EXHIBIT 4.1
XXXXX-ILLINOIS GROUP, INC.
XXXXX-XXXXXXXX GLASS CONTAINER INC.
OI GENERAL FTS INC.
OI PLASTIC PRODUCTS FTS INC.
UNITED GLASS LIMITED
UNITED GLASS GROUP LIMITED
XXXXX-ILLINOIS (AUSTRALIA) PTY LIMITED
ACI OPERATIONS PTY LIMITED
OI ITALIA S.R.L.
AZIENDE VETRARIE INDUSTRIALI XXXXXXXXX S.P.A.
SECOND AMENDMENT
TO SECURED CREDIT AGREEMENT
DATED AS OF APRIL 19, 2002
This SECOND AMENDMENT TO SECURED CREDIT AGREEMENT (this "AMENDMENT")
is dated as of April 19, 2002 and entered into by and among XXXXX-ILLINOIS
GROUP, INC., a Delaware corporation ("COMPANY"), XXXXX-XXXXXXXX GLASS CONTAINER
INC., a Delaware corporation ("XXXXX XXXXXXXX"), OI GENERAL FTS INC., a Delaware
corporation ("O-I GENERAL FTS"), OI PLASTIC PRODUCTS FTS INC., a Delaware
corporation ("O-I Plastic), UNITED GLASS LIMITED, a corporation organized under
the laws of England and Wales, UNITED GLASS GROUP LIMITED, a corporation
organized under the laws of England and Wales, XXXXX-ILLINOIS (AUSTRALIA) PTY
LIMITED, a limited liability company organized under the laws of Australia, ACI
OPERATIONS PTY LIMITED, a limited liability company organized under the laws of
Australia, OI ITALIA S.R.L., a limited liability company organized under the
laws of Italy, AZIENDE VETRARIE INDUSTRIALI XXXXXXXXX S.P.A., a joint stock
company organized under the laws of Italy, XXXXX-ILLINOIS GENERAL, INC., a
Delaware corporation, as Borrowers' Agent (in such capacity "BORROWERS' AGENT"),
THE LENDERS LISTED ON THE SIGNATURE PAGES HEREOF (each individually a "LENDER"
and collectively, "LENDERS") and DEUTSCHE BANK TRUST COMPANY AMERICAS (F/K/A
BANKERS TRUST COMPANY), as Administrative Agent (in such capacity,
"ADMINISTRATIVE AGENT") and Collateral Agent (in such capacity, "COLLATERAL
AGENT") for the Lenders and is made with reference to that certain Secured
Credit Agreement dated as of April 23, 2001, as amended by that certain First
Amendment to Credit Agreement and Consent dated as of December 31, 2001 (as so
amended, the "CREDIT AGREEMENT"), by and among the foregoing parties.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Holdings and its Subsidiaries desire to increase their
unfunded non-cash reserve for claims of persons against Holdings for exposure to
asbestos-containing products and expenses related thereto;
WHEREAS, Borrowers have requested that the definition of "Consolidated
Net Income" be amended to exclude the effects of the increase of such reserve in
calculating certain financial covenants in the Credit Agreement;
WHEREAS, Borrowers have requested that the requirements for the
maximum Consolidated Leverage Ratio be modified for certain dates;
WHEREAS, Borrowers have requested that Holdings be permitted to make
certain repurchases of the Existing Senior Notes maturing in 2004 and 2005
irrespective of the order of the maturities of such notes;
WHEREAS, Borrowers have agreed to divide a portion of outstanding
Revolving Loans into a separated funded tranche of Loans; and
WHEREAS, Borrowers and Lenders desire to amend the assignment
provisions to permit separate assignment of such separated funded loans.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO DEFINITIONS
A. COMPLETE DEFINITIONS. Subsection 1.1 of the Credit Agreement is
hereby amended by adding or revising the following definitions, each to be
included in the appropriate alphabetical order:
"'CONSOLIDATED NET INCOME' means, for any period, the net income (or
loss) of Holdings and its Subsidiaries on a consolidated basis for such period
taken as a single accounting period determined in conformity with GAAP adjusted
to exclude the effects of the 2002 Additional Asbestos Reserve during such
period.
