
or its Commitments or its Letters of Credit or participations therein or any
other interest herein or in any other Obligations owed to it; PROVIDED that no
such assignment or participation shall, without the consent of Company, require
Company to file a registration statement with the Securities and Exchange
Commission or apply to qualify such assignment or participation of the Loans,
Letters of Credit or participations therein or the other Obligations under the
securities laws of any state; and PROVIDED FURTHER that, notwithstanding
anything to the contrary stated in this Agreement, 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.
Except as otherwise provided in this subsection 10.1, no Lender shall, as
between Company and such Lender, be relieved of any of its obligations hereunder
as a result of any sale, assignment, transfer or negotiation of, or any granting
of participations in, all or any part of the Loans, the Commitments, Letters of
Credit or participations therein or the other Obligations owed to such Lender.
B. ASSIGNMENTS.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each Loan, Commitment or
other Obligation may (a) be assigned in any amount (of a constant and
not a varying percentage) to another Lender, or to an Affiliate of the
assigning Lender or another Lender, with the giving of notice to
Company and Agent or (b) be assigned in an amount (of a constant and
not a varying percentage) of not less than $10,000,000 (or such lesser
amount (X) as shall constitute the aggregate amount of all Loans,
Commitments, Letters of Credit or participations therein and other
Obligations of the assigning Lender or (Y) so long as after giving
effect to such assignment and at the time of such assignment the
assignee receives not less than $10,000,000 of such Loan, Commitment or
other Obligation assigned to it) to any other Eligible Assignee with
the giving of notice to Company and Agent and with the consent of
Company and Agent, in the case of an assignment made by a Lender other
than Agent, or with the consent of Company, in the case of an
assignment made by Agent (which consent of Company and Agent shall not
be unreasonably withheld; PROVIDED that the inability of an Eligible
Assignee to satisfy the requirements set forth in subsection 10.7B(iv)
of this Agreement, if applicable, shall constitute reasonable grounds
for withholding such consent); PROVIDED that Canadian Agent shall only
be permitted to assign the entire amount of the Canadian Loans,
Canadian Loan Commitment and other Obligations related thereto. To the
extent of any such assignment in accordance with either clause (a) or
(b) above, the assigning Lender shall be relieved of its obligations
with respect to its Loans, Commitments, Letters of Credit or
participations therein or other Obligations or the portion thereof so
assigned. The parties to each such assignment
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shall execute and deliver to Agent, for its acceptance and recording in
the Register, an Assignment and Acceptance, together with, with respect
to assignments which occur following the Effective Date, a processing
and recordation fee of $3,500, and such certificates, documents or
other evidence, if any, with respect to United States federal income
tax withholding matters as the assignee under such Assignment and
Acceptance may be required to deliver to Agent pursuant to subsection
10.7B(iv). Upon such execution, delivery and acceptance, from and after
the effective date specified in such Assignment and Acceptance, (y) the
assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance, shall have the rights and obligations
of a Lender hereunder, including, without limitation, the obligation in
subsection 10.23 to maintain the confidentiality of all non-public
information received by it pursuant to this Agreement and (z) the
assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment
and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall
cease to be a party hereto); PROVIDED that, if the assignee of the
assigning Lender is an Affiliate of such Lender, such assignee shall
not be entitled to receive any greater amount pursuant to section D of
Appendix A annexed hereto or to subsection 10.7 than the assigning
Lender would have been entitled to receive in respect of the amount of
the assignment effected by such assigning Lender to such Affiliate had
no such assignment occurred. The Commitments hereunder shall be
modified to reflect the Commitment of such assignee and any remaining
Commitment of such assigning Lender and, if any such assignment occurs
after the issuance of a Note to the assigning Lender hereunder, if
requested pursuant to subsection 2.1E or 2.11K, as the case may be, new
Notes shall, upon surrender of the assigning Lender's Note, be issued
to the assignee and to the assigning Lender, substantially in the form
of EXHIBIT III, EXHIBIT IV or EXHIBIT V annexed hereto, as the case may
be, with appropriate insertions, to reflect the new Commitments of the
assignee and the assigning Lender. In the event that a Lender assigns
the full amount of its Revolving Loans, Revolving Loan Commitments and
other Obligations and such Lender has any outstanding Negotiated Rate
Loans at the time of such assignment, such Lender must also assign the
full amount of such Negotiated Rate Loans to an Eligible Assignee.
(ii) ACCEPTANCE BY AGENT; RECORDATION IN REGISTER. Upon its
receipt of an Assignment and Acceptance executed by an assigning Lender
and an assignee representing that it is an Eligible Assignee, together
with the processing and recordation fee referred to in subsection
10.1B(i) and any certificates, documents or other evidence with respect
to United States federal income tax withholding matters that such
assignee may be required to deliver to Agent pursuant to subsection
10.7B(iv), Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of EXHIBIT X hereto and if
Agent and Company have consented to the assignment evidenced thereby
(in each case to the extent such consent is required pursuant to
subsection 10.1B(i)), (a) accept such Assignment and
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Acceptance by executing a counterpart thereof as provided therein
(which acceptance shall evidence any required consent of Agent to such
assignment), (b) record the information contained therein in the
Register, and (c) give prompt notice thereof to Company. Agent shall
maintain a copy of each Assignment and Acceptance delivered to and
accepted by it as provided in this subsection 10.1B(ii).
C. PARTICIPATIONS. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
directly affecting (i) the extension of the regularly scheduled maturity of any
portion of the principal amount of or interest on any Loan allocated to such
participation or (ii) a reduction of the principal amount of or the rate of
interest payable on any Loan or payments due in repayment of draws under Letters
of Credit allocated to such participation, and all amounts payable by Company
hereunder shall be determined as if such Lender had not sold such participation.
A Lender which has sold a participation in its Loans or Commitments shall
require the holder of such participation to agree in writing to comply with the
provisions of subsection 10.23 and if a Lender desires to give any prospective
participant a copy of any non-public information obtained by Lenders pursuant to
the requirements of this Agreement which has been identified as such by Company,
such Lender shall require such prospective participant to agree in writing to
hold such information in accordance with such prospective participant's
customary procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices prior to its delivery of such
material to such prospective participant. Company hereby acknowledges and agrees
that, only for purposes of section D of Appendix A annexed hereto and
subsections 10.4, 10.5 and 10.7, any participation will give rise to a direct
obligation of Company to the participant and the participant shall be considered
to be a "Lender"; PROVIDED that no participant shall be entitled to receive any
greater amount pursuant to section D of Appendix A annexed hereto or to
subsection 10.7 than the transferor Lender would have been entitled to receive
in respect of the amount of the participation effected by such transferor Lender
to such participant had no such participation occurred.
D. INFORMATION. Each Lender may furnish any information concerning
Company and its Subsidiaries in the possession of that Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject to subsection 10.23.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (i) all the actual and reasonable
costs and expenses of preparation of the Loan Documents; (ii) all the costs of
furnishing all opinions by counsel for Company (including without limitation any
opinions reasonably requested by Lenders as to any legal matters arising
hereunder) and of Company's performance of and compliance with all agreements
and conditions on its part to be performed or complied with under this Agreement
and the other Loan Documents including, without limitation, with respect to
confirming compliance with environmental and insurance requirements; (iii) the
reasonable fees, expenses and disbursements of counsel to Agent in connection
with the negotiation,
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preparation, execution and administration of the Loan Documents, the Letters of
Credit and the Loans and any consents, amendments, waivers or other
modifications hereto or thereto and any other documents or matters requested by
Company; (iv) all other actual and reasonable costs and expenses incurred by
Agent in connection with the negotiation, preparation and execution of the Loan
Documents and the transactions contemplated hereby and thereby; and (v) after
the occurrence and during the continuation of an Event of Default, all costs and
expenses, including reasonable attorneys' fees (including allocated costs of
internal counsel) and costs of settlement, incurred by Agent, Co-Agents and
Lenders in enforcing any Obligations of or in collecting any payments due from
Company hereunder or under the other Loan Documents by reason of such Event of
Default or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection
10.2, whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend, indemnify, pay and hold harmless Agent, Co-Agents and
Lenders, and the officers, directors, employees, agents and affiliates of Agent,
Co-Agents and Lenders (collectively called the "INDEMNITEES") from and against
any and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements of any kind or
nature whatsoever (including without limitation the reasonable fees and
disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto), whether based on any federal, state or foreign laws,
statutes, rules or regulations (including without limitation securities and
commercial laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be imposed
on, incurred by, or asserted against any such Indemnitee, in any manner relating
to or arising out of this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby (including without limitation
Lenders' agreement to make the Loans hereunder or the use or intended use of the
proceeds of any of the Loans or the issuance of Letters of Credit hereunder and
Lender's agreement to purchase participations therein as provided for herein, or
the use or intended use of the Letters of Credit) or the statements contained in
the commitment letter delivered by any Lender to Company with respect thereto
(collectively called the "INDEMNIFIED LIABILITIES"); PROVIDED that Company shall
not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise from
the gross negligence or willful misconduct of that Indemnitee as determined by a
final judgment of a court of competent jurisdiction. To the extent that the
undertaking to defend, indemnify, pay and hold harmless set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, Company shall contribute the maximum portion that it is permitted
to pay and satisfy under applicable law to the payment and satisfaction of all
Indemnified Liabilities incurred by the Indemnitees or any of them.
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10.4 SET OFF.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by Company
and Libbey Canada at any time or from time to time, without notice to Company or
Libbey Canada or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and to apply any and all deposits (general
or special, including, but not limited to, Indebtedness evidenced by
certificates of deposit, whether matured or unmatured, but not including trust
accounts) and any other Indebtedness at any time held or owing by that Lender to
or for the credit or the account of Company or Libbey Canada, as the case may
be, against and on account of the obligations and liabilities of Company or
Libbey Canada, as the case may be, to that Lender under this Agreement, and the
Notes and the Letters of Credit and participations therein, including, but not
limited to, all claims of any nature or description arising out of or connected
with this Agreement, the Notes, the Letters of Credit and participations therein
or any other Loan Document, irrespective of whether or not (i) that Lender shall
have made any demand hereunder or (ii) the principal of or the interest on the
Loans, the Notes, any obligations of Company in respect of the Letters of Credit
or any other amounts due hereunder shall have become due and payable pursuant to
Section 7 and although said obligations and liabilities, or any of them, may be
contingent or unmatured.
10.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them
shall, whether by voluntary payment, by realization upon security, through the
exercise of any right of set-off or banker's lien, by counterclaim or cross
action or by the enforcement of any right under the Loan Documents or under
Letters of Credit or otherwise, or as adequate protection of a deposit treated
as cash collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, fees and other
amounts then due and owing to that Lender hereunder or under the other Loan
Documents or any amounts payable in respect of Letters of Credit (collectively,
the "AGGREGATE AMOUNTS DUE" to such Lender) which is greater than the proportion
received by any other Lender in respect of the Aggregate Amounts Due to such
other Lender, then the Lender receiving such proportionately greater payment
shall (i) notify Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such payment to purchase participations (which it shall
be deemed to have purchased from each seller of a participation simultaneously
upon the receipt by such seller of its portion of such payment) in the Aggregate
Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; PROVIDED that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Company or otherwise, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the extent
of such recovery, but without interest. Company expressly consents to the
foregoing arrangement and agrees that any holder of a participation so purchased
may exercise any and all rights of banker's lien, set-off
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or counterclaim with respect to any and all monies owing by Company to that
holder with respect thereto as fully as if that holder were owed the amount of
the participation held by that holder.
10.6 AMENDMENTS AND WAIVERS.
A. No amendment, modification, termination or waiver of any
provision of this Agreement or of the Notes or consent to any departure by
Company or Libbey Canada therefrom, shall in any event be effective without the
written concurrence of Requisite Lenders; PROVIDED that no such amendment,
modification, termination, waiver or consent shall, without the written consent
of each Lender (with Obligations directly affected in the case of the following
clause (i)): (i) extend the scheduled final maturity of the Revolving Loans or
Canadian Loans or Notes, or extend the stated expiration date of any letter of
Credit, beyond the Revolving Loan Commitment Termination Date, reduce the
principal amount of the Loans, extend the dates on which interest or any fees
are payable; decrease the interest rates borne by the Loans, other than the
definition of "Drawing Fee" and under subsection 2.2D; (ii) reduce the
percentage specified in the definition of "Requisite Lenders" (it being
understood that, with the consent of the Requisite Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Requisite Lenders on substantially the same basis as the
extensions of Revolving Loan Commitments are included on the Effective Date);
(iii) amend, modify, terminate or waive any provision of subsections 7.1 and
10.6; or (iv) decrease any amounts payable in respect of the Letters of Credit
(including the fees payable in connection therewith other than administrative
fees payable pursuant to subsections 2.7E(i) or 2.10D(i)) or in the amount of
any fees payable to all Lenders hereunder; PROVIDED FURTHER that no such
amendment, modification, termination or waiver shall (1) increase the
Commitments of any Lender over the amount thereof then in effect without the
written consent of such Lender (it being understood that amendments,
modifications or waivers of conditions precedent, covenants, Potential Events of
Default or Events of Default or of a mandatory reduction in the Commitments
shall not constitute an increase of the Commitment of any Lender, and that an
increase in the available portion of any Commitment of any Lender shall not
constitute an increase in the Commitment of such Lender); (2) without the
written consent of Bankers, amend, modify, terminate or waive any provision of
subsection 2.1A(iii) or any other provision of this Agreement relating to the
Swing Line Loan Commitment or the Swing Line Loans; (3) without the written
consent of Bankers and Agent, amend, modify, terminate or waive the obligations
of Revolving Lenders relating to the purchase of participations in Letters of
Credit or which has not been reimbursed for a drawing under a Letter of Credit
issued by Bankers; (4) without the written consent of Agent or Co-Agents, amend,
modify, terminate or waive any provision of Section 9 or Appendix C as the same
applies to Agent or Co-Agents or of any other provision of this Agreement as the
same applies to the rights or obligations of Agent or Co-Agents, as the case may
be; and (5) without the written consent of or behalf of Canadian Agent, amend,
modify, terminate or waive any of the provisions contained in subsections 2.8,
2.9 and 2.10 and Section 8.
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B. If, in connection with any proposed amendment, modification,
termination or waiver to any of the provisions of this Agreement or the Notes as
contemplated by clauses (i) through (iv) of the first proviso of subsection
10.6A, the consent of the Requisite Lenders is obtained but the consent of one
or more of such other Lenders whose consent is required is not obtained, then
Company shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clause (i) or
(ii) below, to either (i) replace each such nonconsenting Lender or Lenders with
one or more Replacement Lenders pursuant to subsection 10.8 so long as at the
time of such replacement, each such Replacement Lender consents to the proposed
amendment, modification, termination or waiver, or (ii) terminate such
non-consenting Lender's Commitments and repay in full its outstanding Loans in
accordance with subsections 2.4A(i)(b) and 2.4A(ii)(b); PROVIDED that unless the
Commitments that are terminated and the Loans that are repaid pursuant to the
preceding clause (ii) are immediately replaced in full at such time through the
addition of new Lenders or the increase of the Commitments and/or outstanding
Loans of existing Lenders (who in each case must specifically consent thereto),
then in the case of any action pursuant to the preceding clause (ii), the
Requisite Lenders (determined before giving effect to the proposed action) shall
specifically consent thereto; PROVIDED FURTHER that Company shall not have the
right to terminate such non-consenting Lender's Commitment and repay in full its
outstanding Loans pursuant to clause (ii) of this subsection 10.6B if,
immediately after the termination of such Lender's Revolving Loan Commitment in
accordance with subsection 2.4A(ii)(b), the Revolving Loan Exposure of all
Lenders would exceed the Revolving Loan Commitments of all Lenders; PROVIDED
STILL FURTHER that Company shall not have the right to replace a Lender solely
as a result of the exercise of such Lender's rights (and the withholding of any
required consent by such Lender) pursuant to the second proviso to subsection
10.6A.
C. Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given. No
notice to or demand on Company in any case shall entitle Company to any other or
further notice or demand in similar or other circumstances. Any amendment,
modification, termination, waiver or consent effected in accordance with this
subsection 10.6 shall be binding upon each Lender at the time outstanding, each
future Lender and, if signed by Company and Libbey Canada, on Company and Libbey
Canada, as the case may be.
D. Notwithstanding anything to the contrary provided herein, if
at any time there is an amendment, modification or waiver with respect to the
Revolving Loan Commitments or the Revolving Loans with the effect that there is
any reduction in the amount or shortening of the final maturity of the Revolving
Loan Commitments or the Revolving Loans, a proportionate reduction in the amount
or an identical shortening of the final maturity of the Canadian Loan Commitment
or the Canadian Loans shall be automatically effected at such time unless
otherwise agreed to in writing by Canadian Agent.
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10.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. In the event that any
Lender shall determine (which determination shall, absent manifest or
demonstrable error, be final and conclusive and binding upon all parties hereto)
that any law, treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that is adopted after the date hereof, or compliance by such Lender
with any guideline, request or directive issued or made after the date hereof by
any central bank or other governmental or quasi-governmental authority (whether
or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to
any additional Tax (other than any Tax on the overall net income of
such Lender) with respect to this Agreement or any of the Loans or any
of its obligations hereunder, or changes the basis of taxation of
payments to such Lender (or its applicable lending office) of
principal, interest, fees or any other amount payable hereunder (except
for changes in the rate of Tax on the overall net income of such Lender
or its applicable lending office);
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or
other liabilities in or for the account of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any
office of such Lender (other than any such reserve or other
requirements with respect to Eurodollar Rate Loans that are reflected
in the definition of Adjusted Eurodollar Rate); or
(iii) imposes any other condition on or affecting such Lender
(or its applicable lending office) or its obligations hereunder or the
interbank Eurodollar market, other than with respect to Taxes;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto; then, in any such case, Company shall promptly pay to such
Lender, upon written demand and receipt of the written notice referred to below,
such additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
on an after-tax basis for any such increased cost or reduction in amounts
received or receivable hereunder; PROVIDED that any increased cost arising as a
result of any of the foregoing other than in respect of Taxes shall apply only
to Eurodollar Rate Loans; PROVIDED FURTHER that a Lender shall not be entitled
to avail itself of the benefit of this subsection 10.7A to the extent that any
such increased cost or reduction was incurred more than six months prior to the
time it gives notice to Company (as provided in the next sentence) of the
relevant circumstance,
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unless such circumstance arose or became applicable retrospectively, in which
case no time limit shall apply. Such Lender shall deliver to Company a written
notice, setting forth in reasonable detail the basis for calculating the
additional amounts owed to such Lender under this subsection 10.7A, which
statement shall be conclusive and binding upon all parties hereto absent
manifest or demonstrable error.
B. WITHHOLDING OF TAXES.
(i) PAYMENTS TO BE FREE AND CLEAR. All sums payable by Company
under this Agreement and the other Loan Documents shall be paid free
and clear of and (except to the extent required by law) without any
deduction or withholding on account of any Covered Tax imposed, levied,
collected, withheld or assessed by or within the United States of
America or any political subdivision in or of the United States of
America or any other jurisdiction from or to which a payment is made by
or on behalf of Company or by any federation or organization of which
the United States of America or any such jurisdiction is a member at
the time of payment.
