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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549


 

FORM 10-K

 

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF

THE SECURITIES EXCHANGE ACT OF 1934

 

For the fiscal year ended December 31, 2007

  Commission File Number 1-1687

 

PPG INDUSTRIES, INC.

(Exact name of registrant as specified in its charter)

 

Pennsylvania    25-0730780
(State or other jurisdiction of    (I.R.S. Employer
incorporation or organization)    Identification No.)
One PPG Place, Pittsburgh, Pennsylvania    15272
(Address of principal executive offices)    (Zip code)
Registrant’s telephone number, including area code:    412-434-3131

 

Securities Registered Pursuant to Section 12(b) of the Act:

 

Title of each class


  

Name of each exchange on

which registered


Common Stock – Par Value $1.66  2 / 3

   New York Stock Exchange
     Philadelphia Stock Exchange

Preferred Share Purchase Rights

   New York Stock Exchange
     Philadelphia Stock Exchange

 

Securities Registered Pursuant to Section 12(g) of the Act: None

 

Indicate by check mark if the Registrant is a well-known seasoned issuer as defined in Rule 405 of the Securities Act.  YES   x     NO   ¨

 

Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.  YES   ¨     NO   x

 

Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months, and (2) has been subject to such filing requirements for the past 90 days.  YES   x     NO   ¨

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.     ¨

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   x   Accelerated filer                     ¨

Non-accelerated filer   ¨

  Smaller reporting company   ¨

(Do not check if a smaller

reporting company)

   

 

Indicate by check mark whether the Registrant is a shell company (as defined by Rule 12b-2 of the Act).  YES   ¨     NO   x

 

The aggregate market value of common stock held by non-affiliates as of June 30, 2007, was $12,467 million.

 

As of January 31, 2008, 163,821,954 shares of the Registrant’s common stock, with a par value of $1.66  2 / 3 per share, were outstanding. As of that date, the aggregate market value of common stock held by non-affiliates was $10,692 million.

 

DOCUMENTS INCORPORATED BY REFERENCE

 

Document


  

Incorporated By
Reference In Part No.


Portions of PPG Industries, Inc. Proxy Statement for its 2008
Annual Meeting of Shareholders

   III

 

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PPG INDUSTRIES, INC.

AND CONSOLIDATED SUBSIDIARIES

 


 

As used in this report, the terms “PPG,” “Company,” “Registrant,” “we,” “us” and “our” refer to PPG Industries, Inc. and its subsidiaries, taken as a whole, unless the context indicates otherwise.

 


 

TABLE OF CONTENTS

 

          Page

Part I

         

Item 1.

   Business    11

Item 1a.

   Risk Factors    16

Item 1b.

   Unresolved Staff Comments    17

Item 2.

   Properties    17

Item 3.

   Legal Proceedings    17

Item 4.

   Submission of Matters to a Vote of Security Holders    18

Part II

         

Item 5.

   Market for the Registrant’s Common Equity, Related Stockholder Matters and
Issuer Purchases of Equity Securities
   18

Item 6.

   Selected Financial Data    19

Item 7.

   Management’s Discussion and Analysis of Financial Condition and Results of Operations    19

Item 7a.

   Quantitative and Qualitative Disclosures About Market Risk    31

Item 8.

   Financial Statements and Supplementary Data    32

Item 9.

   Changes in and Disagreements With Accountants on Accounting and
Financial Disclosure
   71

Item 9a.

   Controls and Procedures    71

Item 9b.

   Other Information    71

Part III

         

Item 10.

   Directors, Executive Officers and Corporate Governance    71

Item 11.

   Executive Compensation    71

Item 12.

   Security Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters
   71

Item 13.

   Certain Relationships and Related Transactions, and Director Independence    71

Item 14.

   Principal Accounting Fees and Services    71

Part IV

         

Item 15.

   Exhibits, Financial Statement Schedules    72

Signatures

   74

 

Note on Incorporation by Reference

Throughout this report, various information and data are incorporated by reference to the Company’s 2007 Annual Report (hereinafter referred to as “the Annual Report”). Any reference in this report to disclosures in the Annual Report shall constitute incorporation by reference only of that specific information and data into this Form 10-K.

 

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Part I

 

Item 1. Business

 

PPG Industries, Inc., incorporated in Pennsylvania in 1883, is comprised of five reportable business segments: Performance Coatings, Industrial Coatings, Optical and Specialty Materials, Commodity Chemicals and Glass. Each of the business segments in which PPG is engaged is highly competitive. However, the diversification of product lines and worldwide markets served tend to minimize the impact on PPG’s total sales and earnings from changes in demand for a particular product line or in a particular geographic area. Refer to Note 24, “Reportable Business Segment Information” under Item 8 of this Form 10-K for financial information relating to our reportable business segments and Note 2, “Acquisitions” under Item 8 for information regarding acquisition activity.

 

Performance Coatings and Industrial Coatings

PPG is a major global supplier of protective and decorative coatings. The Performance Coatings and Industrial Coatings reportable segments supply protective and decorative finishes for customers in a wide array of end use markets including industrial equipment, appliances and packaging; factory-finished aluminum extrusions and steel and aluminum coils; marine and aircraft equipment; automotive original equipment; and other industrial and consumer products. In addition to supplying finishes to the automotive original equipment market, PPG supplies automotive refinishes to the aftermarket. The coatings industry is highly competitive and consists of a few large firms with global presence and many smaller firms serving local or regional markets. PPG competes in its primary markets with the world’s largest coatings companies, most of which have global operations, and many smaller regional coatings companies. The major global competitors of our Performance Coatings reportable segment are Akzo Nobel NV, BASF Corporation, the DuPont Company and the Sherwin-Williams Company. The major global competitors of our Industrial Coatings reportable segment are Akzo Nobel NV, BASF Corporation, the DuPont Company and Valspar Corp. Product development, innovation, quality and technical and customer service have been stressed by PPG and have been significant factors in developing an important supplier position by PPG’s coatings businesses comprising the Performance Coatings and Industrial Coatings reportable segments.

 

The Performance Coatings reportable segment is comprised of the refinish, aerospace and architectural coatings businesses. The refinish coatings business produces coatings products for automotive/fleet repair and refurbishing, light industrial coatings for a wide array of markets and specialty coatings for signs. These products are sold primarily through distributors. The aerospace coatings business supplies sealants, coatings, paint strippers, technical cleaners, transparent armor and transparencies for commercial, military, regional jet and general aviation aircraft. We supply products to aircraft manufacturers, maintenance and aftermarket customers around the world both on a direct basis and through a company-owned distribution network. Product performance, technology, quality, distribution and technical and customer service are major competitive factors in these coatings businesses. The architectural coatings business primarily produces coatings used by painting and maintenance contractors and by consumers for decoration and maintenance. We also supply coatings and finishes for the protection of metals and structures to metal fabricators, heavy duty maintenance contractors and manufacturers of ships, bridges, rail cars and shipping containers. Beginning in 2008, after the completion of the SigmaKalon acquisition, these products will be reported in a new protective and marine coatings operating segment that will be a part of the Performance Coatings reportable business segment. Performance Coatings products are sold through a combination of company-owned stores, home centers, paint dealers, independent distributors, and directly to customers. Price, product performance, quality, distribution and brand recognition are key competitive factors for the architectural coatings business. The architectural coatings business operates approximately 440 company-owned stores in North America and approximately 80 company-owned stores in Australia resulting from the acquisition in 2007 of Barloworld Coatings Australia.

 

The Industrial Coatings reportable segment is comprised of the automotive, industrial and packaging coatings businesses. The industrial and automotive coatings businesses sell directly to a variety of manufacturing companies. Industrial, automotive and packaging coatings are formulated specifically for the customers’ needs and application methods. PPG also supplies adhesives and sealants for the automotive industry and metal pretreatments and related chemicals for industrial and automotive applications. The packaging coatings business supplies coatings and inks for aerosol, food and beverage containers for consumer products to the manufacturers of those containers. Product performance, technology, quality, and technical and customer service are major competitive factors in these coatings businesses.

 

The Performance Coatings and Industrial Coatings reportable segments operate production facilities around the world. These facilities are usually shared and produce products sold by several businesses of the Industrial Coatings and Performance Coatings reportable segments. North American production facilities consist of 28 plants in the United States, two in Canada and one in Mexico. The three largest facilities in the United States are the Delaware, Ohio, plant, which primarily produces automotive refinishes; the Oak Creek, Wis., plant, which primarily produces industrial coatings; and the Cleveland, Ohio, plant, which primarily produces automotive original coatings. Outside North America, PPG operates five plants

 

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in Italy, three plants each in Australia, Brazil, China, Germany and Spain, two plants each in England, France, South Korea and the Netherlands, and one plant each in Argentina, Chile, Malaysia, New Zealand, Singapore, Taiwan, Thailand, Turkey and Uruguay. We also have an alliance with Kansai Paint. The venture, known as PPG Kansai Automotive Finishes, is owned 60% by PPG and 40% by Kansai Paint. The focus of the venture is Japanese-based automotive original equipment manufacturers in North America and Europe. In addition, PPG and Kansai Paint are developing technology jointly, potentially benefiting customers worldwide. PPG owns equity interests in coatings operations in Canada, India and Japan. Additionally, the automotive coatings business operates five service centers in the United States, two in Poland, and one each in Italy, Mexico, and Portugal to provide just-in-time delivery and service to selected automotive assembly plants. Fifteen training centers each in Europe and the United States, 11 in Asia, three in South America, two in Canada, and one in Mexico are in operation. These centers provide training for automotive aftermarket refinish customers. The aerospace business operates a global network of application support centers strategically located close to our customers around the world that provide technical support and just-in-time delivery of customized solutions to improve customer efficiency and productivity. Also, several automotive original coatings application centers are in operation throughout the world that provide testing facilities for customer paint processes and new products. The average number of persons employed by the Industrial Coatings reportable business segment during 2007 was 8,400. The average number of persons employed by the Performance Coatings reportable business segment during 2007 was 10,800.

 

SigmaKalon

On January 2, 2008, PPG completed the acquisition of SigmaKalon Group (“SigmaKalon”), a worldwide coatings producer based in Uithoorn, Netherlands. The results of operations of SigmaKalon will be included in PPG’s consolidated financial statements from the acquisition date onward. SigmaKalon produces architectural, protective, marine and industrial coatings. The protective, marine and industrial coatings businesses of SigmaKalon will be managed as part of PPG’s existing coatings businesses. The SigmaKalon architectural coatings business in Europe, the Middle East and Africa will be reported in 2008 as a new separate reportable business segment known as Architectural Coatings–EMEA. This business represents about 75% of SigmaKalon’s historical sales.

 

SigmaKalon’s architectural production facilities consist of four plants in the Netherlands, three plants in France, two plants each in China and the United Kingdom, and one plant each in Cameroon, Czech Republic, Egypt, French Guadeloupe, French Guyana, French Martinique, French New Caledonia, French Reunion Island, Gabon, Hungary, Ivory Coast, Poland, Senegal, Slovakia, South Africa, Spain, Suriname and the Ukraine. The industrial coatings business of SigmaKalon operates one facility each in Germany, the Netherlands, Poland, and Switzerland. The protective and marine coatings business of SigmaKalon operates one facility each in Belgium, China, Indonesia, Korea, and Malaysia. SigmaKalon sells coatings through a combination of approximately 500 company-owned stores, home centers, paint dealers, independent distributors, and directly to customers. The average number of persons employed by SigmaKalon in 2007 was 11,000.

 

Optical and Specialty Materials

PPG’s Optical and Specialty Materials reportable segment is comprised of the optical products and silica businesses. The primary Optical and Specialty Materials products are Transitions ® lenses, sunlenses, optical materials and polarized film; amorphous precipitated silicas for tire, battery separator, and other end-use markets; and Teslin ® synthetic printing sheet used in such applications as waterproof labels, e-passports, drivers’ licenses and identification cards. Transitions ® lenses are processed and distributed by PPG’s 51%-owned joint venture with Essilor International. In the Optical and Specialty Materials businesses, product quality and performance and technical service are the most critical competitive factors. The Optical and Specialty Materials businesses operate four plants in the United States and one in Mexico. Outside North America, these businesses operate three plants in Thailand and one plant each in Brazil, Ireland, Italy, the Netherlands and the Philippines. The average number of persons employed by the Optical and Specialty Materials reportable business segment during 2007 was 3,700.

 

Historically, the Optical and Specialty Materials reportable segment has included the fine chemicals business. PPG sold the fine chemicals business in the fourth quarter of 2007. As such, the results of operations and cash flows of this business has been classified as discontinued operations in the consolidated financial statements under Item 8 of this Form 10-K. Refer to Note 3, “Discontinued Operations and Assets Held for Sale” under Item 8 for further information.

 

Commodity Chemicals

PPG is a major producer and supplier of chemicals. The Commodity Chemicals reportable segment produces chlor-alkali and derivative products including chlorine, caustic soda, vinyl chloride monomer, chlorinated solvents, chlorinated benzenes, calcium hypochlorite, ethylene dichloride and phosgene derivatives. Most of these products are sold directly to manufacturing companies in the chemical processing, rubber and plastics, paper, minerals, metals, and water treatment industries. PPG competes with five other major producers of chlor-alkali products including The Dow Chemical Company; Formosa Plastics Corporation, U.S.A.; Georgia Gulf Corporation; Olin Corporation and Occidental

 

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Chemical Corporation. Price, product availability, product quality and customer service are the key competitive factors. PPG’s chlor-alkali business operates three production facilities in the United States and one each in Canada and Taiwan. The two largest facilities are located in Lake Charles, La., and Natrium, W. Va. PPG also owns equity interests in operations in the United States. The average number of persons employed by the Commodity Chemicals reportable business segment during 2007 was 2,100.