"'GENERAL REVOLVING LOANS' means Revolving Loans that are not
Separated Funded Loans.
"'GENERAL REVOLVING NOTE" means a promissory note of a Domestic
Borrower substantially in the form of Exhibit XIX annexed hereto, issued in
favor of Lenders pursuant to subsection 2.1G(iv) to evidence the General
Revolving Loans made to such Domestic Borrower, as it may be amended,
supplemented or otherwise modified from time to time. "GENERAL REVOLVING NOTES"
means all such promissory notes collectively, as they may be amended,
supplemented or otherwise modified from time to time.
"'REVOLVING LOANS" means, as the context requires, either Separated
Funded Loans or General Revolving Loans, or a combination thereof.
"'REVOLVING NOTES" means, as the context requires, either "Revolving
Notes" issued prior to the Second Amendment Effective Date, Separated Funded
Notes or General Revolving Notes, or a combination thereof.
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"'SECOND AMENDMENT' means that certain Second Amendment dated as of
April 19, 2002 to the Credit Agreement.
"'SECOND AMENDMENT EFFECTIVE DATE' means the date pursuant to which
the Second Amendment becomes effective in accordance with its terms.
"'SECOND AMENDMENT EFFECTIVE DATE AGGREGATE REVOLVING LOAN BALANCE'
means the principal amount of all Revolving Loans outstanding on the Second
Amendment Effective Date.
"'SEPARATED FUNDED LOANS' means those Revolving Loans in an aggregate
principal amount of $500,000,000 separated into a tranche of funded loans on the
Second Amendment Effective Date pursuant to subsection 2.1A(iii).
"'SEPARATED FUNDED NOTES" means a promissory note of O-I Plastic
substantially in the form of Exhibit XX annexed hereto, issued in favor of
Lenders pursuant to subsection 2.1G(iv) to evidence the Separated Funded Loan
made to O-I Plastic, as it may be amended, supplemented or otherwise modified
from time to time. "SEPARATED FUNDED NOTES" means all such promissory notes
collectively, as they may be amended, supplemented or otherwise modified from
time to time."
"'2002 ADDITIONAL ASBESTOS RESERVE' means an unfunded increase made as
of March 31, 2002 in the reserve for claims of persons against Holdings for
exposure to asbestos-containing products and expenses related thereto in an
amount not to exceed $500,000,000."
B. MODIFIED DEFINITIONS. Subsection 1.1 of the Credit Agreement is
hereby amended by modifying portions of the following existing definitions:
1. "Consolidated Net Worth" is modified to add the following
further proviso at the end thereof:
"; PROVIDED FURTHER that no adjustment shall be made in
Consolidated Net Worth for the effects of the 2002 Additional
Asbestos Reserve."
2. "Domestic Borrower's Total Utilization of Revolving Loan
Commitments" is modified to substitute "General Revolving Loans" for
"Revolving Loans" in the third line thereof.
3. "Lender" and "Lenders" are modified to revise the further
proviso to read as follows:
"; PROVIDED FURTHER that the term "Lenders" when used in the
context of a particular Commitment or Loan, shall mean Lenders
having that Commitment or making that Loan."
4. "Proportionate Percentage" is modified to add the following
sentence at the end thereof: "The Proportionate Percentage of O-I
Plastic of the Separated Funded Loans is 100%."
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5. "Revolving Loan Exposure" is modified to revise clause (i)
and subclause (ii)(a) to read as follows:
"'(i) prior to the termination of the Revolving Loan Commitments,
the sum of that Lender's Revolving Loan Commitment PLUS the Separated
Funded Loans of that Lender and (ii) after the termination of the
Revolving Loan Commitments, the sum (without duplication) of (a) the
sum of the aggregate outstanding principal amount of the Revolving
Loans and Separated Funded Loans of that Lender PLUS'"
The remainder of such definition is not changed.
6. "Total Utilization of Revolving Loan Commitment" is modified
to substitute "General Revolving Loans" for "Revolving Loans" in
clause (i) thereof.
SECTION 2. AMENDMENTS TO LOANS AND COMMITMENTS; NOTES.
