EXHIBIT 10.3
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LIBBEY INC.
$25,000,000 3.69% Senior Notes, Series 2003A-1, due March 31, 2008
$55,000,000 5.08% Senior Notes, Series 2003A-2, due March 31, 2013
and
$20,000,000 Floating Rate Senior Notes, Series 2003B, due March 31, 2010
of Libbey Glass Inc.
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GUARANTY AGREEMENT
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Dated as of March 31, 2003
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TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. GUARANTY OF NOTES..................................................................... 2
Section 1.1. Guaranty.............................................................................. 2
Section 1.2. Guaranty of Payment and Performance................................................... 2
Section 1.3. Guarantor Consent..................................................................... 2
Section 1.4. Obligation Absolute and Unconditional................................................. 3
Section 1.5. Acceleration.......................................................................... 6
Section 1.6. Preference............................................................................ 6
Section 1.7. Marshalling........................................................................... 6
Section 1.8. Subrogation........................................................................... 7
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR....................................... 7
Section 2.1. Organization; Power and Authority..................................................... 7
Section 2.2. Authorization, Etc.................................................................... 7
Section 2.3. Disclosure............................................................................ 7
Section 2.4. Organization and Ownership of Shares of Subsidiaries.................................. 8
Section 2.5. Compliance with Laws, Other Instruments, Etc.......................................... 8
Section 2.6. Governmental Authorizations, Etc...................................................... 9
Section 2.7. Litigation; Observance of Agreements, Statutes and Orders............................. 9
Section 2.8. Taxes................................................................................. 9
Section 2.9. Title to Property; Leases............................................................. 9
Section 2.10. Licenses, Permits, Etc................................................................ 10
Section 2.11. Financial Statements.................................................................. 10
Section 2.12. Private Offering...................................................................... 10
Section 2.13. Use of Proceeds; Margin Regulations................................................... 10
Section 2.14. Existing Debt, Future Liens........................................................... 11
Section 2.15. Compliance with ERISA................................................................. 11
Section 2.16. Foreign Assets Control Regulations, Etc............................................... 12
Section 2.17. Status under Certain Statutes......................................................... 12
Section 2.18. Environmental Matters................................................................. 12
SECTION 3. INFORMATION AS TO GUARANTOR........................................................... 13
Section 3.1. Financial and Business Information.................................................... 13
Section 3.2. Officer's Certificate................................................................. 15
Section 3.3. Inspection............................................................................ 16
SECTION 4. AFFIRMATIVE COVENANTS................................................................. 16
Section 4.1. Compliance with Law................................................................... 16
Section 4.2. Insurance............................................................................. 17
Section 4.3. Maintenance of Properties............................................................. 17
Section 4.4. Payment of Taxes and Claims........................................................... 17
Section 4.5. Corporate Existence, Etc.............................................................. 17
Section 4.6. Designation of Subsidiaries........................................................... 17
Section 4.7. Ownership of Company.................................................................. 18
Section 4.8. Guaranty by Subsidiaries.............................................................. 18
SECTION 5. NEGATIVE COVENANTS.................................................................... 19
Section 5.1. Limitation Ratio...................................................................... 19
Section 5.2. Consolidated Interest Coverage Ratio.................................................. 19
Section 5.3. Limitation on Liens................................................................... 19
Section 5.4. Sales of Assets....................................................................... 21
Section 5.5. Merger, Consolidation and Sale of Stock............................................... 22
Section 5.6. Transactions with Affiliates.......................................................... 23
Section 5.7. Nature of Business.................................................................... 23
SECTION 6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.......................... 23
SECTION 7. AMENDMENT AND WAIVER.................................................................. 24
Section 7.1. Requirements.......................................................................... 24
Section 7.2. Solicitation of Holders of Notes...................................................... 24
Section 7.3. Binding Effect, Etc................................................................... 24
Section 7.4. Notes Held by Guarantor, Etc.......................................................... 25
SECTION 8. NOTICES............................................................................... 25
SECTION 9. REPRODUCTION OF DOCUMENTS............................................................. 25
SECTION 10. CONFIDENTIAL INFORMATION.............................................................. 26
SECTION 11. SUBMISSION TO JURISDICTION............................................................ 27
SECTION 12. MISCELLANEOUS......................................................................... 27
Section 12.1. Successors and Assigns................................................................ 27
Section 12.2. Severability.......................................................................... 27
Section 12.3. Construction.......................................................................... 27
Section 12.4 Counterparts.......................................................................... 28
Section 12.5. Governing Law......................................................................... 28
Signature........................................................................................................ 29
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SCHEDULE I -- Names of Purchasers
EXHIBIT A -- Defined Terms
SCHEDULE 2.3 -- Disclosure Materials
SCHEDULE 2.4 -- Organization and Ownership of Shares of Subsidiaries;
Affiliates
SCHEDULE 2.10 -- Licenses; Permits
SCHEDULE 2.11 -- Financial Statements
SCHEDULE 2.14 -- Existing Debt; Future Liens
SCHEDULE 2.18 -- Environmental Disclosure
SCHEDULE 5.3 -- Liens Existing as of Closing
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LIBBEY INC.
300 MADISON AVENUE
TOLEDO, OHIO 43699-0060
$25,000,000 3.69% Senior Notes, Series 2003A-1, due March 31, 2008
$55,000,000 5.08% Senior Notes, Series 2003A-2, due March 31, 2013
and
$20,000,000 Floating Rate Senior Notes, Series 2003B, due March 31, 2010
of Libbey Glass Inc.
Dated as of
March 31, 2003
TO THE PURCHASERS NAMED
ON SCHEDULE I HERETO
Ladies and Gentlemen:
Reference is hereby made to the Note Purchase Agreement dated as of
March 31, 2003 (the "Note Purchase Agreement"), between Libbey Glass Inc., a
Delaware corporation (the "Company") and the purchasers named therein (the
"Purchasers") pursuant to which the Company shall issue $25,000,000 3.69% Senior
Notes, Series 2003A-1, due March 31, 2008 (the "Series 2003A-1 Notes"),
$55,000,000 5.08% Senior Notes, Series 2003A-2, due March 31, 2013 (the "Series
2003A-2 Notes"), and $20,000,000 Floating Rate Senior Notes, Series 2003B, due
March 31, 2010 (the "Series 2003B Notes" and collectively with the Series
2003A-1 Notes and the Series 2003A-2 Notes the "Notes"). Certain capitalized
terms used in this Agreement are defined in Exhibit A; references to a
"Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule or an
Exhibit attached to this Agreement.
The undersigned, Libbey Inc., a Delaware corporation (the "Guarantor"),
owns 100% of the shares of capital stock of the Company. The Guarantor views the
issuance and sale by the Company of the Notes to the Purchasers as in the best
interests of the Company and the Guarantor. As an inducement to and in
consideration of the purchase by the Purchasers of the Notes, the Guarantor has
agreed to unconditionally guaranty the prompt payment of all amounts of
principal, interest, Make-Whole Amount, if any, and Series B Premium Amount, if
any, which may become due and payable from time to time with respect to the
Notes.
In consideration of the foregoing, the undersigned does hereby covenant
and agree with the Purchasers and with each and every subsequent holder of the
Notes as follows:
SECTION 1. GUARANTY OF NOTES.
Section 1.1. Guaranty. The Guarantor hereby absolutely and
unconditionally guarantees to the holders from time to time of the Notes: (a)
the full and prompt payment of the principal of all of the Notes and of the
interest thereon at the rate therein stipulated and the Make-Whole Amount, if
any, and Series B Premium Amount, if any, when and as the same shall become due
and payable, whether by lapse of time, upon redemption or prepayment, by
extension or by acceleration or declaration, or otherwise, (b) the full and
prompt performance and observance by the Company of each and all of the
covenants and agreements required to be performed or observed by the Company
under the terms of the Note Purchase Agreement, and (c) payment, within 10
Business Days of receipt of a reasonably detailed invoice therefor, by any
holder of the Notes of all reasonable costs and out-of-pocket expenses, legal or
otherwise (including reasonable attorneys' fees) and such expenses, if any, as
shall have been expended or incurred in the enforcement of any right or
privilege under this Agreement, including without limitation in any consultation
or action in connection therewith to the extent such consultation or action is
made during the existence of any Event of Default, and in each and every case
irrespective of the validity, regularity, or enforcement of any of the Notes or
the Note Purchase Agreement or any of the terms thereof or of any other like
circumstance or circumstances. The guarantee of the Notes herein provided for is
a guarantee of the immediate and timely payment of the principal, Make-Whole
Amount, if any, and Series B Premium Amount, if any, and interest on the Notes
and any other amounts payable by the Company under the Note Purchase Agreement
as and when the same are due and payable and shall not be deemed to be a
guarantee only of the collectibility of such payments.