 

Glass

PPG is a major producer of flat glass in North America and a major global producer of continuous-strand fiber glass. The Glass reportable business segment is comprised of the performance glazings and fiber glass businesses. PPG’s major markets are commercial and residential construction and the wind energy, energy infrastructure, transportation and electronics industries. Most glass products are sold directly to manufacturing companies. PPG manufactures flat glass by the float process and fiber glass by the continuous-strand process.

 

The bases for competition in the Glass businesses are price, quality, technology and customer service. The Company competes with four major producers of flat glass including Asahi Glass Company, Cardinal Glass Industries, Guardian Industries, and NSG Pilkington, and five major producers of fiber glass throughout the world including Owens Corning, Johns Manville Corporation, CPIC Fiberglass, Jushi Group, and AGY. In the fiber glass markets, there is increasing competition from other producers operating in low labor cost countries.

 

PPG’s principal Glass production facilities are in North America and Europe. Seven plants operate in the United States, of which, four produce flat glass and three produce fiber glass products. There is one plant in Canada which produces flat glass. One plant each in England and the Netherlands produces fiber glass. PPG owns equity interests in fiber glass operations in China, Taiwan and the United States. PPG also owns a majority interest in a glass distribution company in Japan. There is one satellite glass coating facility in the United States for flat glass products, two satellite tempering and fabrication facilities in the United States for flat glass products, and four satellite distribution and fabrication branches in Canada. The average number of persons employed by the Glass reportable business segment during 2007 was 3,600.

 

Historically, the Glass reportable segment has included the automotive OEM glass and automotive replacement glass and services businesses, (“automotive glass businesses”). Because of management’s intent to divest of these businesses in 2008, the assets and liabilities of these businesses have been classified as held for sale and the results of operations and cash flows of these businesses have been classified as discontinued operations in the consolidated financial statements under Item 8 of this Form 10-K. Refer to Note 3, “Discontinued Operations and Assets Held for Sale” under Item 8 for further information.

 

Raw Materials and Energy

The effective management of raw materials and energy is important to PPG’s continued success. Our primary energy cost is natural gas used in our Glass and Commodity Chemicals businesses. In 2007, natural gas costs declined slightly in the U.S. compared to 2006 levels. The decline can be linked to a second consecutive year of relatively low hurricane activity impacting upon natural gas production in the Gulf of Mexico and record high natural gas inventory levels in the fourth quarters of 2007 and 2006. In 2007, our coatings raw material costs increased by approximately 1%, following an approximate 3% rise in 2006. The combination of continued strong global demand, particularly in Asia, and the rising cost of crude oil resulted in upward pressure on material prices as well as transportation costs. In addition, the growth of global industrial production, particularly in China, and a slowing in the rate at which our suppliers have added production capacity in North America have resulted not only in upward pressure on price but also have increased the importance of managing our supply chain.

 

The Company’s most significant raw materials are titanium dioxide and epoxy and other resins in the Coatings businesses; lenses, photochromic dye, sand and soda ash in the Optical and Specialty Materials businesses; brine and ethylene in the Commodity Chemicals business; and sand and soda ash in the Glass businesses. Energy is a significant production cost in the Commodity Chemicals and Glass businesses. Most of the raw materials and energy used in production are purchased from outside sources, and the Company has made, and plans to continue to make, supply arrangements to meet the planned operating requirements for the future. Supply of critical raw materials and energy is managed by establishing contracts, multiple sources, and identifying alternative materials or technology, whenever possible. The Company has aggressive sourcing initiatives underway to support its continuous efforts to find the lowest total material costs. These initiatives include reformulation of certain of our products using both petroleum derived and bio-based materials as part of a product renewal strategy. Another initiative is to qualify multiple sources of supply, including supplies from Asia and other lower cost regions of the world.

 

We are subject to existing and evolving standards relating to the registration of chemicals that impact or could potentially impact the availability and viability of some of the raw materials we use in our production processes. Our ongoing, global product stewardship efforts are directed at maintaining our compliance with these standards. In December 2006, the environment ministers of the European Union (“EU”) member states gave final approval to comprehensive chemical

 

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management legislation, known as “REACH” (Registration, Evaluation, and Authorization of Chemicals). REACH will apply to all chemical substances manufactured or imported into the EU in quantities of one metric ton or more annually and will require the registration of approximately 30,000 chemical substances with the European Chemicals Agency. The pre-registration deadline for such chemicals is December 1, 2008. Subsequently, REACH will require the registration and, in some cases, authorization of these chemicals over an 11-year period, with the first registration deadline set for December 1, 2010.

 

PPG is currently reviewing the implementation guidance being developed by the European Chemicals Agency. Activities underway include establishing a dedicated organization within PPG to manage our implementation of REACH, reviewing our raw materials to identify substances potentially affected by REACH, working with our suppliers to understand the future availability and viability of the raw materials we use in our production process and creating a REACH steering committee consisting of high-level stakeholders to guide, review and approve overall Company activities.

 

PPG anticipates that some current raw materials and products may be subject to the REACH authorization process and believes that PPG will be able to demonstrate adequate risk management for the use and application of the majority of such substances. PPG anticipates that compliance with the REACH legislation will increase costs due to registration costs, product testing and reformulation, risk characterization and report preparation; however, at this time it is not possible to quantify the financial impact on PPG’s businesses.

 

Research and Development

Technologic innovation has been a hallmark of PPG’s success throughout its history. Research and development costs, including depreciation of research facilities, were $354 million, $321 million and $310 million during 2007, 2006 and 2005, respectively. These costs totaled over 3% of sales in each of these years, representing a level of expenditure that is expected to continue in 2008. PPG owns and operates several facilities to conduct research and development involving new and improved products and processes. Additional process and product research and development work is also undertaken at many of the Company’s manufacturing plants. As part of our ongoing efforts to manage our costs effectively, we have a laboratory in China and an outsourcing arrangement with a laboratory in the Ukraine and have been actively pursuing government funding of a small, but growing portion of the Company’s research efforts. Because of the Company’s broad array of products and customers, PPG is not materially dependent upon any single technology platform.

 

Patents

PPG considers patent protection to be important. The Company’s reportable business segments are not materially dependent upon any single patent or group of related patents. PPG received $48 million in 2007, $ 43 million in 2006 and $35 million in 2005 from royalties and the sale of technical know-how.

 

Backlog

In general, PPG does not manufacture its products against a backlog of orders. Production and inventory levels are geared primarily to projections of future demand and the level of incoming orders.

 

Non-U.S. Operations

PPG has a significant investment in non-U.S. operations, and as a result we are subject to certain inherent risks, including economic and political conditions in international markets and fluctuations in foreign currency exchange rates. While approximately 80% of sales and operating income is generated by products sold in the United States, Canada and Western Europe, our remaining sales and operating income are generated in developing regions, such as Asia, Eastern Europe and Latin America. With the acquisition of SigmaKalon in January 2008, we have increased our international operations as substantially all of its sales are outside the United States.

 

Employee Relations

The average number of persons employed worldwide by PPG during 2007 was 34,900. The Company has numerous collective bargaining agreements throughout the world. While we have experienced occasional work stoppages as a result of the collective bargaining process and may experience some work stoppages in the future, we believe we will be able to negotiate all labor agreements on satisfactory terms. To date, these work stoppages have not had a significant impact on the PPG’s operating results. Overall, the Company believes it has good relationships with its employees.

 

Environmental Matters

PPG is subject to existing and evolving standards relating to protection of the environment. Capital expenditures for environmental control projects were $16 million, $14 million and $18 million in 2007, 2006 and 2005, respectively. It is expected that expenditures for such projects in 2008 will approximate $31 million. Although future capital expenditures are difficult to estimate accurately because of constantly changing regulatory standards and policies, it can be anticipated that environmental control standards will become increasingly stringent and the cost of compliance will increase.

 

Prior to 2007, about 20% of our chlor-alkali production capacity used mercury cell technology. PPG strives to operate these cells in accordance with applicable laws and regulations, and these cells are reviewed at least

 

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annually by state authorities. The U.S. Environmental Protection Agency (“USEPA”) has issued new regulations imposing significantly more stringent requirements on mercury emissions. These new rules took effect in December 2006. In order to meet the USEPA’s new air quality standards, a decision was made in July 2005 to replace the existing mercury cell production unit at the Lake Charles, LA chlor-alkali plant with newer membrane cell technology. The Louisiana Department of Environmental Quality granted the Company a one year extension to meet the new requirements on mercury emissions. This capital project began in 2005 and was completed in 2007. With the completion of this project, 4% of PPG’s chlor-alkali production uses mercury cell technology.

 

PPG is negotiating with various government agencies concerning 94 current and former manufacturing sites and offsite waste disposal locations, including 22 sites on the National Priority List. The number of sites is comparable with the prior year. While PPG is not generally a major contributor of wastes to these offsite waste disposal locations, each potentially responsible party may face governmental agency assertions of joint and several liability. Generally, however, a final allocation of costs is made based on relative contributions of wastes to the site. There is a wide range of cost estimates for cleanup of these sites, due largely to uncertainties as to the nature and extent of their condition and the methods that may have to be employed for their remediation. The Company has established reserves for those sites where it is probable that a liability has been incurred and the amount can be reasonably estimated. As of December 31, 2007 and 2006, PPG had reserves for environmental contingencies totaling $276 million and $282 million, respectively, of which $57 million and $65 million, respectively, were classified as current liabilities. Pretax charges against income for environmental remediation costs in 2007, 2006 and 2005 totaled $12 million, $207 million and $27 million, respectively. Cash outlays related to such environmental remediation aggregated $19 million, $22 million and $14 million in 2007, 2006 and 2005, respectively. Environmental remediation of a former chromium manufacturing plant site and associated sites in Jersey City, NJ represented the major part of our 2006 environmental charges and our existing reserves. Included in the amounts mentioned above were $185 million of 2006 charges against income and $195 million and $198 million in reserves at December 31, 2007 and 2006, respectively associated with all New Jersey chromium sites.

 

The Company’s experience to date regarding environmental matters leads PPG to believe that it will have continuing expenditures for compliance with provisions regulating the protection of the environment and for present and future remediation efforts at waste and plant sites. Management anticipates that such expenditures will occur over an extended period of time.

 

Charges for estimated environmental remediation costs in 2006 were significantly higher than our historical range. Our continuing efforts to analyze and assess the environmental issues associated with a former chromium manufacturing plant site located in Jersey City, NJ and the Calcasieu River Estuary located near our Lake Charles, LA chlor-alkali plant resulted in a pre-tax charge of $173 million in the third quarter of 2006 for the estimated costs of remediating these sites. Excluding 2006, pre-tax charges against income have ranged between $10 million and $49 million per year for the past 15 years. We anticipate that charges against income in 2008 for environmental remediation costs will be within this historical range.

 

In management’s opinion, the Company operates in an environmentally sound manner, is well positioned, relative to environmental matters, within the industries in which it operates, and the outcome of these environmental contingencies will not have a material adverse effect on PPG’s financial position or liquidity; however, any such outcome may be material to the results of operations of any particular period in which costs, if any, are recognized. See Note 15, “Commitments and Contingent Liabilities,” under Item 8 of this Form 10-K for additional information related to environmental matters.

 

There are growing public and governmental concerns related to climate change, which have led to efforts to limit the greenhouse gas (“GHG”) emissions believed to be responsible. These concerns were reflected in the 2005 framework for GHG reduction under the Kyoto Protocol to the United Nations Framework Convention on Climate Change. The Kyoto Protocol has been adopted by many countries where PPG operates, including the European Union and Canada, but not in the U.S. The European Union has implemented a cap and trade approach with a mandatory emissions trading scheme for GHGs. In December 2007, delegates to the United Nations Framework Convention on Climate Change reached agreement on development of a plan for the second phase of Kyoto, scheduled to start in 2013. This could potentially lead to further reduction requirements. A substantial portion of PPG’s GHG emissions are generated by locations in the U.S.; however, at this time it is uncertain whether the U.S. will set GHG reduction goals under the Kyoto Protocol or by some other mechanism. PPG has joined the U.S.-based Climate Registry to assist in verification of current and future GHG reduction achievements in preparation for potential imposition in the U.S. of GHG reduction goals.

 

Energy prices and scarcity of supply continue to be a concern for major energy users. Since PPG’s GHG emissions arise principally from combustion of fossil fuels, PPG has for some time recognized the desirability of reducing energy consumption and GHG generation. We committed under the Business Roundtable’s Climate

 

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RESOLVE program to reduce our GHG intensity (GHGs produced per million dollars of revenue) by 18% between 2002 and 2012. PPG achieved this target in 2006, six years ahead of schedule. Recognizing the continuing importance of this matter, PPG has appointed an Energy Security and Climate Change Steering Group to guide the Company’s progress in this area. Additionally, in 2007 PPG announced new corporate targets, namely (i) a reduction in energy intensity by 25% from 2006 to 2016 and (ii) a 10% absolute reduction in GHG emissions from 2006 to 2011. PPG’s public disclosure on energy security and climate change can be viewed at the Carbon Disclosure Project www.cdproject.net.

 

Available Information

The Company’s website address is www.ppg.com . The Company posts, and shareholders may access without charge, the Company’s recent filings and any amendments thereto of its annual reports on Form 10-K, quarterly reports on Form 10-Q and its proxy statements as soon as reasonably practicable after such reports are filed with the Securities and Exchange Commission (“SEC”). The Company also posts all financial press releases and earnings releases to its website. All other reports filed or furnished to the SEC, including reports on Form 8-K, are available via direct link on PPG’s website to the SEC’s website, www.sec.gov. Reference to the Company’s and SEC’s websites herein does not incorporate by reference any information contained on those websites and such information should not be considered part of this Form 10-K.

 

Item 1a. Risk Factors

As a global manufacturer of coatings, glass and chemicals products, we operate in a business environment that includes risks. These risks are not unlike the risks we have faced in the recent past. Each of the risks described in this section could adversely affect our operating results, financial position and liquidity. While the factors listed here are considered to be the more significant factors, no such list should be considered to be a complete statement of all potential risks and uncertainties. Unlisted factors may present significant additional obstacles which may adversely affect our business.