A. SEPARATION OF SEPARATED FUNDED LOANS. Subsection 2.1A of the
Credit Agreement is amended by adding a new subsection 2.1A(iii) to read in its
entirety as follows:
"(iii) SEPARATED FUNDED LOANS AND GENERAL REVOLVING LOANS.
On the Second Amendment Effective Date, Revolving Loans
outstanding on such date shall be separated into a tranche of
Separated Funded Loans in an aggregate principal amount of
$500,000,000 and General Revolving Loans in an aggregate principal
amount equal to the difference between the Second Amendment Effective
Date Aggregate Revolving Loan Balance and $500,000,000, and the amount
of the Revolving Loan Commitments in effect immediately prior to the
Second Amendment Effective Date shall be permanently reduced by
$500,000,000. Such separation of Loans and reduction of Revolving Loan
Commitments shall be effected ratably among all Lenders having a
Revolving Loan Commitment in accordance with their respective Pro Rata
Shares. Once repaid, Separated Funded Loans may not be reborrowed.
All payments, computations and other matters relating to the
Separated Funded Loans shall be made proportionately among all Lenders
having Separated Funded Loans in the percentage obtained by DIVIDING
(x) the Separated Funded Loans of that Lender BY (y) the aggregate
Separated Funded Loans of all Lenders.
The Separated Funded Loans shall be the primary Obligations of
O-I Plastic and the joint and several Obligations of each Domestic
Borrower. The General Revolving Loans shall be the primary Obligations
of the Borrower incurring the Revolving Loans (after giving effect to
the separation of $500,000,000 of such Revolving Loans of O-I Plastic
into the Separated Funded Loans) and the joint and several Obligations
of the Domestic Borrowers.
After giving effect to the separation of Revolving Loans and
reduction of the Revolving Loan Commitments made pursuant to this
subsection 2.1A(iii) on
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the Second Amendment Effective Date, the Separated Funded Loans shall
be assigned separately from any General Revolving Loan or Revolving
Loan Commitment held by the assignor, such assignment of Separated
Funded Loans shall not release the assignor from any portion of its
obligations with respect to its Revolving Loan Commitment and the
assignee shall not acquire any obligations with respect to the
Revolving Loan Commitments, including any obligation relating to the
making of additional General Revolving Loans, the participation in any
Letters of Credit or drawings under the Overdraft Agreements, but such
assignee shall be liable for its Pro Rata Share of obligations
relating to indemnification of Agents and expense reimbursement of
Agents pursuant to subsection 8.4."
B. ISSUANCE OF SEPARATED FUNDED NOTES AND GENERAL REVOLVING NOTES.
Subsection 2.1G(iv) is hereby amended by adding the following sentence
immediately after the first sentence hereof:
"In addition, on and after the Second Amendment Effective Date, if so
requested by any Lender by written notice to Domestic Borrowers (with
a copy to Administrative Agent), each Lender having a Revolving Loan
Commitment may request that O-I Plastic issue a Separated Funded Note
to such Lender (or its permitted assignee) substantially in the form
of Exhibit XX hereto to evidence such Lender's (or permitted
assignee's) Separated Funded Loan and a General Revolving Note to such
Lender substantially in the form of Exhibit XIX hereto to evidence
such Lender's General Revolving Loans (and giving effect to the
separation of the Separated Funded Note so issued) and such Lender
shall concurrently return its Revolving Note to Borrowers' Agent."
The remainder of such subsection is unchanged.
C. FEE ON SEPARATED FUNDED LOANS. Subsection 2.3 of the Credit
Agreement is amended to add a new subsection 2.3D to read in its entirety as
follows:
"D. FEE ON SEPARATED FUNDED LOAN. O-I Plastic shall pay to
Administrative Agent (for distribution to each Lender holding a Separated Funded
Loan in accordance with such Lender's Pro Rata Share) a fee with respect to the
Separated Funded Loans, for the period from the Second Amendment Effective Date
until payment in full thereof, equal to the daily average principal amount of
the Separated Funded Loans MULTIPLIED by 0.50% per annum, such fees to be
computed on the basis of a 360-day year and to be payable in arrears on each Fee
Payment Date for the three-month period ending on the day prior to such Fee
Payment Date, commencing on the first such date to occur after the Second
Amendment Effective Date, and on payment in full of the Separated Funded Loans."