Section 1.2. Guaranty of Payment and Performance. This is a guarantee
of payment and performance, and the Guarantor hereby waives any right to require
that any action on or in respect of any Note or the Note Purchase Agreement be
brought against the Company or that resort be had to any direct or indirect
security for the Notes or for this guaranty or any other remedy; accordingly,
the holder of any Note may, at its option, proceed hereunder against the
Guarantor in the first instance to collect monies when due, the payment of which
is guaranteed hereby, without first proceeding against the Company or any other
Person and without first resorting to any direct or indirect security for the
Notes, or for this guaranty or any other remedy. The liability of the Guarantor
hereunder shall in no way be affected or impaired by any acceptance by any
holder of any Note of any direct or indirect security for, or other guaranties
of, any indebtedness, liability or obligation of the Company or any other Person
to any holder of any Note or by any failure, delay, neglect or omission by the
holder of any Note to realize upon or protect any such indebtedness, liability
or obligation or any notes or other instruments evidencing the same or any
direct or indirect security therefor or by any approval, consent, waiver or
other action taken, or omitted to be taken, by any such holder.
Section 1.3. Guarantor Consent. The Guarantor hereby consents and
agrees that the holder of any Note from time to time, with or without any
further notice to or assent from the Guarantor, may, without in any manner
affecting the liability of the Guarantor, and upon such terms and conditions as
such holder may deem advisable: (a) extend in whole or in part (by renewal or
otherwise), modify, change, compromise, release or extend the duration of the
time for the performance or payment of, any indebtedness, liability or
obligation of the Company or
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of any other Person secondarily or otherwise liable for any indebtedness,
liability or obligations of the Company on the Notes, or waive any default with
respect thereto, or waive, modify, amend or change any provision of any
instruments evidencing any such indebtedness, liability or obligation; provided
that if the holder of any Note shall agree with the Company to any amendment or
modification of the Note Purchase Agreement or the Notes held by such holder,
this guaranty shall apply to the Note Purchase Agreement and the Notes as so
amended or modified; (b) sell, release, surrender, modify, impair, exchange or
substitute any and all property, of any nature and from whomsoever received,
held by, or on behalf of, any such holder as direct or indirect security for the
payment or performance of any indebtedness, liability or obligation of the
Company or of any other Person secondarily or otherwise liable for any
indebtedness, liability or obligation of the Company on the Notes; and (c)
settle, adjust or compromise any claim of the Company against any other Person
secondarily or otherwise liable for any indebtedness, liability or obligation of
the Company on the Notes. The Guarantor hereby ratifies and confirms any such
extension, renewal, change, sale, release, waiver, surrender, exchange,
modification, amendment, impairment, substitution, settlement, adjustment or
compromise and agrees that the same shall be binding upon it, and hereby waives
any and all defenses, counterclaims or offsets which it might or could have by
reason thereof, it being understood that the Guarantor shall at all times be
bound by this guaranty and remain liable hereunder until the Notes are paid in
full.
Section 1.4. Obligation Absolute and Unconditional. The obligations
of the Guarantor under this guaranty shall be absolute and unconditional and
shall remain in full force and effect until the entire principal, interest,
Make-Whole Amount, if any, and Series B Premium Amount, if any, on the Notes and
all other sums due pursuant to Section 1.1 shall have been paid (including any
payments required by Section 1.6) and such obligations shall not be affected,
modified or impaired upon the happening from time to time of any event,
including without limitation any of the following, whether or not with notice to
or the consent of the Guarantor:
(a) the power or authority or the lack of power or
authority of the Company to issue the Notes or to execute and deliver
the Note Purchase Agreement, or of any defense whatsoever that the
Company may or might have to the payment of the Notes (principal,
interest, Make-Whole Amount, if any, and Series B Premium Amount, if
any, or any other amounts payable by the Company under the Note
Purchase Agreement) or to the performance or observance of any of the
provisions or conditions of the Note Purchase Agreement, or the
existence or continuance of the Company as a legal entity;
(b) any failure to present the Notes for payment or to
demand payment thereof, or to give the Guarantor or the Company notice
of dishonor for non-payment of the Notes, when and as the same may
become due and payable, or notice of any failure on the part of the
Company to do any act or thing or to perform or to keep any covenant or
agreement by it to be done, kept or performed under the terms of the
Notes or the Note Purchase Agreement;
(c) the acceptance of any security or any guaranty, the
advance of additional money to the Company, any extension of the
obligation of the Notes, either indefinitely or for any period of time,
or any other modification in the obligation of the Notes or of
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the Note Purchase Agreement or the Company thereon, or in connection
therewith, or any sale, release, substitution or exchange of any
security;
(d) any act or failure to act with regard to the Notes or
the Note Purchase Agreement or anything which might vary the risk of
the Guarantor;
(e) any action taken under the Note Purchase Agreement in
the exercise of any right or power thereby conferred or any failure or
omission on the part of any holder of any Note to first enforce any
right or security given under the Note Purchase Agreement or any
failure or omission on the part of any holder of any of the Notes to
first enforce any right against the Company;
(f) the waiver, compromise, settlement, release or
termination of any or all of the obligations, covenants or agreements
of the Company contained in the Note Purchase Agreement, or of the
payment, performance or observance thereof;
(g) the failure to give notice to the Company or the
Guarantor of the occurrence of any Default or Event of Default under
the terms and provisions of the Note Purchase Agreement;
(h) the extension of the time for payment of any
principal of, or interest (or Make-Whole Amount, if any, or Series B
Premium Amount, if any, or any other amounts payable by the Company
under the Note Purchase Agreement), on any Note owing or payable on
such Note or of the time of or for performance of any obligations,
covenants or agreements under or arising out of the Note Purchase
Agreement or the extension or the renewal of any thereof;
(i) the modification or amendment (whether material or
otherwise) of any obligation, covenant or agreement set forth in the
Note Purchase Agreement or the Notes; provided that if a holder of any
Note shall agree with the Company to any amendment or modification of
the Note Purchase Agreement or the Notes held by such holder, this
guaranty shall apply to the Note Purchase Agreement and the Notes as so
amended or modified;
(j) any failure, omission, delay or lack on the part of
the holders of the Notes to enforce, assert or exercise any right,
power or remedy conferred on the holders of the Notes in the Note
Purchase Agreement or the Notes or any other act or acts on the part of
the holders from time to time of the Notes;
(k) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all the
assets, marshalling of assets and liabilities, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization or arrangement under bankruptcy or similar laws,
composition with creditors or readjustment of, or other similar
procedures affecting the Company or any of the assets of the Company,
or any allegation or contest of the validity of this Agreement
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or the Note Purchase Agreement or the disaffirmance of this Agreement
or the Note Purchase Agreement in any such proceeding;
(l) the invalidity or unenforceability of the Notes or
the Note Purchase Agreement;
(m) the absence of any action to enforce such obligations
of the Guarantor, any waiver or consent by the Guarantor with respect
to any of the provisions hereof or any other circumstances which might
otherwise constitute a discharge or defense by the Guarantor,
including, without limitation, any failure or delay in the enforcement
of the obligations of the Guarantor with respect to this guaranty or of
notice thereof; or any suit or other action brought by any shareholder
or creditor of, or by, the Guarantor or any other Person, for any
reason, including, without limitation, any suit or action in any way
attacking or involving any issue, matter or thing in respect of this
guaranty, this Agreement, the Note Purchase Agreement, the Notes or any
other agreement;
(n) the default or failure of the Guarantor fully to
perform any of its covenants or obligations set forth in this
Agreement;
(o) the impossibility or illegality of performance on the
part of the Company or any other Person of its obligations under the
Notes, the Note Purchase Agreement or any other instruments;
(p) in respect of the Company or any other Person, any
change of circumstances, whether or not foreseen or foreseeable,
whether or not imputable to the Company or any other Person, or other
impossibility of performance through fire, explosion, accident, labor
disturbance, floods, droughts, embargoes, wars (whether or not
declared), civil commotions, acts of God or the public enemy, action of
any United States Federal or state regulatory body or agency, change of
law or any other causes affecting performance, or other force majeure,
whether or not beyond the control of the Company or any other Person
and whether or not of the kind hereinbefore specified;
(q) any attachment, claim, demand, charge, Lien, order,
process, encumbrance or any other happening or event or reason, similar
or dissimilar to the foregoing, or any withholding or diminution at the
source, by reason of any taxes, assessments, expenses, indebtedness,
obligations or liabilities of any character, foreseen or unforeseen,
and whether or not valid, incurred by or against any Person, or any
claims, demands, charges or Liens of any nature, foreseen or
unforeseen, incurred by any Person, or against any sums payable under
this Agreement, so that such sums would be rendered inadequate or would
be unavailable to make the payments herein provided; or
(r) the failure of the Guarantor to receive any benefit
or consideration from or as a result of its execution, delivery and
performance of this Agreement;
provided that the specific enumeration of the above-mentioned acts, failures or
omissions shall not be deemed to exclude any other acts, failures or omissions,
though not specifically mentioned
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above, it being the purpose and intent of this paragraph that the obligations of
the Guarantor hereunder shall be absolute and unconditional and shall not be
discharged, impaired or varied except by amendment, modification or waiver of
this Agreement in accordance with Section 7 hereof or by the payment to the
holders thereof of the principal of, interest on, Make-Whole Amount, if any, and
Series B Premium Amount, if any, and other amount due in respect of the Notes,
and then only to the extent of such payments. All rights of the holder of any
Note pursuant thereto or to the Note Purchase Agreement may be transferred or
assigned at any time or from time to time and shall be considered to be
transferred or assigned upon the transfer of such Note whether with or without
the consent of or notice to the Guarantor. Without limiting the foregoing, it is
understood that repeated and successive demands may be made and recoveries may
be had hereunder as and when, from time to time, the Company shall default under
the terms of the Notes or the Note Purchase Agreement and that notwithstanding
recovery hereunder for or in respect of any given default or defaults by the
Company under the Notes or the Note Purchase Agreement, this guaranty shall
remain in full force and effect and shall apply to each and every subsequent
default.