 

Increases in prices and declines in the availability of raw materials could negatively impact our financial results

Our operating results are significantly affected by the cost of raw materials and energy, including natural gas. Changes in natural gas prices have a significant impact on the operating performance of our Commodity Chemicals and Glass businesses. Each one-dollar change in our unit price of natural gas per million British Thermal Units (“mmbtu”) has a direct impact of approximately $60 million to $70 million on our annual operating costs. In 2007, natural gas costs declined slightly in the U.S. compared to 2006 levels. Year-over-year coatings raw material costs rose by $40 million in 2007 following a rise of $75 million in 2006. Additionally, certain raw materials are critical to our production processes. These include titanium dioxide and epoxy and other resins in the Coatings businesses; lenses, photochromic dye, sand and soda ash in the Optical and Specialty Materials businesses; brine and ethylene in the Commodity Chemicals business; and sand and soda ash in the Glass businesses. We have made, and plan to continue to make, supply arrangements to meet the planned operating requirements for the future. However, an inability to obtain these critical raw materials would adversely impact our ability to produce products.

 

We experience substantial competition from certain low-cost regions

Growing competition from companies in certain regions of the world, including Asia, Eastern Europe and Latin America, where energy and labor costs are lower than those in the U.S., could result in lower selling prices or reduced demand for some of our glass and fiber glass products.

 

We are subject to existing and evolving standards relating to the protection of the environment

Excluding 2006, pretax charges against income for environmental remediation ranged between $10 million and $49 million per year over the past 15 years. In 2006 those charges totaled $207 million. We have accrued $276 million for estimated remediation costs that are probable at December 31, 2007. Our assessment of the potential impact of these environmental contingencies is subject to considerable uncertainty due to the complex, ongoing and evolving process of investigation and remediation, if necessary, of such environmental contingencies, and the potential for technological and regulatory developments. As such, in addition to the amounts currently reserved, we may be subject to loss contingencies related to environmental matters estimated to be as much as $200 million to $300 million. Such unreserved losses are reasonably possible but are not currently considered to be probable of occurrence.

 

We are involved in a number of lawsuits and claims, both actual and potential, in which substantial monetary damages are sought

The results of any future litigation or settlement of such lawsuits and claims are inherently unpredictable, but such outcomes could be adverse and material in amount.

 

For over 30 years, we have been a defendant in lawsuits involving claims alleging personal injury from exposure to asbestos

Most of our potential exposure relates to allegations by plaintiffs that PPG should be liable for injuries involving asbestos containing thermal insulation products manufactured by Pittsburgh Corning Corporation (“PC”). PPG is a 50% shareholder of PC. Although we have entered into a settlement arrangement with several parties concerning these asbestos claims as discussed in Note 15, “Commitments and Contingent Liabilities,” under Item 8 of this Form 10-K, the arrangement remains subject to court proceedings and, if not approved, the outcome

 

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could be material to the results of operations of any particular period.

 

We sell products to U.S.-based automotive original equipment manufacturers and their suppliers

The North American automotive industry continues to experience structural change, including the loss of U.S. market share by General Motors, Ford and Chrysler. Further deterioration of market conditions could cause certain of our customers and suppliers to have liquidity problems, potentially resulting in the write-off of amounts due from these customers and cost impacts of changing suppliers.

 

Our international operations expose us to additional risks and uncertainties that could affect our financial results

Because we are a global company, our results are subject to certain inherent risks, including economic and political conditions in international markets and fluctuations in foreign currency exchange rates. While approximately 80% of sales and operating income in 2007 was generated by products sold in the United States, Canada and Western Europe, our remaining sales and operating income are generated in developing regions, such as Asia, Eastern Europe and Latin America. With the acquisition of SigmaKalon in January 2008, we have increased our international operations as substantially all of its sales are outside the United States.

 

As a producer of chemicals, we manufacture and transport certain materials that are inherently hazardous due to their toxic nature

We have significant experience in handling these materials and take precautions to handle and transport them in a safe manner. However, these materials, if mishandled or released into the environment, could cause substantial property damage or personal injuries resulting in significant legal claims against us. In addition, evolving regulations concerning the security of chemical production facilities and the transportation of hazardous chemicals could result in increased future capital or operating costs.

 

Business disruptions could have a negative impact on our results of operations and financial condition

Unexpected events, including supply disruptions, temporary plant and/or power outages, natural disasters and severe weather events, fires, or war or terrorist activities, could increase the cost of doing business or otherwise harm the operations of PPG, our customers and our suppliers. It is not possible for us to predict the occurrence or consequence of any such events. However, such events could reduce demand for our products or make it difficult or impossible for us to receive raw materials from suppliers and to deliver products to customers.

 

The failure to successfully integrate the acquisition of SigmaKalon could adversely affect our financial results

On January 2, 2008, we completed the acquisition of SigmaKalon, a worldwide coatings producer based in Uithoorn, Netherlands. The total cost of the transaction, including assumed debt, was approximately $3.2 billion. In the event that we do not successfully integrate SigmaKalon into our operations, our consolidated operating results, financial condition and cash flows could be adversely affected.

 

Our performance is affected by the economic conditions in the U.S. and in other nations where we do business

Declining economic conditions may have a negative impact on our consolidated results of operations, financial condition and cash flows. Overall demand for our products could be reduced as a direct result of an economic recession.

 

Item 1b. Unresolved Staff Comments

None.

 

Item 2. Properties

See “Item 1. Business” for information on PPG’s production and fabrication facilities.

 

Generally, the Company’s plants are suitable and adequate for the purposes for which they are intended, and overall have sufficient capacity to conduct business in the upcoming year.

 

Item 3. Legal Proceedings

PPG is involved in a number of lawsuits and claims, both actual and potential, including some that it has asserted against others, in which substantial monetary damages are sought. These lawsuits and claims, the most significant of which are described below, relate to contract, patent, environmental, product liability, antitrust and other matters arising out of the conduct of PPG’s business. To the extent that these lawsuits and claims involve personal injury and property damage, PPG believes it has adequate insurance; however, certain of PPG’s insurers are contesting coverage with respect to some of these claims, and other insurers, as they had prior to the asbestos settlement described below, may contest coverage with respect to some of the asbestos claims if the settlement is not implemented. PPG’s lawsuits and claims against others include claims against insurers and other third parties with respect to actual and contingent losses related to environmental, asbestos and other matters.

 

The result of any future litigation of such lawsuits and claims is inherently unpredictable. However, management believes that, in the aggregate, the outcome of all lawsuits and claims involving PPG, including asbestos-related claims in the event the settlement described below does not become effective, will not have a material effect on PPG’s consolidated financial position or liquidity; however, any such outcome may be material to the results of operations of any particular period in which costs, if any, are recognized.

 

For over 30 years, PPG has been a defendant in lawsuits involving claims alleging personal injury from exposure to asbestos. For a description of asbestos litigation affecting the Company and the terms and status

 

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of the proposed PPG Settlement Arrangement announced May 14, 2002, see Note 15, “Commitments and Contingent Liabilities,” under Item 8 of this Form 10-K.

 

Over the past several years, the Company and others have been named as defendants in several cases in various jurisdictions claiming damages related to exposure to lead and remediation of lead-based coatings applications. PPG has been dismissed as a defendant from most of these lawsuits and has never been found liable in any of these cases.

 

PPG received a Notice of Violation in July 2007 from the North Carolina Department of Environment and Natural Resources, Division of Air Quality regarding alleged exceedances of air opacity limits at its Shelby, North Carolina fiber glass facility. PPG settled this matter in the fourth quarter for stipulated civil penalty of $75,000.

 

Item 4. Submission of Matters to a Vote of Security Holders

None.

 

Executive Officers of the Company

Set forth below is information related to the Company’s executive officers as of February 21, 2008.

 

Name


  Age

 

Title


Charles E. Bunch (a)

  58   Chairman of the Board and Chief Executive Officer since July 2005

James C. Diggs

  59   Senior Vice President and General Counsel since July 1997 and Secretary since September 2004

William H. Hernandez (b)

  59   Senior Vice President, Finance and Chief Financial Officer since January 1995

J. Rich Alexander (c)

  52   Senior Vice President, Coatings since May 2005

Pierre-Marie De Leener (d)

  50   Senior Vice President, Architectural Coatings, Europe/Middle East and Africa since January 2008

Victoria M. Holt (e)

  50   Senior Vice President, Glass and Fiber Glass since May 2005

Kevin F. Sullivan (f)

  56   Senior Vice President, Chemicals since May 2005

William A. Wulfsohn (g)

  45   Senior Vice President, Coatings, since May 2005
(a)   Mr. Bunch held the position of President and Chief Operating Officer from July 2002 until July 2005.
(b)   Mr. Hernandez also held the position of Treasurer from April 2007 until January 2008.
(c)   Mr. Alexander held the position of Vice President, Industrial Coatings from July 2002 until April 2005.
(d)   Mr. De Leener was appointed to his current position upon PPG’s acquisition of SigmaKalon Group on January 2, 2008. He previously served as Chief Executive Officer of SigmaKalon Group from 1999 until January 2008.
(e)   Ms. Holt held the position of Vice President, Fiber Glass from February 2003 until April 2005.
(f)   Mr. Sullivan held the position of Vice President, Chemicals from July 2002 until April 2005.
(g)   Mr. Wulfsohn also held the position of Managing Director, PPG Europe from May 2005 until June 2006; and the position of Vice President, Coatings, Europe, and Managing Director, PPG Europe from February 2003 until April 2005.

 

Part II

 

Item 5. Market for the Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

 

The information required by Item 5 regarding market information, including stock exchange listings and quarterly stock market prices, dividends and holders of common stock is included in Exhibit 13.1 filed with this Form 10-K and is incorporated herein by reference. This information is also included in the PPG Shareholder Information on page 79 of the Annual Report to shareholders.

 

Directors who are not also officers of the Company receive common stock equivalents pursuant to the PPG Industries, Inc. Deferred Compensation Plan for Directors (“PPG Deferred Compensation Plan for Directors”). Retired directors receive dividend equivalents in the form of common stock equivalents pursuant to the PPG Industries, Inc. Directors’ Common Stock Plan (“PPG Directors’ Common Stock Plan”). Common stock equivalents are hypothetical shares of common stock having a value on any given date equal to the value of a share of common stock. Common stock equivalents earn dividend equivalents that are converted into additional common stock equivalents but carry no voting rights or other rights afforded to a holder of common stock. The common stock equivalents credited to directors under both plans are exempt from registration under Section 4(2) of the Securities Act of 1933 as private offerings made only to directors of the Company in accordance with the provisions of the plans.

 

Under the PPG Deferred Compensation Plan for Directors, each director may elect to defer the receipt of all or any portion of the compensation paid to such director for serving as a PPG director. All deferred payments are held in the form of common stock equivalents. Payments out of the deferred accounts are made in the form of common stock of the Company (and cash as to any fractional common stock equivalent). The directors, as a group, were credited with 9,742; 2,886; and 10,954 common stock equivalents in 2007, 2006, and 2005 respectively, under this plan. The values of the common stock equivalents, when credited, ranged from $68.71 to $75.50 in 2007, $61.32 to $65.84 in 2006 and $57.85 to $72.95 in 2005.

 

The retired directors who participated in the PPG Directors’ Common Stock Plan withdrew from this plan in 2007. The directors received 4, 26, and 58 common stock equivalents in 2007, 2006, and 2005. The value of those common stock equivalents, when credited, were $68.71 in 2007, and ranged from $61.32 to $65.84 in 2006 and $57.85 to $72.95 in 2005.

 

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Issuer Purchases of Equity Securities

The following table summarizes the Company’s stock repurchase activity for the three months ended December 31, 2007:

Month   Total
Number of
Shares
Purchased
  Average
Price Paid
per Share
 

Total

Number

of Shares
Purchased

as Part of
Publicly
Announced
Program

 

Maximum
Number of
Shares

that May
Yet Be
Purchased
Under the
Program (1)

October 2007                
   

Repurchase program

    $     4,035,009
   
 
 

 
 
     

Other transactions (2)

  24,292     76.33    
November 2007                
   

Repurchase program

          4,035,009
   
     

Other transactions (2)

  69,820     72.30    
December 2007                
   

Repurchase program

  56,400     70.38   56,400   3,978,609
   
     

Other transactions (2)

  18,486     70.66    

Total quarter ended

December 31, 2007

               
   

Repurchase program

  56,400   $ 70.38   56,400   3,978,609
   
     

Other transactions (2)

  112,598   $ 72.90        
(1)   These shares were repurchased under a 10 million share repurchase program approved by PPG’s Board of Directors in October 2005. This program does not have an expiration date.
(2)   Includes shares withheld or certified to in satisfaction of the exercise price and/or tax withholding obligation by holders of employee stock options who exercised options granted under the Company’s equity compensation plans.

 

Equity Compensation Plan Information

The equity compensation plan documents described in the footnotes below are included as Exhibits to this Form 10-K, and are incorporated herein by reference in their entirety. The following table provides information as of December 31, 2007 regarding the number of shares of PPG common stock that may be issued under PPG’s equity compensation plans. For additional information on the Company’s equity compensation program, see Note 20, “Stock-Based Compensation,” under Item 8 of this Form 10-K.