D. AMENDMENTS OF PREPAYMENT PROVISIONS.
1. AMENDMENT OF INTRODUCTORY CLAUSE OF MANDATORY PREPAYMENT
PROVISIONS. The introductory clause of subsection 2.4A(ii) is hereby
amended to read as follows:
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"The Loans shall be prepaid and/or, subject to subsection 2.4A(iii),
the Revolving Loan Commitments shall be permanently reduced in the
amount and under the circumstances set forth below:"
2. Amendment of Prepayment Provisions due to Reduction of
Revolving Loan Commitments. Subsection 2.4A(ii)(g) is hereby amended
to read in its entirety as follows:
"(g) Each Domestic Borrower shall make prepayments of its
General Revolving Loans and Separated Funded Loans to the extent
necessary so that the aggregate outstanding principal amount of the
sum of General Revolving Loans and Separated Funded Loans to such
Domestic Borrower at any time does not exceed the sum of the Revolving
Loan Commitments then in effect to such Domestic Borrower PLUS its
Separated Funded Loans giving effect to the application of the second
sentence of subsection 2.4A(iii). Domestic Borrowers shall also make
such prepayments of Revolving Loans (and cause the relevant Offshore
Borrowers in the case of Offshore Loans, to make) prepayments of the
Revolving Loans, and Offshore Loans to the extent necessary so that
(a) the Total Utilization of Revolving Loan Commitments at any time
does not exceed the Revolving Loan Commitments then in effect and (B)
no Domestic Borrower's Total Utilization of the Revolving Loan
Commitments exceed the Revolving Loan Commitments to such Domestic
Borrower then in effect.'
3. AMENDMENT OF APPLICATION OF PREPAYMENTS. The first two
sentences of subsection 2.4A(iii) of the Credit Agreement shall be
amended to read in their entirety as follows:
"(iii) APPLICATION OF PREPAYMENTS. Any voluntary prepayments
pursuant to subsection 2.4A(i) shall be applied as specified by
the applicable Borrower in the applicable notice of prepayment;
provided that in the event the applicable Borrower fails to
specify the Loans to which any such prepayment by it shall be
applied, such prepayment shall be FIRST to repay outstanding
Revolving Loans to the full extent thereof, SECOND to repay
outstanding Term Loans to the full extent thereof, and THIRD to
the L/C Collateral Account until the L/C Collateral Account holds
an amount equal to the Aggregate Available Amount (as defined in
the Security Agreement); PROVIDED that if no order is specified,
voluntary prepayments applicable to the Revolving Loans hereunder
shall be applied pro rata among all Revolving Loans and, in the
case of Offshore Borrowers, to prepay Offshore Loans; PROVIDED
FURTHER that, notwithstanding anything in the foregoing to the
contrary, such voluntary prepayments of Revolving Loans shall be
applied first to General Revolving Loans to the full extent
thereof and then to Separated Funded Loans. Any mandatory
prepayment pursuant to subsections 2.4A(ii)(a)-(f) shall be
applied as set forth in such subsections; PROVIDED that all
mandatory prepayments of the Revolving Loans shall be made
ratably between Separated Funded Loans and General Revolving
Loans in proportion to the respective principal
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amounts outstanding on the date of each such prepayment and the
amount of any mandatory reduction of the Revolving Loan
Commitments otherwise required by such subsections shall be
reduced by the amount of the prepayments made on the Separated
Funded Loans; PROVIDED FURTHER, if at the time of such mandatory
prepayment, the Term Loans have been repaid in full and the
amount of such prepayment exceeds the sum of the Revolving Loan
Commitments then in effect PLUS the Separated Funded Loans
outstanding the amount by which such prepayment exceeds such
amount shall be applied to the L/C Collateral Account until the
L/C Collateral Account holds an amount equal to the Aggregate
Available Amount (as defined in the Security Agreement)."
The remainder of such subsection is unchanged.