Section 1.5. Acceleration. Without limiting the other rights of the
holders of the Notes and obligations of the Guarantor under this Agreement, if
an Event of Default occurs and is continuing under the Note Purchase Agreement
which would permit the acceleration of the Notes but for any limitation on such
acceleration imposed on account of any bankruptcy, insolvency or other legal
proceedings relating to the Company, then upon receipt of written notice from
the holders of the applicable percentage of the Notes entitled to accelerate the
Notes pursuant to Section 12.1 of the Note Purchase Agreement on account of such
Event of Default, the full amount of the guaranteed indebtedness together with
accrued interest, any Make-Whole Amount, any Series B Premium Amount and LIBOR
Breakage Amount and any other amounts payable by the Company under the Note
Purchase Agreement which would then be payable pursuant to Section 12.1 of the
Note Purchase Agreement shall be and become immediately due and payable from the
Guarantor whether or not the Notes have been declared to be or have become
immediately due and payable from the Company.
Section 1.6. Preference. The Guarantor agrees that to the extent the
Company makes any payment on the Notes, which payment or any part thereof is
subsequently invalidated, voided, declared to be fraudulent or preferential, set
aside, or is required to be repaid to a trustee, receiver or any other Person
under any bankruptcy code, common law, equitable cause, or otherwise, then and
to the extent of such payment, the obligation or the part thereof intended to be
satisfied shall be revived and continued in full force and effect with respect
to the Guarantor's obligations hereunder, as if said payment had not been made.
The liability of the Guarantor hereunder shall not be reduced or discharged, in
whole or in part, by any payment to any holder of the Notes from any source that
is thereafter paid, returned or refunded in whole or in part by reason of the
assertion of a claim of any kind relating thereto, including, but not limited
to, any claim for breach of contract, breach of warranty, preference,
illegality, invalidity or fraud asserted by any account debtor or by any other
Person.
Section 1.7. Marshalling. None of the holders of the Notes shall be
under any obligation (a) to marshall any assets in favor of the Guarantor or in
payment of any or all of the liabilities of the Company under or in respect of
the Notes or the obligation of the Guarantor
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hereunder or (b) to pursue any other remedy that the Guarantor may or may not be
able to pursue itself and that may lighten the Guarantor's burden, any right to
which the Guarantor hereby expressly waives.
Section 1.8. Subrogation. To the extent that payments made by the
Guarantor under this Agreement shall give rise to rights of subrogation, the
Guarantor covenants and agrees that such right of subrogation shall be
subordinate in right of payment to the payment in full of the Notes together
with all accrued and unpaid interest thereon any Make-Whole Amount, if any, and
Series B Premium Amount, if any, to that end, the Guarantor agrees not to claim
or enforce any such right of subrogation or any right of set-off or any other
right which may arise on account of any payment made by the Guarantor in
accordance with the provisions of this Agreement unless and until all of the
Notes and all other sums due and payable under the Note Purchase Agreement have
been fully paid and discharged.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR.
The Guarantor represents and warrants to each holder of a Note that:
Section 2.1. Organization; Power and Authority. The Guarantor is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The
Guarantor has the corporate power and authority to own or hold under lease the
properties it purports to own or hold under lease, to transact the business it
transacts, to execute and deliver this Agreement and to perform the provisions
hereof.
Section 2.2. Authorization, Etc. This Agreement has been duly
authorized by all necessary corporate action on the part of the Guarantor, and
constitutes the legal, valid and binding obligation of the Guarantor enforceable
against the Guarantor in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
Section 2.3. Disclosure. The Guarantor, through its agent, Banc of
America Securities LLC has delivered to each Purchaser a copy of a Private
Placement Memorandum, dated February, 2003 (the "Memorandum"), relating to the
transactions contemplated hereby. This Agreement, the Memorandum, the documents,
certificates or other writings identified in Schedule 2.3 and the financial
statements listed in Schedule 2.11 (collectively, the "Disclosure Materials"),
taken as a whole, do not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading in light of the circumstances under which they were made. Since
December 31, 2002, there has been no change in the financial condition,
operations, business or assets of the Guarantor or any Restricted Subsidiary
except changes that individually or in the aggregate could not reasonably
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be expected to have a Material Adverse Effect. Except as expressly set forth in
the Disclosure Materials, there is no fact known to the Senior Financial
Officers of the Guarantor that could reasonably be expected to have a Material
Adverse Effect that has not otherwise been disclosed.
Section 2.4. Organization and Ownership of Shares of Subsidiaries.
(a) Schedule 2.4 is (except as noted therein) a complete and correct list of (a)
the Guarantors' Subsidiaries, showing, as to each directly owned Subsidiary, the
correct name thereof, the jurisdiction of its organization, and the percentage
of shares of each class of its capital stock or similar equity interests
outstanding owned by the Guarantor and each other Subsidiary, (b) the
Guarantor's Affiliates, other than Subsidiaries and (c) the names of the
Guarantor's directors and officers.
(b) All of the outstanding shares of capital stock or similar
equity interests of each Subsidiary shown in Schedule 2.4 as being owned by the
Guarantor and its Subsidiaries have been validly issued, are fully paid and
nonassessable, except in cases in which the failure to be validly issued, fully
paid and nonassessable would not be expected to have a Material Adverse Effect,
and are owned by the Guarantor or another Subsidiary free and clear of any Lien
(except as otherwise disclosed in Schedule 2.14).
(c) Except as would not reasonably be expected to have a Material
Adverse Effect, each Subsidiary identified in Schedule 2.4 is a corporation or
other legal entity duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization, and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each jurisdiction
in which such qualification is required by law. Except as would not reasonably
be expected to have a Material Adverse Effect, each such Subsidiary has the
corporate or other power and authority to own or hold under lease the properties
it purports to own or hold under lease and to transact the business it
transacts.
(d) Except for limitations set forth in the Bank Credit Agreement
and for limitations imposed on Foreign Subsidiaries by bank credit agreements
pursuant to which borrowings of up to 10 million euros may from time to time be
outstanding, or as limited by applicable law, no Subsidiary is a party to any
agreement or legal restriction which limits its ability to pay profit
distributions to the Guarantor or any of its Subsidiaries that owns outstanding
equity interests of such Subsidiary.
Section 2.5. Compliance with Laws, Other Instruments, Etc. The
execution, delivery and performance by the Guarantor of this Agreement will not
contravene, result in any breach of, or constitute a default under, the
corporate charter or by-laws of the Guarantor. The execution, delivery and
performance by the Guarantor of this Agreement will not (i) contravene, result
in any breach of, or constitute a default under, or result in the creation of
any Lien in respect of any property of the Guarantor or any Subsidiary under,
any indenture, deed of trust, loan, purchase or credit agreement, Material
lease, or any other Material agreement or instrument to which the Guarantor or
any Subsidiary is bound or by which the Guarantor or any Subsidiary or any of
their respective properties may be bound or affected, (ii) conflict with or
result in a breach of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or Governmental Authority
applicable to the Guarantor or any Subsidiary or (iii) violate any provision of
any statute or other rule or regulation of any Governmental
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Authority applicable to the Guarantor or any Subsidiary which, in any such case,
would reasonably be expected to have a Material Adverse Effect.
Section 2.6. Governmental Authorizations, Etc. No consent, approval
or authorization of, or registration, filing or declaration with, any
Governmental Authority is required in connection with the execution, delivery or
performance by the Guarantor of this Agreement.
Section 2.7. Litigation; Observance of Agreements, Statutes and
Orders. (a) There are no actions, suits or proceedings pending or, to the
knowledge of the Guarantor, threatened against or affecting the Guarantor or any
Subsidiary or any property of the Guarantor or any Subsidiary in any court or
before any arbitrator of any kind or before or by any Governmental Authority
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(b) Neither the Guarantor nor any Subsidiary is in default under
any term of any agreement or instrument to which it is a party or by which it is
bound, or any order, judgment, decree or ruling of any court, arbitrator or
Governmental Authority, or is in violation of any applicable law, ordinance,
rule or regulation (including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 2.8. Taxes. The Guarantor and its Subsidiaries have filed all
Material tax returns that are required to have been filed in any jurisdiction,
and have paid all taxes shown to be due and payable on such returns and all
other taxes and assessments levied upon them or their properties, assets, income
or franchises, to the extent such taxes and assessments have become due and
payable and before they have become delinquent, except for any taxes and
assessments (i) the amount of which is not individually or in the aggregate
Material or (ii) the amount, applicability or validity of which is currently
being contested in good faith by appropriate proceedings and with respect to
which the Guarantor or a Subsidiary, as the case may be, has established
adequate reserves in accordance with GAAP. The Guarantor knows of no basis for
any other tax or assessment that could reasonably be expected to have a Material
Adverse Effect. The charges, accruals and reserves on the books of the Guarantor
and its Subsidiaries in respect of all taxes for all fiscal periods are adequate
in accordance with GAAP. The Federal income tax liabilities of the Guarantor and
its Subsidiaries have been determined by the Internal Revenue Service and paid
for all fiscal years up to and including the fiscal year ended 1999.