 

Plan category   

Number of
securities
to be issued
upon
exercise of
outstanding
options,
warrants
and rights

(a )

  

Weighted-
average
exercise
price of
outstanding
options,
warrants
and rights

(b)

  

Number of
securities
remaining
available for
future
issuance
under equity
compensation
plans
(excluding
securities
reflected in
column (a))

(c)

Equity compensation plans
approved by security
holders (1)
  

8,014,257

  

$59.96

  

8,996,813


Equity compensation plans
not approved by security
holders (2), (3)
  

1,185,700

  

$70.00

  

—   


      Total   

9,199,957

  

$61.40

  

8,996,813

(1)   Equity compensation plans approved by security holders include the PPG Industries, Inc. Stock Plan, the PPG Omnibus Plan, the PPG Industries, Inc. Executive Officers’ Long Term Incentive Plan and the PPG Industries Inc. Long Term Incentive Plan.
(2)   Equity compensation plans not approved by security holders include the PPG Industries, Inc. Challenge 2000 Stock Plan. This plan is a broad-based stock option plan under which the Company granted to substantially all active employees of the Company and its majority owned subsidiaries on July 1, 1998, the option to purchase 100 shares of the Company’s common stock at its then fair market value of $70.00 per share. Options became exercisable on July 1, 2003, and expire on June 30, 2008. There were 1,185,700 shares issuable upon exercise of options outstanding under this plan as of December 31, 2007.
(3)   Excluded from the information presented here are common stock equivalents held under the PPG Industries, Inc. Deferred Compensation Plan, the PPG Industries, Inc. Deferred Compensation Plan for Directors and the PPG Industries, Inc. Directors’ Common Stock Plan, none of which are equity compensation plans. As supplemental information, there were 499,917 common stock equivalents held under such plans as of December 31, 2007.

 

Item 6. Selected Financial Data

 

The information required by Item 6 regarding the selected financial data for the five years ended December 31, 2007 is included in Exhibit 13.2 filed with this Form 10-K and is incorporated herein by reference. This information is also reported in the Five-Year Digest on page 78 of the Annual Report to shareholders.

 

Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

Presentation of Discontinued Operations

During the third quarter of 2007, the Company entered into an agreement to sell its automotive glass businesses to Platinum Equity (“Platinum”) for approximately $500 million. Accordingly, the assets and liabilities of these businesses were classified as held for sale. In the fourth quarter of 2007, PPG was notified that affiliates of Platinum had filed suit in the Supreme Court of the State of New York, County of New York, alleging that Platinum was not obligated to consummate the agreement. Platinum subsequently terminated the agreement. PPG has sued Platinum and certain of its affiliates for damages, including the $25 million breakup fee stipulated by the terms of the agreement, based on various alleged actions of the Platinum parties.

 

While the transaction with Platinum was terminated, PPG management remains committed to a sale of the automotive glass businesses. Accordingly, the assets and liabilities of these businesses continue to be classified as held for sale and are stated at depreciated cost, which is lower than fair value less cost to sell, in the consolidated balance sheet under Item 8 of this Form 10-K as of December 31, 2007 and 2006. Further, the results of operations and cash flows of these businesses, which had previously been included in the Glass reportable segment, have been classified as discontinued operations in the consolidated statements of income and cash flows under Item 8 for the three years ended December 31, 2007.

 

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Management’s Discussion and Analysis

 

The decision to sell these businesses triggered curtailments related to certain of PPG’s defined benefit pension and other postretirement benefit plans. In 2007, PPG recorded a pretax charge of $17 million ($11 million aftertax), primarily representing curtailment losses on certain defined benefit pension plans. The sale of these businesses may result in additional curtailments and possibly settlements of other PPG employee benefit plans to be recorded upon or after the closing of a sale.

 

In the third quarter of 2007, PPG entered into an agreement to sell its fine chemicals business to ZaCh System S.p.A., a subsidiary of Zambon Company S.p.A., for approximately $65 million. The sale of this business was completed in November 2007. Accordingly, the assets and liabilities of this business have been reclassified as held for sale in the consolidated balance sheet under Item 8 as of December 31, 2006. Further, the results of operations and cash flows of this business, which had previously been included in the Optical and Specialty Materials reportable segment, have been classified as discontinued operations in the consolidated statements of income and cash flows under Item 8 for the three years ended December 31, 2007. PPG recorded a pretax loss on sale of the fine chemicals business of $25 million ($19 million aftertax) in 2007.

 

Performance in 2007 compared with 2006

 

Performance Overview

Our sales increased 14% to $11.2 billion in 2007 compared to $9.9 billion in 2006. Sales increased 6% due to the impact of acquisitions, 4% due to increased volumes and 4% due to the positive effects of foreign currency translation.

 

Cost of sales as a percentage of sales increased slightly to 63.2% compared to 62.4% in 2006 due to the adverse impact of inflation net of selling price changes. Selling, general and administrative expense increased slightly as a percentage of sales to 19.1% compared to 18.6% in 2006. These costs increased primarily due to higher expenses related to growth, including increased advertising costs and the impact of inflation.

 

Business restructuring expense decreased $35 million in 2007. In 2006, the Company finalized plans for certain actions to reduce its workforce and consolidate facilities and recorded a charge of $35 million.

 

Other charges decreased $193 million in 2007. The reduction was primarily due to a reduction in environmental expenses, which were $195 million lower in 2007 as compared to 2006.

 

Other earnings increased $24 million in 2007 due to higher royalty income, higher interest income and gains from asset sales.

 

Net income and earnings per share – assuming dilution for 2007 and 2006 are summarized below:

 

 

($ in Millions, except per share amounts)


 
 
 
 

Twelve Months ended

December 31 , 200 7


  Continuing
Operations


  Discontinued
Operations


  Total


  $

  EPS

    $  

    EPS  

  $

  EPS

Net income

  $ 815   $ 4.91   $ 19   $ 0.12   $ 834   $ 5.03
Net income includes:                        
Charges related to:                        

Acquisition related costs

    4     0.03             4     0.03

Asbestos settlement – net (1)

    15     0.09             15     0.09

Glass divestiture

            11     0.06     11     0.06

Fine chemicals divestiture

            19     0.11     19     0.11

 

($ in Millions, except per share amounts)


   
 
 
   
 

Twelve Months ended
December 31, 2006


  Continuing
Operations


    Discontinued
Operations


  Total

 

  $

    EPS

      $  

    EPS  

  $

    EPS

 

Net income

  $ 653     $ 3.92     $ 58   $ 0.35   $ 711     $ 4.27  
Net income includes:                                
Charges related to:                                

Environmental remediation (2)

    106       0.64               106       0.64  

Legal settlements

    26       0.15               26       0.15  

Business restructuring

    22       0.13       1     0.01     23       0.14  

Asbestos settlement – net (1)

    17       0.10               17       0.10  

Earnings from insurance recoveries

    (24 )     (0.14 )             (24 )     (0.14 )
(1)   Net increase in the current value of the Company’s obligation relating to asbestos claims under the PPG Settlement Arrangement.
(2)   Charge for estimated environmental remediation costs at our former chromium manufacturing plant in Jersey City, N.J. and at the Calcasieu River estuary near our Lake Charles, La. facility.

 

Results of Reportable Business Segments

 

      Net sales        Segment income
(Millions)   2007      2006      2007      2006

Performance Coatings

  $ 3,811      $ 3,088      $ 563      $ 514

Industrial Coatings

    3,646        3,236        370        349

Optical and Specialty Materials

    1,029        904        235        217

Commodity Chemicals

    1,539        1,483        243        285

Glass

    1,181        1,150        90        99

 

Performance Coatings sales increased $723 million or 23% in 2007. Sales increased 15% due to sales from acquisitions in all three Performance Coatings businesses, 4% due to the positive impact of foreign currency translation and 3% due to improved sales volumes in our aerospace and automotive refinish businesses, which more than offset slightly lower volumes in architectural coatings. The volume growth in the aerospace and refinish businesses occurred throughout the world, while the volume decline in architectural coatings was in North America. Sales also increased 1% due to higher selling prices. Segment income increased $49 million to a total of $563 million in 2007. Factors increasing segment income were improved sales volumes, earnings from acquisitions and the positive impact of foreign currency translation.

 

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Management’s Discussion and Analysis

 

Additionally, the benefit of higher selling prices more than offset the impact of inflation. Segment income decreased due to higher overhead costs to support growth initiatives in this segment.

 

Industrial Coatings sales increased $410 million or 13% in 2007. Sales increased 6% due to the positive impact of foreign currency translation, 4% due to acquisitions in our automotive and industrial coatings businesses and 3% from improved sales volumes as volume increases in automotive coatings and packaging coatings more than offset declines in the volume of the industrial coatings business in the U.S. and Canada. Volume growth in the automotive coatings businesses occurred in all regions of the world, while the volume growth in packaging coatings was experienced mainly in Asia and Europe. The decline in industrial coatings’ North American volumes overshadowed solid growth for this business in Europe, Asia and Latin America. Segment income increased $21 million in 2007 due to improved sales volumes, the impact of acquisitions, lower manufacturing costs and the positive impact of foreign currency translation. Factors decreasing segment income were inflation, including higher raw material costs, which more than offset a slight improvement in selling prices, and increased overhead costs to support growth initiatives.

 

Optical and Specialty Materials sales increased $125 million or 14% in 2007. Sales increased 8% due to higher volumes primarily in the optical products business, 4% due to the positive impact of foreign currency translation, 1% as the result of sales from acquisitions in the optical products business and 1% due to higher selling prices. Segment income increased $18 million in 2007. The increase in segment income was primarily the result of the increased sales volumes partially offset by higher advertising expense related to optical products volume growth initiatives in all regions and to the impending launch of Transitions Optical’s next generation lens product in the first quarter of 2008.

 

Commodity Chemicals sales increased $56 million or 4% in 2007. Sales increased 9% due to higher sales volumes of caustic and derivatives, which was partially offset by a 5% decrease in selling prices in part due to lower natural gas input costs. Segment income decreased $42 million in 2007. Segment income was lower in large part due to lower selling prices, higher manufacturing costs, including maintenance costs and higher raw material costs. Segment income also decreased as a result of the absence of an insurance recovery received in 2006 for damage caused by Hurricane Rita in 2005. The benefit of lower energy and environmental costs and improved sales volumes were factors that increased segment income in 2007.

 

Glass sales increased by $31 million or 3% in 2007. Sales increased 3% due to higher sales volumes and 2% due to the positive impact of foreign currency translation. The negative impact of lower selling prices in our performance glazings business reduced segment sales by 2%. Pricing in the performance glazings business includes a surcharge related to the cost of energy lagged by one quarter. The surcharge in 2006 exceeded the current year surcharge due to higher energy costs during the comparable periods. Segment income decreased $9 million in 2007. Segment income decreased due to the negative impact of inflation and lower pricing, including the lower energy surcharge in performance glazings. These factors were only partially offset by the benefit from higher sales volumes.

 

See Note 24, “Reportable Business Segment Information,” under Item 8 of this Form 10-K for further information related to the Company’s operating segments and reportable business segments.

 

Other Significant Factors

The effective tax rate on pretax earnings from continuing operations in 2007 was 28.6% compared to 25.1% in 2006. The rate in 2007 includes the benefit of $15 million for the reversal of a valuation allowance previously recorded against the benefit of a tax net operating loss carryforward, the benefit associated with an enacted reduction in the Canadian federal corporate income tax rate and a tax benefit of 39% on the adjustment to increase the current value of the Company’s obligation relating to asbestos claims under the PPG Settlement Arrangement, as discussed in Note 15, “Commitments and Contingent Liabilities” under Item 8 of this Form 10-K. The tax rate was 30.3% on the remaining pretax earnings from continuing operations in 2007. The effective tax rate on earnings from continuing operations in 2006 included the benefit of a tax refund from Canada resulting from the favorable resolution of a tax dispute dating back to 1998 and a tax benefit related to the settlement with the Internal Revenue Service of our tax returns for the years 2001-2003. In the aggregate, these benefits reduced 2006 income tax expense by $39 million. The 2006 effective tax rate also included a tax benefit of 36% on the charge for business restructuring and a tax benefit of 39% on the third quarter environmental remediation charge for sites in New Jersey and Louisiana, on the charges for legal settlements, and on the adjustment to increase the current value of the Company’s obligation relating to asbestos claims under the PPG Settlement Arrangement. Income tax expense of 39% was recognized on certain insurance recoveries, and income tax expense of 31% was recognized on the remaining pretax earnings from continuing operations in 2006.

 

The effective tax rate on pretax earnings from discontinued operations in 2007 was 47.6% compared to

 

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Management’s Discussion and Analysis

 

37.8% in 2006. The rate in 2007 includes a tax benefit of 35% on the curtailment charge related to the automotive glass businesses and a tax benefit of 24% on the loss on the sale of the fine chemicals business. The tax rate was 39% on the remaining pretax earnings from discontinued operations in 2007.

 

Outlook

In 2007, the U.S. and overall North American economy continued a slowing trend which began during the second half of 2006. U.S. gross domestic product (“GDP”) increased about 2% for the year. Growth rates slowed in several U.S. end-markets in the latter part of the year, but the growth rates were aided by higher exports and decreased imports. U.S. residential construction rates declined approximately 25% year-over-year, and North American vehicle production decreased by 3%. Despite these and other slowing markets, overall industrial production increased by 2%. Industrial production remains the economic metric that most positively correlates with our U.S. organic volume growth because it reflects activity in PPG’s broad end-use markets. The U.S. commercial construction sector continued to grow consistently throughout the year, increasing by approximately 15%.

 

Overall inflation remained modest as low labor rates in emerging regions have continued to hold labor rates in the mature regions relatively flat. Global energy prices, primarily oil, and other basic raw material costs increased to new or close to new record high levels. Natural gas costs in the U.S. declined for the second consecutive year, but remain at elevated levels when viewed historically.

 

The European economy grew at one of its highest rates in the past decade due to continued industrial activity and higher consumer spending. Western European vehicle production improved by 3%, and Eastern European automotive production grew by nearly 18%. Overall industrial production grew by 2.5%.

 

The Asian economies continued to post very high growth rates both relative to other major economies and historically, driven by strong growth in China and India. Chinese industrial production once again grew at just under 20%, supported, in part, by growth exceeding 20% in automobile production. Overall China GDP improved by 11% for the second consecutive year.