E. AMENDMENT OF PREPAYMENT RESTRICTIONS ON RESTRICTED DEBT
OBLIGATIONS. Subsections 2.4A(ii)(e)(2)(A) and 2.4A(ii)(e)(2)(C) are hereby
amended to delete the words "in forward order of maturity" appearing in
subclauses (i) and (ii) of subclause (A) and in subclause (C).
SECTION 3. AMENDMENTS TO SECTION 6
A. AMENDMENT TO CONSOLIDATED LEVERAGE RATIO COVENANT. Subsection 6.6B
of the Credit Agreement is hereby amended to revise the maximum Consolidated
Leverage Ratio permitted at the dates shown below to the correlative ratio
indicated:
"Fiscal Quarter Ending Maximum Consolidated Leverage Ratio
-----------------------------------------------------------------------------
June 30, 2002 4.5
-----------------------------------------------------------------------------
September 30, 2002 4.5
-----------------------------------------------------------------------------
December 31, 2002 4.5
-----------------------------------------------------------------------------
March 31, 2003 4.5"
-----------------------------------------------------------------------------
B. AMENDMENT OF PREPAYMENT RESTRICTIONS ON RESTRICTED DEBT OBLIGATION.
Subsection 6.12 B of the Credit Agreement is hereby amended to delete the phrase
"in forward order of maturity" in the two places in such subsection which it
appears.
SECTION 4. AMENDMENTS TO ASSIGNMENT PROVISIONS
A. AMENDMENT OF ASSIGNMENT PROVISIONS. Subsection 10.2B(i) of the
Credit agreement is hereby amended to read in its entirety as follows:
"B. Assignments.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each Loan, Commitment,
Letter of Credit or participation therein or other Obligation may (a)
be assigned in any amount (of a constant and not a varying percentage)
to another Lender, or to an Affiliate of the assigning Lender or
another Lender, with the giving of notice
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to Borrowers' Agent and Administrative Agent or a Related Fund of such
Lender; PROVIDED THAT, if such Related Fund is not a Lender, such
assignment shall be in an amount not less than $1,000,000 in the case
of a Term Loan or a Separated Funded Loan and $5,000,000 in the case
of a Revolving Loan Commitment, Letter of Credit or participation
therein or other Obligation or (b) be assigned in an amount (of a
constant and not a varying percentage) of not less than $1,000,000 in
the case of a Term Loan or a Separated Funded Loan and $5,000,000 in
the case of a Revolving Loan Commitment, Letter of Credit or
participation therein or other Obligation (or such lesser amount (X)
as shall constitute the aggregate amount of all Loans, Commitments,
Letters of Credit or participations therein and other Obligations of
the assigning Lender or (Y) so long as, after giving effect to such
assignment and any other assignments concurrently being made to the
assignee, such assignee receives not less than $1,000,000 of Term
Loans or Separated Funded Loans, or $5,000,000 of General Revolving
Loans, Commitments, or other Obligations assigned to it) to any other
Eligible Assignee with the giving of notice to Borrowers' Agent and
Administrative Agent and, if no Event of Default shall have occurred
and be continuing, with the consent of Borrowers' Agent and
Administrative Agent, in the case of an assignment made by a Lender
other than Administrative Agent, or with the consent of Borrowers'
Agent, in the case of an assignment made by Administrative Agent
(which consent of Borrowers' Agent and Administrative Agent shall not
be unreasonably withheld, withdrawn, delayed or denied; PROVIDED that
the inability of an Eligible Assignee to satisfy the requirements set
forth in subsection 2.7C(iv) of this Agreement, if applicable, shall
constitute reasonable grounds for withholding such consent); and
PROVIDED FURTHER, HOWEVER, that any assignment in accordance with
clause (b) either after the occurrence and during the continuation of
an Event of Default or if required by applicable law shall not require
the consent of the Borrowers' Agent or the Company; PROVIDED STILL
FURTHER that an assignment of a Separated Funded Loan shall not
constitute an assignment of any portion of the assignor's Revolving
Loan Commitment. To the extent of any such assignment in accordance
with either clause (a) or (b) above, the assigning Lender shall be
relieved of its obligations with respect to its Loans, Commitments,
Letters of Credit or participations therein or other Obligations or
the portion thereof so assigned. The parties to each such assignment
shall execute and deliver to Administrative Agent, for its acceptance
and recording in the Register, an Assignment and Acceptance, together