(ii) WITHHOLDING IN RESPECT OF PAYMENTS. If Company or any
other Person is required by law to make any deduction or withholding on
account of any such Tax from any sum paid or payable by Company to
Agent, any Co-Agent or any Lender under any of the Loan Documents:
(a) Company shall notify Agent of any such
requirement or any change in any such requirement as soon as
Company becomes aware of it;
(b) Company shall pay any such Tax before the date on
which penalties attach thereto, such payment to be made (if
the liability to pay is imposed on Company) for its own
account or (if that liability is imposed on Agent, such
Co-Agent or such Lender, as the case may be) on behalf of and
in the name of Agent, such Co-Agent or such Lender;
(c) in the event such Tax is a Covered Tax, the sum
payable by Company in respect of which the relevant deduction,
withholding or payment is required shall be increased to the
extent necessary to ensure that, after the making of that
deduction, withholding or payment, Agent, such Co-Agent or
such Lender, as the case may be, receives on the due date and
retains (free from any liability in respect of any such
deduction, withholding or payment) a net sum equal to what it
would have received and so retained had no such deduction,
withholding or payment in respect of Covered Taxes been
required or made; and
(d) within 30 days after paying any sum from which it
is required by law to make any deduction or withholding, and
within 30 days after the due date of payment of any Tax which
it is required by clause (b) above to pay, Company shall
deliver to Agent evidence reasonably satisfactory to the other
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affected parties of such deduction, withholding or payment and
of the remittance thereof to the relevant taxing or other
authority;
PROVIDED that no such additional amount shall be required to be paid to
any Lender under clause (c) above except to the extent that any change
after the date hereof in any such requirement for a deduction,
withholding or payment as is mentioned therein shall result in an
increase in the rate of such deduction, withholding or payment from
that in effect at the date of this Agreement in respect of payments to
such Lender.
(iii) TAX REFUND. If Company determines in good faith that a
reasonable basis exists for contesting a Covered Tax, the relevant
Lender or Tax Transferee or Agent or Co-Agent, as applicable, shall
cooperate with Company (but shall have no obligation to disclose any
confidential information, unless arrangements satisfactory to the
relevant Lender have been made to preserve the confidential nature of
such information) in challenging such Tax at Company's expense if
requested by Company (it being understood and agreed that none of
Agent, any Co-Agent or any Lender shall have any obligation to contest,
or any responsibility for contesting, any Tax). If any Lender, Tax
Transferee, Agent or any Co-Agent, as applicable, receives a refund
(whether by way of a direct payment or by offset) of any Covered Tax
for which a payment has been made pursuant to this subsection 10.7
which, in the reasonable good faith judgment of such Lender, Tax
Transferee, Agent or such Co-Agent, as the case may be, is allocable to
such payment made under subsection 10.7, the amount of such refund
(together with any interest received thereon) shall be paid to Company
to the extent payment has been made in full as and when required
pursuant to this subsection 10.7.
(iv) U.S. TAX CERTIFICATES. Each Lender that is organized
under the laws of any jurisdiction other than the United States or any
state or other political subdivision thereof shall deliver to Agent for
transmission to Company, on or prior to the Effective Date (in the case
of each Lender listed on the signature pages hereof) or on the date of
the Assignment and Acceptance pursuant to which it becomes a Lender (in
the case of each other Lender), and at such other times as may be
necessary in the determination of Company or Agent (each in the
reasonable exercise of its discretion), such certificates, documents or
other evidence, properly and accurately completed and duly executed by
such Lender (including, without limitation, Internal Revenue Service
Form 1001 or Form 4224 or any other certificate or statement of
exemption required by Treasury Regulations Section 1.1441-4(a) or
Section 1.1441-6(c) or any successor thereto) to establish that such
Lender is not subject to deduction or withholding of United States
federal income tax under Section 1441 or 1442 of the Internal Revenue
Code or otherwise (or under any comparable provisions of any successor
statute) with respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of the Loan
Documents. Company shall not be required to pay any additional amount
to any such Lender under clause (c) of subsection 10.7B(ii) if such
Lender shall have failed to satisfy the requirements of the immediately
preceding sentence; PROVIDED that if such Lender shall have satisfied
such requirements on the
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Effective Date (in the case of each Lender listed on the signature
pages hereof) or on the date of the Assignment and Acceptance pursuant
to which it became a Lender (in the case of each other Lender), nothing
in this subsection 10.7B(iv) shall relieve Company of its obligation to
pay any additional amounts pursuant to clause (c) of subsection
10.7B(ii) in the event that, as a result of any change in applicable
law after the Effective Date or the date of the applicable Assignment
and Acceptance, as the case may be, such Lender is no longer properly
entitled to deliver certificates, documents or other evidence at a
subsequent date establishing the fact that such Lender is not subject
to withholding as described in the immediately preceding sentence.
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have determined in
good faith that the adoption, effectiveness, phase-in or applicability
(excluding any adoption, effectiveness, phase-in or applicability published as
of the Effective Date and currently scheduled to take effect) after the date
hereof of any law, rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the interpretation or
administration thereof after the date hereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its applicable lending
office) with any guideline, request or directive regarding capital adequacy
(whether or not having the force of law) of any such governmental authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling such
Lender as a consequence of, or with reference to, such Lender's Loans or
Commitments or Letters of Credit or participations therein or other obligations
hereunder to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within ten Business Days after written demand by such
Lender (with a copy of such demand to Agent), Company shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction; PROVIDED that
a Lender shall not be entitled to avail itself of the benefit of this subsection
10.7C to the extent that any such reduction in return was incurred more than six
months prior to the time it first makes a demand therefor, unless the
circumstance giving rise to such reduced return arose or became applicable
retrospectively, in which case no time limit shall apply (PROVIDED that such
Lender has notified Company within six months from the date such circumstances
arose or became applicable). Each Lender, upon determining in good faith that
any additional amounts will be payable pursuant to this subsection 10.7C, will
give prompt written notice thereof to Company, which notice shall set forth the
basis of the calculation of such additional amounts, although the failure to
give any such notice shall not release or diminish any of Company's obligations
to pay additional amounts under this subsection 10.7C.
10.8 LENDERS' OBLIGATION TO MITIGATE; REPLACEMENT OF LENDER.
Each Lender agrees that, as promptly as practicable after the
officer of such Lender responsible for administering the Loans under this
Agreement becomes aware of the
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occurrence of an event or the existence of a condition that would cause such
Lender to become an Affected Lender as provided in section C of Appendix A
annexed hereto or that would entitle such Lender to receive payments under
subsection 10.7A or 10.7C, it will, to the extent not inconsistent with such
Lender's internal policies, use reasonable efforts (i) to make, fund or maintain
the Commitments of such Lender or the affected Loans of such Lender through
another lending office of such Lender, or (ii) to take such other measures as
such Lender may deem reasonable, if as a result thereof the circumstances which
would cause such Lender to be an Affected Lender as provided in section C of
Appendix A annexed hereto would cease to exist or the additional amounts which
would otherwise be required to be paid to such Lender pursuant to subsection
10.7A or 10.7C would be materially reduced and if, as determined by such Lender
in its sole discretion, the making, funding or maintaining of such Commitments
or Loans through such other lending office or in accordance with such other
measures, as the case may be, would not otherwise materially adversely affect
such Commitments or Loans or the interests of such Lender; PROVIDED that such
Lender will not be obligated to utilize such other lending office pursuant to
this subsection 10.8 unless Company agrees to pay all reasonable expenses
incurred by such Lender in utilizing such other lending office. A certificate as
to the amount of any such expenses payable by Company pursuant to this
subsection 10.8 (setting forth in reasonable detail the basis for requesting
such amount) submitted by such Lender to Company shall be conclusive absent
manifest or demonstrable error.
If, notwithstanding the actions by a Lender pursuant to the
foregoing, Company receives a notice pursuant to subsections 10.7A or 10.7C or
section C of Appendix A annexed hereto, or in the event of a refusal by a Lender
to consent to a proposed change, waiver, discharge or termination with respect
to this Agreement which has been approved by the Requisite Lenders as provided
in subsection 10.6, Company shall have the right, if no Event of Default then
exists, to replace such Lender (a "REPLACED LENDER") with one or more Eligible
Assignees (collectively, the "REPLACEMENT LENDER") acceptable to Agent, PROVIDED
that (i) at the time of any replacement pursuant to this subsection 10.8 the
Replacement Lender shall enter into one or more Assignment and Acceptances
pursuant to subsection 10.1B (and with all fees payable pursuant to such
subsection 10.1B to be paid by the Replacement Lender) pursuant to which the
Replacement Lender shall acquire all of the outstanding Loans and Commitments
of, and in each case participations in Letters of Credit and Swing Line Loans
by, the Replaced Lender and, in connection therewith, shall pay to (x) the
Replaced Lender in respect thereof an amount equal to the sum of (A) an amount
equal to the principal of, and all accrued interest on, all outstanding Loans of
the Replaced Lender, (B) an amount equal to all unpaid drawings with respect to
Letters of Credit that have been funded by (and not reimbursed to) such Replaced
Lender, together with all then unpaid interest with respect thereto at such time
and (C) an amount equal to all accrued, but theretofore unpaid, fees owing to
the Replaced Lender with respect thereto, (y) Bankers an amount equal to such
Replaced Lender's Pro Rata Share of any unpaid drawings with respect to Letters
of Credit (which at such time remains an unpaid drawing) issued by it to the
extent such amount was not theretofore funded by such Replaced Lender, and (z)
Bankers an amount equal to such Replaced Lender's Pro Rata Share of any Refunded
Swing Line Loans to the extent such amount was not theretofore funded by such
Replaced Lender, and (ii) all obligations
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(including without limitation all such amounts, if any, owing under Section D of
Appendix A annexed hereto) of Company owing to the Replaced Lender (other than
those specifically described in clause (i) above in respect of which the
assignment purchase price has been, or is concurrently being, paid), shall be
paid in full to such Replaced Lender concurrently with such replacement. Upon
the execution of the respective Assignment and Acceptances, recordation of such
assignment in the Register by Agent pursuant to subsection 2.1D, the payment of
amounts referred to in clauses (i) and (ii) above and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of the appropriate Note
or Notes executed by Company, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to constitute a Lender hereunder
except with respect to indemnification provisions under this Agreement which by
the terms of this Agreement survive the termination of this Agreement, which
indemnification provisions shall survive as to such Replaced Lender.
Notwithstanding anything to the contrary contained above, Bankers may not be
replaced as a Lender hereunder at any time while it has Letters of Credit
outstanding hereunder unless arrangements satisfactory to Bankers (including the
furnishing of a Standby Letter of Credit in form and substance, and issued by an
issuer satisfactory to Bankers or the furnishing of cash collateral in amounts
and pursuant to arrangements satisfactory to Bankers) have been made with
respect to such outstanding Letters of Credit.
10.9 CHANGE IN ACCOUNTING PRINCIPLES.
If any changes in accounting principles from those used in the
preparation of the financial statements referred to in subsection 4.3 hereafter
occasioned by the promulgation of rules, regulations, pronouncements and
opinions by or required by the Financial Accounting Standards Board or the
American Institute of Certified Public Accountants (or successors thereto or
agencies with similar functions) result in a change in the method of calculation
of financial covenants, standards or terms found in Sections 1, 5 and 6 hereof,
the parties hereto agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating Company's financial condition shall be the same
after such changes as if such changes had not been made.
10.10 INTERCREDITOR AGREEMENT.
Lenders each agree among themselves that if any of them shall,
through the exercise of the right of counterclaim, set-off, banker's lien,
collection or other remedy by Agent or otherwise, including the enforcement of
rights under this Agreement, or as adequate protection of a deposit treated as
cash collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal and interest then due with
respect to the Loans, amounts payable in respect of such Lender's right to
receive reimbursement from Company or Libbey Canada in respect of the Letters of
Credit or Canadian Letters of Credit and amounts due under or in respect of the
Bankers' Acceptance Facility, as the case may be (collectively, the "Aggregate
Amounts Owing" to such Lender) which is greater than the proportionate reduction
of the Aggregate Amounts Owing to any other Lender, then the Lender receiving
such proportionately greater payment shall (y) notify each other Lender and
Agent of such receipt and (z) purchase participations (which it shall be
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deemed to have done simultaneously upon receipt of any such payment) in the
Aggregate Amounts Owing to the other Lenders as necessary to assure that all
such recoveries and payments in respect of the Aggregate Amounts Owing shall be
ratably shared by all of the Lenders in accordance with their respective Pro
Rata Shares; PROVIDED, HOWEVER, that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender, those purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to that Lender to the extent of such
recovery, but without interest; PROVIDED FURTHER that such participations shall
not at any time be deemed to be participations in the Loans, amounts payable in
respect of a Lender's right to receive reimbursement in respect of the Letters
of Credit or Canadian Letters of Credit or amounts due under or in respect of
the Bankers' Acceptance Facility, as the case may be.
10.11 INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or would
otherwise be within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default or Potential Event of Default if such action
is taken or condition exists.
10.12 NOTICES.
Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, telecopied, telexed or sent by United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telecopy or telex, or four
Business Days after depositing it in the United States mail, registered or
certified, with postage prepaid and properly addressed; PROVIDED that notices to
Agent and/or Company and/or Libbey Canada shall not be effective until received.
For the purposes hereof, the address of each party hereto shall be as set forth
under such party's name on the signature pages hereof or (i) as to Company,
Agent and Co-Agents such other address as shall be designated by such Person in
a written notice delivered to the other parties hereto and (ii) as to each other
party, such other address as shall be designated by such party in a written
notice delivered to Agent.
10.13 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement, the making of the Loans
hereunder and the issuance of the Letters of Credit.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Company set forth in Section D of Appendix A annexed
hereto, Section C of Appendix B annexed hereto and in subsections 10.2, 10.3 and
10.7, the agreements of Libbey Canada set forth in subsections 2.8I, 2.8J, 2.9L
and Section C of Appendix D annexed
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123
hereto, and the agreements of Lenders set forth in sections 2C and 4 of Appendix
C annexed hereto and subsections 10.4, 10.5 and 10.7B(iii) shall survive the
payment of the Loans, the cancellation or expiration of the Letters of Credit
and the reimbursement of any amounts drawn thereunder and the termination of
this Agreement.
10.14 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of any Lender in the exercise
of any power, right or privilege hereunder or under a Letter of Credit shall
impair such power, right or privilege or be construed to be a waiver of any
default or acquiescence therein, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise thereof or of
any other power, right or privilege. All rights and remedies existing under this
Agreement, the Notes, the Letters of Credit and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.15 MARSHALLING; PAYMENTS SET ASIDE.
Neither Agent, any Co-Agent nor any Lender shall be under any
obligation to marshal any assets in favor of Company or any other party or
against or in payment of any or all of the Obligations. To the extent that
Company makes a payment or payments to Agent or Lenders (or to Agent for the
benefit of Lenders), or Agent or Lenders enforce any security interests or
exercise their rights of setoff, and such payment or payments or the proceeds of
such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law, any
other state or federal law, common law or any equitable cause, then, to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor or related thereto,
shall be revived and continued in full force and effect as if such payment or
payments had not been made or such enforcement or setoff had not occurred.
10.16 SEVERABILITY.
In case any provision in or obligation under this Agreement or
the Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.17 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS.
The obligations of Lenders hereunder are several and no Lender
shall be responsible for the obligations or Commitments of any other Lender
hereunder. Nothing contained herein or in any other Loan Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute
Lenders as a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt, and each Lender shall be, subject to Section
116
124
7, entitled to protect and enforce its rights arising out of this Agreement and
it shall not be necessary for any other Lender to be joined as an additional
party in any proceeding for such purpose.
10.18 HEADINGS.
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.19 APPLICABLE LAW.
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. EACH LETTER OF CREDIT
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR
RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICES FOR DOCUMENTARY CREDITS
(1993) REVISION, INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500 (THE
"UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE
LAWS OF THE STATE OF NEW YORK.
10.20 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the
parties hereto and the successors and assigns of Lenders. The terms and
provisions of this Agreement shall inure to the benefit of any assignee or
transferee of any of the Loans, and in the event of any such transfer or
assignment the rights and privileges herein conferred upon Lenders shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof. Neither Company's or Libbey Canada's
rights or obligations hereunder nor any interest therein may be assigned or
delegated by Company or Libbey Canada without the prior written consent of all
Lenders. Lenders' rights of assignment are subject to subsection 10.1.
10.21 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY OR LIBBEY
CANADA ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR ANY OBLIGATION MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT EACH OF COMPANY AND LIBBEY CANADA ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, GENERALLY AND
117
125
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY
ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT, SUCH OTHER LOAN
DOCUMENT OR SUCH OBLIGATION. Each of Company and Libbey Canada designates and
appoints The Corporation Trust Company, and such other Persons as may hereafter
be selected by Company irrevocably agreeing in writing to so serve, as its and
Libbey Canada's agent to receive on their behalf service of all process in any
such proceedings in any such court, such service being hereby acknowledged by
Company and Libbey Canada to be effective and binding service in every respect.
A copy of any such process so served shall be mailed by registered mail to
Company at its address provided in subsection 10.12; PROVIDED that, unless
otherwise provided by applicable law, any failure to mail such copy shall not
affect the validity of service of such proceSection If any agent appointed by
Company or Libbey Canada refuses to accept service, Company and Libbey Canada
hereby agree that service of process sufficient for personal jurisdiction in any
action against Company or Libbey Canada may be made by registered or certified
mail, return receipt requested, to Company at its address provided in subsection
10.12, and Company and Libbey Canada hereby acknowledge that such service shall
be effective and binding in every respect. Nothing herein shall affect the right
to serve process in any other manner permitted by law or shall limit the right
of any Lender to bring proceedings against Company or Libbey Canada in the
courts of any other jurisdiction.
10.22 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR
THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims, breach of duty claims
and all other common law and statutory claims. Each party hereto acknowledges
that this waiver is a material inducement to enter into a business relationship,
that each has already relied on this waiver in entering into this Agreement, and
that each will continue to rely on this waiver in their related future dealings.
Each party hereto further warrants and represents that it has reviewed this
waiver with its legal counsel and that it knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event
of litigation, this Agreement may be filed as a written consent to a trial by
the court.
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126
10.23 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement which has been identified as
confidential by Company in accordance with such Lender's customary procedures
for handling confidential information of this nature and in accordance with safe
and sound banking practices, it being understood and agreed by Company that in
any event a Lender may make disclosures reasonably required by any bona fide
assignee, transferee or participant in connection with the contemplated
assignment or transfer by such Lender of any Loans or any participation therein
or as required or requested by any governmental agency or representative thereof
or pursuant to legal process; PROVIDED that, unless specifically prohibited by
applicable law or court order, each Lender shall notify Company of any request
by any governmental agency or representative thereof (other than any such
request in connection with any examination of the financial condition of such
Lender by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information; and PROVIDED, FURTHER that
in no event shall any Lender be obligated or required to return any materials
furnished by Company or any of its Subsidiaries.
10.24 ENTIRE AGREEMENT.
This Agreement, taken together with all of the other Loan
Documents and all certificates and other documents delivered by Company to Agent
and Lenders pursuant to the Loan Documents, embodies the entire agreement and
supersedes all prior agreements, written and oral, relating to the subject
matter hereof.
10.25 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and
Agent of written or telephonic notification of such execution and authorization
of delivery thereof.
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127
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
COMPANY:
LIBBEY GLASS INC.
By: Xxxxxxx X. Xxxxxx
---------------------------------
Title: Chief Financial Office
------------------------------
Notice Address:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
or
X.X. Xxx 00000
Xxxxxx, Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-1
000
XXXXXX XXXXXX:
XXXXXX XXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Title: Chief Financial Officer
------------------------------
Notice Address:
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx X0X0
Xxxxxx
S-2
129
LENDERS:
BANKERS TRUST COMPANY,
individually and as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: Assistant Vice President
------------------------------
Notice Address:
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000/7351
With copy to:
BT Securities Corporation
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-3
130
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Syndication Agent
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Title: First Vice President
------------------------------
Notice Address:
000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
X-0
000
XXXXXXXXXXX, N.A.,
individually and as Documentation Agent
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
---------------------------------
Title: Vice President
------------------------------
Notice Address:
Sears Tower, Suite 2800
000 X. Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-5
000
XXX XXXX XX XXXX XXXXXX,
individually and as Co-Agent
By: /s/ F.C.H. Xxxxx
---------------------------------
Title: Senior Manager Loan Operations
------------------------------
Notice Address:
Atlanta Agency
000 Xxxxxxxxx Xxxxxx, XX #0000
Xxxxxxx,XX 30308
Attn: Xxxxxxx Law
Tel: (000) 000-0000
Fax: (000) 000-0000
THE BANK OF NOVA SCOTIA,
as Canadian Agent
By: /s/ Xxxxxxx Xxxx
---------------------------------
Title: Vice President
------------------------------
Notice Address:
The Bank of Nova Scotia
00 Xxxx Xxxxxx Xxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Tel: (000) 000-0000
Fax: (000) 000-0000
S-6
000
XXX XXXX XX XXX XXXX,
individually and as Co-Agent
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Title: Vice President
------------------------------
Notice Address:
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
X-0
000
XXXXXX XXXXXXXXX XX CREDIT AGRICOLE,
individually and as Co-Agent
By: /s/ Xxxxx Xxxxx F.V.P.