Section 2.9. Title to Property; Leases. The Guarantor and its
Restricted Subsidiaries have good and sufficient title to their respective
properties, including all such properties reflected in the most recent audited
balance sheet referred to in Section 2.11 (except as sold or otherwise disposed
of in the ordinary course of business), in each case free and clear of Liens
(other than Liens permitted under Section 5.3) except for those defects in title
and Liens that, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect. All leases that individually or in
the aggregate are Material are valid and existing and are in full force and
effect in all Material respects.
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Section 2.10. Licenses, Permits, Etc. Except as disclosed in Schedule
2.10, (a) the Guarantor and its Restricted Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights, service
marks, trademarks and trade names, or rights thereto, that are Material, without
known conflict with the rights of others, except for those conflicts that,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect; (b) to the knowledge of the Guarantor, no product of
the Guarantor infringes in any Material respect any license, permit, franchise,
authorization, patent, copyright, service mark, trademark, trade name or other
right owned by any other Person, except for those infringements that,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect; and (c) to the knowledge of the Guarantor, there is no
Material violation by any Person of any right of the Guarantor or any of its
Restricted Subsidiaries with respect to any patent, copyright, service mark,
trademark, trade name or other right owned or used by the Guarantor or any of
its Restricted Subsidiaries that would reasonably be expected to have a Material
Adverse Effect.
Section 2.11. Financial Statements. The Guarantor has either delivered
to each Purchaser or made available for such Purchaser's review copies of the
financial statements of the Guarantor and its Subsidiaries listed on Schedule
2.11. All of said financial statements (including in each case the related
schedules and notes) fairly present in all material respects the consolidated
financial position of the Guarantor and its Subsidiaries as of the respective
dates specified in such Schedule and the consolidated results of their
operations and cash flows for the respective periods so specified and have been
prepared in accordance with GAAP consistently applied throughout the periods
involved except as set forth in the notes thereto (subject, in the case of any
interim financial statements, to normal year-end adjustments).
Section 2.12. Private Offering. Neither the Guarantor nor the Company
nor anyone acting under their direction has offered the Notes, or any similar
securities for sale to, or solicited any offer to buy any of the same from, any
Person other than 24 Institutional Investors (excluding the Purchasers), each of
which has been offered the Notes at a private sale for investment. Neither the
Guarantor nor the Company nor anyone acting under their direction has taken, or
will take, any action that would subject the issuance or sale of the Notes to
the registration requirements of section 5 of the Securities Act.
Section 2.13. Use of Proceeds; Margin Regulations. Proceeds of the
sale of the Notes will be used for general corporate purposes (including stock
buybacks and acquisitions) of the Guarantor and its Subsidiaries and to repay
Debt of the Company. No part of the proceeds from the sale of the Notes
hereunder will be used, directly or indirectly, for the purpose of buying or
carrying any margin stock within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System (12 CFR 221) which will directly or
indirectly (as defined in Regulation U) secure the Notes, or for the purpose of
buying or carrying or trading in any securities under such circumstances as to
involve the Guarantor in a violation of Regulation X of said Board (12 CFR 224)
or to involve any broker or dealer in a violation of Regulation T of said Board
(12 CFR 220). The value of the margin stock held by the Guarantor and its
Subsidiaries (based upon the closing price of the Guarantor's common stock on
the New York Stock Exchange as of the most recent Business Day prior to the
Closing) does not constitute more than 30% of the value of the Consolidated
Total Assets of the Guarantor and its Subsidiaries at December 31, 2002, as
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adjusted to give effect to (i) the increase or decrease in the number of shares
of margin stock held by the Guarantor and its Subsidiaries from December 31,
2002 through the date of the Closing and (ii) the increase or decrease in the
market value of the margin stock held by the Guarantor and its Subsidiaries on
December 31, 2002 to the extent that such margin stock is held by the Guarantor
and its Subsidiaries on the date of the Closing. As used in this Section, the
terms "margin stock" and "purpose of buying or carrying" and "directly or
indirectly" shall have the meanings assigned to them in said Regulation U.
Section 2.14. Existing Debt, Future Liens. (a) Schedule 2.14 sets
forth a complete and correct list of all outstanding Debt of the Guarantor and
its Restricted Subsidiaries as of February 28, 2003. Neither the Guarantor nor
any Restricted Subsidiary is in default and no waiver of default is currently in
effect, in the payment of any principal or interest on any Debt of the Guarantor
or such Restricted Subsidiary, and no event or condition exists with respect to
any Debt of the Guarantor or any Restricted Subsidiary, that would permit (or
that with notice or the lapse of time, or both, would permit) one or more
Persons to cause such Debt to become due and payable before its stated maturity
or before its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 2.14, the Guarantor has not
agreed or consented to cause or permit in the future (upon the happening of a
contingency or otherwise) any of its property, whether now owned or hereafter
acquired, to be subject to a Lien not permitted by Section 5.3.
Section 2.15. Compliance with ERISA. (a) The Guarantor and each ERISA
Affiliate have operated and administered each Plan in compliance with all
applicable laws except for such instances of noncompliance as have not resulted
in and could not reasonably be expected to result in a Material Adverse Effect.
Neither the Guarantor nor any ERISA Affiliate has incurred any liability
pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of
the Code relating to employee benefit plans (as defined in Section 3 of ERISA),
and no event, transaction or condition has occurred or exists that could
reasonably be expected to result in the incurrence of any such liability by the
Guarantor or any ERISA Affiliate, or in the imposition of any Lien on any of the
rights, properties or assets of the Guarantor or any ERISA Affiliate, in either
case pursuant to Title I or IV of ERISA or to such penalty or excise tax
provisions or to Section 401(a)(29) or 412 of the Code, other than such
liabilities or Liens as would not be individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under
each of the Plans (other than Multiemployer Plans), determined as of the end of
such Plan's most recently ended plan year on the basis of the actuarial
assumptions specified for funding purposes in such Plan's most recent actuarial
valuation report, did not exceed the aggregate current value of the assets of
such Plan allocable to such benefit liabilities by an amount which would be
Material. The term "benefit liabilities" has the meaning specified in section
4001 of ERISA and the terms "current value" and "present value" have the
meanings specified in Section 3 of ERISA.
(c) The Guarantor and its ERISA Affiliates have not incurred
withdrawal liabilities (and are not subject to contingent withdrawal
liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer
Plans that individually or in the aggregate are Material.
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(d) The expected postretirement benefit obligation (determined as
of the last day of the Guarantor's most recently ended fiscal year in accordance
with Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of the Guarantor and its Subsidiaries is not Material or has otherwise
been disclosed in the financial statements set forth on Schedule 2.11.
(e) The execution and delivery of this Agreement will not involve
any transaction that is subject to the prohibitions of section 406 of ERISA or
in connection with which a tax could be imposed pursuant to section
4975(c)(1)(A)-(D) of the Code. The representation by the Guarantor in the first
sentence of this Section 2.15(e) is made in reliance upon and subject to the
accuracy of each Purchaser's representation in Section 6.2 of the Note Purchase
Agreement as to the sources of the funds used to pay the purchase price of the
Notes to be purchased by such Purchaser.
Section 2.16. Foreign Assets Control Regulations, Etc. Neither the
sale of the Notes by the Company pursuant to the Note Purchase Agreement, its
use of the proceeds thereof nor the execution and delivery of this Agreement by
the Guarantor will violate the Trading with the Enemy Act, as amended, or any of
the foreign assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto or Executive Order No. 13,224, 66 Fed. Reg.
49,079 (September 24, 2001) (Executive Order Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten, or Support Terrorism).
Section 2.17. Status under Certain Statutes. Neither the Guarantor nor
any Restricted Subsidiary is an "investment company" registered or required to
be registered under the Investment Company Act of 1940, as amended, or is
subject to regulation under the Public Utility Holding Company Act of 1935, as
amended, the ICC Termination Act of 1995, as amended, or the Federal Power Act,
as amended.
Section 2.18. Environmental Matters. Except as set forth in Schedule
2.18, neither the Guarantor nor any Restricted Subsidiary has knowledge of any
Material liability or any proceeding which has been instituted raising any
Material liability against the Guarantor or any of its Restricted Subsidiaries
or any of their respective real properties now or formerly owned, leased or
operated by it or other assets, alleging any damage to the environment or
violation of any Environmental Laws, except in each case as could not reasonably
be expected to result in a Material Adverse Effect. Except as otherwise
disclosed to each Purchaser in writing or as set forth in Schedule 2.18:
(a) neither the Guarantor nor any Subsidiary has
knowledge of any facts which would give rise to any claim, public or
private, for violation of Environmental Laws or damage to the
environment emanating from, occurring on or in any way related to real
properties or to other assets now or formerly owned, leased or operated
by any of them or their use, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect;
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(b) neither the Guarantor nor any of its Subsidiaries has
stored any Hazardous Materials on real properties now or formerly
owned, leased or operated by any of them or has disposed of any
Hazardous Materials in each case in a manner contrary to any
Environmental Laws and in any manner that could reasonably be expected
to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned,
leased or operated by the Guarantor or any of its Subsidiaries are in
compliance with applicable Environmental Laws, except where failure to
comply could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3. INFORMATION AS TO GUARANTOR.