 

Entering 2008, the overall economic outlook is generally bearish with many economists concerned about the potential of a U.S. recession and its potential impact on the overall global economy. Meanwhile, inflation concerns have risen in basic materials, due primarily to oil prices which are at or close to all-time record highs. Interest rates, which had been rising in many of the world’s major economies, are now expected to decrease or remain flat due to lower anticipated growth rates.

 

Overall global growth is expected to continue as rapidly growing emerging regions, including China, India, Latin America and Eastern Europe, continue to grow into a more meaningful portion of the global economy. Despite slowing in the U.S. economy, and a variety of government actions in China designed to slow its growth rate, these emerging economies are expected to continue to produce growth rates well above those in more mature economies due in part to ongoing internal infrastructure expansion. This growth has benefited global companies, such as PPG as evidenced in 2007 when PPG grew organically by over 10% in these emerging regions.

 

In 2008, we expect cost pressures in certain raw materials, transportation and healthcare to remain. As PPG has historically done, we anticipate offsetting these cost increases with aggressive raw material sourcing, manufacturing cost improvements, productivity gains and selling price increases.

 

Our pension and post retirement benefit costs totaled $233 million in 2007, including a curtailment charge of $17 million related to discontinued operations. Excluding the curtailment charge, these costs decreased by $55 million compared to 2006. Based on our current estimates, we expect our pension and other postretirement benefits costs to decline by approximately $20 million in 2008. This decline is due primarily to an increase in the discount rate for 2008 as well as the impact of the $100 million contribution we made to our U.S. pension plans in 2007.

 

With respect to energy costs, 2007 natural gas costs remained high but declined as compared to 2006. Changes in natural gas prices have a significant impact on the operating performance of our Commodity Chemicals and Glass businesses. Each one dollar change in our price of natural gas per million British thermal units (“mmbtu”) has a direct impact of $60 million to $70 million on our annual operating costs. Our 2007 natural gas costs averaged about $7.50 per mmbtu for the year, while our 2006 costs averaged about $8.00. While it remains difficult to predict future natural gas prices, in order to reduce the risks associated with volatile prices, we use a variety of techniques, which include reducing consumption through improved manufacturing processes, switching to alternative fuels and hedging. We currently estimate our cost for natural gas in the first quarter of 2008 will be higher than the first quarter of 2007. We currently have nearly 40% of our first quarter 2008 natural gas purchases hedged at a price of about $8.75, and approximately 30% of our 2008 annual requirements hedged at about $8.25.

 

Over the past few years we have also experienced increases in the prices we pay for raw materials used in many of our businesses, particularly in our coatings

 

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Management’s Discussion and Analysis

 

businesses. The increases have resulted from global industrial expansion, supply/demand imbalance and increases in supplier feedstock costs. We have and plan to continue to combat the impact of these rising costs by seeking alternate and global supply sources for our raw materials, reformulating our products, improving our production processes and raising our selling prices. Year-over-year coatings raw material costs rose by $75 million in 2006, and the rate of increase slowed to approximately $40 million in 2007, which represented about a one percent increase. Our current forecast for the early portion of 2008 is for coatings raw material inflation, likely in the two to four percent range, supported primarily by higher oil prices. However, full year raw material inflation may increase or decrease, with the main driver likely being overall economic conditions and resulting supply and demand factors.

 

In 2007 we completed several acquisitions that are intended to strengthen our coatings businesses by extending their geographic breadth. In addition, several acquisitions were completed in the middle or toward the end of 2006. The sales for businesses held for less than one year added slightly less than $600 million to PPG’s 2007 sales with operating margins approaching, but just below coatings industry averages.

 

Also in 2007, we sold our fine chemicals business and our Azdel fiber glass joint venture, and closed our Venezulean fiber glass joint venture. Additionally, we signed a contract for the sale of our automotive glass businesses; however this contract was later terminated by the purchaser. Nevertheless, we intend to sell the automotive glass businesses during 2008.

 

On January 2, 2008, PPG completed the purchase of SigmaKalon, a worldwide coatings producer based in the Netherlands, for approximately $3.2 billion. PPG expects 2008 sales from this acquisition of about $3 billion. This acquisition is not expected to be accretive to PPG’s earnings in 2008 due, in part, to certain acquisition related costs. PPG utilized interim debt financing upon closing of the transaction, and will install longer-term financing during 2008. The acquisition greatly extends PPG’s European coatings operations and customer breadth, and is expected to be accretive to earnings in 2009.

 

Economic conditions entering 2008 are challenging due primarily to continued softness in several U.S. markets and concern over global credit issues. The acquisition of SigmaKalon will result in a shift of our geographic sales mix, as now less than 50% of our sales will be derived in the U.S. and Canada. We anticipate continued organic growth in 2008 due to this more diverse geographic sales mix, along with our larger sales base in emerging regions. We anticipate this growth, coupled with our focus on cost improvement, will allow us to continue with our legacy of cash generation for the ongoing benefit of our shareholders.

 

Accounting Standard Adopted in 2007

In June 2006, the Financial Accounting Standards Board, (“FASB”), issued FASB Interpretation (“FIN”) No. 48, “Accounting for Uncertainty in Income Taxes, an interpretation of FASB Statement No. 109”. FIN No. 48 clarifies the accounting for uncertainty in income taxes recognized in an enterprise’s financial statements and prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. The Company adopted the provisions of FIN No. 48 as of January 1, 2007. As a result of the implementation of FIN No. 48, the Company reduced its liability for unrecognized tax benefits by $11 million, which was recorded as a direct increase in retained earnings. Refer to Note 13, “Income Taxes,” under Item 8 for additional information.

 

Accounting Standards to be Adopted in Future Years

In September 2006, the FASB issued Statement of Financial Accounting Standards, (“SFAS”) No. 157, “Fair Value Measurements,” which defines fair value, establishes a framework in generally accepted accounting principles for measuring fair value, and expands disclosures about fair value measurements. This standard only applies when other standards require or permit the fair value measurement of assets and liabilities. It does not increase the use of fair value measurement. SFAS No. 157 is effective for fiscal years beginning after November 15, 2007, except as it relates to nonrecurring fair value measurements of nonfinancial assets and liabilities, for which SFAS No. 157 is effective for fiscal years beginning after November 15, 2008. The Company evaluated the impact of adopting this statement, and concluded it will not have a significant effect on PPG’s consolidated results of operations or financial position.

 

In February 2007, the FASB issued SFAS No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities – Including an Amendment of FASB Statement No. 115.” SFAS No. 159 permits entities to choose to measure eligible items at fair value at specified election dates and report unrealized gains and losses on items for which the fair value option has been elected in earnings at each subsequent reporting date. SFAS No. 159 is effective for fiscal years beginning after November 15, 2007. The Company evaluated the impact of adopting this Statement, and concluded it will not have an effect on PPG’s consolidated results of operations or financial position.

 

In December 2007, the FASB issued SFAS No. 141 (revised 2007), “Business Combinations” (SFAS No.141(R)), which replaces SFAS No. 141, “Business Combinations.” SFAS No. 141(R) retains the underlying

 

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concepts of SFAS No. 141 in that all business combinations are still required to be accounted for at fair value under the acquisition method of accounting, but SFAS No. 141(R) changes the method of applying the acquisition method in a number of significant aspects. Acquisition costs will generally be expensed as incurred; noncontrolling interests will be valued at fair value at the acquisition date; in-process research and development will be recorded at fair value as an indefinite-lived intangible asset at the acquisition date; restructuring costs associated with a business combination will generally be expensed subsequent to the acquisition date; and changes in deferred tax asset valuation allowances and income tax uncertainties after the acquisition date generally will affect income tax expense. SFAS No. 141(R) is effective on a prospective basis for all business combinations for which the acquisition date is on or after the beginning of the first annual period subsequent to December 15, 2008, with an exception related to the accounting for valuation allowances on deferred taxes and acquired contingencies related to acquisitions completed before the effective date. SFAS No. 141(R) amends SFAS No. 109 to require adjustments, made after the effective date of this statement, to valuation allowances for acquired deferred tax assets and income tax positions to be recognized as income tax expense. Beginning January 1, 2009, PPG will apply the provisions of SFAS No. 141(R) to its accounting for applicable business combinations.

 

In December 2007, the FASB issued SFAS No. 160, “Noncontrolling Interests in Consolidated Financial Statements—an amendment of ARB No. 51.” This statement is effective for fiscal years, and interim periods within those fiscal years, beginning on or after December 15, 2008. SFAS No. 160 requires the recognition of a noncontrolling interest (minority interest) as equity in the consolidated financial statements and separate from the parent’s equity. The amount of net income attributable to the noncontrolling interest will be included in consolidated net income on the face of the income statement. SFAS No. 160 amends certain of ARB No. 51’s consolidation procedures for consistency with the requirements of SFAS No. 141(R) . This statement requires changes in the parent’s ownership interest of consolidated subsidiaries to be accounted for as equity transactions. This statement also includes expanded disclosure requirements regarding the interests of the parent and its noncontrolling interest. We are currently evaluating the effects that SFAS No. 160 may have on our consolidated financial statements.

 

In November 2007, the Emerging Issues Task Force (“EITF”) issued EITF Issue No. 07-1, “Accounting for Collaborative Arrangements,” which defines collaborative arrangements and establishes reporting and disclosure requirements for such arrangements. EITF 07-1 is effective for fiscal years beginning after December 15, 2008. The Company is continuing to evaluate the impact of adopting the provisions EITF 07-1; however, it does not anticipate that adoption will have a material effect on PPG’s consolidated results of operations or financial position.

 

In March 2007, EITF Issue No. 06-10, “Accounting for Collateral Assignment Split-Dollar Life Insurance Arrangements,” was issued. Under the provisions of EITF 06-10, an employer is required to recognize a liability for the postretirement benefit related to a collateral assignment split-dollar life insurance arrangement in accordance with either SFAS No. 106, “Employers’ Accounting for Postretirement Benefits Other Than Pensions,” or Accounting Principles Board Opinion No. 12, “Omnibus Opinion – 1967,” if the employer has agreed to maintain a life insurance policy during the employee’s retirement or provide the employee with a death benefit based on the substantive arrangement with the employee. The provisions of EITF 06-10 also require an employer to recognize and measure the asset in a collateral assignment split-dollar life insurance arrangement based on the nature and substance of the arrangement. EITF 06-10 is effective as of January 1, 2008. PPG has collateral assignment split-dollar life insurance arrangements within the scope of EITF 06-10. The Company will adopt the provisions of EITF 06-10 as of January 1, 2008, and does not expect it to have a material effect on PPG’s consolidated results of operations or financial position.

 

Performance in 2006 Compared with 2005

 

Performance Overview

Our sales increased 9% to $9.9 billion in 2006 compared to $9.0 billion in 2005. Sales increased 4% due to the impact of acquisitions, 2% due to increased volumes, 2% due to increased selling prices and 1% due to the positive effects of foreign currency translation.

 

Cost of sales as a percentage of sales increased slightly to 62.4% compared to 62.0% in 2005 due to the adverse impact of inflation net of selling price changes. Selling, general and administrative expense increased slightly as a percentage of sales to 18.6% compared to 18.0% in 2005. These costs increased primarily due to higher expenses related to expansion of the company-owned store network in our architectural coatings business and increased advertising to promote sales growth in our optical products business.

 

Business restructuring expense increased $35 million in 2006, as the Company finalized plans for certain actions to reduce its workforce and consolidate facilities and recorded a related charge.

 

Other charges decreased $56 million in 2006. Other charges in 2006 included pretax charges of $185 million for estimated environmental remediation costs at sites in

 

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Management’s Discussion and Analysis

 

New Jersey and $42 million for legal settlements offset in part by pretax earnings of $44 million for insurance recoveries related to the Marvin legal settlement and to Hurricane Rita. Other charges in 2005 included pretax charges of $132 million related to the Marvin legal settlement net of related insurance recoveries of $18 million, $61 million for the federal glass class action antitrust legal settlement, $34 million of direct costs related to the impact of hurricanes Rita and Katrina and $19 million for debt refinancing costs.

 

Other earnings increased $24 million in 2006 due to higher equity earnings, primarily from our Asian fiber glass joint ventures, and higher royalty income.

 

Net income and earnings per share – assuming dilution for 2006 and 2005 are summarized below:

 

($ in Millions, except per share amounts)                      

Twelve Months ended
December 31, 2006


  Continuing
Operations


    Discontinued
Operations


  Total

 

  $

    EPS

      $  

    EPS  

  $

    EPS

 

Net income

  $ 653     $ 3.92     $ 58   $ 0.35   $ 711     $ 4.27  

Net income includes:

                                           

Charges related to:

                                           

Environmental remediation (1)

    106       0.64               106       0.64  

Legal settlements

    26       0.15               26       0.15  

Business restructuring

    22       0.13       1     0.01     23       0.14  

Asbestos settlement – net (2)

    17       0.10               17       0.10  

Earnings from insurance recoveries

    (24 )     (0.14 )             (24 )     (0.14 )

 

($ in Millions, except per share amounts)                

Twelve Months ended
December 31, 200
5


  Continuing
Operations


  Discontinued
Operations


  Total


  $

  EPS

    $  

    EPS  

  $

  EPS

Net income

  $ 558   $ 3.27   $ 38   $ 0.22   $ 596   $ 3.49

Net income includes:

                                   

Charges related to:

                                   

Legal settlements, net of insurance

    117     0.68             117     0.68

Direct hurricane costs

    21     0.12             21     0.12

Debt refinancing costs

    12     0.07             12     0.07

Asbestos settlement – net

    13     0.08             13     0.08

Asset impairment (3)

            17     0.10     17     0.10
(1)   Charge for estimated environmental remediation costs at our former chromium manufacturing plant in Jersey City, N.J. and at the Calcasieu River estuary near our Lake Charles, La. facility.
(2)   Net increase in the current value of the Company’s obligation relating to asbestos claims under the PPG Settlement Arrangement.
(3)   Asset impairment charge related to the fine chemicals business.