-------------------------------------
Title: Head of Corporate Banking Chicago
----------------------------------
Notice Address:
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
X-0
000
XXXXX BANK, N.A.
individually and as Co-Agent
By: /s/ Xxxxxx Xxxxx
---------------------------------
Title: Vice President
------------------------------
Notice Address:
1185 Avenue of the Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
X-0
000
XXXXXXX NATIONAL ASSOCIATION,
individually and as Co-Agent
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Title: Vice President
------------------------------
Notice Address:
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-10
137
ABN AMRO BANK, N.V.
By: /s/ X.X. Xxxxxxxx
---------------------------------------
Title: Group V.P.
------------------------------------
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Title: Group V.P. and Operational Manager
------------------------------------
Notice Address:
XXX Xxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
Attn: X. X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-11
000
XXXX XX XXXXXXX XXXXXXXX
By: /s/ Xxxx Xxxxxx
---------------------------------
Title: Managing Director
------------------------------
Notice Address:
000 X. Xx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-12
000
XXXX XX XXXXXX
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Title: Vice President
------------------------------
Notice Address:
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-13
000
XXXX XX XXXXXXXX
By: /s/ Xxxx X. Xxxxx
---------------------------------
Title: Director
------------------------------
Notice Address:
000 X. XxXxxxx Xxxxxx, 00xx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-14
141
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Title: Deputy General Manager
------------------------------
Notice Address:
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
X-00
000
XXXXXX XXXXXXX
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Title: Vice President
------------------------------
By: /s/ Xxxxxx X. ??
---------------------------------
Title: Assistant V.P.
------------------------------
Notice Address:
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
X-00
000
XXXXXXXXX XXXXXXXXXX XX CIC ET DE L'UNION
EUROPEENNE
By: /s/ Xxxxx X'Xxxxx
---------------------------------
Title: Vice President
------------------------------
By: /s/ Xxxx Xxxxxxx
---------------------------------
Title: First Vice President
------------------------------
Notice Address:
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X'Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-17
144
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ B. Xxxxx Xxxxxxxx
---------------------------------
Title: Vice President
------------------------------
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Title: Assistant Treasurer
------------------------------
Notice Address:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-18
145
THE FUJI BANK, LIMITED
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Title: Joint General Manager
------------------------------
Notice Address:
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-19
146
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
CHICAGO BRANCH
By: /s/ Xxxxxx X. Xxxxxx Xx.
-------------------------------------------
Title: Vice President & Deputy General Manager
----------------------------------------
Notice Address:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
X-00
000
XXXXXX BANK, N.A.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Title: AVP
------------------------------
Notice Address:
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-21
000
XXXXXX XXXXXXXX XXXXX XXXXXXX XX XXX
XXXX
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Title: Vice President
------------------------------
Notice Address:
c/o X.X. Xxxxxx Services, Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
P.O. Box 6070
Newark, Delaware 19713-2107
Attn: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-22
149
THE NORTHERN TRUST COMPANY
By: /s/ S. Xxxx Xxxxxx
---------------------------------
Title: Vice President
------------------------------
Notice Address:
00 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-23
150
THE SANWA BANK, LIMITED,
CHICAGO BRANCH
By: /s/ Xxxxx Xxxxxx
---------------------------------
Title: First Vice President
------------------------------
Notice Address:
000 Xxxxxx Xxxxxx
00xx Xxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxx 00000
Attn: Xxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
X-00
000
XXXXXXX XXXXXXXX
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: Vice President
------------------------------
Notice Address:
000 X. Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
S-25
152
APPENDIX A
----------
SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS
--------------------------------------------------
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as practicable
after 10:00 A.M. (New York time) on each Interest Rate Determination Date, Agent
shall determine (which determination shall, absent manifest or demonstrable
error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to Company and
each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event that
Agent shall have determined (which determination shall be final and conclusive
and binding upon all parties hereto), on any Interest Rate Determination Date
with respect to any Eurodollar Rate Loans, that by reason of circumstances
affecting the interbank Eurodollar market adequate and fair means do not exist
for ascertaining the interest rate applicable to such Loans on the basis
provided for in the definition of Adjusted Eurodollar Rate, Agent shall on such
date give notice (by telecopy or by telephone confirmed in writing) to Company
and each Lender of such determination, whereupon (i) no Loans may be made as, or
converted to, Eurodollar Rate Loans until such time as Agent notifies Company
and Lenders that the circumstances giving rise to such notice no longer exist
and (ii) any Notice of Borrowing or Notice of Conversion/Continuation given by
Company with respect to the Loans in respect of which such determination was
made shall be deemed to be rescinded by Company.
C. ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS. In the
event that on any date any Lender (including Agent or Co-Agent) shall have
determined (which determination shall be final and conclusive and binding upon
all parties hereto but shall be made only after consultation with Company and
Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans
(i) has become unlawful as a result of compliance by such Lender in good faith
with any law, treaty, governmental rule, regulation, guideline or order (or
would conflict with any such treaty, governmental rule, regulation, guideline or
order not having the force of law even though the failure to comply therewith
would not be unlawful) or (ii) has become impracticable, or would cause such
Lender material hardship, as a result of contingencies occurring after the date
of this Agreement which materially and adversely affect the interbank Eurodollar
market or the position of such Lender in that market, then, and in any such
event, such Lender shall be an "AFFECTED LENDER" and it shall on that day give
notice (by telecopy or by telephone confirmed in writing) to Company and Agent
of such determination (which notice Agent shall promptly transmit to each other
Lender). Thereafter (a) the obligation of the Affected Lender to make Loans as,
or to convert Loans to, Eurodollar Rate Loans shall be suspended until such
notice shall be withdrawn by the Affected Lender, (b) to the extent such
determination by the Affected Lender relates to a Eurodollar Rate Loan then
being requested by Company pursuant to a Notice of Borrowing or
Appendix A-1
153
a Notice of Conversion/Continuation, the Affected Lender shall make such Loan as
(or convert such Loan to, as the case may be) a Prime Rate Loan, (c) the
Affected Lender's obligation to maintain its outstanding Eurodollar Rate Loans
(the "AFFECTED LOANS") shall be terminated at the earlier to occur of the
expiration of the Interest Period then in effect with respect to the Affected
Loans or when required by law, and (d) the Affected Loans shall automatically
convert into Prime Rate Loans on the date of such termination. Notwithstanding
the foregoing, to the extent a determination by an Affected Lender as described
above relates to a Eurodollar Rate Loan then being requested by Company pursuant
to a Notice of Borrowing or a Notice of Conversion/Continuation, Company shall
have the option, subject to the provisions of section D herein, to rescind such
Notice of Borrowing or Notice of Conversion/Continuation as to all Lenders by
giving notice (by telecopy or by telephone confirmed in writing) to Agent of
such rescission on the date on which the Affected Lender gives notice of its
determination as described above (which notice of rescission Agent shall
promptly transmit to each other Lender). Except as provided in the immediately
preceding sentence, nothing in this section C shall affect the obligation of any
Lender other than an Affected Lender to make or maintain Loans as, or to convert
Loans to, Eurodollar Rate Loans in accordance with the terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
Company shall compensate each Lender, upon written request by that Lender (which
request shall set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including, without limitation, any
interest paid by that Lender to lenders of funds borrowed by it to make or carry
its Eurodollar Rate Loans and any loss, expense or liability sustained by that
Lender in connection with the liquidation or re-employment of such funds) which
that Lender may sustain: (i) if for any reason (other than a default by that
Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date
specified therefor in a Notice of Borrowing or a telephonic request for
borrowing, or a conversion to or continuation of any Eurodollar Rate Loan does
not occur on a date specified therefor in a Notice of Conversion/Continuation or
a telephonic request for conversion or continuation, (ii) if any prepayment or
conversion of any of its Eurodollar Rate Loans occurs on a date that is not the
last day of an Interest Period applicable to that Loan, (iii) if any prepayment
of any of its Eurodollar Rate Loans is not made on any date specified in a
notice of prepayment given by Company, or (iv) as a consequence of any other
default by Company to repay its Eurodollar Rate Loans when required by the terms
of this Agreement.
E. BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry or transfer
Eurodollar Rate Loans at, to, or for the account of any of its branch offices or
the office of an Affiliate of that Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE LOANS. Calculation of
all amounts payable to a Lender under this Appendix A and under subsection 10.7A
of this Agreement shall be made as though that Lender had actually funded each
of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar
deposit bearing interest at the rate obtained pursuant to clause (i) of the
definition of Adjusted Eurodollar Rate in an amount equal to the amount of such
Eurodollar Rate Loan and having a maturity comparable to the
Appendix A-2
154
relevant Interest Period and through the transfer of such Eurodollar deposit
from an offshore office of that Lender to a domestic office of that Lender in
the United States of America; PROVIDED, HOWEVER, that each Lender may fund each
of its Eurodollar Rate Loans in any manner it sees fit and the foregoing
assumptions shall be utilized only for the purposes of calculating amounts
payable under this Appendix A and under subsection 10.7A of this Agreement.
G. EURODOLLAR RATE LOANS AFTER DEFAULT. Unless Requisite Lenders shall
otherwise agree, after the occurrence of and during the continuation of a
Potential Event of Default or an Event of Default, (i) Company may not elect to
have a Loan be made or maintained as, or converted to, a Eurodollar Rate Loan
after the expiration of any Interest Period then in effect for that Loan and
(ii) subject to the provisions of section D of this Appendix A, any Notice of
Borrowing or Notice of Conversion/Continuation given by Company with respect to
a requested borrowing or conversion/continuation that has not yet occurred shall
be deemed to be rescinded by Company.
H. INTEREST PERIODS. In connection with each Eurodollar Rate Loan, Company
may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an Interest Period to be
applicable to such Loan; PROVIDED that:
(i) the initial Interest Period for any Eurodollar Rate Loan
shall commence on the Funding Date of such Loan, in the case of a Loan
initially made as a Eurodollar Rate Loan, or on the date specified in
the applicable Notice of Conversion/Continuation, in the case of a
Loan converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods
applicable to a Eurodollar Rate Loan continued as such pursuant to a
Notice of Conversion/Continuation, each successive Interest Period
shall commence on the day on which the next preceding Interest Period
expires;
(iii) if an Interest Period would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; PROVIDED that, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of
the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period for a Eurodollar 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, subject to clause (v) of this
section H of this Appendix A, end on the last Business Day of a
calendar month;
(v) no Interest Period with respect to any Revolving Loan shall
extend beyond the Revolving Loan Commitment Termination Date;
Appendix A-3
155
(vi) there shall be no more than 15 Interest Periods relating to
Eurodollar Rate Loans or any combination thereof outstanding at any
time;
(vii) in the event Company fails to specify an Interest Period
for any Eurodollar Rate Loan in the applicable Notice of Borrowing or
Notice of Conversion/Continuation, Company shall be deemed to have
selected an Interest Period of one month; and
(viii) no Eurodollar Rate Loan shall have an Interest Period of
nine or twelve months unless Agent, after consultation with Lenders,
has determined in good faith based on prevailing conditions in the
Eurodollar market on any date of determination that U.S. dollar
deposits are offered by each Lender to first class banks in the
Eurodollar market for a comparable maturity.
Appendix A-4
000
XXXXXXXX X
----------
ADDITIONAL PROVISIONS GOVERNING LETTERS OF CREDIT
-------------------------------------------------
A. OBLIGATIONS ABSOLUTE. The obligation of Company to reimburse Bankers for
drawings made under the Letters of Credit issued by it and the obligations of
Lenders under subsection 2.7D of this Agreement shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other right
which Company may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any persons or entities for
whom any such transferee may be acting), Bankers, Agent, any Lender or
any other Person, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction
(including any underlying transaction between Company or any of its
Subsidiaries and the beneficiary for which the Letter of Credit was
procured);
(iii) any draft, demand, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(iv) payment by Bankers under any Letter of Credit against
presentation of a demand, draft or certificate or other document which
does not comply with the terms of such Letter of Credit, PROVIDED that
such payment does not constitute bad faith, gross negligence or
willful misconduct of Bankers;
(v) any other circumstance or happening whatsoever, which is
similar to any of the foregoing; or
(vi) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing.
B. ADDITIONAL PAYMENTS. If by reason of (a) any change in applicable law,
regulation, rule, decree or regulatory requirement or any change in the
interpretation or application by any judicial or regulatory authority of any
law, regulation, rule, decree or regulatory requirement or (b) compliance by
Bankers or any Lender with any direction, request or requirement (whether or not
having the force of law) of any governmental or monetary authority including,
without limitation, Regulation D:
Appendix B-1
157
(i) any reserve, deposit or similar requirement is or shall be
applicable, imposed or modified in respect of any Letters of Credit
issued by Bankers or participations therein purchased by any Lender; or
(ii) there shall be imposed on Bankers or any Lender any other
condition regarding subsection 2.7 of this Agreement or this Appendix
B, any Letter of Credit or any participation or any obligation to
participate therein;
and the result of the foregoing is to directly or indirectly increase the cost
to Bankers or any Lender of issuing, making or maintaining any Letter of Credit
or of committing to purchase, purchasing or maintaining any participation
therein, or to reduce the amount receivable in respect thereof by Bankers or any
Lender (other than an increase in cost or reduction in amount receivable as a
consequence of any Tax, which shall be governed by the provisions of subsection
10.7 of this Agreement), then and in any such case Bankers or such Lender may,
at any time within six months after the additional cost is incurred or the
amount received is reduced, notify Company, and Company shall pay within ten
days of receipt of notice such amounts as Bankers or such Lender may specify
pursuant to the certificate described below to be necessary to compensate
Bankers or such Lender for such additional cost or reduced receipt, together
with interest on such amount from 10 days after the date of such demand until
payment in full thereof at a rate equal at all times to the Prime Rate per
annum. The determination by Bankers or any Lender, as the case may be, of any
amount due pursuant to this section B as set forth in a certificate setting
forth the calculation thereof in reasonable detail, shall, in the absence of
manifest or demonstrable error, be final and conclusive and binding on all of
the parties hereto.
C. INDEMNIFICATION; NATURE OF BANKERS' DUTIES. In addition to amounts
payable as elsewhere provided in subsection 2.7 of this Agreement and this
Appendix B, Company hereby agrees to protect, indemnify, pay and save Bankers
harmless from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys' fees) which
Bankers may incur or be subject to as a consequence, direct or indirect, of (i)
the issuance of the Letters of Credit, other than as a result of the bad faith,
gross negligence or willful misconduct of Bankers as determined by a court of
competent jurisdiction or (ii) the failure of Bankers to honor a drawing under
any Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions herein called "GOVERNMENT
ACTS").
As between Company, Bankers and Lenders, Company assumes all risks of
the acts and omissions of, or misuse of the Letters of Credit issued by Bankers
by, the respective beneficiaries of such Letters of Credit. In furtherance and
not in limitation of the foregoing, Bankers shall not be responsible: (i) for
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of such Letters of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii)
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in
Appendix B-2
158
part, which may prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of any such Letter of Credit to comply fully with
conditions required in order to draw upon such Letter of Credit; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not they be
in cipher; (v) for errors in interpretation of technical terms; (vi) for any
loss or delay in the transmission or otherwise of any document required in order
to make a drawing under any such Letter of Credit or of the proceeds thereof;
(vii) for the misapplication by the beneficiary of any such Letter of Credit of
the proceeds of any drawing under such Letter of Credit; and (viii) for any
consequences arising from causes beyond the control of Bankers, including,
without limitation, any Government Acts. None of the above shall affect, impair,
or prevent the vesting of any of Bankers' rights or powers hereunder; PROVIDED
HOWEVER that Bankers shall be responsible for any payment it makes under any
Letter of Credit against presentation of a demand, draft or certificate or other
document which does not comply with the terms of such Letter of Credit in the
event such payment constitutes gross negligence or willful misconduct of Bankers
as determined by a court of competent jurisdiction.
In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by Bankers under
or in connection with the Letters of Credit issued by it or the related
certificates, if taken or omitted in good faith and without bad faith, gross
negligence or willful misconduct, shall not put Bankers under any resulting
liability to Company.
Notwithstanding anything to the contrary contained in subsection 2.7 of
this Agreement and in this Appendix B, Company shall have no obligation to
indemnify Bankers in respect of any liability incurred by Bankers arising out of
the gross negligence or willful misconduct of Bankers, as determined by a court
of competent jurisdiction, or out of the wrongful dishonor by Bankers of proper
demand for payment made under the Letters of Credit issued by it.
D. COMPUTATION OF INTEREST. Interest payable pursuant to subsection 2.7 of
this Agreement and to this Appendix B shall be computed on the basis of a
360-day year and the actual number of days elapsed in the period during which it
accrues.
E. AMENDMENTS. Company may request that Bankers enter into one or more
amendments of any Letter of Credit by delivering to Agent a Request for Issuance
of Letter of Credit specifying (i) the proposed date of the amendment and (ii)
the requested amendment. Bankers shall be entitled to enter into amendments with
respect to Letters of Credit; PROVIDED HOWEVER that any such amendment extending
the expiry date or increasing the stated amount of any Letter of Credit shall
only be permitted if Bankers would be permitted to issue a new Letter of Credit
having such an expiry date or stated amount under subsection 2.7 of this
Agreement or this Appendix B on the date of the amendment.
Appendix B-3
159
APPENDIX C
----------
PROVISIONS RELATING TO AGENT AND CO-AGENTS
------------------------------------------
1. APPOINTMENT.
Bankers is hereby appointed administrative agent ("AGENT")
under this Agreement and under the other Loan Documents by each Lender, The
First National Bank of Chicago is hereby appointed Syndication Agent by each
Lender, NationsBank, N.A. is hereby appointed Documentation Agent by each Lender
and The Bank of New York, The Bank of Nova Scotia, Caisse Nationale De Credit
Agricole, Fleet Bank, N.A. and KeyBank National Association are hereby appointed
Co-Agents under this Agreement and under the other Loan Documents by each Lender
(for purposes of this Agreement, the Syndication Agent, the Documentation Agent
and the Co-Agents are collectively referred to as the "CO-AGENTS" and singularly
as a "CO-AGENT"). Each Lender hereby authorizes Agent and Co-Agents to act as
its agents in accordance with the terms of this Agreement and the other Loan
Documents. Each of Agent and each Co-Agent agrees to act upon the express
conditions contained in this Agreement and the other Loan Documents, as
applicable. Except as expressly set forth in this Appendix C, the provisions of
this Appendix C are solely for the benefit of Agent, Co-Agents and Lenders, and
Company shall have no rights as a third party beneficiary of any of the
provisions hereof, but Company shall have the rights expressly granted to it in
section 6 of this Appendix C. In performing its functions and duties under this
Agreement, each of Agent and each CoAgent shall act solely as agent of Lenders
and does not assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for Company or any of its
Subsidiaries.