Section 3.1. Financial and Business Information. The Guarantor shall
deliver to each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements -- within 60 days after the end
of each quarterly fiscal period in each fiscal year of the Guarantor
(other than the last quarterly fiscal period of each such fiscal year),
duplicate copies of:
(i) an unaudited consolidated balance sheet of
the Guarantor and its Subsidiaries as at the end of such
quarter, and
(ii) unaudited consolidated statements of income,
changes in shareholders' equity and cash flows of the
Guarantor and its Subsidiaries for such quarter and (in the
case of the second and third quarters) for the portion of the
fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the financial
position of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time period specified
above of copies of the Guarantor's Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor and filed with
the Securities and Exchange Commission shall be deemed to satisfy the
requirements of this Section 3.1(a);
(b) Annual Statements -- within 105 days after the end of
each fiscal year of the Guarantor, duplicate copies of:
(i) a consolidated balance sheet of the
Guarantor and its Subsidiaries, as at the end of such year,
and
(ii) consolidated statements of income, changes
in shareholders' equity and cash flows of the Guarantor and
its Subsidiaries, for such year,
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setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which
opinion shall state that such financial statements present fairly, in
all material respects, the financial position of the companies being
reported upon and their results of operations and cash flows and have
been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made
in accordance with generally accepted auditing standards, and that such
audit provides a reasonable basis for such opinion in the
circumstances, provided that the delivery within the time period
specified above of the Guarantor's Annual Report on Form 10-K for such
fiscal year (together with the Guarantor's annual report to
shareholders, if any, prepared pursuant to Rule 14a-3 under the
Exchange Act) prepared in accordance with the requirements therefor and
filed with the Securities and Exchange Commission, together with the
accountant's certificate described above, shall be deemed to satisfy
the requirements of this Section 3.1(b);
(c) SEC and Other Reports -- promptly upon their becoming
available, one copy of (i) each financial statement, report, notice or
proxy statement sent by the Guarantor or any Subsidiary to public
securities holders generally, and (ii) each regular or periodic report,
each registration statement (without exhibits except as expressly
requested by such holder and excluding registration statements on form
S-8), and each prospectus and all amendments thereto (excluding those
related to plans registered on a Form S-8 registration statement) filed
by the Guarantor or any Subsidiary with the Securities and Exchange
Commission and of all press releases and other statements made
available generally by the Guarantor or any Subsidiary to the public
concerning developments that are Material;
(d) Notice of Default or Event of Default -- promptly,
and in any event within five Business Days after a Responsible Officer
becoming aware of the existence of any Default or Event of Default or
that any Person has given any notice or taken any action with respect
to a claimed default hereunder or that any Person has given any notice
or taken any action with respect to a claimed default of the type
referred to in Section 11 of the Note Purchase Agreement, a written
notice specifying the nature and period of existence thereof and what
action the Guarantor or the Company is taking or proposes to take with
respect thereto;
(e) ERISA Matters -- promptly, and in any event within
ten Business Days after a Responsible Officer becoming aware of any of
the following, a written notice setting forth the nature thereof and
the action, if any, that the Guarantor or an ERISA Affiliate proposes
to take with respect thereto:
(i) with respect to any Plan, any Reportable
Event for which notice thereof has not been waived pursuant to
such regulations as in effect on the date hereof; or
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(ii) the taking by the PBGC of steps to
institute, or the threatening by the PBGC of the institution
of, proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer,
any Plan, or the receipt by the Guarantor or any ERISA
Affiliate of a notice from a Multiemployer Plan that such
action has been taken by the PBGC with respect to such
Multiemployer Plan; or
(iii) any event, transaction or condition that
could result in the incurrence of any liability by the
Guarantor or any ERISA Affiliate pursuant to Title I or IV of
ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans, or in the imposition of
any Lien on any of the rights, properties or assets of the
Guarantor or any ERISA Affiliate pursuant to Title I or IV of
ERISA or such penalty or excise tax provisions, if such
liability or Lien, taken together with any other such
liabilities or Liens then existing, could reasonably be
expected to have a Material Adverse Effect;
(f) Notices from Governmental Authority -- promptly, and
in any event within 30 days of receipt thereof, copies of any notice to
the Guarantor or any Subsidiary from any Federal or state Governmental
Authority relating to any order, ruling, statute or other law or
regulation that could reasonably be expected to have a Material Adverse
Effect;
(g) Supplemental Financial Statements -- in the event
that the Guarantor has one or more Unrestricted Subsidiaries, unaudited
financial statements of the character and for the dates and periods as
in Sections 3.1(a) and (b) hereof covering the Guarantor and its
Restricted Subsidiaries on a consolidated basis, together with a
consolidating statement reflecting eliminations or adjustments required
to reconcile such financial statements to the financial statements
delivered pursuant to Sections 7.1(a) and (b); and
(h) Requested Information -- with reasonable promptness,
such other data and information relating to the business, operations or
financial condition of the Guarantor or any of its Subsidiaries and
relating to the ability of the Guarantor to perform its obligations
hereunder as from time to time may be reasonably requested by any such
holder of Notes.
Section 3.2. Officer's Certificate. Each set of financial statements
delivered to a holder of Notes pursuant to Section 3.1(a) or Section 3.1(b)
hereof shall be accompanied by a certificate of a Senior Financial Officer on
behalf of the Guarantor setting forth:
(a) Covenant Compliance -- the information (including
detailed calculations) required in order to establish whether the
Guarantor was in compliance with the requirements of Section 5.1,
Section 5.2 and Section 5.4 hereof during the quarterly or annual
period covered by the statements then being furnished (including with
respect to each such Section, where applicable, the calculations of the
maximum or minimum amount, ratio or percentage, as the case may be,
permissible under the terms of such Sections, and the calculation of
the amount, ratio or percentage then in existence); and
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(b) Event of Default -- a statement that such officer has
reviewed the relevant terms hereof and of the Note Purchase Agreement
and has made, or caused to be made, under his or her supervision, a
review of the transactions and conditions of the Guarantor and its
Subsidiaries from the beginning of the quarterly or annual period
covered by the statements then being furnished to the date of the
certificate and that such review shall not have disclosed the existence
during such period of any condition or event that constitutes a Default
or an Event of Default or, if any such condition or event existed or
exists (including, without limitation, any such event or condition
resulting from the failure of the Guarantor or any Restricted
Subsidiary to comply with any Environmental Law), specifying the nature
and period of existence thereof and what action the Guarantor shall
have taken or proposes to take with respect thereto.
Section 3.3. Inspection. The Guarantor shall permit the
representatives of each holder of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable prior notice
to the Guarantor, to visit the principal executive office of the
Guarantor, to discuss the affairs, finances and financial results of
the Guarantor and its Subsidiaries with the Guarantor's Senior
Financial Officers, and (with the consent of the Guarantor, which
consent will not be unreasonably withheld) its independent public
accountants, all at such reasonable times during normal business hours
and as often as may be reasonably requested in writing; and
(b) Default -- if a Default or Event of Default then
exists, at the expense of the Guarantor to visit and inspect any of the
offices or properties of the Guarantor or any Restricted Subsidiary
during normal business hours and upon reasonable notice, to examine all
their respective books of account, records, reports and other papers,
to make copies and extracts therefrom, and to discuss their respective
affairs, finances and financial results with their respective Senior
Financial Officers and independent public accountants (and by this
provision the Guarantor authorizes said accountants to discuss the
affairs, finances and financial results of the Guarantor and its
Subsidiaries), all at such times and as often as may be requested.
SECTION 4. AFFIRMATIVE COVENANTS.
The Guarantor covenants that so long as any of the Notes are
outstanding:
Section 4.1. Compliance with Law. The Guarantor will and will cause
each of its Restricted Subsidiaries to comply with all laws, ordinances or
governmental rules or regulations to which each of them is subject, including,
without limitation, Environmental Laws, and will obtain and maintain in effect
all licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or to
the conduct of their respective businesses, in each case to the extent necessary
to ensure that non-compliance with such laws, ordinances or governmental rules
or regulations or failures to obtain or maintain in effect such licenses,
certificates, permits, franchises and other governmental authorizations could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
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Section 4.2. Insurance. The Guarantor will and will cause each of its
Restricted Subsidiaries to maintain, with financially sound and reputable
insurers, insurance with respect to their respective properties and businesses
against such casualties and contingencies, of such types, on such terms and in
such amounts (including deductibles, co-insurance and self-insurance, if
reserves required in accordance with GAAP are maintained with respect thereto)
as is customary in the case of entities of established reputations engaged in
the same or a similar business and similarly situated except for any
non-maintenance that could not reasonably be expected to have a Material Adverse
Effect.