 

Results of Reportable Business Segments

 

     Net sales    Segment income
(Millions)    2006    2005    2006    2005

Performance Coatings

   $ 3,088    $ 2,668    $ 514    $ 464

Industrial Coatings

     3,236      2,921      349      284

Optical and Specialty
Materials

     904      791      217      199

Commodity Chemicals

     1,483      1,531      285      313

Glass

     1,150      1,117      99      60

 

Performance Coatings sales increased $420 million or 16% in 2006. Sales increased 8% due to acquisitions, 4% due to higher selling prices in the refinish, aerospace and architectural coatings businesses, 3% due to increased volumes in our aerospace and architectural coatings businesses and 1% due to the positive effects of foreign currency translation. Segment income increased $50 million in 2006. The increase in segment income was primarily due to the impact of increased sales volume and higher selling prices, which more than offset the impact of inflation. Segment income was reduced by increased overhead costs to support growth in our architectural coatings business.

 

Industrial Coatings sales increased $315 million or 11% in 2006. Sales increased 4% due to acquisitions, 4% due to increased volumes in the automotive, industrial and packaging coatings businesses, 2% due to higher selling prices, particularly in the industrial and packaging coatings businesses, and 1% due to the positive effects of foreign currency translation. Segment income increased $65 million in 2006. The increase in segment income was primarily due to the impact of increased sales volume, lower overhead and manufacturing costs, and the impact of acquisitions. Segment income was reduced by the adverse impact of inflation, which was substantially offset by higher selling prices.

 

Optical and Specialty Materials sales increased $113 million or 14% in 2006. Sales increased 8% due to higher volumes, particularly in optical products, 5% due to acquisitions in our optical products business and 1% due to higher selling prices. Segment income increased $18 million in 2006. The increase in segment income was primarily due to increased volumes, lower manufacturing costs and the absence of the 2005 hurricane costs of $3 million, net of 2006 insurance recoveries, which were only partially offset by increased overhead costs in our optical products business to support growth and the negative impact of inflation.

 

Commodity Chemicals sales decreased $48 million or 3% in 2006. Sales decreased 4% due to lower chlor-alkali volumes and increased 1% due to higher selling prices. Segment income decreased $28 million in 2006. The year-over-year decline in segment income was due primarily to lower sales volumes and higher manufacturing costs associated with reduced production levels. The absence of the 2005 charges for direct costs related to hurricanes increased segment income by $29 million. The impact of higher selling prices; lower inflation, primarily natural gas costs; and an insurance recovery of $10 million related to the 2005 hurricane losses also increased segment income in 2006.

 

Our fourth-quarter chlor-alkali sales volumes and earnings were negatively impacted by production outages at several customers over the last two months of 2006.

 

Glass sales increased $33 million or 3% in 2006. Sales increased 2% due to improved volumes in our performance glazings business and 1% due to higher

 

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selling prices in performance glazings. Segment income increased $39 million in 2006. This increase in segment

income was primarily the result of higher selling prices, higher equity earnings from our Asian fiber glass joint ventures, higher other income and lower manufacturing and natural gas costs, which more than offset the negative impacts of higher inflation and lower margin mix of sales.

 

Our fiber glass business made progress during 2006 in achieving our multi-year plan to improve profitability and cash flow. A transformation of our supply chain, which includes production of a more focused product mix at each manufacturing plant, manufacturing cost reduction initiatives and improved equity earnings from our Asian joint ventures are the primary focus and represent the critical success factors in this plan. During 2006, our new joint venture in China started producing high labor content fiber glass reinforcement products, which allows us to refocus our U.S. production capacity on higher margin, direct process products. The 2006 earnings improvement by our fiber glass business accounted for the bulk of the 2006 improvement in the Glass reportable business segment income.

 

See Note 24, “Reportable Business Segment Information,” under Item 8 of this Form 10-K for further information related to our operating segments and reportable business segments.

 

Other Significant Factors

The effective tax rate on pretax earnings from continuing operations in 2006 was 25.1% compared to 29.0% in 2005. The effective tax rate on earnings from continuing operations in 2006 included the benefit of a tax refund from Canada resulting from the favorable resolution of a tax dispute dating back to 1998 and a tax benefit related to the settlement with the Internal Revenue Service of our tax returns for the years 2001-2003. In the aggregate, these benefits reduced 2006 income tax expense by $39 million. The 2006 effective tax rate also included a tax benefit of 36% on the charge for business restructuring and a tax benefit of 39% on the third quarter environmental remediation charge for sites in New Jersey and Louisiana, on the charges for legal settlements, and on the adjustment to increase the current value of the Company’s obligation relating to asbestos claims under the PPG Settlement Arrangement, as discussed in Note 15, “Commitments and Contingent Liabilities” under Item 8 of this Form 10-K. Income tax expense of 39% was recognized on certain insurance recoveries, and income tax expense of 31.0% was recognized on the remaining pretax earnings from continuing operations in 2006. The effective tax rate on earnings from continuing operations in 2005 included a tax benefit of 39% on the charge for the Marvin legal settlement net of insurance recoveries, the settlement of the federal glass class action antitrust case, the charge for debt refinancing costs and the adjustment to increase the current value of the Company’s obligation relating to asbestos claims under the PPG Settlement Arrangement. The 2005 effective tax rate also included tax expense of $9 million related to dividends repatriated under the American Jobs Creation Act of 2004 and tax expense of 30.3% on the remaining pretax earnings.

 

The effective tax rate on pretax earnings from discontinued operations in 2006 was 37.8% compared to 39.4% in 2005.

 

Commitments and Contingent Liabilities, including Environmental Matters

 

PPG is involved in a number of lawsuits and claims, both actual and potential, including some that it has asserted against others, in which substantial monetary damages are sought. See Item 3, “Legal Proceedings” and Note 15, “Commitments and Contingent Liabilities,” under Item 8 of this Form 10-K for a description of certain of these lawsuits, including a description of the proposed PPG Settlement Arrangement for asbestos claims announced on May 14, 2002 and a description of the antitrust suits against PPG related to the flat glass and automotive refinish industries. As discussed in Item 3 and Note 15, although the result of any future litigation of such lawsuits and claims is inherently unpredictable, management believes that, in the aggregate, the outcome of all lawsuits and claims involving PPG, including asbestos-related claims in the event the PPG Settlement Arrangement described in Note 15 does not become effective, will not have a material effect on PPG’s consolidated financial position or liquidity; however, any such outcome may be material to the results of operations of any particular period in which costs, if any, are recognized.

 

It is PPG’s policy to accrue expenses for environmental contingencies when it is probable that a liability has been incurred and the amount of loss can be reasonably estimated. Reserves for environmental contingencies are exclusive of claims against third parties and are generally not discounted. Management anticipates that the resolution of the Company’s environmental contingencies will occur over an extended period of time. As of December 31, 2007 and 2006, PPG had reserves for environmental contingencies totaling $276 million and $282 million, respectively, of which $57 million and $65 million, respectively, were classified as current liabilities. Pretax charges against income for environmental remediation costs in 2007, 2006 and 2005 totaled $12 million, $207 million and $27 million, respectively, and are included in “Other charges” in the consolidated statement of income. Cash outlays related to such environmental remediation aggregated $19 million, $22 million and $14 million, in 2007, 2006 and 2005, respectively.

 

In addition to the amounts currently reserved for environmental remediation, the Company may be subject

 

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Management’s Discussion and Analysis

 

to loss contingencies related to environmental matters estimated to be as much as $200 million to $300 million, which range is unchanged since December 31, 2006. Such unreserved losses are reasonably possible but are not currently considered to be probable of occurrence.

 

Charges for estimated environmental remediation costs in 2006 were significantly higher than our historical range. Our continuing efforts to analyze and assess the environmental issues associated with a former chromium manufacturing plant site located in Jersey City, NJ and at the Calcasieu River Estuary located near our Lake Charles, LA chlor-alkali plant resulted in a pre-tax charge of $173 million in the third quarter of 2006 for the estimated costs of remediating these sites. Excluding 2006, pretax charges against income have ranged between $10 million and $49 million per year for the past 15 years. We anticipate that charges against income in 2008 for environmental remediation costs will be within this historical range.

 

Management expects cash outlays for environmental remediation costs to be approximately $45 million in 2008 and to range from $35 million to $60 million annually through 2012. It is possible that technological, regulatory and enforcement developments, the results of environmental studies and other factors could alter our expectations with respect to charges against income and future cash outlays. Specifically, the level of expected cash outlays is highly dependent upon activity related to the former chromium manufacturing plant site in New Jersey, as PPG awaits approval of workplans that have been submitted to the applicable regulatory agencies.

 

Impact of Inflation

In 2007, the increase in our costs due to the negative effects of inflation, including the impact of higher raw material costs in our Industrial Coatings reportable segment, was not offset by higher selling prices. Higher selling prices did offset the negative impact of inflation in our Performance Coatings and Optical and Specialty Materials reportable segments. However, in our Industrial Coatings, Commodity Chemicals and Glass reportable segments, the negative impact of inflation was not offset by higher selling prices.

 

In 2006, the increase in our costs due to the negative effects of inflation, including the impact of higher raw material costs in our coatings businesses, was offset by higher selling prices in our Industrial Coatings, Performance Coatings and Commodity Chemicals reportable segments and by reduced manufacturing costs in our Glass and Optical and Specialty Materials reportable segments.

 

In 2005, the increase in our costs due to the negative effects of inflation, including the impact of higher coatings raw material costs and higher energy costs in our Glass and Commodity Chemicals businesses were offset by higher selling prices in our Commodity Chemicals and Performance Coatings reportable segments but were not offset by the combination of higher selling prices and lower manufacturing costs in our Industrial Coatings, Optical and Specialty Materials and Glass reportable segments.

 

In 2008, we expect the negative impact of inflation on raw materials, energy and employee benefit costs to slightly exceed the combined impacts of productivity improvements, lower manufacturing costs and higher selling prices. Lower manufacturing costs and productivity improvements are not expected to offset the negative impacts of lower selling prices and inflation, primarily in the cost of raw materials and energy, in our Industrial Coatings and Commodity Chemicals reporting segments. In our remaining reportable segments, the combination of higher selling prices, lower manufacturing costs and productivity improvements is expected to more than offset negative inflationary impacts.

 

Liquidity and Capital Resources

During the past three years, we had sufficient financial resources to meet our operating requirements, to fund our capital spending, share repurchases and pension plans and to pay increasing dividends to our shareholders.

 

Cash from operating activities was $996 million, $ 1,115 million and $1,071 million in 2007, 2006 and 2005, respectively. Capital spending was $584 million, $ 738 million and $352 million in 2007, 2006 and 2005, respectively. This spending related to modernization and productivity improvements, expansion of existing businesses, environmental control projects and business acquisitions, which amounted to $231 million, $ 387 million and $91 million in 2007, 2006 and 2005, respectively. We also assumed $80 million in debt in connection with acquisitions in 2006. Capital spending, excluding acquisitions, is expected to be approximately $470 million during 2008.

 

Total current assets less total current liabilities (net working capital) increased $436 million to $2,475 million at December 31, 2007 from $2,039 million at December 31, 2006. The increase in net working capital is principally related to the $374 million increase in sales in the fourth quarter of 2007 as compared to 2006, the impact of foreign currency translation, the impact of 2007 acquisitions and an increase in the business outside the U.S. where the working capital intensity is greater. Accounts receivable as a percent of annual net sales for 2007 increased to 21.4 percent from 20.4 percent in 2006. Days sales outstanding increased to 72 days in 2007 from 69 days in 2006. Inventories as a percent of annual net sales remained stable at 12.2 percent in 2007 and 2006. Inventory turnover decreased to 5.5 times in 2007 compared to 5.8 times in 2006.

 

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On January 2, 2008, PPG completed the acquisition of SigmaKalon Group (“SigmaKalon”), a worldwide coatings producer based in Uithoorn, Netherlands, from global private investment firm Bain Capital (“the seller”). SigmaKalon produces architectural, protective and marine and industrial coatings and is a leading coatings supplier in Europe and other key markets across the globe, with an increasing presence in Africa and Asia.

 

The total transaction value was approximately $3.2 billion, consisting of cash paid to the seller of $1,673 million and debt assumed of $1,517 million. The cash paid to the seller consisted of €717 million ($1,056 million) and $617 million.

 

In order to provide financing for the SigmaKalon acquisition, in December 2007, PPG and certain of its subsidiaries entered into a three year €650 million revolving credit facility with several banks and financial institutions and Societe Generale, as facility agent for the lenders. In addition, PPG and a subsidiary entered into two bridge loan agreements, one in an amount of €1 billion with multiple lenders and Credit Suisse as administrative agent for those lenders and the other in the amount of $500 million with Credit Suisse as the lender. Each bridge loan has a term of 364 days.

 

In December 2007, PPG issued $617 million of commercial paper and borrowed $1,056 million (€717 million) under the €1 billion bridge loan agreement. The proceeds from these borrowings were deposited into escrow in December 2007. Upon closing of the acquisition on January 2, 2008, these amounts were released from escrow and paid to the seller. Also in January 2008, PPG borrowed $1,143 million, representing the remaining $417 million (€283 million) available under the €1 billion bridge loan agreement and $726 million (€493 million) under the €650 million revolving credit facility. The proceeds from these borrowings and cash on hand of $116 million were used to repay $1,259 million of the SigmaKalon debt assumed in the acquisition. No amounts have been borrowed under the $500 million bridge loan agreement.

 

Dividends paid to shareholders totaled $335 million, $ 316 million and $316 million in 2007, 2006 and 2005, respectively. PPG has paid uninterrupted dividends since 1899, and 2007 marked the 36th consecutive year of increased dividend payments to shareholders. Over time, our goal is to sustain our dividends at approximately one-third of our earnings per share.