2. POWERS; GENERAL IMMUNITY.
A. DUTIES SPECIFIED. Each Lender irrevocably authorizes each of Agent
and each Co-Agent to take such action on such Lender's behalf and to exercise
such powers under this Agreement and under the other Loan Documents as are
specifically delegated to Agent or Co-Agents, as the case may be, by the terms
hereof and thereof, together with such powers as are reasonably incidental
thereto. Each of Agent and each Co-Agent shall have only those duties and
responsibilities that are expressly specified in this Agreement and the other
Loan Documents and it may perform such duties by or through its agents or
employees. Neither Agent nor any Co-Agent shall have, by reason of this
Agreement or any of the other Loan Documents, a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or any of the other Loan
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon Agent or any Co-Agent any obligations in respect of this Agreement
or any of the other Loan Documents except as expressly set forth herein or
therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. Neither Agent nor any Co-Agent
shall be responsible to any Lender for the execution, effectiveness,
genuineness, validity, enforceability, collectibility or sufficiency of this
Agreement or any other Loan Document or
Appendix C-1
160
for any representations, warranties, recitals or statements made herein or
therein or made in any written or oral statement or in any financial or other
statements, instruments, reports or certificates or any other documents
furnished or made by Agent or any CoAgent to Lenders or by or on behalf of
Company to Agent or any Co-Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of Company or any other Person liable for the
payment of any Obligations, nor shall Agent or any Co-Agent be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Loans or the use of Letters of
Credit or as to the existence or possible existence of any Event of Default or
Potential Event of Default. Anything contained in this Agreement to the contrary
notwithstanding, neither Agent nor any CoAgent shall have any liability arising
from confirmations of the amount of outstanding Loans or the Letter of Credit
Usage or the component amounts thereof.
C. EXCULPATORY PROVISIONS. Neither Agent nor any Co-Agent and none of
their respective officers, directors, employees or agents shall be liable to
Lenders for any action taken or omitted by Agent or such Co-Agent, as the case
may be, hereunder or in connection herewith except to the extent caused by its
or their gross negligence or willful misconduct. If Agent or any Co-Agent shall
request instructions from Lenders with respect to any act or action (including
the failure to take an action) in connection with this Agreement or any of the
other Loan Documents, Agent or such Co-Agent, as the case may be, shall be
entitled to refrain from such act or taking such action unless and until Agent
or such Co-Agent, as the case may be, shall have received instructions from
Requisite Lenders. Without prejudice to the generality of the foregoing, (i)
each of Agent and each Co-Agent shall be entitled to rely, and shall be fully
protected in relying, upon any communication, instrument or document believed by
it to be genuine and correct and to have been signed or sent by the proper
person or persons, and shall be entitled to rely and shall be protected in
relying on opinions and judgments of attorneys (who may be attorneys for Company
and its Subsidiaries), accountants, experts and other professional advisors
selected by it; and (ii) no Lender shall have any right of action whatsoever
against Agent or any Co-Agent as a result of Agent or such Co-Agent, as the case
may be, acting or (where so instructed) refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the instructions
of Requisite Lenders (or all Lenders where applicable). Each of Agent and each
Co-Agent shall be entitled to refrain from exercising any power, discretion or
authority vested in it under this Agreement or any of the other Loan Documents
unless and until it has obtained the instructions of Requisite Lenders.
D. AGENT AND CO-AGENTS ENTITLED TO ACT AS LENDERS. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, Agent or any Co-Agent in its individual
capacity as a Lender under this Agreement. With respect to its participation in
the Loans and Letters of Credit, each of Agent and each Co-Agent shall have the
same rights and powers under this Agreement as any other Lender and may exercise
the same as though it were not performing the duties and functions delegated to
it hereunder, and the term "Lender" or "Lenders" or any similar term shall,
unless the context clearly otherwise indicates, include each of Agent and each
Co-Agent in its individual capacity. Each of Agent and each CoAgent and each of
their respective
Appendix C-2
161
Affiliates may accept deposits from, lend money to and generally engage in any
kind of banking, trust, financial advisory or other business with Company or any
of its Affiliates as if it were not performing the duties specified herein, and
may accept fees and other consideration from Company for services in connection
with this Agreement and otherwise without having to account for the same to
Lenders.
3. REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR
APPRAISAL OF CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company and
its Subsidiaries in connection with the making of the Loans hereunder and the
issuance of Letters of Credit hereunder and such Lender's purchasing of
participations in such Letters of Credit and that it has made and shall continue
to make its own appraisal of the creditworthiness of Company. Each Lender agrees
that no Lender shall have any fiduciary duty to another Lender under this
Agreement. Neither Agent nor any Co-Agent shall have any duty or responsibility,
either initially or on a continuing basis, to make any such investigation or any
such appraisal on behalf of Lenders or to provide any Lender with any credit or
other information with respect thereto, whether coming into its possession
before the making of the Loans or the issuance of the Letters of Credit or at
any time or times thereafter, and neither Agent nor any Co-Agent shall have any
responsibility with respect to the accuracy of or the completeness of any
information provided to Lenders.
4. RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally
agrees to indemnify each of Agent and each Co-Agent, to the extent that Agent or
such Co-Agent, as the case may be, shall not have been reimbursed by Company,
for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, counsel fees and disbursements) or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against Agent
or such Co-Agent, as the case may be, in performing its duties hereunder or
under this Agreement or other Loan Documents or otherwise in its capacity as
Agent or Co-Agent, as the case may be, in any way relating to or arising out of
this Agreement or the other Loan Documents; PROVIDED that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from Agent's or such Co-Agent's gross negligence or willful misconduct. If any
indemnity furnished to Agent or any Co-Agent, as the case may be, for any
purpose shall, in the opinion of Agent or such Co-Agent, as the case may be, be
insufficient or become impaired, Agent or such Co-Agent, as the case may be, may
call for additional indemnity and cease, or not commence, to do the acts
indemnified against until such additional indemnity is furnished.
5. REGISTERED PERSONS TREATED AS OWNERS.
Agent may deem and treat the Persons listed as Lenders in the
Register as the owners of the corresponding Loans listed therein for all
purposes hereof unless and until an
Appendix C-3
162
Assignment and Acceptance effecting the assignment or transfer thereof shall
have been accepted by Agent and recorded in the Register as provided in
subsection 10.1B(ii) of this Agreement. Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is listed in the Register as a Lender shall be conclusive and binding
on any subsequent holder, transferee or assignee of the corresponding Loan.
6. SUCCESSOR AGENT.
Either Agent or any Co-Agent may resign at any time by giving
30 days' prior written notice thereof to Lenders and Company, and either Agent
or any Co-Agent may be removed at any time with or without cause by an
instrument or concurrent instruments in writing delivered to Company and Agent
or such Co-Agent, as the case may be, and signed by Requisite Lenders. Upon any
such notice of resignation or any such removal, Requisite Lenders shall have the
right, upon five Business Days' notice to Company, to appoint a successor Agent
or a Co-Agent; PROVIDED that if such proposed successor Agent or Co-Agent is not
a Lender, Company shall have the right to approve such appointment (which
approval may not be unreasonably withheld or delayed). Upon the acceptance of
any appointment as Agent or Co-Agent hereunder by a successor Agent or Co-Agent,
that successor Agent or Co-Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring or removed
Agent or Co-Agent and the retiring or removed Agent or Co-Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring or removed Agent's or Co-Agent's resignation or removal hereunder as
Agent or Co-Agent, the provisions of this Appendix C shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent or
Co-Agent under this Agreement.
Appendix C-4
163
APPENDIX D
----------
ADDITIONAL PROVISIONS GOVERNING CANADIAN LETTERS OF CREDIT
----------------------------------------------------------
A. OBLIGATIONS ABSOLUTE. The obligation of Libbey Canada to reimburse
Canadian Agent for drawings made under the Canadian Letters of Credit issued by
it shall be unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances including,
without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Canadian Letter
of Credit;
(ii) the existence of any claim, set-off, defense or other right
which Libbey Canada may have at any time against a beneficiary or any
transferee of any Canadian Letter of Credit (or any persons or
entities for whom any such transferee may be acting), Canadian Agent,
Agent, any Lender or any other Person, whether in connection with this
Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between Libbey
Canada or any of its Subsidiaries and the beneficiary for which the
Canadian Letter of Credit was procured);
(iii) any draft, demand, certificate or any other document
presented under any Canadian 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;
(iv) payment by Canadian Agent under any Canadian Letter of
Credit against presentation of a demand, draft or certificate or other
document which does not comply with the terms of such Canadian Letter
of Credit, PROVIDED that such payment does not constitute bad faith,
gross negligence or willful misconduct of Canadian Agent;
(v) any other circumstance or happening whatsoever, which is
similar to any of the foregoing; or
(vi) the fact that an Event of Default or a Potential Event of
Default shall have occurred and be continuing.
B. ADDITIONAL PAYMENTS. If by reason of (a) any change in applicable law,
regulation, rule, decree or regulatory requirement or any change in the
interpretation or application by any judicial or regulatory authority of any
law, regulation, rule, decree or regulatory requirement or (b) compliance by
Canadian Agent with any direction, request or requirement (whether or not having
the force of law) of any governmental or monetary authority including, without
limitation, Regulation D:
Appendix D-1
164
(i) any reserve, deposit or similar requirement is or shall be
applicable, imposed or modified in respect of any Canadian Letters of
Credit issued by Canadian Agent; or
(ii) there shall be imposed on Canadian Agent any other condition
regarding subsection 2.10 of this Agreement or this Appendix D, any
Canadian Letter of Credit or any participation therein;
and the result of the foregoing is to directly or indirectly increase the cost
to Canadian Agent of issuing, making or maintaining any Canadian Letter of
Credit or to reduce the amount receivable in respect thereof by Canadian Agent
(other than an increase in cost or reduction in amount receivable as a
consequence of any Tax, which shall be governed by the provisions of subsection
10.7 of this Agreement), then and in any such case Canadian Agent may, at any
time within six months after the additional cost is incurred or the amount
received is reduced, notify Libbey Canada, and Libbey Canada shall pay within
ten days of receipt of notice such amounts as Canadian Agent may specify
pursuant to the certificate described below to be necessary to compensate
Canadian Agent for such additional cost or reduced receipt, together with
interest on such amount from 10 days after the date of such demand until payment
in full thereof at a rate equal at all times to the Canadian Prime Rate per
annum. The determination by Canadian Agent of any amount due pursuant to this
section B as set forth in a certificate setting forth the calculation thereof in
reasonable detail, shall, in the absence of manifest or demonstrable error, be
final and conclusive and binding on all of the parties hereto.
C. INDEMNIFICATION; NATURE OF CANADIAN AGENT'S DUTIES. In addition to
amounts payable as elsewhere provided in subsection 2.10 of this Agreement and
this Appendix D, Libbey Canada hereby agrees to protect, indemnify, pay and save
Canadian Agent harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) which Canadian Agent may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of the Canadian Letters of
Credit, other than as a result of the bad faith, gross negligence or willful
misconduct of Canadian Agent as determined by a court of competent jurisdiction
or (ii) the failure of Canadian Agent to honor a drawing under any Canadian
Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions herein called "GOVERNMENT
ACTS").
As between Libbey Canada and Canadian Agent, Libbey Canada assumes all
risks of the acts and omissions of, or misuse of the Canadian Letters of Credit
issued by Canadian Agent by, the respective beneficiaries of such Canadian
Letters of Credit. In furtherance and not in limitation of the foregoing,
Canadian Agent shall not be responsible: (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for and issuance of such Canadian
Letters of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity
or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Canadian Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid
Appendix D-2
165
or ineffective for any reason; (iii) for failure of the beneficiary of any such
Canadian Letter of Credit to comply fully with conditions required in order to
draw upon such Canadian Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) for
errors in interpretation of technical terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Canadian Letter of Credit or of the proceeds thereof; (vii) for
the misapplication by the beneficiary of any such Canadian Letter of Credit of
the proceeds of any drawing under such Canadian Letter of Credit; and (viii) for
any consequences arising from causes beyond the control of Canadian Agent,
including, without limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of any of Canadian Agent's rights or
powers hereunder; PROVIDED HOWEVER that Canadian Agent shall be responsible for
any payment it makes under any Canadian Letter of Credit against presentation of
a demand, draft or certificate or other document which does not comply with the
terms of such Canadian Letter of Credit in the event such payment constitutes
gross negligence or willful misconduct of Canadian Agent as determined by a
court of competent jurisdiction.
In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by Canadian Agent
under or in connection with the Canadian Letters of Credit issued by it or the
related certificates, if taken or omitted in good faith and without bad faith,
gross negligence or willful misconduct, shall not put Canadian Agent under any
resulting liability to Libbey Canada.
Notwithstanding anything to the contrary contained in subsection 2.10
of this Agreement and in this Appendix D, Libbey Canada shall have no obligation
to indemnify Canadian Agent in respect of any liability incurred by Canadian
Agent arising out of the gross negligence or willful misconduct of Canadian
Agent, as determined by a court of competent jurisdiction, or out of the
wrongful dishonor by Canadian Agent of proper demand for payment made under the
Canadian Letters of Credit issued by it.
D. COMPUTATION OF INTEREST. Interest payable pursuant to subsection
2.10 of this Agreement and to this Appendix D shall be computed on the basis of
a 365-day year and the actual number of days elapsed in the period during which
it accrues.
E. AMENDMENTS. Libbey Canada may request that Canadian Agent enter into
one or more amendments of any Canadian Letter of Credit by delivering to
Canadian Agent a Request for Issuance of Canadian Letter of Credit specifying
(i) the proposed date of the amendment and (ii) the requested amendment.
Canadian Agent shall be entitled to enter into amendments with respect to
Letters of Credit; PROVIDED, HOWEVER, that any such amendment extending the
expiry date or increasing the stated amount of any Canadian Letter of Credit
shall only be permitted if Canadian Agent would be permitted to issue a new
Canadian Letter of Credit having such an expiry date or stated amount under
subsection 2.10 of this Agreement or this Appendix D on the date of the
amendment.
Appendix D-3
166
SCHEDULE 2.1
Revolving Loan Pro Rata Canadian Loan Pro Rata
Lender Commmitment (re: Rev. Loan) Commitment (re: Can. Loan)
----------------------------------- ----------------- ------------------ ------------------ -------------------
1 Bankers Trust Company $25,000,000 6.849315% 0.000000%
2 The First National Bank of 36,000,000 9.863014% 0.000000%
Chicago
3 NationsBank, N.A. 36,000,000 9.863014% 0.000000%
0 Xxx Xxxx xx Xxx Xxxx 36,000,000 9.863014% 0.000000%
0 Xxx Xxxx xx Xxxx Xxxxxx 19,000,000 5.000000% $15,000,000 100.000000%
6 Caisse Nationale de Credit 15,000,000 4.109589% 0.000000%
Agricole
7 KeyBank National Association 15,000,000 4.109589% 0.000000%
8 Fleet Bank, N.A. 15,000,000 4.109589% 0.000000%
9 The Long-Term Credit Bank of 12,000,000 3.287671% 0.000000%
Japan, Ltd., Chicago Branch
10 Bank of Montreal 12,000,000 3.000000% 0.000000%
00 Xxxxxxxx Xxxx XX, Xxx Xxxx 12,000,000 3.287671% 0.000000%
and Grand Cayman Branches
12 The Fuji Bank, Limited 12,000,000 3.287671% 0.000000%
13 Mellon Bank, N.A. 12,000,000 3.287671% 0.000000%
14 The Northern Trust Company 12,000,000 3.287671% 0.000000%
15 Societe Generale 12,000,000 3.287671% 0.000000%
16 Bank of Hawaii 12,000,000 3.287671% 0.000000%
17 Compagnie Financiere de CIC 12,000,000 3.287671% 0.000000%
et de L'Union Europeenne
18 Xxxxxx Guaranty Trust 10,000,000 2.739726% 0.000000%
Company of New York
19 The Sanwa Bank, Limited, 10,000,000 2.739726% 0.000000%
Chicago Branch
20 The Bank of Tokyo-Mitsubishi, 10,000,000 2.739726% 0.000000%
Ltd., Chicago Branch
21 ABN Amro Bank, N.V. 10,000,000 2.739726% 0.000000%
22 Bank of America Illinois 10,000,000 2.739726% 0.000000%
23 Banque Paribas 10,000,000 2.739726% 0.000000%
------------ ---------- ----------- ----------
$365,000,000 100.000000% $15,000,000 100.000000%
============ =========== =========== ===========
Total Loan Pro Rata Share
Lender Commitment (Overall)
----------------------------------- ------------------ ----------------
1 Bankers Trust Company $25,000,000 6.578947%
2 The First National Bank of 36,000,000 9.473684%
Chicago
3 NationsBank, N.A. 36,000,000 9.473684%
0 Xxx Xxxx xx Xxx Xxxx 36,000,000 9.473684%
0 Xxx Xxxx xx Xxxx Xxxxxx 34,000,000 8.000000%
6 Caisse Nationale de Credit 15,000,000 3.947368%
Agricole
7 KeyBank National Association 15,000,000 3.947368%
8 Fleet Bank, N.A. 15,000,000 3.947368%
9 The Long-Term Credit Bank of 12,000,000 3.157895%
Japan, Ltd., Chicago Branch
10 Bank of Montreal 12,000,000 3.000000%
00 Xxxxxxxx Xxxx XX, Xxx Xxxx 12,000,000 3.157895%
and Grand Cayman Branches
12 The Fuji Bank, Limited 12,000,000 3.157895%
13 Mellon Bank, N.A. 12,000,000 3.157895%
14 The Northern Trust Company 12,000,000 3.157895%
15 Societe Generale 12,000,000 3.157895%
16 Bank of Hawaii 12,000,000 3.157895%
17 Compagnie Financiere de CIC 12,000,000 3.157895%
et de L'Union Europeenne
18 Xxxxxx Guaranty Trust 10,000,000 2.631579%
Company of New York
19 The Sanwa Bank, Limited, 10,000,000 2.631579%
Chicago Branch
20 The Bank of Tokyo-Mitsubishi, 10,000,000 2.631579%
Ltd., Chicago Branch
21 ABN Amro Bank, N.V. 10,000,000 2.631579%
22 Bank of America Illinois 10,000,000 2.631579%
23 Banque Paribas 10,000,000 2.631579%
------------ ----------
$380,000,000 100.000000%
============ ===========
167
SCHEDULE 2.7
EXISTING LETTERS OF CREDIT
OUTSTANDING LETTERS OF CREDIT FOR LIBBEY GLASS INC.
Balance Beneficiary Reference #
------- ----------- -----------
$1,000,000 Louisiana Department of Labor Bankers Trust
Office of Workers' compensation LOC #S09388
$1,634,115 State of California - Department of Bankers Trust
Industrial Relations LOC #S09632
$2,432,000 State of New York Workers' Bankers Trust
Compensation Board #S10687
168
SCHEDULE 2.10
EXISTING CANADIAN LETTERS OF CREDIT
NONE
169
SCHEDULE 3.1A(I)
Company is unable to provide on the Effective Date a good
standing certificate for itself from (i) the Commonwealth of Massachusetts and
(ii) the State of Massachusetts solely due to the delay on the part of the
office of the secretary of state of each of such jurisdictions in the processing
of the annual report filed by Company. Company hereby represents that it has
filed its annual report with the office of the Secretary of State of each such
jurisdiction prior to the applicable due date and that Company is in good
standing in each such jurisdiction. Company will provide to Agent a good
standing certificate from each such jurisdiction as soon as it becomes
available.
170
SCHEDULE 4.1
SUBSIDIARIES OF COMPANY
Ownership
Jurisdiction of Direct by Company
Entity Incorporation Parent(s) (Direct/indirect)
------ ------------- --------- -----------------
The Xxxxxxxx Glass Delaware Libbey Glass Direct 100%
Company Inc. ("Libbey
Glass")
LGA2 Corp. 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%
(formerly known as
LG Acquisition Corp.)
171
SCHEDULE 4.6
LITIGATION
NONE
172
SCHEDULE 4.11
CERTAIN EMPLOYEE BENEFIT PLANS
Description/Title Beneficiaries/Participants
----------------- --------------------------
Libbey Inc. Stock Purchase and Retirement Salaried employees
Savings Plan
Libbey Inc. Stock Purchase and Supplemental Certain hourly employees
Retirement Plan
Libbey Inc. Long-Term Savings Plan and Certain hourly employees
Trust including Syracuse China Co.