with, with respect to assignments which occur following the Closing
Date, a processing and recordation fee of $3,500 payable to
Administrative Agent and such certificates, documents or other
evidence, if any, with respect to United States federal income tax
withholding and foreign tax withholding matters as the assignee under
such Assignment and Acceptance may be required to deliver to
Administrative Agent pursuant to subsection 2.7C(iv). Upon such
execution, delivery and acceptance, from and after the effective date
specified in such Assignment and Acceptance, (y) the assignee
thereunder shall be a party hereto and a "Lender" hereunder to the
extent of the portion of any such Commitment so assigned hereunder
and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to
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such Assignment and Acceptance, shall have the rights and obligations
of a Lender hereunder, including, without limitation, the obligation
in subsection 10.20 to maintain the confidentiality of all non-public
information received by it pursuant to this Agreement and (z) the
assigning Lender thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from
its obligations (except as otherwise provided in subsection 10.11)
under this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such assigning Lender shall
cease to be a party hereto); PROVIDED that, if the assignee of the
assigning Lender is an Affiliate of such Lender, such assignee shall
not be entitled to receive any greater amount pursuant to subsections
2.6E or 2.7 than the assigning Lender would have been entitled to
receive in respect of the amount of the assignment effected by such
assigning Lender to such Affiliate had no such assignment occurred.
The Commitments hereunder shall be modified to reflect the Commitments
of such assignee and any remaining Commitments of such assigning
Lender and, if any such assignment occurs after the issuance of a Note
to the assigning Lender hereunder, if requested pursuant to subsection
2.1G(iv), new Notes shall, upon surrender of the assigning Lender's
Note, be issued upon request to the assignee and to the assigning
Lender, substantially in the form of EXHIBIT IV, EXHIBIT V, EXHIBIT
VI, EXHIBIT XIX or EXHIBIT XX annexed hereto, as the case may be, with
appropriate insertions, to reflect the new Commitments and/or
outstanding Loans, as the case may be, of the assignee and the
assigning Lender. In the event that a Lender assigns the full amount
of its Term Loans and Revolving Loans, its Revolving Loan Commitments
and its other Obligations and such Lender has an Offshore Loan
Commitment, any outstanding Offshore Loans at the time of such
assignment, such Lender must also assign the full amount of such
Offshore Loans to an Eligible Assignee and the full amount of such
Offshore Loan Commitment in accordance with the terms of this
paragraph."
SECTION 5. REVISED AND NEW EXHIBITS
The Credit Agreement is hereby amended to substitute a revised
"Assignment and Agreement" and new "Form of General Revolving Note" and "Form of
Separated Funded Note" as EXHIBIT X, EXHIBIT XIX and EXHIBIT XX, respectively,
in substantially the form of Annex A, Annex B and Annex C to the Second
Amendment, respectively.
SECTION 6. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective only upon the satisfaction of
all of the following conditions precedent (the date of satisfaction of such
conditions being referred to herein as the "SECOND AMENDMENT EFFECTIVE DATE");
PROVIDED, THAT, upon the Second Amendment Effective Date, the definitions of
"Consolidated Net Income" and "2002 Additional Asbestos Reserve" set forth in
SECTION 1A hereof and the modification to the definition of "Consolidated Net
Worth" set forth in SECTION 1B hereof shall be given effect as of March 31,
2002:
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A. On or before the Second Amendment Effective Date, Company and each
of the Borrowers shall deliver to Administrative Agent such number of originally
executed copies of the following as Administrative Agent may request, each,
unless otherwise noted, dated the Second Amendment Effective Date:
(i) Resolutions of its Board of Directors approving and
authorizing the execution, delivery, and performance of this Amendment,
certified as of the Second Amendment Effective Date by its corporate
secretary or an assistant secretary as being in full force and effect
without modification or amendment;
(ii) Signature and incumbency certificates of its officers
executing this Amendment; and
(iii) Executed copies of this Amendment.