 

During 2007, the Company repurchased 3.7 million shares of PPG common stock at a cost of $274 million under a previously authorized share repurchase program. During 2006, the Company repurchased 2.3 million shares of PPG common stock at a cost of $153 million and during 2005, the Company repurchased 9.4 million shares of PPG common stock at a cost of $607 million.

 

Cash contributions to our employee stock ownership plan (“ESOP”) and related expense were reduced by $30 million in 2007 by the appreciation on old PPG shares purchased prior to December 31, 1992 allocated to participant accounts during 2007. All such shares have been allocated to participants accounts as of December 31, 2007. As such, there will be no corresponding reduction in cash contributions to the ESOP or expense in 2008.

 

On August 17, 2006, the Pension Protection Act of 2006 (the “PPA”) was signed into law, changing the funding requirements for our U.S. defined benefit pension plans beginning in 2008. Under current funding requirements, PPG did not have to make a mandatory contribution to our U.S. plans in 2007, and we do not expect to have a mandatory contribution to these plans in 2008. We are currently evaluating the impact that PPA will have on our funding requirements for 2009 and beyond. In 2007, 2006 and 2005 we made voluntary contributions to our U.S. defined benefit pension plans of $100 million, $100 million and $4 million, respectively, and contributions to our non-U.S. defined benefit pension plans of $49 million, $24 million and $26 million, respectively, some of which were required by local funding requirements. We expect to make mandatory contributions to our non-U.S. plans in 2008 of approximately $62 million and we may make voluntary contributions to our U.S. plans.

 

The ratio of total debt, including capital leases, to total debt and equity was 42% at December 31, 2007 and 28% at December 31, 2006. The increase in 2007 is primarily due to the additional debt borrowed in December to finance the acquisition of SigmaKalon on January 2, 2008.

 

Cash from operations and the Company’s debt capacity are expected to continue to be sufficient to fund capital spending, including acquisitions, share repurchases, dividend payments, contributions to pension plans, amounts due under the proposed PPG Settlement Arrangement and operating requirements, including PPG’s significant contractual obligations, which are presented in the following table along with amounts due under the proposed PPG Settlement Arrangement:

 

            Obligations Due In:

(Millions)   Total   2008  

2009-

2010

 

2011-

2012

  Thereafter
Contractual Obligations                              
   

Long-term debt

  $ 1,201   $   $ 116   $ 71   $ 1,014
   
   

Short-term debt

    1,818     1,818            
   
   

Capital lease obligations

    1     1            
   
   

Operating leases

    320     91     121     64     44
   
    Interest payments (1)     751     165     140     127     319
   
    Pension contributions (2)     62     62            
   
    Unrecognized tax benefits (3)     12     12            
   
   

Unconditional

purchase obligations

    791     210     167     93     321

   

Total

  $ 4,956   $ 2,359   $ 544   $ 355   $ 1,698

 

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Management’s Discussion and Analysis

 

            Obligations Due In:

(Millions)   Total   2008  

2009-

2010

 

2011-

2012

  Thereafter
Asbestos Settlement (4)                              
    Aggregate cash payments   $ 998   $ 450   $ 64   $ 30   $ 454
   
    PPG stock and other     143     143            

   

Total

  $ 1,141   $ 593   $ 64   $ 30   $ 454

(1)   Includes interest on all outstanding debt. Interest for variable-rate debt instruments is based on effective rates at December 31, 2007. Interest for fixed-rate debt instruments have been adjusted for the impact of interest rate swaps using the effective rate at December 31, 2007.
(2)   Includes the estimated pension contribution for 2008 only, as PPG is unable to estimate the pension contributions beyond 2008.
(3)   Excludes $98 million of accrued liability for unrecognized tax benefits as we cannot reasonably estimate the timing of settlement.
(4)   We have recorded an obligation equal to the net present value of the aggregate cash payments, along with the PPG stock and other assets to be contributed to the Asbestos Settlement Trust. However, PPG has no obligation to pay any amounts under this settlement until the Effective Date, as more fully discussed in Note 15, “Commitments and Contingent Liabilities,” under Item 8 of this Form 10-K.

 

The unconditional purchase commitments are principally take-or-pay obligations related to the purchase of certain materials, including industrial gases, natural gas, coal and electricity, consistent with customary industry practice.

These also include PPG’s commitment to purchase electricity and steam from the RS Cogen joint venture discussed in Note 6, “Investments,” under Item 8 of this Form 10-K.

 

See Note 9, “Debt and Bank Credit Agreements and Leases,” under Item 8 of this Form 10-K for details regarding the use and availability of committed and uncommitted lines of credit, letters of credit, guarantees and debt covenants.

 

In addition to the amounts available under the lines of credit, the Company has an automatic shelf registration on file with the SEC pursuant to which it may issue, offer and sell from time to time on a continuous or delayed basis any combination of securities in one or more offerings.

 

Off-Balance Sheet Arrangements

 

The Company’s off-balance sheet arrangements include the operating leases and unconditional purchase obligations disclosed in the “Liquidity and Capital Resources” section in the contractual obligations table as well as letters of credit and guarantees as discussed in Note 9, “Debt and Bank Credit Arrangements and Leases,” under Item 8 of this Form 10-K.

 

Critical Accounting Estimates

Management has evaluated the accounting policies used in the preparation of the financial statements and related notes presented under Item 8 of this Form 10-K and believes those policies to be reasonable and appropriate. We believe that the most critical accounting estimates used in the preparation of our financial statements relate to accounting for contingencies, under which we accrue a loss when it is probable that a liability has been incurred and the amount can be reasonably estimated, and to accounting for pensions, other postretirement benefits, goodwill and other identifiable intangible assets with indefinite lives because of the importance of management judgment in making the estimates necessary to apply these policies.

 

Contingencies, by their nature, relate to uncertainties that require management to exercise judgment both in assessing the likelihood that a liability has been incurred as well as in estimating the amount of potential loss. The most important contingencies impacting our financial statements are those related to the collectibility of accounts receivable, to environmental remediation, to pending, impending or overtly threatened litigation against the Company and to the resolution of matters related to open tax years. For more information on these matters, see Note 4, “Working Capital Detail,” Note 13, “Income Taxes” and Note 15, “Commitments and Contingent Liabilities” under Item 8 of this Form 10-K.

 

Accounting for pensions and other postretirement benefits involves estimating the cost of benefits to be provided well into the future and attributing that cost over the time period each employee works. To accomplish this, extensive use is made of assumptions about inflation, investment returns, mortality, turnover, medical costs and discount rates. These assumptions are reviewed annually. See Note 14, “Pensions and Other Postretirement Benefits,” under Item 8 for information on these plans and the assumptions used.

 

The discount rate used in accounting for pensions and other postretirement benefits is determined by reference to a current yield curve and by considering the timing and amount of projected future benefit payments. The discount rate assumption for 2008 is 6.45% for our U.S. defined benefit pension and other postretirement benefit plans. A reduction in the discount rate of 50 basis points, with all other assumptions held constant, would increase 2008 net periodic benefit expense for our defined benefit pension and other postretirement benefit plans by approximately $10 million and $5 million, respectively.

 

The expected return on plan assets assumption used in accounting for our pension plans is determined by evaluating the mix of investments that comprise plan assets and external forecasts of future long-term investment returns. For 2007, the return on plan assets assumption for our U.S. defined benefit pension plans was 8.5%. We will use the same assumption for 2008. A reduction in the rate of return of 50 basis points, with other assumptions held constant, would increase 2008 net periodic pension expense by approximately $13 million.

 

Net periodic benefit cost for our U.S. defined benefit pension and other postretirement benefit plans for the year ended December 31, 2005 was calculated using the

 

2007 PPG ANNUAL REPORT AND FORM 10-K   29


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Management’s Discussion and Analysis

 

GAM 83 mortality table, a commonly used mortality table. In 2006, we began to use RP 2000, a newer and more relevant mortality table to calculate net periodic benefit costs for these plans. This change in the mortality assumption in 2006 increased net periodic benefit costs by approximately $13 million and $4 million for our defined benefit pension and other postretirement benefit plans, respectively.

 

As discussed in Note 1, “Summary of Significant Accounting Policies,” under Item 8 of this Form 10-K, the Company tests goodwill and identifiable intangible assets with indefinite lives for impairment at least annually by comparing the fair value of the reporting units to their carrying values. Fair values are estimated using discounted cash flow methodologies that are based on projections of the amounts and timing of future revenues and cash flows. Based on this testing, none of our goodwill or identifiable intangible assets with indefinite lives was impaired as of December 31, 2007.

 

As part of our ongoing financial reporting process, a collaborative effort is undertaken involving PPG managers with functional responsibility for financial, credit, environmental, legal, tax and benefit matters. The results of this effort provide management with the necessary information on which to base their judgments on these contingencies and to develop the estimates and assumptions used to prepare the financial statements.

 

We believe that the amounts recorded in the financial statements under Item 8 of this Form 10-K related to these contingencies, pensions, other postretirement benefits, goodwill and other identifiable intangible assets with indefinite lives are based on the best estimates and judgments of the appropriate PPG management, although actual outcomes could differ from our estimates.

 

Currency

 

During 2007, the U.S. dollar weakened against certain of the currencies in the countries in which PPG operates, most notably against the euro, the Canadian dollar and the Brazilian real. The effects of translating the net assets of PPG’s operations denominated in non-U.S. currencies to the U.S. dollar increased consolidated net assets at December 31, 2007 by $260 million compared to December 31, 2006. In addition, the weaker U.S. dollar had a favorable impact on 2007 pretax earnings of $47 million.

 

During 2006, the U.S. dollar weakened against the currencies of most of the countries in which PPG operates, most notably against the euro, the British pound sterling and the Australian dollar. The effects of translating the net assets of PPG’s operations denominated in non-U.S. currencies to the U.S. dollar increased consolidated net assets by $179 million for the year ended December 31, 2006. In addition, the weaker U.S. dollar had a favorable impact on 2006 pretax earnings of $9 million.

 

The U.S. dollar was weaker than the euro and the British pound sterling for most of the first eight months of 2005 when compared with currency rates of 2004. The U.S. dollar strengthened against these currencies during the last four months of 2005. The effects of translating the net assets of PPG’s operations denominated in non-U.S. currencies to the U.S. dollar decreased consolidated net assets by $215 million for the year ended December 31, 2005. The effect of currency rate changes over the course of the year had a net favorable effect on 2005 pretax earnings of $8 million.

 

Forward-Looking Statements

 

The Private Securities Litigation Reform Act of 1995 provides a safe harbor for forward-looking statements made by or on behalf of the Company. Management’s Discussion and Analysis and other sections of this Annual Report contain forward-looking statements that reflect the Company’s current views with respect to future events and financial performance.

 

Forward-looking statements are identified by the use of the words “aim,” “believe,” “expect,” “anticipate,” “intend,” “estimate” and other expressions that indicate future events and trends. Any forward-looking statement speaks only as of the date on which such statement is made and the Company undertakes no obligation to update any forward-looking statement, whether as a result of new information, future events or otherwise. You are advised, however, to consult any further disclosures we make on related subjects in our reports to the Securities and Exchange Commission. Also, note the following cautionary statements.

 

Many factors could cause actual results to differ materially from the Company’s forward-looking statements. Such factors include increasing price and product competition by foreign and domestic competitors, fluctuations in cost and availability of raw materials, the ability to maintain favorable supplier relationships and arrangements, difficulties in integrating acquired businesses and achieving expected synergies therefrom, economic and political conditions in international markets, the ability to penetrate existing, developing and emerging foreign and domestic markets, which also depends on economic and political conditions, foreign exchange rates and fluctuations in such rates, the impact of environmental regulations, unexpected business disruptions and the unpredictability of existing and possible future litigation, including litigation that could result if PPG’s Settlement Agreement for asbestos claims does not become effective. However, it is not possible to predict or identify all such factors. Consequently, while the list of factors presented here is considered representative, no such list should be considered to be a complete statement of all potential risks and uncertainties. Unlisted factors may present significant

 

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Management’s Discussion and Analysis

 

additional obstacles to the realization of forward-looking statements.

 

Consequences of material differences in the results compared with those anticipated in the forward-looking statements could include, among other things, business disruption, operational problems, financial loss, legal liability to third parties, other factors set forth in Item 1a of this Form 10-K and similar risks, any of which could have a material adverse effect on the Company’s consolidated financial condition, results of operations or liquidity.

 

Item 7a. Quantitative and Qualitative Disclosures About Market Risk

 

PPG is exposed to market risks related to changes in foreign currency exchange rates, interest rates, and natural gas prices and to changes in PPG’s stock price. The Company may enter into derivative financial instrument transactions in order to manage or reduce these market risks. A detailed description of these exposures and the Company’s risk management policies are provided in Note 11, “Derivative Financial Instruments and Hedge Activities,” under Item 8 of this Form 10-K.

 

The following disclosures summarize PPG’s exposure to market risks and information regarding the use of and fair value of derivatives employed to manage its exposure to such risks. Quantitative sensitivity analyses have been provided to reflect how reasonably possible, unfavorable changes in market rates can impact PPG’s consolidated results of operations, cash flows and financial position.

 

Foreign currency forward and option contracts outstanding during 2007 and 2006 were used to hedge PPG’s exposure to foreign currency transaction risk. The fair value of these contracts as of December 31, 2007 and 2006 were assets of $0.4 million and $2 million, respectively. The potential reduction in PPG’s earnings resulting from the impact of adverse changes in exchange rates on the fair value of its outstanding foreign currency hedge contracts of 10% for European currencies and 20% for Asian and South American currencies for the years ended December 31, 2007 and 2006 would have been $0.3 million and $2 million, respectively.