Libbey Inc. Pre-Tax Reimbursement Account Plan Salaried and hourly employees
Libbey Inc. Salary Employees Welfare Benefit Plan Salaried employees
Libbey Inc. Hourly Employees Welfare Benefit Plan Hourly employees
Libbey Inc. Salary Retirement Plan Salaried employees
Libbey Inc. Hourly Retirement Plan Hourly employees
Libbey Inc. Supplemental Retirement Benefit Plan Salaried employees who cannot
get all benefits under the Salary
Retirement Plan
Libbey Inc. Executive Savings Plan Salaried employees who cannot
get all benefits under the Stock
Purchase and Retirement
Savings Plan
Libbey Canada Inc. Pension Plan for Non- Salaried employees of Libbey
Unionized Salary Employees Canada
Pension Plan for Unionized Employees of Libbey Pending approval for Hourly
Canada Inc. employees of Libbey Canada
Libbey Inc. Senior Executive Life Insurance Plan Senior executives
173
SCHEDULE 4.11 (Cont'd)
Description/Title Beneficiaries/Participants
----------------- --------------------------
Syracuse China Company Retiree Health Care Certain salaried and
Benefits for Syracuse China Company Employees hourly employees.
Contributions in various
amounts are required from
certain employees, depending
upon the retirement date.
Current employees are expected
to pay the cost of the benefits
upon their retirement.
Syracuse China Company Salary Retirement Plan Salaried employees
Syracuse China Company Union Pension Hourly employees
Syracuse China Salaried Employees Salaried employees
Welfare Benefit Plan
Syracuse China Hourly Employees Hourly employees
Welfare Benefit Plan
174
SCHEDULE 4.13
ENVIRONMENTAL MATTERS
NONE
175
SCHEDULE 6.1
CERTAIN EXISTING INDEBTEDNESS
Original Principal Outstanding as of
Description Amount 4/21/97 Payee
----------- ------ ------- -----
Note $10,000,000 $1,000,000 National City Bank
(Maturing on
5/12/97)
and
$9,000,000
(Maturing on
4/30/97)
Note $10,000,000 $1,980,000 The Sanwa Bank
(Maturing on
4/22/97)
176
SCHEDULE 6.2
CERTAIN EXISTING LIENS
NONE
177
SCHEDULE 6.3
CERTAIN EXISTING INVESTMENTS
NONE
178
SCHEDULE 6.4
CERTAIN EXISTING CONTINGENT OBLIGATIONS
Balance Beneficiary Reference #
------- ----------- -----------
$445,582 State of California Societe Generale
Department of Industrial Relations LOC #IC70521
$402,348 Atlantic Mutual Insurance Company Societe Generale
New York, NY LOC #IC70502
$10,000 State of New York Societe Generale
Workers' Compensation Board/Self- LOC #IC70585
Insured Office
179
EXHIBIT I
[FORM OF NOTICE OF BORROWING]
NOTICE OF BORROWING
Pursuant to that certain Second Amended and Restated Credit Agreement
dated as of April ____, 1997, as amended to the date hereof (said Second Amended
and Restated Credit Agreement, as so amended, being the "CREDIT AGREEMENT", the
terms defined therein and not otherwise defined herein being used herein as
therein defined), by and among Libbey Glass Inc., a Delaware corporation
("COMPANY"), Libbey Canada Inc., a corporation organized under the laws of the
Province of Ontario, Canada ("LIBBEY CANADA"), the financial institutions listed
therein as Lenders ("LENDERS"), The Bank of Nova Scotia, as Canadian Agent, The
First National Bank of Chicago, as Syndication Agent ("SYNDICATION AGENT"),
NationsBank, N.A., as Documentation Agent ("DOCUMENTATION AGENT"), The Bank of
New York, The Bank of Nova Scotia, Caisse Nationale de Credit Agricole, Fleet
Bank, N.A., and KeyBank National Association, as co-agents for Lenders, and
Bankers Trust Company, as Administrative Agent ("AGENT") this represents
[Company's][Libbey Canada's] request to borrow on ____________, ______ from
[Lenders] [Canadian Agent] [in accordance with their applicable Pro Rata Shares]
[Lender providing Negotiated Rate Loan], [Cdn.]$__________________ in
[Revolving/Swing Line/Canadian/Negotiated Rate] Loans [as
[Prime/Eurodollar/Canadian Prime/Canadian Eurodollar/a combination of
Prime/Eurodollar or Canadian Prime/Canadian Eurodollar] Rate Loans]. [The
initial Interest Period for such [Canadian] Eurodollar Rate Loans is requested
to be a __________ month period.] The proceeds of such Loans are to be deposited
in [Company's][Libbey Canada's] account at [Agent] [Canadian
Agent][____________].
The undersigned officer[s], to the best of [his or her] [their]
knowledge as officer[s] of Company [and Libbey Canada], and Company [and Libbey
Canada] certify that:
(i) The representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and complete
in all material respects on and as of the date hereof to the same
extent as though made on and as of the date hereof, except (a) to the
extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties were
true, correct and complete in all material respects on and as of such
earlier date and (b) to the extent that changes in the facts and
conditions on which such representations and warranties are based are
required or permitted under the Credit Agreement;
(ii) No event has occurred and is continuing or would result
from the consummation of the borrowing contemplated hereby that would
constitute an Event of Default or a Potential Event of Default;
I-1 (Exhibit I)
180
(iii) Each of Company and Libbey Canada has performed in all
material respects all agreements and satisfied all conditions which the
Credit Agreement provides shall be performed or satisfied by it on or
before the date hereof; [and]
(iv) There is no pending or, to the knowledge of Company or
Libbey Canada, threatened, action, suit, proceeding, governmental
investigation or arbitration against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries
that has not been disclosed by Company in writing pursuant to
subsection 4.6 or 5.1(viii) of the Credit Agreement prior to the
making of the last preceding Loans (or, in the case of the initial
Loans, prior to the execution of the Credit Agreement), and there has
occurred no development not so disclosed in any such action, suit,
proceeding, governmental investigation or arbitration so disclosed,
that, in either event, would reasonably be expected to have a Material
Adverse Effect; and no injunction or other restraining order has been
issued and no hearing to cause an injunction or other restraining order
to be issued is pending or noticed with respect to any action, suit or
proceeding seeking to enjoin or otherwise prevent the consummation of,
or to recover any damages or obtain relief as a result of, the
transactions contemplated by the Credit Agreement or the making of
Loans or the issuance of Letters of Credit thereunder[; and]
(v) [for Revolving Loans, Canadian Loans, Swing Line Loans and
Negotiated Rate Loans] The Total Utilization of [Revolving] [Canadian]
Loan Commitment[s], after giving effect to the proposed borrowing, does
not exceed the aggregate [Revolving] [Canadian] Loan Commitment[s];
[and]
(vi) [for Swing Line Loans] The amount of the proposed
borrowing will not cause the aggregate principal amount of Swing Line
Loans outstanding to exceed the Swing Line Loan Commitment then in
effect]; [and]
(viii) [for Negotiated Rate Loans] The amount of the proposed
borrowing will not cause the aggregate principal amount of Negotiated
Rate Loans outstanding to exceed $190,000,000 and that the maturity of
the Negotiated Rate Loans requested hereby shall be__________________].
I-2 (Exhibit I)
181
DATED: _________________ LIBBEY GLASS INC.
[LIBBEY CANADA INC.]
By:________________________________
Title:_____________________________
I-3 (Exhibit I)
182
EXHIBIT II
[FORM OF NOTICE OF CONVERSION/CONTINUATION]
NOTICE OF CONVERSION/CONTINUATION
Pursuant to that certain Second Amended and Restated Credit Agreement
dated as of April 23, 1997, as amended to the date hereof (said Second Amended
and Restated Credit Agreement, as so amended, being the "CREDIT AGREEMENT", the
terms defined therein and not otherwise defined herein being used herein as
therein defined), by and among Libbey Glass Inc. a Delaware corporation
("COMPANY"), Libbey Canada Inc., a corporation organized under the laws of the
Province of Ontario, Canada ("LIBBEY CANADA"), the financial institutions listed
therein as Lenders, The Bank of Nova Scotia, as Canadian Agent, The First
National Bank of Chicago, as Syndication Agent, NationsBank, N.A., as
Documentation Agent, The Bank of New York, The Bank of Nova Scotia, Caisse
Nationale de Credit Agricole, Fleet Bank, N.A., and KeyBank National Association
as co-agents for Lenders, and Bankers Trust Company, as Administrative Agent
("AGENT"), this represents [Company's] [Libbey Canada's] request to [SELECT A OR
B WITH APPROPRIATE INSERTIONS AND DELETIONS: [A: convert $__________ in
principal amount of presently outstanding [Revolving/Canadian] Loans that are
[Prime/Eurodollar/Canadian Prime/Canadian Eurodollar] Rate Loans [with a final
Interest Payment Date of _______, _____] to [Prime/Eurodollar/Canadian
Prime/Canadian Eurodollar] Rate Loans on __________, _____. [The initial
Interest Period for such [Canadian] Eurodollar Rate Loans is requested to be a
month period.]] [B: continue as [Canadian] Eurodollar Rate Loans $_________ in
principal amount of presently outstanding [Revolving/Canadian] Loans with a
final Interest Payment Date of ___________, ____. The Interest Period for such
[Canadian] Eurodollar Rate Loans commencing on such final Interest Payment Date
is requested to be a _________ month period.]]
[FOR CONVERSIONS TO OR CONTINUATIONS OF EURODOLLAR RATE LOANS OR
CANADIAN EURODOLLAR RATE LOANS ONLY: The undersigned officer[s], to the best of
[his or her] [their] knowledge as officer[s] of Company [and Libbey Canada],
and Company [and Libbey Canada] certify that no Event of Default or Potential
Event of Default has occurred and is continuing under the Credit Agreement.]
DATED: ____________________________ LIBBEY GLASS INC.
[LIBBEY CANADA INC.]
By:___________________________
Title:________________________
II-1 (Exhibit II)
183
EXHIBIT III
[FORM OF NEGOTIATED RATE LOAN NOTE]
LIBBEY GLASS INC.
PROMISSORY NOTE [1]
FOR VALUE RECEIVED, LIBBEY GLASS INC., a Delaware corporation
("COMPANY"), promises to pay to [2] ("PAYEE") the unpaid principal amount of
each advance made by Payee to Company 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.
Company 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 the
Company and Payee in accordance with the provisions of the Credit Agreement
referred to below.
This Note is one of Company's "Negotiated Rate Loan Notes" and is
issued pursuant to and entitled to the benefits of the Second Amended and
Restated Credit Agreement dated as of April _, 1997 (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 Company, Libbey Canada Inc., a corporation
organized under the laws of the Province of Ontario, Canada, the Lenders
party thereto (referred to herein individually as a "LENDER" and
collectively as "LENDERS"), The Bank of Nova Scotia, as Canadian Agent, The
First National Bank of Chicago, as Syndication Agent, NationsBank, N.A., as
Documentation Agent, The Bank of New York, The Bank of Nova Scotia, Caisse
Nationale de Credit Agricole, Fleet Bank, N.A., and KeyBank National
Association, as co-agents for Lenders, and Bankers Trust Company, as
Administrative Agent ("AGENT"), 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.
All payments of principal and interest in respect of this
Note shall be made in lawful money of the United States of America in same
day funds at a place as agreed to between
-------------------------
[1] INSERT DATE.
[2] INSERT LENDER'S NAME IN CAPITAL LETTERS.
III-1 (Exhibit III)
184
the Payee and the Company. Until notified in writing of the transfer of this
Note, Company and Agent shall be entitled to deem Payee, or such Person who
has been so identified by the transferor in writing to Company and Agent as
the holder of this Note, as the owner and holder of this Note. Each of Payee
and any subsequent holder of this Note agrees, by its acceptance hereof,
that before disposing of this Note or any part hereof it will make a
notation hereon of all principal payments previously made hereunder and of
the date to which interest hereon has been paid; provided, however, that the
failure to make a notation of any payment made on this Note shall not limit
or otherwise affect the obligations of Company hereunder with respect to
payments of principal of or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next
succeeding Business Day (unless otherwise provided in the Credit Agreement)
and such extension of time shall be included in the computation of the
payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in
subsection 2.4A(iii) of the Credit Agreement and to prepayment at the
option of Company as provided in Subsection 2.4A(i) of the Credit Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of
the principal amount of this Note may become, or may be declared to be, due
and payable in the manner, upon the conditions and with the effect provided
in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as
provided in subsections 10.1 and 10.20 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligation of
Company, which is absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the
currency herein prescribed.
III-2 (Exhibit III)
185
Company promises to pay all reasonable costs and expenses, including
reasonable fees and expenses of counsel, as provided in subsection 10.2 of
the Credit Agreement. Company and endorsers of this Note hereby consent to
renewals and extensions of time at or after the maturity hereof, without
notice, and hereby waive diligence, presentment, protest, demand and notice
of every kind and, to the full extent permitted by law, the right to plead
any statute of limitations as a defense to any demand hereunder.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
III-3 (Exhibit III)
186
IN WITNESS WHEREOF, Company has caused this Note to be executed and
delivered by its duly authorized officer, as of the day and year and the place
first above written.
LIBBEY GLASS INC.
By:___________________________
Title:________________________
S-1 (Exhibit 111)
187
TRANSACTIONS
ON
NEGOTIATED RATE LOAN NOTE
Outstanding
Amount of Amount of Principal
Loan Made Principal Paid Balance Notation
Date This Date This Date This Date Made By
---- --------- --------- --------- -------
(Exhibit 111)
188
EXHIBIT IV-A
[FORM OF REVOLVING NOTE -- COMPANY]
LIBBEY GLASS INC.
PROMISSORY NOTE
$[1] April___, 1997
FOR VALUE RECEIVED, LIBBEY GLASS INC., a Delaware corporation
("Company"), promises to pay to the order of [2] ("Payee"), on or before the
Revolving Loan Commitment Termination Date (as defined in the Credit Agreement
defined below), the lesser of (x) [3] ($[1]) and (y) the unpaid principal amount
of all advances made by Payee to Company as Revolving Loans under the Credit
Agreement defined below.
Company also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
Second Amended and Restated Credit Agreement dated as of April __, 1997 by and
among Company, Libbey Canada Inc., a corporation organized under the laws of the
Province of Ontario, Canada, the financial institutions listed therein as
Lenders, The Bank of Nova Scotia, as Canadian Agent, The First National Bank of
Chicago, as Syndication Agent, NationsBank, N.A., as Documentation Agent, The
Bank of New York, The Bank of Nova Scotia, Caisse Nationale de Credit Agricole,
Fleet Bank, N.A., and KeyBank National Association, as Co-Agents for Lenders,
and Bankers Trust Company, as Administrative Agent ("AGENT") (said Second
Amended and Restated Credit Agreement, as it may be amended, supplemented or
otherwise modified from time to time, being the "CREDIT AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined).
This Note is one of Company's "Revolving Notes" in the aggregate
principal amount of $365,000,000 and is issued pursuant to and entitled to the
benefits of the Credit Agreement, to which reference is hereby made for a more
complete statement of the terms and conditions under which the Revolving Loans
evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States in same day funds at the office of
Agent located at One
-----------------
[11 Insert amount of Lender's Revolving Loan Commitment in numbers.
[2] Insert Lender's name in capital letters.
[3] Insert amount of Lender's Revolving Loan Commitment in words.
(Exhibit IV-A)
IV-A-1
189
Bankers Trust Plaza, New York, New York, or at such other place as shall be
designated in writing for such purpose in accordance with the terms of the
Credit Agreement. Until notified in writing of the transfer of this Note,
Company and Agent shall be entitled to deem Payee, or such Person who has been
so identified by the transferor in writing to Company and Agent as the holder of
this Note, as the owner and holder of this Note. Each of Payee and any
subsequent holder of this Note agrees, by its acceptance hereof, that before
disposing of this Note or any part hereof it will make a notation hereon of all
principal payments previously made hereunder and of the date to which interest
hereon has been paid; PROVIDED, HOWEVER, that the failure to make a notation of
any payment made on this Note shall not limit or otherwise affect the
obligations of Company hereunder with respect to payments of principal of or
interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day (unless otherwise provided in the Credit Agreement) and such
extension of time shall be included in the computation of the payment of
interest on this Note.
This Note is subject to mandatory prepayment as provided in subsection
2.4A(iii) of the Credit Agreement and to prepayment at the option of Company as
provided in subsection 2.4A(i) of the Credit Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as
provided in subsections 10.1 and 10.20 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligations of Company,
which are absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, and in the currency herein
prescribed.
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in subsection 10.2 of the Credit Agreement,
incurred in the collection and enforcement of this Note. Company and any
endorsers of this Note hereby consent to renewals and extensions of time at or
after the maturity hereof, without notice, and hereby waive
IV-A-2 (Exhibit, IV-A)
190
diligence, presentment, protest, demand and notice of every kind and, to the
full extent permitted by law, the right to plead any statute of limitations as
a defense to any demand hereunder.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IV-A-3 (Exhibit IV-A)
191
IN WITNESS WHEREOF, Company has caused this Note to be
duly executed and delivered by its officer thereunto duly authorized as of the
date and at the place first, written above.
LIBBEY GLASS INC.
By:
---------------------
Title:
------------------
S-1 (Exhibit IV-A)
192
TRANSACTIONS
ON
REVOLVING NOTE
Amount of Outstanding
Type of Amount of Principal Principal
Loan Made Loan Made Paid Balance Notation
Date This Date This Date This Date This Date Made By
----- ---------- ---------- --------- ----------- --------
(Exhibit, IV-A)
193
EXHIBIT IV-B
[FORM OF CANADIAN LOAN NOTE - CANADA]
LIBBEY CANADA INC.
PROMISSORY NOTE
US $15,000,000
April __, 1997
FOR VALUE RECEIVED, LIBBEY CANADA INC., a corporation organized under
the laws of the Province of Ontario, Canada ("LIBBEY CANADA"), promises to pay
to the order of THE BANK OF NOVA SCOTIA ("PAYEE"), on or before the Revolving
Loan Commitment Termination Date (as defined in the Credit Agreement defined
below), the lesser of (x) the Canadian Dollar Equivalent of FIFTEEN MILLION
DOLLARS (US $15,000,000) and (y) the unpaid principal amount of all advances
made by Payee to Libbey Canada as Canadian Loans under the Credit Agreement
defined below.
Libbey Canada also promises to pay interest on the unpaid principal
amount hereof, from the date hereof until paid in full, at the rates and at the
times which shall be determined in accordance with the provisions of that
certain Second Amended and Restated Credit Agreement dated as of April __, 1997
by and among Company, Libbey Canada, the financial institutions listed therein
as Lenders, The Bank of Nova Scotia, as Canadian Agent, The First National Bank
of Chicago, as Syndication Agent, NationsBank, N.A., as Documentation Agent, The
Bank of New York, The Bank of Nova Scotia, Caisse Nationale de Credit Agricole,
Fleet Bank, N.A., and KeyBank National Association, as co-agents for Lenders,
and Bankers Trust Company, as Administrative Agent ("AGENT") (said Second
Amended and Restated Credit Agreement, as it may be amended, supplemented or
otherwise modified from time to time, being the "CREDIT AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined).