Section 4.3. Maintenance of Properties. The Guarantor will and will
cause each of its Restricted Subsidiaries to maintain and keep, or cause to be
maintained and kept, their respective properties necessary in the operation of
their business in good repair, working order and condition (other than ordinary
wear and tear), except where the failure to do so could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 4.4. Payment of Taxes and Claims. The Guarantor will and will
cause each of its Restricted Subsidiaries to file all tax returns required to be
filed in any jurisdiction and to pay and discharge prior to the expiration of
any applicable cure or grace periods all taxes shown to be due and payable on
such returns, provided that neither the Guarantor nor any Restricted Subsidiary
need pay any such tax or assessment or claims if (i) the amount, applicability
or validity thereof is contested by the Guarantor or such Restricted Subsidiary
on a timely basis in good faith and in appropriate proceedings, and the
Guarantor or a Restricted Subsidiary has established adequate reserves therefor
in accordance with GAAP on the books of the Guarantor or such Restricted
Subsidiary or (ii) the nonpayment of all such taxes and assessments in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
Section 4.5. Corporate Existence, Etc. Subject to transactions
permitted under Section 5.5, the Guarantor will at all times preserve and keep
in full force and effect its corporate existence. Subject to transactions
permitted under Sections 5.4 and 5.5, the Guarantor will at all times preserve
and keep in full force and effect the corporate existence of each of its
Restricted Subsidiaries and all rights and franchises of the Guarantor and its
Restricted Subsidiaries unless, in the good faith judgment of the Guarantor, the
termination of or failure to preserve and keep in full force and effect such
corporate existence, right or franchise could not, individually or in the
aggregate, have a Material Adverse Effect.
Section 4.6. Designation of Subsidiaries. The Guarantor may from time
to time cause any Subsidiary (other than the Company and the Subsidiary
Guarantors) to be designated as an Unrestricted Subsidiary or any Unrestricted
Subsidiary to be designated a Restricted Subsidiary, provided, however, that at
the time of such designation and immediately after giving effect thereto, (a) no
Default or Event of Default would exist under the terms of this Agreement, and
(b) the Guarantor and its Restricted Subsidiaries would be in compliance with
all of the covenants set forth in this Section 4 and Section 5 if tested on the
date of such action and provided, further, that once a Restricted Subsidiary has
been designated an Unrestricted Subsidiary, it shall not thereafter be
redesignated as a Restricted Subsidiary on more than one occasion. Within ten
(10) days following any designation described above, the Guarantor will deliver
to each holder of a Note a notice of such designation accompanied by a
certificate signed
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by a Senior Financial Officer of the Guarantor certifying compliance with all
requirements of this Section 4.6 and setting forth all information required in
order to establish such compliance.
Section 4.7. Ownership of Company. Except as otherwise permitted by
Section 5.5(a)(3), the Guarantor will at all times keep and maintain the Company
as a Restricted Subsidiary.
Section 4.8. Guaranty by Subsidiaries. (a) The Guarantor will cause
any Subsidiary (other than a Foreign Subsidiary which is a borrower under the
Bank Credit Agreement) which is required by the terms of the Bank Credit
Agreement to become a party to (as co-obligor with the Guarantor), or otherwise
guaranty Debt outstanding under the Bank Credit Agreement to deliver to each of
the holders of the Notes the following items on or prior to the effective date
of such obligation with respect to the Bank Credit Agreement:
(i) a fully executed counterpart of the joinder to the
Subsidiary Guaranty Agreement;
(ii) a certificate signed by the President, a Vice
President or another authorized Responsible Officer of the Subsidiary
Guarantor making representations and warranties to the effect of those
contained in Sections 2.1, 2.2, 2.5 and 2.6, with respect to such
Subsidiary and the execution and delivery of the Subsidiary Guaranty
Agreement; and
(iii) an opinion of counsel for the Subsidiary Guarantor
addressed to each of the holders of the Notes reasonably satisfactory
to the Required Holders (it being understood that any such opinion
which is in substantially the same form as the opinion with respect to
the Subsidiary Guaranty delivered on the date of Closing shall be
deemed satisfactory to the holders), to the effect that the Subsidiary
Guaranty Agreement has been duly authorized, executed and delivered by
such Subsidiary and constitutes the legal, valid and binding contract
and agreement of such Subsidiary enforceable in accordance with its
terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency, fraudulent conveyance and similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles.
(b) If at any time one or more Subsidiaries which have guaranteed
the Debt outstanding under the Bank Credit Agreement (and any other Debt which
ranks parri passu with the Notes) or which shall be co-obligors thereunder shall
be released from their obligations under each such guaranty and the Bank Credit
Agreement, then upon delivery to the holders of the Notes of evidence of such
release (which evidence shall be reasonably satisfactory to the Required
Holders) and so long as no Default or Event of Default shall exist, such
Subsidiary shall be released from its obligations under the Subsidiary Guaranty
Agreement. In addition, with the consent of the Required Holders, one or more
Subsidiary Guarantors may be released from the Subsidiary Guaranty.
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SECTION 5. NEGATIVE COVENANTS.
The Guarantor covenants that so long as any of the Notes are
outstanding:
Section 5.1. Limitation on Debt. The Guarantor will not at any time
permit:
(a) the Consolidated Leverage Ratio to exceed 3.5 to 1.0;
and
(b) Priority Debt to exceed 20% of Consolidated Total
Capitalization as of the end of the most recently completed fiscal
quarter.
Section 5.2. Consolidated Interest Coverage Ratio. The Guarantor will
not permit the Consolidated Interest Coverage Ratio to be less than 2.25 to 1.0
as of the end of the most recently ended fiscal quarter.
Section 5.3. Limitation on Liens. The Guarantor will not, and will
not permit any of its Restricted Subsidiaries to, directly or indirectly create,
incur, assume or permit to exist (upon the happening of a contingency or
otherwise) any Lien on or with respect to any property or asset of the Guarantor
or any such Restricted Subsidiary, whether now owned or held or hereafter
acquired (unless it makes, or causes to be made, effective provision whereby the
Notes will be equally and ratably secured with any and all other obligations
thereby secured, such security to be pursuant to an agreement reasonably
satisfactory to the Required Holders), except:
(a) Liens for taxes, assessments or other governmental
charges that are not yet due and payable or the payment of which is not
at the time required by Section 4.4;
(b) any attachment or judgment Lien, unless the judgment
it secures shall not, within 60 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall not
have been discharged within 60 days after the expiration of any such
stay;
(c) Liens incidental to the conduct of business or the
ownership of properties and assets (including landlords', carriers',
warehousemen's, mechanics', materialmen's and other similar Liens for
sums not yet due and payable) and Liens to secure the performance of
bids, tenders, leases, or trade contracts, or to secure statutory
obligations (including obligations under workers compensation,
unemployment insurance and other social security legislation), surety
or appeal bonds or other Liens incurred in the ordinary course of
business and not in connection with the borrowing of money;
(d) leases or subleases granted to others, easements,
rights-of-way, restrictions and other similar charges or encumbrances,
in each case incidental to the ownership of property or assets or the
ordinary conduct of the business of the Guarantor or any of its
Restricted Subsidiaries, provided that such Liens do not, in the
aggregate, materially detract from the value of such property;
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(e) Liens incidental to minor survey exceptions and
similar Liens, provided that such Liens do not, in the aggregate,
materially detract from the value of such Property;
(f) Liens securing Debt of a Restricted Subsidiary to the
Guarantor or to another Wholly-Owned Restricted Subsidiary;
(g) Liens existing as of the date of Closing and
reflected in Schedule 5.3;
(h) Liens incurred after the date of Closing given to
secure the payment of the purchase price incurred in connection with
the acquisition, construction or improvement of property (other than
accounts receivable or inventory) useful and intended to be used in
carrying on the business of the Guarantor or a Restricted Subsidiary,
including Liens existing on such property at the time of acquisition or
construction thereof, or Liens incurred within 365 days of such
acquisition or the completion of such construction or improvement,
provided that (i) the Lien shall attach solely to the property
acquired, purchased, constructed or improved; and (ii) at the time of
acquisition, construction or improvement of such property, the
aggregate amount remaining unpaid on all Debt secured by Liens on such
property, whether or not assumed by the Guarantor or a Restricted
Subsidiary, shall not exceed an amount equal to the lesser of the total
purchase price (or cost of construction or improvement) of such
property or the Fair Market Value of such property at the time of
acquisition, construction or improvement (as determined in good faith
by one or more officers of the Guarantor or such Restricted Subsidiary,
as the case may be, to whom authority to enter into the transaction has
been delegated by the board of directors of the Company or such
Restricted Subsidiary, as the case may be);
(i) any Lien existing on property of a Person immediately
prior to its being consolidated with or merged into the Guarantor or a
Restricted Subsidiary or its becoming a Restricted Subsidiary, or any
Lien existing on any property acquired by the Guarantor or any
Restricted Subsidiary at the time such property is so acquired (whether
or not the Debt secured thereby shall have been assumed), provided that
(i) no such Lien shall have been created or assumed in contemplation of
such consolidation or merger or such Person's becoming a Restricted
Subsidiary or such acquisition of property, (ii) each such Lien shall
extend solely to the item or items of property so acquired and, if
required by the terms of the instrument originally creating such Lien,
other property which is an improvement to or is acquired for specific
use in connection with such acquired property, and (iii) at the time of
acquisition of such property, the aggregate amount remaining unpaid on
all Debt secured by Liens on the property so acquired, whether or not
assumed by the Company or a Restricted Subsidiary, shall not exceed an
amount equal to the lesser of the total purchase price or Fair Market
Value of such property at the time of acquisition (as determined in
good faith by one or more officers of the Company or such Restricted
Subsidiary, as the case may be, to whom authority to enter into the
transaction has been delegated by the board of directors of the Company
or such Restricted Subsidiary, as the case may be);
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(j) Liens upon assets of any Receivables Subsidiary;
provided that the aggregate principal amount of Receivables Facility
Attributable Debt shall not exceed $75,000,000;
(k) Liens on shares of treasury stock of the Guarantor to
the extent that the Fair Market Value of the treasury stock so pledged
is limited to an amount which is equal to the positive difference, if
any, between the Fair Market Value of such treasury stock and 25% of
the Consolidated Total Assets of the Guarantor;
(l) any extensions, renewals or replacements of any Lien
permitted by the preceding subparagraphs (f), (g), (h), (i) or (k) of
this Section 5.3, provided that (i) no additional property shall be
encumbered by such Liens, (ii) the unpaid principal amount of the Debt
secured thereby shall not be increased on or after the date of any
extension, renewal or replacement, and (iii) at such time and
immediately after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing; and
(m) in addition to the Liens permitted by the preceding
subparagraphs (a) through (l), inclusive, of this Section 5.3, Liens
securing Priority Debt of the Company and its Restricted Subsidiaries
provided that such Priority Debt shall be permitted by the limitations
set forth in Section 5.1 at the time that the Lien securing such
Priority Debt is created.