B. On or before the Second Amendment Effective Date, all corporate and
other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Administrative
Agent may reasonably request.
C. Administrative Agent and Collateral Agent shall have received a
written acknowledgement from each of the Subsidiary Guarantors providing that it
has reviewed the terms and provisions of the Credit Agreement and this Amendment
and consents to the amendment of the Credit Agreement effected pursuant to this
Amendment, that the Subsidiary Guaranty and each Collateral Document executed by
such Subsidiary Guarantor shall continue in full force and effect and that all
of its obligations thereunder shall be valid and enforceable and shall not be
impaired or limited by the execution or effectiveness of this Amendment and such
other matters as Administrative Agent may reasonably request, all in a form
satisfactory to Administrative Agent.
SECTION 7. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, Company and each of the
Borrowers represents and warrants to each Lender that the following statements
are true, correct and complete:
7.1 CORPORATE POWER AND AUTHORITY. Company and each Borrower has all
requisite corporate power and authority to enter into this Amendment and to
carry out the transactions contemplated by, and perform its obligations under,
the Credit Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
7.2 AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of Company and each Borrower.
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7.3 NO CONFLICT. The execution and delivery by Company and each
Borrower of this Amendment and the performance by each Loan Party of the Amended
Agreement 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 breach of or constitute (with due notice or lapse of
time or both) a 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 Liens in favor of the Collateral Agent), or (iv) require any
approval of stockholders or any approval or consent of any Person under any
Contractual Obligation of Company or any of its Subsidiaries, other than those
approvals and consents which have been obtained.
7.4 GOVERNMENTAL CONSENTS. The execution and delivery by Company and
each Borrower of this Amendment and the performance by Company and each Borrower
of the Amended Agreement do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body, except for
filings, consents or notices that have been or will be made or obtained during
the period in which they are required to be obtained or made.
7.5 BINDING OBLIGATION. This Amendment and the Amended Agreement have
been duly executed and delivered by Company and each Borrower and are the
legally valid and binding obligations of Company and each Borrower, enforceable
against Company and each Borrower in accordance with their 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.
7.6 INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 4 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Second Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
7.7 ABSENCE OF DEFAULT. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
SECTION 8. MISCELLANEOUS
8.1 REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the Second Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other
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Loan Documents to the "Credit Agreement", "thereunder", "thereof" or words
of like import referring to the Credit Agreement shall mean and be a
reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Administrative Agent, Collateral Agent or any other Agent or any Lender
under, the Credit Agreement or any of the other Loan Documents.
8.2 FEES AND EXPENSES. Company acknowledges that all costs, fees and
expenses as described in subsection 10.3 of the Credit Agreement incurred by
Administrative Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of the
Domestic Borrowers.
8.3 HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
8.4 APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
8.5 COUNTERPARTS; EFFECTIVENESS. This Amendment 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 Amendment shall become effective upon the execution of a
counterpart hereof by Company, each Borrower and Requisite Lenders and receipt
by Company and Administrative Agent of written or telephonic notification of
such execution and authorization of delivery thereof and satisfaction of the
conditions set forth in Section 6. Delivery of an executed counterpart of a
signature page of this Amendment by telecopy shall be effective as delivery of a
manually executed counterpart of this Amendment.
[Remainder of page intentionally left blank]
12
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: XXXXX-ILLINOIS GROUP, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
BORROWERS: XXXXX-XXXXXXXX GLASS CONTAINER INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
OI GENERAL FTS INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
OI PLASTIC PRODUCTS FTS INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
S-1
UNITED GLASS LIMITED
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
UNITED GLASS GROUP LIMITED
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
XXXXX-ILLINOIS (AUSTRALIA) PTY LIMITED
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ACI OPERATIONS PTY LIMITED
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
OI ITALIA S.R.L.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
AZIENDE VETRARIE INDUSTRIALI XXXXXXXXX S.P.A.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
S-2
DEUTSCHE BANK TRUST COMPANY AMERICAS
(F/K/A BANKERS TRUST COMPANY)
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT
AND COLLATERAL AGENT
BY:
-----------------------------------------
NAME:
TITLE:
S-3