This Note is issued pursuant to and entitled to the benefits of the
Credit Agreement, to which reference is hereby made for a more complete
statement of the terms and conditions under which the Canadian Loans evidenced
hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note shall be
made in lawful money of Canada in same day funds at the Canadian Lending Office,
or at such other place as shall be designated in writing for such purpose in
accordance with the terms of the Credit Agreement. Until notified in writing of
the transfer of this Note, Libbey Canada and Agent shall be entitled to deem
Payee, or such Person who has been so identified by the transferor in writing
to Libbey Canada and Agent as the holder of this Note, as the owner and holder
of this Note. Each of Payee and any subsequent holder of this Note agrees, by
its acceptance hereof, that before disposing of this Note or any part hereof it
will make a notation hereon of all principal payments previously made hereunder
and of the date to which interest
IV-B-1 (Exhibit IV-B)
194
hereon has been paid; PROVIDED, HOWEVER, that the failure to make a notation of
any payment made on this Note shall not limit or otherwise affect the
obligations of Libbey Canada hereunder with respect to payments of principal of
or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day (unless otherwise provided in the Credit Agreement) and such
extension of time shall be included in the computation of the payment of
interest on this Note.
This Note is subject to mandatory prepayment as provided in subsection
2.4A(iii), 2.8E(ii) and 2.8E(iii) of the Credit Agreement and to prepayment at
the option of Libbey Canada as provided in subsection 2.8E(i) of the Credit
Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as
provided in subsections 10.1 and 10.20 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligations of Libbey
Canada, which are absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
Libbey Canada promises to pay all costs and expenses, including
reasonable attorneys' fees, all as provided in subsection 10.2 of the Credit
Agreement, incurred in the collection and enforcement of this Note. Libbey
Canada and any endorsers of this Note hereby consent to renewals and extensions
of time at or after the maturity hereof, without notice, and hereby waive
diligence, presentment, protest, demand and notice of every kind and, to the
full extent permitted by law, the right to plead any statute of limitations as a
defense to any demand hereunder.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IV-B-2 (Exhibit, IV-B)
195
IN WITNESS WHEREOF, Libbey Canada has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the date
and at the place first written above.
LIBBEY CANADA INC.
By:
-----------------------
Title:
--------------------
S-1 (Exhibit, IV-B)
196
TRANSACTIONS
ON
CANADIAN LOAN NOTE
Outstanding
Type of Amount of Amount of Principal
Loan Made Loan Made Principal Paid Balance Notation
Date This Date This Date This Date This Date Made By
---- ---------- --------- -------------- ---------- --------
(Exhibit IV-B)
197
EXHIBIT V
[FORM OF SWING LINE NOTE]
$25,000,000 New York, New York
April 23, 1997
FOR VALUE RECEIVED, LIBBEY GLASS INC., a Delaware corporation
("COMPANY"), promises to pay to the order of BANKERS TRUST COMPANY ("PAYEE"), on
or before the Revolving Loan Commitment Termination Date (as defined in the
Credit Agreement defined below), the lesser of (x) TWENTY-FIVE MILLION DOLLARS
($25,000,000), and (y) the unpaid aggregate principal amount of all advances
made by Payee to Company as Swing Line Loans under the Credit Agreement referred
to below.
Company also promises to pay interest on the unpaid principal amount
hereof until paid at the rates, at the times and from the dates which shall be
determined in accordance with the provisions of that certain Second Amended and
Restated Credit Agreement dated as of April 23, 1997 (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 Company, Libbey Canada Inc., a corporation organized under the laws of
the Province of Ontario, Canada, the Lenders party thereto (referred to herein
individually as a "LENDER" and collectively as "LENDERS"), The Bank of Nova
Scotia, as Canadian Agent, The First National Bank of Chicago, as Syndication
Agent, NationsBank, N.A., as Documentation Agent, The Bank of New York, The Bank
of Nova Scotia, Caisse Nationale de Credit Agricole, Fleet Bank, N.A., and
KeyBank National Association as co-agents for Lenders, and Bankers Trust
Company, as Administrative Agent ("AGENT").
This Note is Company's "Swing Line Note" and is issued pursuant to and
entitled to the benefits of the Credit Agreement to which reference is hereby
made for a more complete statement of the terms and conditions under which the
Swing Line Loans evidenced hereby were or are made and are to be repaid.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at the
office of Agent located at One Bankers Trust Plaza, New York, New York, or at
such other place as shall be designated in writing for such purpose in
accordance with the terms of the Credit Agreement. Until notified in writing of
the transfer of this Note, Company and Agent shall be entitled to deem Payee or
such person who has been so identified by the transferor in writing to Company
and Agent as the holder of this Note, as the owner and holder of this Note. Each
of Payee and any subsequent holder of this Note agrees that before disposing of
this Note or any part hereof it will make a notation hereon of all principal
payments previously made hereunder and of the date to which interest hereon has
been paid; PROVIDED, HOWEVER, that the failure to make a notation of any payment
made on this Note shall not limit or otherwise
V-1 (Exhibit V)
198
affect the obligation of Company hereunder with respect to payments of principal
or interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the next
succeeding Business Day (unless otherwise provided in the Credit Agreement) and
such extension of time shall be included in the computation of the payment of
interest on this Note.
This Note is subject to mandatory prepayment as provided in subsection
2.4A(iii) of the Credit Agreement and to prepayment at the option of Company as
provided in Subsection 2.4A(i) of the Credit Agreement.
This Note is subject to restriction on transfer or assignment as
provided in subsections 10.1 and 10.20 of the Credit Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note may become, or may be declared to be, due and
payable in the manner, upon the conditions and with the effect provided in the
Credit Agreement.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this
Note or the Credit Agreement shall alter or impair the obligation of Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, and in the currency herein
prescribed.
Company promises to pay all reasonable costs and expenses, including
reasonable fees and expenses of counsel, as provided in subsection 10.2 of the
Credit Agreement. Company and endorsers of this Note hereby consent to renewals
and extensions of time at or after the maturity hereof, without notice, and
hereby waive diligence, presentment, protest, demand and notice of every kind
and, to the full extent permitted by law, the right to plead any statute of
limitations as a defense to any demand hereunder.
[THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
V-2 (Exhibit V)
199
IN WITNESS WHEREOF, Company has caused this Note to be executed and
delivered by its duly authorized officer, as of the day and year and the place
first above written.
LIBBEY GLASS INC.
By:
----------------------
Title:
-------------------
S-1 (Exhibit V)
200
TRANSACTIONS
ON
SWING LINE NOTE
Amount of Outstanding
Type of Amount of Principal Principal
Loan Made Loan Made Paid Balance Notation
Date This Date This Date This Date This Date Made By
---- --------- --------- --------- ---------- --------
(Exhibit V)
201
EXHIBIT VI
[FORM OF COMPLIANCE CERTIFICATE]
COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFY, IN OUR CAPACITY AS OFFICERS OF LIBBEY GLASS
INC., THAT:
(1) We are the duly elected [Title] and [Title] of Libbey Glass Inc., a
Delaware corporation ("COMPANY");
(2) We have reviewed the terms of that certain Second Amended and
Restated Credit Agreement dated as of April 23, 1997, as amended to the
date hereof (said Second Amended and Restated Credit Agreement, as so
amended, being the "CREDIT AGREEMENT", the terms defined therein and
not otherwise defined in this Certificate (including Attachment No. 1
annexed hereto and made a part hereof) being used in this Certificate
as therein defined), by and among Company, Libbey Canada Inc., a
corporation organized under the laws of the Province of Ontario,
Canada, the financial institutions listed therein as Lenders, The Bank
of Nova Scotia, as Canadian Agent, The First National Bank of Chicago,
as Syndication Agent, NationsBank, N.A., as Documentation Agent, The
Bank of New York, The Bank of Nova Scotia, Caisse Nationale de Credit
Agricole, Fleet Bank, N.A., and KeyBank National Association as
co-agents for Lenders, and Bankers Trust Company, as Administrative
Agent and the terms of the other Loan Documents, and we have made, or
have caused to be made under our supervision, a review in reasonable
detail of the transactions and condition of Company and its
Subsidiaries during the accounting period covered by the attached
financial statements; and
(3) The examination described in paragraph (2) above did not disclose,
and we have no knowledge of, the existence of any condition or event
which constitutes an Event of Default or Potential Event of Default
during or at the end of the accounting period covered by the attached
financial statements or as of the date of this Certificate[, except as
set forth below].
[Set forth below are all exceptions to paragraph (3) above listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which Company has taken, is taking, or proposes to take
with respect to each such condition or event:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
------------------------------------------------------------------------------.]
VI-1 (Exhibit VI)
202
The foregoing certifications, together with the computations set forth
in Attachment No. 1 annexed hereto and made a part hereof and the financial
statements delivered with this Certificate in support hereof, are made and
delivered this________, day of_________, pursuant to subsection 5.1(iii) of
the Credit Agreement.
LIBBEY GLASS INC.
By:
-------------------------
Title:
----------------------
By:
-------------------------
Title:
----------------------
VI-2 (Exhibit VI)
203
ATTACHMENT NO. 1
TO COMPLIANCE CERTIFICATE
This Attachment No. 1 is attached to and made a part of a Compliance
Certificate dated as of ____________, ________ and pertains to the period from
_________, _________ to _____________, ________. Subsection references herein
relate to subsections of the Credit Agreement. All calculations herein are made
as of ___________, _____.
A. INDEBTEDNESS
1. a. Aggregate face amount of Indebtedness
outstanding with respect to commercial
paper as described in subsection 6.1(vii): $
-------------
b. Maximum permitted under subsection
6.1(vii): $ 100,000,000
2. a. Aggregate amount of Indebtedness
outstanding with respect to certain stock or
stock options, as described in subsection
6.1(ix): $
-------------
b. Maximum permitted under subsection
6.1(ix): $ 10,000,000
3 . a. Aggregate amount of Indebtedness
outstanding to finance Consolidated Capital
Expenditures: $
-------------
b. Maximum permitted under subsection
6.1(x) (20% of Consolidated Assets): $
-------------
4. a. Aggregate principal amount of Indebtedness
for other purposes as described in
subsection 6.1(xi): $
-------------
b. Aggregate Amount of Reduction in
Revolving Loan Commitments and the
Canadian Loan Commitment pursuant to
subsection 2.4A(ii): $
-------------
c. Maximum permitted under subsection
6.1(xi) ((b) PLUS $150,000,000): $
-------------
VI-3 (Exhibit VI)
204
B. LIENS
1. a. Aggregate amount of Indebtedness
permitted to be outstanding under
subsections 6.1 (vi) and 6.1 (x) secured by
Liens as described in subsection 6.2A(iii): $
------------
b. Maximum amount of Indebtedness secured
by such Liens permitted under subsection
6.2A(iii): $ 75,000,000
2. a. Aggregate amount of Indebtedness
permitted to be outstanding under
subsection 6.1 (other than subsections
6.1(vi) and (x)) secured by Liens as
described in subsection 6.2A(iv): $
------------
b. Maximum amount of Indebtedness secured
by such Liens permitted under subsection
6.2A(iv): $ 10,000,000
C. INVESTMENTS
1. a. Aggregate fair value of Investments in
connection with Assets Sales permitted by
subsection 6.7(iv) as described in
subsection 6.3(vi): $
------------
b. Maximum permitted under subsection
6.3(vi): $ 20,000,000
2. a. Aggregate fair value of equity securities
listed on the NYSE or the AMSE or traded
in the NASDAQ as described in subsection
6.3(ix), as determined by the closing price
on the NYSE, AMSE or NASDAQ for such
equity securities on the Business Day
prior to making the Investment: $
------------
b. Maximum permitted under subsection
6.3(ix): $ 10,000,000
3. a. Aggregate amount of Investments in respect
of Joint Ventures as described in subsection
6.3(x) (other than the Investments referred
to in subsection 6.3(xvi)): $
------------
VI-4 (Exhibit VI)
205
b. Maximum permitted under subsection
6.3(x): $ 75,000,000
4. a. Aggregate fair value of Investments in
Margin Stock as described in subsection
6.3(xii): $
------------
b. Maximum permitted under subsection
6.3(xii): $ 200,000
5. a. Aggregate fair value of Investments in
Libbey's common stock in connection with
Company's 401K program and any deferred
compensation plan of Company for its
executive officers as described in
subsection 6.3(xiii) as determined by the
closing price on the NYSE for such
equity securities on the Business Day prior to
making the Investment: $
------------
b. Maximum permitted under subsection
6.3(xiii): $ 10,000,000
6. a. Aggregate amount of loans outstanding to
Libbey as described in subsection 6.3(xiv): $
------------
b. Maximum permitted under subsection
6.3(xiv), as determined by amount of
Restricted Junior Payments Company may
make on its capital stock under subsection
6.5 (without giving effect to reductions in
permitted Restricted Junior Payments by
the amount of loans made by Company to
Libbey): $
------------
7. a. Aggregate amount of other Investments as
described in subsection 6.3(xv): $
------------
b. Maximum permitted under subsection
6.3(xv): $ 40,000,000
D. CONTINGENT OBLIGATIONS
VI-5 (Exhibit VI)
206
1. a. Aggregate amount of Contingent
Obligations in respect of Commercial
Letters of Credit and Standby
Letters of Credit described in
subsection 6.4(i)(a) ("CP Letters of
Credit"): $
------------
b. Maximum permitted under subsection
6.4(i)(a): $ 100,000,000
2. a. Aggregate amount of Contingent
Obligations in respect of Commercial
Letters of Credit and Standby
Letters of Credit which are not CP
Letters of Credit or are not issued
pursuant to the Credit Agreement as
described in subsection 6.4(i)(b): $
------------
b. Maximum permitted under subsection
6.4(i)(b): $ 40,000,000
3. a. Aggregate amount of Contingent
Obligations in respect of Commercial
Letters of Credit and Standby
Letters of Credit (including all
Letters of Credit and Canadian
Letters of Credit issued pursuant to
the Credit Agreement but excluding
CP Letters of Credit) as described
in subsection 6.4(i)(c): $
------------
b. Maximum permitted under subsection
6.4(i)(c): $ 60,000,000
4. a. Aggregate amount of Contingent
Obligations with respect to the
cancellation or repurchase of
certain stock or stock options
granted to employees as described in
subsection 6.4(viii): $
------------
b. Maximum permitted under subsection
6.4(viii): $ 10,000,000
5. a. Aggregate amount of other Contingent
Obligations as described in subsection
6.4(x): $
------------
VI-6 (Exhibit, VI)
207
b. Maximum permitted under subsection
6.4(x): $ 75,000,000
E. RESTRICTED JUNIOR PAYMENTS
1. a. Aggregate amount of Restricted Junior
Payments made in current Fiscal Year
by Company to Libbey in respect of
expenses of Libbey as permitted
under subsection 6.5(ii): $
------------
b. Maximum permitted in such Fiscal
Year under subsection 6.5(ii): $ 2,000,000
2. a. Aggregate amount of Restricted Junior
Payments made by Company to Libbey
after June 24, 1993 as permitted
under subsection 6.5(iii): $
------------
b. Maximum aggregate amount permitted
under subsection 6.5(iii) (the sum
of (y) 50% of cumulative
Consolidated Net Income since June
30, 1993 (including net
extraordinary gains and net
extraordinary losses but not taking
into account net extraordinary gains
or net extraordinary losses which
result from one-time non-cash
adjustments for accounting changes
so long as there are no material
cash receipts or payments during the
term of the Credit Agreement
relating to such accounting changes)
PLUS (z) $15,000,000: $
------------
F. TOTAL LEVERAGE RATIO (FOR THE FOUR-FISCAL QUARTER PERIOD ENDING_________,
____________)
1. Consolidated Adjusted EBITDA
a. Consolidated Net Income: $
------------
b. Consolidated Interest Expense: $
------------
c. Provisions for taxes based on income: $
------------
d. Total depreciation expense: $
------------
e. Total amortization expense: $
------------
VI-7 (Exhibit VI)
208
f. Other non-cash items reducing
Consolidated Net Income: $
-------------
g. Aggregate amount of any discount on
the sale of accounts receivables by
Company or any of its Subsidiaries
pursuant to a Receivables Program: $
-------------
h. Other non-cash items increasing
Consolidated Net Income: $
-------------
i. Consolidated Adjusted EBITDA
(a+b+c+d+e+f+g-h): $
-------------
2. Consolidated Total Debt: $
-------------
3. Net sales proceeds of accounts receivables
sold by Company and its Subsidiaries
pursuant to a Receivables Program MINUS any
collections thereon: $
-------------
4. Total Debt to EBITDA Ratio (F2 PLUS F3):(Fl): :1.00
----
4.10:1.00
5. Maximum ratio permitted under subsection 6.6A:
G. INTEREST COVERAGE RATIO (for the four-fiscal
quarter period ending ______, 199_)
1. Consolidated Adjusted EBITDA (F.1): $
-------------
2. Consolidated Interest Expense: $
-------------
3. Interest Coverage Ratio (G.1): (G.2): :1.00
----
4. Minimum ratio required under subsection 6.6C: 2.50:1.00
I. ACQUISITIONS.
1. Pro forma Total Leverage Ratio after giving
effect to proposed acquisition of stock or
assets of another Person as described in
subsection 6.7(iv)(A): :1.00
----
2. Maximum Total Leverage Ratio permitted
under subsection 6.6A at time of such
acquisition: 4.10:1.00
VI-8 (Exhibit VI)
209
Exhibit VII-B
[LIBBEY LOGO]
Xxxxxx X. Xxxxx
Vice President,
General Counsel & Secretary
April 23,1997
Bankers Trust Company, as Administrative Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
The First National Bank of Chicago, as Syndication Agent
NationsBank, N.A., as Documentation Agent
The Bank of New York
The Bank of Nova Scotia
Caisse Nationale De Credit Agricole
Fleet Bank, N.A.
and
KeyBank National Association
as Co-Agents
and
The Lenders Identified on Exhibit A
hereto
RE: THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT, DATED AS OF
APRIL 23, 1997, BY AND AMONG LIBBEY GLASS INC. AND LIBBEY CANADA
INC., AS BORROWERS, BANKERS TRUST COMPANY, AS ADMINISTRATIVE
AGENT, THE FIRST NATIONAL AGENT, THE FIRST NATIONAL BANK OF
CHICAGO, AS SYNDICATION AGENT, NATIONSBANK, N.A. AS DOCUMENTATION
AGENT, THE BANK OF NEW YORK THE BANK OF NOVA SCOTIA, CAISSE
NATIONALE DE CREDIT AGRICOLE, FLEET BANK, N.A. AND KEYBANK
NATIONAL ASSOCIATION, AS CO-AGENTS, AND THE OTHER FINANCIAL
INSTITUTIONS PARTIES THERETO.
Ladies and Gentlemen:
I am General Counsel to Libbey Glass Inc.. a Delaware corporation (the
"Company") and have acted as counsel to Libbey Canada Inc., a corporation
organized under the laws of the Province of Ontario, Canada ("Libbey Canada")
in connection with the Second Amended Restated Credit Agreement dated as of
April 23, 1997 by and among the Company and Libbey Canada, as Borrowers, the
financial institutions party thereto as Lenders, The Bank of Nova Scotia, as
Canadian Agent, The First National Bank of Chicago, as Syndication Agent,
NationsBank, N.A. as Documentation Agent, The Bank of New York, The Bank of
Nova Scotia, Casse Nationale De Credit Agricole, Fleet Bank, N.A. and KeyBank
National Association as Co-Agents, and Bankers Trust Company, as Administration
Agent (the "Credit Agreement"). This opinion is rendered to you pursuant to
section 3.1 F. of the Credit Agreement Capitalized terms defined in the Credit
000 Xxxxxxx Xxxxxx Xxxx Xxxxxx Xxx 00000 Xxxxxx, Xxxx 00000-0000
000-000-0000 FAX: 000-000-0000
210
Agreement, used herein and not otherwise defined herein, shall have the meanings
given them in the Credit Agreement.