Section 5.4. Sales of Assets. The Guarantor will not, and will not
permit any Restricted Subsidiary to, sell, lease or otherwise dispose of any
substantial part (as defined below) of the assets of the Guarantor and its
Restricted Subsidiaries in one transaction or in a series of transactions;
provided, however, that the Guarantor or any Restricted Subsidiary may sell,
lease or otherwise dispose of assets constituting a substantial part of the
assets of the Guarantor and its Restricted Subsidiaries if such assets are sold
in an arms length transaction and, at such time and after giving effect thereto,
no Default or Event of Default shall have occurred and be continuing and an
amount equal to the Net Proceeds received from such sale, lease or other
disposition shall be used within 365 days of such sale, lease or disposition, in
any combination:
(1) to acquire productive assets used or useful in
carrying on the business of the Guarantor and its Restricted
Subsidiaries; or
(2) to prepay or retire Senior Debt of the Guarantor
and/or its Restricted Subsidiaries.
As used in this Section 5.4, a sale, lease or other disposition of
assets shall be deemed to be a "substantial part" of the assets of the Guarantor
and its Restricted Subsidiaries if the book value of such assets, when added to
the book value of all other assets sold, leased or otherwise disposed of by the
Guarantor and its Restricted Subsidiaries during any fiscal year, exceeds 15% of
the book value of Consolidated Total Assets, determined as of the end of the
fiscal year immediately preceding such sale, lease or other disposition;
provided that there shall be excluded from any determination of a "substantial
part" any (i) sale or disposition of assets in the ordinary course of business
of the Guarantor and its Restricted Subsidiaries, (ii) any transfer of assets
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from the Guarantor to any Wholly-owned Restricted Subsidiary or from any
Restricted Subsidiary to the Guarantor or a Wholly-owned Restricted Subsidiary,
(iii) any Excluded Sale Leaseback Transaction, (iv) the sale or transfer of
Accounts Receivable in a Permitted Receivables Purchase Facility, and (v) the
sale of treasury stock of the Guarantor; provided that the aggregate principal
amount of Receivables Facility Attributable Debt pursuant to such Permitted
Receivables Purchase Facility shall not exceed $75,000,000.
Section 5.5. Merger, Consolidation and Sale of Stock. (a) The
Guarantor will not, and will not permit any of its Restricted Subsidiaries to,
consolidate with or merge with any other corporation or convey, transfer or
lease substantially all of its assets in a single transaction or series of
transactions to any Person; provided that:
(1) a Restricted Subsidiary of the Guarantor (other than
the Company) may (x) consolidate with or merge with, or convey,
transfer or lease substantially all of its assets in a single
transaction or series of transactions to, the Guarantor or a
Wholly-Owned Restricted Subsidiary so long as in any merger or
consolidation involving the Guarantor, the Guarantor shall be the
surviving or continuing corporation, (y) convey, transfer or lease all
of its assets in compliance with the provisions of Section 5.4, or (z)
merge or consolidate with any other Person in connection with the
disposition of equity interests of the Guarantor or another Restricted
Subsidiary in such Restricted Subsidiary; provided that such
disposition can be made within the limitations of Section 5.4;
(2) the foregoing restriction does not apply to the
consolidation or merger of the Guarantor with, or the conveyance,
transfer or lease of substantially all of the assets of the Guarantor
in a single transaction or series of transactions to, any Person so
long as:
(a) the successor formed by such consolidation
or the survivor of such merger or the Person that acquires by
conveyance, transfer or lease substantially all of the assets
of the Guarantor as an entirety, as the case may be (the
"Successor Corporation"), shall be a solvent corporation
organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia;
(b) if the Guarantor is not the Successor
Corporation, such corporation shall have executed and
delivered to each holder of Notes its assumption of the due
and punctual performance and observance of each covenant and
condition of this Agreement (pursuant to such agreements and
instruments as shall be reasonably satisfactory to the
Required Holders), and the Guarantor shall have caused to be
delivered to each holder of Notes an opinion of nationally
recognized independent counsel, to the effect that all
agreements or instruments effecting such assumption are
enforceable in accordance with their terms and comply with the
terms hereof; and
(c) immediately after giving effect to such
transaction no Default or Event of Default would exist; and
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(3) the foregoing restriction does not apply to the
consolidation or merger of the Company with, or the conveyance,
transfer or lease of substantially all of the assets of the Company in
a single transaction or series of transactions to, the Guarantor or a
Wholly-Owned Restricted Subsidiary in accordance with the terms of
Section 10.1 of the Note Agreement.
(b) The Guarantor will not permit any Restricted Subsidiary to
issue or sell any shares of stock or other equity securities of any class
(including as "stock" for the purposes of this Section 5.5(b), any warrants,
rights or options to purchase or otherwise acquire stock or other securities
exchangeable for or convertible into stock or other equity securities) of such
Restricted Subsidiary to any Person other than the Guarantor or a Wholly-Owned
Restricted Subsidiary, except (i) for the purpose of qualifying directors, (ii)
in satisfaction of the validly pre-existing preemptive or contractual rights of
minority shareholders in connection with the simultaneous issuance of stock to
the Guarantor and/or a Restricted Subsidiary whereby the Guarantor and/or such
Restricted Subsidiary maintain their same proportionate interest in such
Restricted Subsidiary or to the extent required by local law, or (iii) for the
sale or disposition of stock which can be made within the limitations of Section
5.4.
(c) The Guarantor will not sell, transfer or otherwise dispose of
any shares of stock or other equity securities of any Restricted Subsidiary
(except to qualify directors), and will not permit any Restricted Subsidiary to
sell, transfer or otherwise dispose of (except to the Guarantor or a
Wholly-Owned Restricted Subsidiary) any shares of stock or other equity
securities of any other Restricted Subsidiary, unless such sale or other
disposition can be made within the limitations of Section 5.4.
Section 5.6. Transactions with Affiliates. The Guarantor will not and
will not permit any Restricted Subsidiary to enter into directly or indirectly
any Material transaction or Material group of related transactions with any
Affiliate (other than the Guarantor or another Restricted Subsidiary), except
(a) transactions upon terms no less favorable to the Guarantor or such
Restricted Subsidiary than would be obtainable in a comparable arm's-length
transaction with a Person not an Affiliate, and (b) transactions with Libbey
Foreign Sales Corporation in a manner consistent with past practices but subject
to modifications based upon then current market conditions and changes in
applicable Laws.
Section 5.7. Nature of Business. The Guarantor and its Restricted
Subsidiaries will not engage in any material line of business such that the
businesses of the Company and its Subsidiaries taken as a whole are
substantially different from those lines of business conducted by the Company
and its Subsidiaries on the date hereof and businesses reasonably related
thereto or reasonable extensions thereof.
SECTION 6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or transfer
by a holder of the Notes of any Note or portion thereof or interest therein and
the payment of any Note, and may be relied upon by any subsequent holder of a
Note, regardless of any investigation made at any time by or
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on behalf of a holder of the Notes or any other holder of a Note. All statements
contained in any certificate or other instrument delivered by or on behalf of
the Guarantor pursuant to this Agreement shall be deemed representations and
warranties of the Guarantor under this Agreement. Subject to the preceding
sentence, this Agreement embodies the entire agreement and understanding between
the holders of the Notes and the Guarantor and supersedes all prior agreements
and understandings relating to the subject matter hereof.
SECTION 7. AMENDMENT AND WAIVER.