I have examined, among other things, the following:
(a) the Credit Agreement;
(b) the forms of promissory note(s) to be issued pursuant to the Credit
Agreement;
(c) the indentures, notes, loan agreements, deeds of trust, security
agreements and other written agreements and instruments which are
material to the Company (the "Company Material Agreements");
(d) the indentures, notes, loan agreements, mortgages, deed of trust,
security agreements and other written agreements and instruments which
are material to Libbey Canada (the "Libbey Canada Material
Agreements");
(e) the Certificate of Incorporation and Bylaws of the Company (the
"Governing Documents");
(f) a good standing certificate for the Company from the Secretary of the
State of Delaware;
(g) court administrative orders, writs, judgments and decrees specifically
directed to the Company and material to the Company (the "Company
Court Orders"); and
(h) court and administrative orders, writs, judgments and decrees
specifically directed to Libbey Canada and material to Libbey Canada
(the "Libbey Canada Court Orders").
The documents described in subsections (a) and (b) above are referred to herein
collectively as the "Loan Documents."
In my capacity as General Counsel of the Company and counsel to Libbey Canada, I
have made such legal and factual examinations and inquiries, including an
examination of originals and copies certified or otherwise identified to my
satisfaction as being true reproductions of originals of such documents,
corporate records and other instruments as I have deemed necessary or
appropriate for the purposes of this opinion.
I have also obtained, and with your consent, have relied upon certificates of
officers of the Company and Libbey Canada with respect to factual matters. In
addition, I have obtained and relied upon such certificates and assurance from
public officials as I have deemed necessary.
In my examination, I have assumed the genuineness of the signatures of persons
signing all documents and instruments in connection with which this opinion is
rendered other than officers of the Company, the authority of such persons
signing on behalf of the parties thereto other than the Company, the due
authorization, execution and delivery of all documents by the parties thereto
other than the Company, the authenticity of all documents submitted to me as
originals, and the conformity to authentic original documents of all documents
submitted to me as copies.
I have investigated such questions of law for the purpose of rendering this
opinion as I have deemed necessary or appropriate. My opinion is limited to the
effect on the subject transactions only of the federal laws of the United
States, the internal laws of the State of Ohio and the General Corporation Law
of the State of Delaware and I express no opinion with respect to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction or, in the case of Delaware, any other laws, or as to any matters
of municipal law or the laws of any other local agencies within any state.
Various issues concerning Libbey Canada are addressed in the opinion of
Gowling, Strathy & Xxxxxxxxx, separately provided to you, and I express no
opinion with respect to those matters.
My opinion set forth in paragraph 3 below is based upon my consideration of only
the statutes, rules and regulations which, in my experience, are normally
applicable to borrowers and guarantors in unsecured loan transactions.
For purposes of this opinion, I have assumed, with your permission, that (i)
Libbey Canada is duly incorporated, validly existing and in good standing under
the laws of the Province of Ontario, Canada with corporate power and authority
to conduct its business as now conducted and to own,
2
211
or hold under lease, its assets and to enter into the Loan Documents to which it
is a party and perform its obligations thereunder, (ii) Libbey Canada has duly
authorized, executed and delivered each Loan Document to which it is a party,
and (iii) none of the execution, delivery and performance by Libbey Canada of
each Loan Document to which it is a party will result in the violation of the
Articles of Incorporation or Bylaws of Libbey Canada.
Subject to the foregoing and the other matters set forth herein, and in
reliance thereon, I am of the opinion that, as of the date hereof.
1. The Company has been duly incorporated and is validly existing and in good
standing under the laws of the State of Delaware, and is in good standing
in all other states where, by reason of its business activities as now
conducted, qualification to do business is required of the Company, with
corporate power and authority to conduct its business as now conducted and
to own, or hold under lease, its assets and to enter into the Loan
Documents and perform its obligations thereunder.
2. The execution, delivery and performance by the Company of the Loan
Documents have been duly authorized by all necessary corporate action of
the Company, and the Loan Documents have been duly executed and delivered
by the Company.
3. The execution and delivery of the Loan Documents by the Company and the
borrowing and repayment of the Loans by the Company pursuant to the Credit
Agreement do not: (a) violate any Ohio statute, rule or regulation
applicable to the Company, (b) violate the provisions of the Governing
Documents or (c) result in any breach of or a default under any of the
Company Material Agreements or Company Court Orders. No opinion is
expressed in this paragraph 3 as to the application of any antifraud,
antitrust or trade regulation laws.
4. The execution and delivery of the Loan Documents by Libbey Canada and the
borrowing and repayment of the Loans by Libbey Canada pursuant to the
Credit Agreement do not result in the breach of or a default under any of
the Libbey Canada Material Agreements or Libbey Canada Court Orders. No
opinion is expressed in this paragraph 4 as to the application of any
antifraud, antitrust or trade regulation laws.
5. After due inquiry, I have no knowledge of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that has a significant likelihood of
resulting in a Material Adverse Effect (as defined in the Credit
Agreement).
This opinion is furnished by me to you, in my capacity as General Counsel of the
Company and counsel to Libbey Canada, and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other person, firm or corporation for any purpose, without my prior written
consent. At your request, I hereby consent to reliance hereon by any future
assigns of your interest under the Credit Agreement which are Eligible Assignees
as expressly permitted under subsection 10.1 of the Credit Agreement; provided
that you have notified any such assignee that this opinion speaks only as of the
date hereof and to its addressees and that I have no responsibility or
obligation to update this opinion, to consider its applicability or correctness
to other than its addressees, or to take into account changes in law, facts or
any other development of which I may later become aware.
Very truly yours,
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
3
212
EXHIBIT A
TO THE
OPINION OF XXXXXX X. XXXXX
DATED APRIL 23,1997
Lenders:
--------
Bankers Trust Company
The First National Bank of Chicago
NationsBank, N.A.
The Bank of Nova Scotia
The Bank of New York
Caisse Nationale DeCredit Agricole
Fleet Bank, N.A.
KeyBank National Association
ABN AMRO Bank, N.V.
Bank of America Illinois
Bank of Hawaii
Bank of Montreal
The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch
Banque Paribas
Compagnie Financiere De CIC et De L'Union Europeenne
Dresdner Bank AG, New York and Grand Cayman Branches
The Fuji Bank Limited
The Long-Term Credit Bank of Japan, Ltd. Chicago Branch
Mellon Bank, N.A.
The Northern Trust Company
The Sanwa Bank, Limited, Chicago Branch
Societe Generale
Xxxxxx Guaranty Trust Company of New York
4
213
Exhibit VIII
Gowling, Strathy & Xxxxxxxxx | Barristers & Solicitors
| Patent & Trade Xxxx Agents
[GOWLINGS LOGO] Xxxxxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
Xxxxxx, X0X lJ3
Telephone (000) 000-0000
Facsimile (416) 862-7661
April 23, 0000
Xxx Xxxx xx Xxx Xxxx
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Bank of Nova Scotia
00 Xxxx Xxxxxx Xxxx
Corporate Credit Central
Xxxxxxx, Xxxxxxx, X0X 0X0
Xxxxxx
Caisse Nationale de Credit Agricole
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fleet Bank, N.A.
1185 Avenue of the Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, X.X. 00000
KeyBank National Association
000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
as Co-Agents
The First National Bank of Chicago
as Syndication Agent
One First Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
NationsBank, N.A.
as Documentation Agent
Sears Tower
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
214
2
Gowling, Strathy & Xxxxxxxxx | Barristers & Solicitors
| Patent & Trade Xxxx Agents
and
Bankers Trust Company
as Administrative Agent
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000:
The Lenders Identified on
Exhibit A hereto
RE: THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF
APRIL 23, 0000 XXXXX XXXXXX XXXXX XXX., XXXXXX XXXXXX INC., THE
FINANCIAL INSTITUTIONS LISTED THEREIN, AS LENDERS, THE BANK OF
NOVA SCOTIA, AS CANADIAN AGENT, THE FIRST NATIONAL BANK OF
CHICAGO, AS SYNDICATION AGENT, NATIONSBANK, N.A., AS
DOCUMENTATION AGENT, THE BANK OF NEW YORK, THE BANK OF NOVA
SCOTIA, CAISSE NATIONALE DE CREDIT AGRICOLE, FLEET BANK, N.A. AND
KEYBANK NATIONAL ASSOCIATION AS CO-AGENTS AND BANKERS TRUST
COMPANY AS ADMINISTRATIVE AGENT
Ladies and Gentlemen,
We have acted as counsel to Libbey Canada Inc., a corporation
incorporated under the laws of the Province of Ontario, Canada ("Libbey
Canada"), in connection with the Second Amended and Restated Credit Agreement
dated as of April 23, 1997 (the "Second Amended and Restated Credit Agreement")
by and among Libbey Glass Inc., Libbey Canada, the financial institutions listed
on the signature page thereof ("Lenders"), The Bank of Nova Scotia, as Canadian
Agent. The First National Bank of Chicago, as Syndication Agent, NationsBank,
N.A., as Documentation Agent, The Bank of New York, The Bank of Nova Scotia,
Caisse Nationale de Credit Agricole, Fleet Rank, N.A. and KeyBank National
Association, as Co-Agents and Bankers Trust Company, as Administrative Agent
for Lenders. This opinion is rendered to you at the request of Libbey Canada in
compliance with clause F of subsection 3.1 of the Second Amended and Restated
Credit Agreement. Capitalized terms used herein without definition have the
same meanings as in the Second Amended and Restated Credit Agreement.
In our capacity as such counsel, we have examined originals, or copies
identified to our satisfaction as being true copies, of such records, documents
or other instruments as in our judgment are necessary or appropriate to enable
us to render the opinions expressed below.
215
3
Gowling, Strathy & Xxxxxxxxx | Barristers & Solicitors
| Patent & Trade Xxxx Agents |
These records, documents and instruments included the following:
(a) Articles of Incorporation of Libbey Canada, as amended to date;
(b) The By-Laws of Libbey Canada, as amended to date;
(c) All records of proceedings and actions of the Board of Directors
of Libbey Canada relating to the Second Amended and Restated
Credit Agreement and the transactions contemplated thereby;
(d) The Second Amended and Restated Credit Agreement and exhibits
thereto.
We have been furnished with, and with Lenders' consent have relied
upon, certificates of officers of Libbey Canada with respect to certain factual
matters, copies of which have been delivered to Lenders. In addition, we have
obtained and relied upon such certificates and assurances from public officials
as we have deemed necessary, copies of which have been delivered to Lenders. In
all such examinations, we have assumed the genuineness of all signatures on
original and certified documents, and the conformity to original or certified
documents of all documents submitted to us as conformed or photostatic copies.
We have investigated such questions of law for the purpose of
rendering this opinion as we have deemed necessary. We are opining herein as to
the effect on the subject transactions of only the laws of the Province of
Ontario and the laws of Canada applicable therein.
On the basis of the foregoing, and in reliance thereon, and subject to
the limitations, qualifications and exceptions set forth below we are of the
opinion that:
1. Libbey is a corporation duly incorporated, validly existing and
in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate power and authority
to own and operate its properties and to carry on its business as
now conducted.
2. Libbey Canada has all requisite corporate power and authority to
execute, deliver and perform the Second Amended and
Restated Credit Agreement and to carry out the transactions
contemplated thereby.
3. The execution, delivery and performance of the Second Amended and
Restated Credit Agreement have been duly authorized by all
necessary corporate action on the part of Libbey Canada. The
Second Amended and Restated Credit Agreement has been duly
executed and delivered by Libbey Canada.
216
4
Gowling, Strathy & Xxxxxxxxx | Barristers & Solicitors
| Patent & Trade Xxxx Agents |
4. Neither the execution and delivery of the Second Amended and
Restated Credit Agreement by Libbey Canada nor the consummation
of the transactions contemplated by the Second Amended and
Restated Credit Agreement nor the payment by Libbey Canada of the
obligations thereunder nor the compliance with the terms and
conditions thereof by Libbey Canada conflicts with, results in a
breach or violation of, or constitutes a default under, any of
the terms, conditions or provisions of the Articles of
Incorporation or By-Laws of Libbey Canada or any present Ontario
or Canadian statute, rule or regulation binding on Libbey Canada.
5. No consents or approvals of, authorizations by, or
registrations, declarations or filings with, any Ontario or
Canadian governmental authority are required by Libbey Canada in
connection with the execution and delivery by Libbey Canada of
the Second Amended and Restated Credit Agreement or the
extensions of credit thereunder or the payment by Libbey Canada
of the obligations thereunder.
6. To the best of our knowledge, after due enquiry, there are no
actions, suits or proceedings pending or threatened against
Libbey Canada which have a significant likelihood of materially
and adversely affecting either the business, operations,
properties, assets or condition (financial or otherwise) of
Libbey Canada or the ability of Libbey Canada to perform its
obligations under the Second Amended and Restated Credit
Agreement.
The Second Amended and Restated Credit Agreement is governed by the
laws of the State of New York. We express no opinion as to the enforceability of
the Second Amended and Restated Credit Agreement or of any provision of the
Second Amended and Restated Credit Agreement. It should be noted that a
judgment in money rendered by a court in the Province of Ontario must be
awarded in Canadian currency.
Our opinions in paragraphs 4 and 5 above as to compliance with certain
statutes, rules and regulations and as to the lack of any required consents or
approvals of, authorizations by, or registrations, declarations or filings with
certain governmental authorities are based upon a review of those statutes,
rules and regulations which, in our experience, are normally applicable to
transactions of the type contemplated by the Second Amended and Restated Credit
Agreement.
To the extent that the obligations of Libbey Canada may be dependent
upon such matters, we have assumed for purposes of this opinion, other than with
respect to Libbey Canada, that each additional party to the Second Amended and
Restated Credit Agreement is duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation; that each such
other party has the requisite corporate or other organizational power
217
5
Gowling, Strathy & Xxxxxxxxx | Barristers & Solicitors
| Patent & Trade Xxxx Agents |
and authority to perform its obligations under the Second Amended and Restated
Credit Agreement; and that the Second Amended and Restated Credit Agreement has
been duly authorized, executed and delivered by each of them and constitutes the
legally valid and binding obligation of such other parties, as applicable,
enforceable against such other parties in accordance with its respective terms.
Except as expressly covered in this opinion, we are not expressing any opinion
as to the effect of compliance by any Lender with any Ontario provincial or
Canadian federal laws or regulations applicable to the transactions because of
the nature of any of its businesses.
This opinion is rendered only to the Co-Agents, Syndication Agent,
Documentation Agent, Canadian Agent, Administrative Agent and Lenders and is
solely for their benefit in connection with the above transactions. This opinion
may not be relied upon by the Co-Agents, Syndication Agent, Documentation Agent,
Canadian Agent, Administrative Agent or Lenders for any other purpose or quoted
to or relied upon by any other person, firm or corporation for any purpose
without our prior written consent. At your request, we hereby consent to
reliance hereon by any future assigns of your interest under the Second Amended
and Restated Credit Agreement which are Eligible Assignees as expressly
permitted by subsection 10.1 of the Second Amended and Restated Credit
Agreement provided that you have notified any such assignee that this opinion
speaks only as of the date hereof and to its addressees and that we have no
responsibility or obligation to update this opinion, to consider its
applicability or correctness to other than its addressees, or to take into
account changes in law, facts or any other development of which we may later
become aware.
Yours truly,
/s/ Gowling, Strathy & Xxxxxxxxx
218
EXHIBIT A
TO
OPINION OF GOWLING, STRATHY & XXXXXXXXX
DATED APRIL 23, 1997
LIST OF LENDERS:
Bankers Trust Company
The First National Bank of Chicago
NationsBank, N.A.
The Bank of Nova Scotia
The Bank of New York
Caisse Nationale de Credit Agricole
Fleet Bank, N.A.
KeyBank National Association
ABN Amro Bank, N.V.
Bank of America Illinois
Bank of Hawaii
Bank of Montreal
The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch
Banque Paribas
Compagnie Financiere de CIC et de L'Union Europeenne
Dresdner Bank AG, New York and Grand Cayman Branches
The Fuji Bank, Limited
The Long-Term Credit Bank of Japan, Ltd., Chicago Branch
Mellon Bank, N.A.
The Northern Trust Company
The Sanwa Bank, Limited, Chicago Branch
Societe Generale
Xxxxxx Guaranty Trust Company of New York
219
EXHIBIT IX
[FORM OF OPINION OF O'MELVENY & XXXXX LLP]
April
23rd
1997
045,710-429
Bankers Trust Company,
as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000,
The First National Bank of Chicago,
as Syndication Agent,
NationsBank N.A.,
as Documentation Agent,
The Bank of New York,
The Bank of Nova Scotia,
Caisse Nationale de Credit Agricole,
Fleet Bank, N.A. and
KeyBank National Association,
as Co-Agents
and
The Lenders Party to the Credit
Agreement Referenced Below
Re: Loans to Libbey Glass Inc. and Libbey Canada Inc.
-------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Bankers Trust Company, as Administrative
Agent (in such capacity, "Agent"), in connection with the preparation and
delivery of a Second Amended and Restated Credit Agreement dated as of April
23, 1997 (the "Credit Agreement") among Libbey Glass Inc., a Delaware
corporation ("Company"), Libbey Canada Inc., a corporation organized under the
laws of the Province of Ontario, Canada ("Libbey Canada"), the financial
institutions listed therein as Lenders, The Bank of Nova Scotia, as Canadian
Agent, The First National Bank of Chicago, as Syndication Agent, NationsBank,
N.A., as Documentation Agent, The Bank of New York, The Bank of Nova Scotia,
Caisse Nationale de Credit Agricole, Fleet Bank, N.A., and KeyBank National
Association as co-agents for Lenders, and Bankers Trust
IX-1 (Exhibit IX)
220
Company, as Administrative Agent, and in connection with the preparation and
delivery of certain related documents.
We have participated in various conferences with representatives of
Company and Agent and conferences and telephone calls with Xxxxxx & Xxxxxxx,
special counsel to Company, and with your representatives, during which the
Credit Agreement and related matters have been discussed, and we have also
participated in the meeting held on the date hereof (the "Closing") incident to
the funding of the initial loans made under the Credit Agreement. We have
reviewed the forms of the Credit Agreement and the exhibits thereto, including
the forms of the promissory notes annexed thereto (the "Notes"), the opinion of
each of Xxxxxx & Watkins, Gowling, Strathy & Xxxxxxxxx, counsel to Libbey
Canada, and Xxxxxx X. Xxxxx, General Counsel to Company and Counsel to Libbey
Canada, (collectively, the "Opinions") and the officers' certificates and
other documents delivered at the Closing. We have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals
or copies and the due authority of all persons executing the same, and we have
relied as to factual matters on the documents that we have reviewed.
Although we have not independently considered all of the matters
covered by the Opinions to the extent necessary to enable us to express the
conclusions therein stated, we believe that the Credit Agreement and the
exhibits thereto are in substantially acceptable legal form and that the
Opinions and the officers' certificates and other documents delivered in
connection with the execution and delivery of, and as conditions to the making
of the initial loans under, the Credit Agreement and the Notes are substantially
responsive to the requirements of the Credit Agreement.
Respectfully submitted,
O'MELVENY & XXXXX LLP
IX-2 (Exhibit IX)
221
EXHIBIT X
[FORM OF ASSIGNMENT AND ACCEPTANCE]
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE (this "AGREEMENT") is entered into by
and between the parties designated as Assignor ("ASSIGNOR") and Assignee
("ASSIGNEE") above the signatures of such parties on the Schedule of Terms
attached hereto and hereby made an integral part hereof (the "SCHEDULE OF
TERMS") and relates to that certain Second Amended and Restated Credit
Agreement described in the Schedule of Terms (said Second Amended and Restated
Credit Agreement, as amended, supplemented or otherwise modified to the date
hereof and as it may hereafter be amended, supplemented or otherwise modified
from time to time, being the "CREDIT AGREEMENT"; the terms defined therein and
not otherwise defined herein being used herein as therein defined).
IN CONSIDERATION of the agreements, provisions and covenants herein
contained, the parties hereto hereby agree as follows:
SECTION 1. ASSIGNMENT AND ASSUMPTION.
(a) Effective as of the Settlement Date specified in Item 4 of the
Schedule of Terms (the "SETTLEMENT DATE"), Assignor hereby sells and assigns to
Assignee, without recourse, representation or warranty (except as expressly set
forth herein), and Assignee hereby purchases and assumes from Assignor, that
percentage interest in all of Assignor's rights and obligations as a Lender
arising under the Credit Agreement and the other Loan Documents with respect to
Assignor's Commitments and outstanding Loans, if any, which represents, as of
the Settlement Date, the percentage interest specified in Item 3 of the Schedule
of Terms of all rights and obligations of Lenders arising under the Credit
Agreement and the other Loan Documents with respect to the Commitments and any
outstanding Loans (the "ASSIGNED SHARE"). Without limiting the generality of the
foregoing, the parties hereto hereby expressly acknowledge and agree that any
assignment of all or any portion of Assignor's rights and obligations relating
to Assignor's Revolving Loan Commitment shall include (i) in the event Assignor
is an issuing Lender with respect to any outstanding Letters of Credit (any such
Letters of Credit being "ASSIGNOR LETTERS OF CREDIT"), the sale to Assignee of
a participation in the Assignor Letters of Credit and any drawings thereunder as
contemplated by subsection 2.7D of the Credit Agreement and (ii) the sale to
Assignee of a ratable portion of any participation previously purchased by
Assignor pursuant to said subsection 2.7D with respect to any Letters of Credit
other than the Assignor Letters of Credit.
X-1 (Exhibit X)
222
(b) In consideration of the assignment described above, Assignee
hereby agrees to pay to Assignor, on the Settlement Date, the principal amount
of any outstanding Loans included within the Assigned Share, such payment to
be made by wire transfer of immediately available funds in accordance with the
applicable payment instructions set forth in Item 5 of the Schedule of Terms.
(c) Assignor hereby represents and warrants that Item 3 of the
Schedule of Terms correctly sets forth the amount of the Commitments and the Pro
Rata Share of Assignee being transferred pursuant to this Agreement as
described above.
(d) Assignor and Assignee hereby agree that, upon giving effect to
the assignment and assumption described above, (i) Assignee shall be a party to
the Credit Agreement and shall have all of the rights and obligations under the
Loan Documents, and shall be deemed to have made all of the covenants and
agreements contained in the Loan Documents, arising out of or otherwise related
to the Assigned Share, and (ii) Assignor shall be absolutely released from any
of such obligations, covenants and agreements assumed or made by Assignee in
respect of the Assigned Share. Assignee hereby acknowledges and agrees that the
agreement set forth in this Section l(d) is expressly made for the benefit of
Company, Libbey Canada, Agent, Assignor and the other Lenders and their
respective successors and permitted assigns.
(e) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent that (i) this Agreement shall effect the assignment by
Assignor and the assumption by Assignee of Assignor's rights and obligations
with respect to the Assigned Share, (ii) any other assignments by Assignor of a
portion of its rights and obligations with respect to the Commitments and any
outstanding Loans shall have no effect on the Commitments and the Pro Rata Share
of Assignee set forth in Item 3 of the Schedule of Terms or on the interest of
Assignee in any outstanding Revolving Loans corresponding thereto, and (iii)
from and after the Settlement Date, Agent shall make all payments under the
Credit Agreement in respect of the Assigned Share (including without limitation
all payments of principal and accrued but unpaid interest, commitment fees and
letter of credit fees with respect thereto) (A) in the case of any such interest
and fees that shall have accrued prior to the Settlement Date, to Assignor, and
(B) in all other cases, to Assignee; PROVIDED that Assignor and Assignee shall
make payments directly to each other to the extent necessary to effect any
appropriate adjustments in any amounts distributed to Assignor and/or Assignee
by Agent under the Loan Documents in respect of the Assigned Share in the event
that, for any reason whatsoever, the payment of consideration contemplated by
Section 1(b) occurs on a date other than the Settlement Date.
SECTION 2. CERTAIN REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) Assignor represents and warrants that it is the legal and
beneficial owner of the Assigned Share, free and clear of any adverse claim.
X-2 (Exhibit X)
223
(b) Assignor shall not be responsible to Assignee for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of any of the Loan Documents or for any representations, warranties,
recitals or statements made therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by Assignor to Assignee or by or on behalf
of Company or any of its Subsidiaries to Assignor or Assignee in connection with
the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of Company, or any other Person liable
for the payment of any Obligations, nor shall Assignor be required to ascertain
or inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or as
to the use of the proceeds of the Loans or the use of the Letters of Credit or
as to the existence or possible existence of any Event of Default or Potential
Event of Default.
(c) Assignee represents and warrants that it is an Eligible Assignee;
that it has experience and expertise in the making or the purchasing of loans
such as the Loans; that it has acquired the Assigned Share for its own account
and not with any present intention of selling all or any portion of such
interest; and that it has received, reviewed and approved a copy of the Credit
Agreement (including all Exhibits and Schedules thereto).
(d) Assignee represents and warrants that it has received from
Assignor such financial information regarding Company and its Subsidiaries as is
available to Assignor and as Assignee has requested, that it has made its own
independent investigation of the financial condition and affairs of Company and
its Subsidiaries in connection with the assignment evidenced by this Agreement,
and that it has made and shall continue to make its own appraisal of the
creditworthiness of Company and its Subsidiaries. Assignor shall have no duty or
responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Assignee or to provide Assignee
with any other credit or other information with respect thereto, whether coming
into its possession before the making of the initial Loans or at any time or
times thereafter, and Assignor shall not have any responsibility with respect to
the accuracy of or the completeness of any information provided to Assignee.
(e) Each party to this Agreement represents and warrants to the other
party hereto that it has full power and authority to enter into this Agreement
and to perform its obligations hereunder in accordance with the provisions
hereof, that this Agreement has been duly authorized, executed and delivered by
such party and that this Agreement constitutes a legal, valid and binding
obligation of such party, enforceable against such party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity.
SECTION 3. MISCELLANEOUS.
(a) Each of Assignor and Assignee hereby agrees from time to time,
upon request of the other such party hereto, to take such additional actions and
to execute and
X-3 (Exhibit X)
224
deliver such additional documents and instruments as such other party may
reasonably request to effect the transactions contemplated by, and to carry out
the intent of, this Agreement.
(b) Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party (including, if applicable, any party required to evidence its consent
to or acceptance of this Agreement) against whom enforcement of such change,
waiver, discharge or termination is sought.
(c) Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given shall be in writing
and may be personally served, telexed or sent by telefacsimile or United States
mail or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed. For the purposes hereof, the notice address of each of
Assignor and Assignee shall be as set forth on the Schedule of Terms or, as to
either such party, such other address as shall be designated by such party in a
written notice delivered to the other such party. In addition, the notice
address of Assignee set forth on the Schedule of Terms shall serve as the
initial notice address of Assignee for purposes of subsection 10.12 of the
Credit Agreement.
(d) In case any provision in or obligation under this Agreement shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
(e) THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
(f) This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
(g) This Agreement may be executed in one or more counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
(h) This Agreement shall become effective upon the date (the
"EFFECTIVE DATE") upon which all of the following conditions are satisfied: (i)
the execution of a counterpart hereof by each of Assignor and Assignee, (ii) the
execution of a counterpart hereof by Company as evidence of its consent hereto
to the extent required under subsection 10.1B(i) of the Credit Agreement, (iii)
the receipt by Agent of the processing and recordation
X-4 (Exhibit X)
225
fee referred to in subsection 10.1B(i) of the Credit Agreement, (iv) in the
event Assignee is a Lender that is organized under the laws of any jurisdiction
other than the United States or any state or other political subdivision thereof
as described in subsection 10.7B(iv), the delivery by Assignee to Agent of such
forms, certificates or other evidence with respect to United States federal
income tax withholding matters as Assignee may be required to deliver to Agent
pursuant to said subsection 10.7B(iv), (v) the execution of a counterpart Hereof
by Agent as evidence of its consent hereto to the extent required under
subsection 10.1B(i) of the Credit Agreement and its acceptance hereof in
accordance with subsection 10.1B(ii) of the Credit Agreement, (vi) the receipt
by Agent of originals or telefacsimiles of the counterparts described above and
authorization of delivery thereof, and (vii) the recordation by Agent in the
Register of the pertinent information regarding the assignment effected hereby
in accordance with subsection 10.1B(ii) of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized, such execution being made as of the Effective Date in the
applicable spaces provided on the Schedule of Terms.
[Remainder of page intentionally left blank]
X-5 (Exhibit X)
226
SCHEDULE OF TERMS
1. BORROWER: [Libbey Glass Inc.] [Libbey Canada Inc.]
2. NAME AND DATE OF CREDIT AGREEMENT: Second Amended and Restated Credit
Agreement dated as of April 23, 1997 by and among Libbey Glass Inc.,
Libbey, Canada Inc., the financial institutions listed therein as Lenders
and Bankers Trust Company, as administrative agent for Lenders.
3. AMOUNTS:
Re: Re:
Revolving Canadian
Loans Loans
----- -----
(a) Aggregate Commitments or all Lenders: $_________ $_________
(b) Assigned Share/Pro Rata Share: _____% _____%
(c) Amount of Assigned Share of Commitments: $_________ $_________
4. SETTLEMENT DATE:_____________, _______
5. PAYMENT INSTRUCTIONS:
ASSIGNOR: ASSIGNEE:
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
Attention:_______________ Attention:________________
Reference:_______________ Reference:________________
6. NOTICE ADDRESSES:
ASSIGNOR: ASSIGNEE:
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
_________________________ __________________________
7. SIGNATURES:
[NAME OF ASSIGNOR], [NAME OF ASSIGNEE],
as Assignor as Assignee
By:_____________________ By:_____________________
Title:_________________ Title:_________________
X-6 (Exhibit X)
227
[Consented to in accordance with subsection Consented to in accordance with
10.1B(i) of the Credit Agreement subsection 10.1B(i) and accepted
in accordance with subsection
10.1B(ii) of the Credit Agreement
LIBBEY GLASS INC. BANKERS TRUST COMPANY, as Agent
By:__________________________ By:___________________________
Title:_______________________ Title:________________________
X-7 (Exhibit X)
228
EXHIBIT XI
[FORM OF REQUEST FOR ISSUANCE OF LETTER OF CREDIT]
Pursuant to that certain Second Amended and Restated Credit
Agreement dated as of April 23, 1997 (as such agreement may be amended,
restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT") entered into by and among Libbey Glass Inc. ("COMPANY"), Libbey
Canada Inc. ("LIBBEY CANADA"), the Lenders named therein, The Bank of Nova
Scotia, as Canadian Agent, The First National Bank of Chicago, as Syndication
Agent, NationsBank, N.A., as Documentation Agent, The Bank of New York, The Bank
of Nova Scotia, Caisse Nationale de Credit Agricole, Fleet Bank, N.A., and
KeyBank National Association as co-agents for Lenders, and Bankers Trust
Company, as Administrative Agent ("AGENT"), this represents [Company's] [Libbey
Canada's] request [A: to have [Bankers Trust Company] [The Bank of Nova Scotia]
issue a Standby letter of Credit on(1) in the stated amount of [Cdn.]$(2) with
an expiration date of(3) for the benefit of(4). The purpose of such Standby
Letter of Credit is(5).] [B: to have [Bankers Trust Company] [The Bank of Nova
Scotia] issue a Commercial Letter of Credit on [1] in the stated amount of
[Cdn.]$[2] with an expiration date of [3], for the benefit of [4]. Capitalized
terms used herein without definition which are defined in the Credit Agreement
shall have the meanings set forth in the Credit Agreement.
The undersigned officer[s] on behalf of Company [and Libbey
Canada], to the best of [his or her] [their] knowledge as officer[s] of Company
and [Libbey Canada], and Company [and Libbey Canada] certify that (i) the
representations and warranties contained in the Credit Agreement and the other
Loan Documents are true, correct and complete in all material respects on and as
of the date hereof to the same extent as though made on and as of the date
hereof, except (a) to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties shall have been true, correct and complete in all material respects
on and as of such earlier date and (b) to the extent that changes in the facts
and conditions on which such representations and warranties are based are
required or permitted under the Credit Agreement; (ii) no event has occurred and
is continuing under the Credit Agreement or would result from the proposed
issuance of the [Canadian] Letter of Credit requested hereby which would
constitute an Event of Default or Potential Event of Default; (iii) Each of
Company and Libbey Canada has performed in all material respects all agreements
and satisfied all conditions which the Credit Agreement and the other Loan
Documents provide shall be performed or satisfied on or before the date of
issuance of the [Canadian] Letter of Credit requested pursuant to this Request
for Issuance of Letter of Credit; and (iv) there is not pending or, to the
knowledge of Company or Libbey Canada, threatened, any action, suit, proceeding
governmental investigation or arbitration against or affecting Company or any of
its Subsidiaries or any property of Company or any of its Subsidiaries which has
not been disclosed by Company pursuant to subsection 4.6 or 5.1(viii) prior to
the [making of the last preceding [Canadian] Loans] [issuance of the last
preceding [Canadian] Letter of
XI-1 (Exhibit XI)
229
Credit] [execution of the Credit Agreement] and there has occurred no
development not so disclosed in any such action, suit, proceeding, governmental
investigation or arbitration so disclosed, which, in either event would
reasonably be expected to have a Material Adverse Effect and no injunction or
other restraining order has been issued and no hearing to cause an injunction
or other restraining order to be issued is pending or noticed with respect to
any action, suit or proceeding seeking to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the
transactions contemplated by the Credit Agreement or the making of Loans
thereunder or the issuing of a [Canadian] Letter of Credit, thereunder[; and
(v) the Total Utilization of [Revolving] [Canadian] Loan Commitment(s], after
giving effect to the proposed issuance of a [Canadian] Letter of Credit, does
not exceed the [Revolving] [Canadian] Loan Commitment[s]; and (vi) the
[Canadian] Letter of Credit Usage, after giving effect to the proposed issuance
of a [Canadian] Letter of Credit, does not exceed [$35,000,000] [$3,000,000].
Date:
LIBBEY GLASS INC.
[LIBBEY CANADA INC.]
By:_______________________
Title:____________________
XI-2 (Exhibit XI)
230
EXHIBIT XII
(FORM OF DRAWING NOTICE]
Pursuant to that certain Second Amended and Restated Credit Agreement
dated as of April 23, 1997 among Libbey Glass Inc. ("COMPANY"), Libbey Canada
Inc. ("LIBBEY CANADA"), the financial institutions listed therein as Lenders
("LENDERS"), The Bank of Nova Scotia, as Canadian Agent, The First National Bank
of Chicago, as Syndication Agent, NationsBank, N.A., as Documentation Agent, The
Bank of New York, The Bank of Nova Scotia, Caisse Nationale de Credit Agricole,
Fleet Bank, N.A., and KeyBank National Association as co-agents for Lenders, and
Bankers Trust Company, as Administrative Agent (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"; capitalized terms
used herein without definition which are defined in the Credit Agreement shall
have the meanings set forth in the Credit Agreement), this represents Company's
and Libbey Canada's notice pursuant to subsection 2.9B of the Credit Agreement
that Libbey Canada hereby requests a Drawing under the Credit Agreement, and, in
connection therewith, sets forth below the information relating to such Drawing
as required by subsection 2.9B of the Credit agreement:
1. The date of the Drawing, which is a Business Day, is
________________, _____;
2. The aggregate Face Amount of Drafts to be accepted is Cdn.
$____________;
3. The maturity date for such Drafts is ___________, _____, which
represents a term to maturity of approximately [30/60/90/120/180]
days.
The undersigned officers, to the best of their knowledge, and Company
and Libbey Canada certify that:
(i) The representations and warranties contained in the
Credit Agreement and the other Loan Documents are true, correct and
complete in all material respects on and as of the date hereof to
the same extent as though made on and as of the date hereof, except
(a) to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and
warranties were true, correct and complete in all material respects
on and as of such earlier date and (b) to the extent that changes in
the facts and conditions on which such representations and
warranties are based are required or permitted under the Credit
Agreement;
(ii) No event has occurred and is continuing or would
result from the consummation of the borrowing contemplated hereby
that would constitute an Event of Default or a Potential Event of
Default;
XII-1 (Exhibit XII)
231
(iii) Each of Company and Libbey Canada has performed in
all material respects all agreements and satisfied all conditions
which the Credit Agreement provides shall be performed or satisfied
by it on or before the date hereof; [and]
(iv) there is no pending or, to the knowledge of
Company or Libbey Canada, threatened, any action, suit, proceeding,
governmental investigation ()r arbitration against or affecting
Company or any of its Subsidiaries or any property of Company or
any of its Subsidiaries that has not been disclosed by Company in
writing pursuant to subsection 4.6 or 5.1(viii) prior to the making
of the last preceding Loans or Drawing (or, in the case of the
initial Loans, prior to the execution of the Credit Agreement), and
there has occurred no development not so disclosed in any such
action, suit, proceeding, governmental investigation or arbitration
so disclosed, that, in either event would reasonably be expected to
have a Material Adverse Effect; and no injunction or other
restraining order has been issued and no hearing to cause an
injunction or other restraining order to be issued is pending or
noticed with respect to any action, suit or proceeding seeking to
enjoin or otherwise prevent the consummation of, or to recover any
damages or obtain relief as a result of, the transactions
contemplated by the Credit Agreement or the making of Loans or the
issuance of Letters of Credit thereunder; and
(v) the Total Utilization of Canadian Loan Commitment,
after giving effect to the proposed Drawing, does not exceed the
aggregate Canadian Loan Commitment.
LIBBEY CANADA INC.
Dated:____________________
By _________________________
Name:_______________________
Title:______________________
LIBBEY GLASS INC.
By _________________________
Name: ______________________
Title: _____________________
XII-2 (Exhibit XII)
232
EXHIBIT XIII-A
[FORM OF DRAFT]
BANKERS ACCEPTANCE Due _______________, _____
ACCEPTATION BANCAIRE Echeant le
NO. B.A. IL.0000
____________________, Canada
____________________, ____
On/Le _________________, ________ without grace, for value received, pay to the
order of the undersigned drawer the sum of/sans jours de grace et contra
valeur, payez a l'ordre du tireur soussigne la somme de/__________ dollars
($_______________)
To/A - [Name of Bank]
___________________, Canada
LIBBEY CANADA INC.
Per:
par:_________________________
Authorized Signature
Signature Autorisee
XIII-A-1 (Exhibit XIII-A)
233
EXHIBIT XIII-B
[FORM OF ACCEPTANCE]
ACCEPTED/ACCEPTE
date/le ______________________________________________, _______
Payable at [INSERT LOCATION]/payable a __________________
[Name of Bank]
Per:
par:_________________________
Authorized Signature
Signature Autorisee
Per:
par:_________________________
Authorized Signature
Signature Autorisee
XIII-B-1 (Exhibit XIII-B)
234
EXHIBIT XIII-C
[FORM OF BANKERS ACCEPTANCE EQUIVALENT NOTE]
Libbey Canada Inc.
NOTE NO.
BILLET NO. __________________________, _____
Libbey Canada Inc., for value received, hereby promises to pay to or to the
order of:
Libbey Canada Inc., pour valeur recue promet par les presentes de
payer a ou a l'ordre
de: __________________
on the sum of
le _______________________, _______ la somme de _____________
_________________________________________________________________
in lawful money of Canada, upon presentation and surrender of this promissory
note.
en monnaie ayant cours legal au Canada, sur presentation et contre
remise dument faites de ce billet a ordre.
LIBBEY CANADA INC.
Per:
par: ______________________________
Authorized Signing Officer
Representant Autorise A Signer
Per:
par: ______________________________
Authorized Signing Officer
Representant Autorise a Signer
1. Insert proposed date of issuance of the
[Canadian] Letter of Credit.
2. Insert stated amount of the Letter of Credit
in numbers.
3. Insert expiration date for the Letter of
Credit.
4. Insert name and address of the beneficiary of
the Letter of Credit.
5. Insert purpose of the Standby Letter of
Credit.
XIII-C-1 (Exhibit XIII-C)