Section 7.1. Requirements. This Agreement may be amended, and the
observance of any term hereof may be waived (either retroactively or
prospectively), with (and only with) the written consent of the Guarantor and
the Required Holders, except that (a) no amendment or waiver of any of the
provisions of Section 2 hereof, or any defined term (as it is used therein),
will be effective as to a holder of the Notes unless consented to by such holder
in writing, and (b) no such amendment or waiver may, without the written consent
of the holder of each Note at the time outstanding affected thereby, (i) change
the percentage of the principal amount of the Notes the holders of which are
required to consent to any such amendment or waiver, or (ii) amend this Section
7, Section 1 or Section 10.
Section 7.2. Solicitation of Holders of Notes.
(a) Solicitation. The Guarantor will provide each holder of the
Notes (irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof. The Guarantor will deliver executed or true and correct copies of each
amendment, waiver or consent effected pursuant to the provisions of this Section
7 to each holder of outstanding Notes promptly following the date on which it is
executed and delivered by, or receives the consent or approval of, the requisite
holders of Notes.
(b) Payment. The Guarantor will not directly or indirectly pay or
cause to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, or grant any security, to any holder of Notes as
consideration for or as an inducement to the entering into by any holder of
Notes of any waiver or amendment of any of the terms and provisions hereof
unless such remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each holder of Notes then outstanding
whether or not such holder consented to such waiver or amendment.
Section 7.3. Binding Effect, Etc. Any amendment or waiver consented
to as provided in this Section 7 applies equally to all holders of Notes and is
binding upon them and upon each future holder of any Note and upon the Guarantor
without regard to whether such Note has been marked to indicate such amendment
or waiver. No such amendment or waiver will extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly amended or waived
or impair any right consequent thereon. No course of dealing between the
Guarantor and the holder of any Note nor any delay in exercising any rights
hereunder or under any Note shall operate as a waiver of any rights of any
holder of such Note. As used herein, the term "this
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Agreement" and references thereto shall mean this Agreement as it may from time
to time be amended or supplemented.
Section 7.4. Notes Held by Guarantor, Etc. Solely for the purpose of
determining whether the holders of the requisite percentage of the aggregate
principal amount of Notes then outstanding approved or consented to any
amendment, waiver or consent to be given under this Agreement, or have directed
the taking of any action provided herein to be taken upon the direction of the
holders of a specified percentage of the aggregate principal amount of Notes
then outstanding, Notes directly or indirectly owned by the Guarantor or any of
its Affiliates shall be deemed not to be outstanding.
SECTION 8. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telefacsimile if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid) or (b) by a recognized overnight delivery service (charges
prepaid). Any such notice must be sent:
(i) if to a holder of the Notes or such holder's nominee,
to such holder or such holder's nominee at the address specified for
such communications in Schedule A to the Note Purchase Agreement, or at
such other address as such holder or it shall have specified to the
Guarantor in writing, or
(ii) if to the Guarantor, to the Guarantor at its address
set forth at the beginning hereof to the attention of the Chief
Financial Officer, or at such other address as the Guarantor shall have
specified to the holder of each Note in writing.
Notices under this Section 8 will be deemed given on the first Business Day
following the day on which such facsimile or overnight delivery was sent.
SECTION 9. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating hereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by a holder of the Notes at the Closing (except
the Notes themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to a holder of the Notes, may be
reproduced by such holder by any photographic, photostatic, microfilm,
microcard, miniature photographic or other similar process and such holder may
destroy any original document so reproduced. The Guarantor agrees and stipulates
that, to the extent permitted by applicable law, any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made by a holder of the Notes in the regular course of
business) and any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence. This Section 9 shall not
prohibit the Guarantor or any other holder of Notes from contesting any such
reproduction to the same extent that it could
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contest the original, or from introducing evidence to demonstrate the inaccuracy
of any such reproduction.
SECTION 10. CONFIDENTIAL INFORMATION.
For the purposes of this Section 10, "Confidential Information" means
information delivered to any Purchaser by or on behalf of the Guarantor or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement, provided that such term does not include information
that (a) was publicly known or otherwise known to such Purchaser prior to the
time of such disclosure, (b) subsequently becomes publicly known through no act
or omission by such Purchaser or any Person acting on such Purchaser's behalf,
(c) otherwise becomes known to such Purchaser other than through disclosure by
the Guarantor or any Subsidiary or from a Person who is known to such Purchaser
to be bound by a confidentiality agreement with the Guarantor or any of its
Subsidiaries, or is known to such Purchaser to be under an obligation not to
transmit the information to such Purchaser, or (d) constitutes financial
statements delivered to such Purchaser under Section 3.1 that are otherwise
publicly available. Each Purchaser will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by such Purchaser
in good faith to protect confidential information of third parties delivered to
such Purchaser, provided that such Purchaser may deliver or disclose
Confidential Information to (i) such Purchaser's directors, trustees, officers,
employees, agents, attorneys and affiliates (to the extent such disclosure
reasonably relates to the administration of the investment represented by such
Purchaser's Notes and to the extent that each such Person is obligated to treat
such information in a confidential manner), (ii) such Purchaser's financial
advisors and other professional advisors who agree to hold confidential the
Confidential Information substantially in accordance with the terms of this
Section 10, (iii) any other holder of any Note, (iv) any Institutional Investor
to which such Purchaser sells or offers to sell such Note or any part thereof or
any participation therein (if such Person has agreed in writing prior to its
receipt of such Confidential Information to be bound by the provisions of this
Section 10), (v) any Person from which such Purchaser offers to purchase any
security of the Guarantor (if such Person has agreed in writing prior to its
receipt of such Confidential Information to be bound by the provisions of this
Section 10), (vi) any federal or state regulatory authority having jurisdiction
over such Purchaser, (vii) the National Association of Insurance Commissioners
or any similar organization, or any nationally recognized rating agency that
requires access to information about such Purchaser's investment portfolio, or
(viii) any other Person to which such delivery or disclosure may be necessary or
appropriate in each of the following cases: (w) to effect compliance with any
law, rule, regulation or order applicable to such Purchaser, (x) in response to
any subpoena or other legal process, (y) in connection with any litigation to
which such Purchaser is a party or (z) if an Event of Default has occurred and
is continuing, to the extent such Purchaser may reasonably determine such
delivery and disclosure to be necessary or appropriate in the enforcement or for
the protection of the rights and remedies under such Purchaser's Notes and this
Agreement. In the event that any holder receives a request to disclose all or
any part of such information under the terms of a subpoena or order issued by a
court of competent jurisdiction or by a judicial or administrative or
legislative body or committee in connection with disclosure as provided in
clause (viii) above, such holder agrees to use commercially reasonable efforts
to promptly notify the Guarantor (to the extent permitted by applicable law and
to the extent such notice is not in
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contravention of any order of any court or Governmental Authority) of the
existence, terms and circumstances surrounding such request. Each holder of a
Note, by its acceptance of a Note, will be deemed to have agreed to be bound by
and to be entitled to the benefits of this Section 10 as though it were a party
to this Agreement. On reasonable request by the Guarantor in connection with the
delivery to any holder of a Note of information required to be delivered to such
holder under this Agreement or requested by such holder (other than a holder
that is a party to this Agreement or its nominee), such holder will, as a
condition precedent to receiving such information, enter into an agreement with
the Guarantor embodying the provisions of this Section 10.
SECTION 11. SUBMISSION TO JURISDICTION.
The Guarantor hereby irrevocably consents and submits to the
jurisdiction of any court located within the State of New York sitting in the
County of New York and the United States District Court for the Southern
District of New York and irrevocably agrees that all actions or proceedings
relating to this Agreement may be litigated in such courts, and the Guarantor
irrevocably waives any objection which it may have based on improper venue or
forum non conveniens to the conduct of any proceeding in any such court. The
Guarantor hereby consents that all such service of process be made by mail or
messenger directed to it at the address of the Guarantor described in Section 8
and that service so made shall be deemed to be completed upon the earlier of
actual receipt or three Business Days after the same shall have been posted to
the Guarantor's or such agent's address, as the case may be, in accordance
herewith. Nothing contained in this Section 11 shall affect the right of any
holder of Notes to serve legal process in any other manner permitted by law or
to bring any action or proceeding in the courts of any jurisdiction against the
Guarantor or to enforce a judgment obtained in the courts of any other
jurisdiction.
SECTION 12. MISCELLANEOUS.
Section 12.1. Successors and Assigns. All covenants and other
agreements contained in this Agreement by or on behalf of any of the parties
hereto bind and inure to the benefit of their respective successors and assigns
(including, without limitation, any subsequent holder of a Note) whether so
expressed or not.
Section 12.2. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by law)
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 12.3. Construction. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
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Section 12.4 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies hereof, each signed by less than all, but together signed by
all, of the parties hereto.
Section 12.5. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the law of the State of New York excluding choice-of-law principles of the law
of such State that would require the application of the laws of a jurisdiction
other than such State.
* * * * *
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If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Guarantor, whereupon the foregoing shall become a binding agreement between you
and the Guarantor.
Very truly yours,
LIBBEY INC.
By: /s/ Kenneth A. Boerger
----------------------------------
Name: Kenneth A. Boerger
Title: Vice President and Treasurer
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