 

In December 2007, PPG borrowed €717 million under the €1 billion bridge loan agreement established in December 2007 to finance a portion of the anticipated acquisition of SigmaKalon. The euro proceeds were converted to $1,056 million and deposited into escrow until the closing of the transaction on January 2, 2008. On the same day the $1,056 million was placed into escrow, the Company entered into a foreign currency forward contract to convert the U.S. dollars back to €717 million. A 10% decline in the value of the euro would have resulted in a decline in the fair value of this forward contract by $106 million, which would have been substantially offset by a gain on the €717 million loan.

 

PPG had non-U.S. dollar denominated debt of $1,636 million as of December 31, 2007 and $472 million as of December 31, 2006. A weakening of the U.S. dollar by 10% against European currencies and by 20% against Asian and South American currencies would have resulted in unrealized translation losses of approximately $203 million and $63 million as of December 31, 2007 and 2006, respectively.

 

Interest rate swaps are used to manage a portion of PPG’s interest rate risk. The fair value of the interest rate swaps was an asset of $6 million as of December 31, 2007 and a liability of $7 million as of December 31, 2006. The fair value of these swaps would have decreased by $ 8 million and $2 million as of December 31, 2007 and 2006, respectively, if variable interest rates increased by 10%. A 10% increase in interest rates in the U.S., Canada, Mexico and Europe and a 20% increase in interest rates in Asia and South America would have affected PPG’s variable rate debt obligations by increasing interest expense by approximately $10 million as of December 31, 2007 and $2 million as of December 31, 2006. Further, a 10% reduction in interest rates would have increased the present value of the Company’s fixed rate debt by approximately $ 48 million and $51 million as of December 31, 2007 and 2006, respectively; however, such changes would not have had an effect on PPG’s annual earnings or cash flows.

 

The fair value of natural gas swap contracts in place as of December 31, 2007 and 2006 was a liability of $8 million and $25 million, respectively. These contracts were entered into to reduce PPG’s exposure to higher prices of natural gas. A 10% reduction in the price of natural gas would result in a loss in the fair value of the underlying natural gas swap contracts outstanding as of December 31, 2007 and 2006 of approximately $ 26 million and $23 million, respectively.

 

An equity forward arrangement was entered into to hedge the Company’s exposure to changes in fair value of its future obligation to contribute PPG stock into an asbestos settlement trust (see Note 11 “Derivative Financial Instruments and Hedge Activities” and Note 15, “Commitments and Contingent Liabilities,” under Item 8 of this Form 10-K). The fair value of this instrument as of December 31, 2007 and 2006 was an asset of $ 18 million and $14 million, respectively. A 10% decrease in PPG’s stock price would have reduced the value of this instrument by $6 million as of December 31, 2007 and 2006.

 

2007 PPG ANNUAL REPORT AND FORM 10-K   31


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Item 8. Financial Statements and Supplementary Data

 

Internal Controls – Report of Independent Registered Public Accounting Firm

To the Board of Directors and Shareholders of PPG Industries, Inc.

 

We have audited the internal control over financial reporting of PPG Industries, Inc. and subsidiaries (the “Company”) as of December 31, 2007, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management Report. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.

 

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

 

A company’s internal control over financial reporting is a process designed by, or under the supervision of, the company’s principal executive and principal financial officers, or persons performing similar functions, and effected by the company’s board of directors, management, and other personnel to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

 

Because of the inherent limitations of internal control over financial reporting, including the possibility of collusion or improper management override of controls, material misstatements due to error or fraud may not be prevented or detected on a timely basis. Also, projections of any evaluation of the effectiveness of the internal control over financial reporting to future periods are subject to the risk that the controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

 

In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2007, based on the criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission.

 

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated financial statements and financial statement schedule as of and for the year ended December 31, 2007 of the Company and our report dated February 21, 2008 expressed an unqualified opinion on those financial statements and financial statement schedule and included an explanatory paragraph relating to the Company’s adoption of FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes, an interpretation of FASB Statement No. 109” and, Statement of Financial Accounting Standards No. 158, “Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans, an amendment of FASB Statements No. 87, 88, 106, and 132(R).”

 

/s/ Deloitte & Touche LLP

Deloitte & Touche LLP

Pittsburgh, Pennsylvania

February 21, 2008

 

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Management Report

Responsibility for Preparation of the Financial Statements and Establishing and Maintaining Adequate Internal Control Over Financial Reporting

We are responsible for the preparation of the financial statements included in this Annual Report. The financial statements were prepared in accordance with accounting principles generally accepted in the United States of America and include amounts that are based on the best estimates and judgments of management.

We are also responsible for establishing and maintaining adequate internal control over financial reporting. Our internal control system is designed to provide reasonable assurance concerning the reliability of the financial data used in the preparation of PPG’s financial statements, as well as to safeguard the Company’s assets from unauthorized use or disposition.

All internal control systems, no matter how well designed, have inherent limitations. Therefore, a system of internal control over financial reporting can provide only reasonable assurance and may not prevent or detect misstatements. In addition, because of changing conditions, there is risk in projecting any evaluation of internal controls to future periods.

We conducted an evaluation of the effectiveness of the Company’s internal control over financial reporting as of December 31, 2007. In making this evaluation, we used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control - Integrated Framework . Our evaluation included reviewing the documentation of our controls, evaluating the design effectiveness of our controls and testing their operating effectiveness. Based on this evaluation we believe that, as of December 31, 2007, the Company’s internal controls over financial reporting were effective and provide reasonable assurance that the accompanying financial statements do not contain any material misstatement.

Deloitte & Touche LLP, an independent registered public accounting firm, has issued their report, included on page 32 of this Form 10-K, regarding the Company’s internal control over financial reporting.

 

/s/ Charles E. Bunch

Charles E. Bunch

Chairman of the Board

and Chief Executive Officer

February 21, 2008

 

/s/ William H. Hernandez

William H. Hernandez

Senior Vice President, Finance and

Chief Financial Officer

 

Consolidated Financial Statements – Report of Independent Registered Public Accounting Firm

 

To the Board of Directors and Shareholders of PPG Industries, Inc.

We have audited the accompanying consolidated balance sheets of PPG Industries, Inc. and subsidiaries (the “Company”) as of December 31, 2007 and 2006, and the related consolidated statements of income, shareholders’ equity, comprehensive income and cash flows for each of the three years in the period ended December 31, 2007. Our audits also included the financial schedule listed in Item 15(b). These financial statements and the financial statement schedule are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements and the financial statement schedule based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, such consolidated financial statements present fairly, in all material respects, the financial position of PPG Industries, Inc. and subsidiaries as of December 31, 2007 and 2006, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2007, in conformity with accounting principles generally accepted in the United States of America. Also, in our opinion, such financial statement schedule, when considered in relation to the basic consolidated financial statements taken as a whole, presents fairly, in all material respects, the information set forth therein.

As discussed in Note 1 to the consolidated financial statements, on January 1, 2007 the Company adopted the provisions of FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes, an interpretation of FASB Statement No. 109.” Also, on December 31, 2006, the Company changed its method of accounting for pensions and other postretirement benefits by adopting Statement of Financial Accounting Standards No. 158, “Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans, an amendment of FASB Statements No. 87, 88, 106, and 132(R).”

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the Company’s internal control over financial reporting as of December 31, 2007, based on the criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated February 21, 2008 expressed an unqualified opinion on the Company’s internal control over financial reporting.

 

/s/ Deloitte & Touche LLP

Deloitte & Touche LLP

Pittsburgh, Pennsylvania

February 21, 2008

 

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Table of Contents

Consolidated Statement of Income

 

       For the Year  
(Millions, except per share amounts)      2007       2006       2005  

Net sales

   $ 11,206     $ 9,861     $ 9,028  
   

Cost of sales, exclusive of depreciation and amortization

     7,087       6,153       5,597  
   

Selling, general and administrative

     2,136       1,833       1,628  
   

Depreciation

     322       298       293  
   

Research and development – net (See Note 22)

     339       305       294  
   

Interest

     93       83       81  
   

Amortization (See Note 7)

     58       43       32  
   

Asbestos settlement – net (See Notes 11 and 15)

     24       28       22  
   

Business restructuring (See Note 8)

           35        
   

Other charges (See Notes 8, 9 and 15)

     59       252       308  
   

Other earnings (See Note 19)

     (155 )     (131 )     (107 )
   

Income from continuing operations before income taxes and minority interest

     1,243       962       880  

Income tax expense (See Note 13)

     355       241       255  

Minority interest

     73       68       67  

Income from continuing operations, net of tax

     815       653       558  

Income from discontinued operations, net of tax (Note 3)

     19       58       38  

Net income

   $ 834     $ 711     $ 596  


Earnings per common share (See Note 12)

                        

Income from continuing operations

   $ 4.95     $ 3.94     $ 3.29  

Income from discontinued operations (See Note 3)

   $ 0.12     $ 0.35     $ 0.22  

Net income

   $ 5.07     $ 4.29     $ 3.51  


Earnings per common share – assuming dilution (See Note 12)

                        

Income from continuing operations

   $ 4.91     $ 3.92     $ 3.27  

Income from discontinued operations (See Note 3)

   $ 0.12     $ 0.35     $ 0.22  

Net Income

   $ 5.03     $ 4.27     $ 3.49  


The accompanying notes to the consolidated financial statements are an integral part of this consolidated statement.

 

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Consolidated Balance Sheet

 

     December 31  
(Millions)    2007    

(Restated, See
Note 1)

2006

 

Assets

                

Current assets

                
   

Cash and cash equivalents

   $ 526     $ 443  
   

   

Cash held in escrow (See Note 2)

     1,706        
   

   

Receivables (See Note 4)

     2,398       2,016  
   

   

Inventories (See Note 4)

     1,368       1,203  
   

   

Deferred income taxes (See Note 13)

     418       392  
   

   

Other

     232       180  
   

   

Assets held for sale (See Note 3)

     488       621  


Total current assets

     7,136       4,855  


Property (See Note 5)

     7,833       7,391  


Less accumulated depreciation

     5,407       5,084  


Property – net

     2,426       2,307  


Investments (See Note 6)

     360       343  


Goodwill (See Note 7)

     1,476       1,337  


Identifiable intangible assets – net (See Note 7)

     612       582  


Other assets (See Notes 13 and 14)

     619       643  


Total

   $ 12,629     $ 10,067  


Liabilities and Shareholders’ Equity

                

Current liabilities

                
   

Short-term debt and current portion of long-term debt (See Notes 2 and 9)

   $ 1,819     $ 140  
   

   

Asbestos settlement (See Note 15)

     593       557  
   

   

Accounts payable and accrued liabilities (See Note 4)

     2,150       1,991  
   

   

Liabilities of businesses held for sale (See Note 3)

     99       128  


Total current liabilities

     4,661       2,816  


Long-term debt (See Note 9)

     1,201       1,155  


Asbestos settlement (See Note 15)

     324       332  


Deferred income taxes (See Note 13)

     164       136  


Accrued pensions (See Notes 1 and 14)

     396       628  


Other postretirement benefits (See Notes 1 and 14)

     997       1,028  


Other liabilities (See Note 14)

     602       571  


Total liabilities

     8,345       6,666  


Commitments and contingent liabilities (See Note 15)

                


Minority interest

     133       121  


Shareholders’ equity (See Note 16)

                
   

Common stock

     484       484  
   

   

Additional paid-in capital

     553       408  
   

   

Retained earnings

     7,963       7,453  
   

   

Treasury stock, at cost

     (4,267 )     (4,101 )
   

   

Unearned compensation (See Note 1)

           (25 )
   

   

Accumulated other comprehensive loss (See Note 17)

     (582 )     (939 )


Total shareholders’ equity

     4,151       3,280  


Total

   $ 12,629     $ 10,067  


Shares outstanding were 163,800,668 and 164,081,753 as of December 31, 2007 and 2006, respectively.

The accompanying notes to the consolidated financial statements are an integral part of this consolidated statement.

 

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Consolidated Statement of Shareholders’ Equity

 

(Millions)    
 
Common
Stock
   
 
 
Additional
Paid-In
Capital
   
 
Retained
Earnings
 
 
   
 
Treasury
Stock
 
 
   
 
 
Unearned
Compensation
(See Note 1)
 
 
 
   
 
 
 
 
Accumulated
Other
Comprehensive
(Loss) Income
(See Note 17)
 
 
 
 
 
    Total  

Balance, January 1, 2005

  $ 484   $ 249   $ 6,776     $ (3,455 )   $ (47 )   $ (435 )   $ 3,572  


Net income

            596                         596  


Other comprehensive loss, net of tax

                              (384 )     (384 )


Cash dividends

            (316 )                       (316 )


Purchase of treasury stock

                  (607 )                 (607 )


Issuance of treasury stock

        75           78                   153  


Stock option activity

        28                             28  


Repayment of loans by ESOP

                        10             10  


Other

            1                         1  




Balance, December 31, 2005

  $ 484   $ 352   $ 7,057     $ (3,984 )   $ (37 )   $ (819 )   $ 3,053  


Net income

            711                         711  


Other comprehensive income, net of tax (restated, See Note 1)

                              339       339  


Transition adjustment for adoption of SFAS No. 158 (restated, See Note 1)

                              (459 )     (459 )


Cash dividends

            (316 )                       (316 )


Purchase of treasury stock

                  (153 )                 (153 )


Issuance of treasury stock

        25           36                   61  


Stock option activity

        31                             31  


Repayment of loans by ESOP

                        12             12  


Other

            1                         1  


Balance, December 31, 2006 (restated, See Note 1)

  $ 484   $ 408   $ 7,453     $ (4,101 )   $ (25 )   $ (939 )   $ 3,280  


Net income

            834                         834  


Other comprehensive income, net of tax

                              357       357  


Cash dividends

            (335 )                       (335 )


Purchase of treasury stock

                  (274 )                 (274 )


Issuance of treasury stock

        102           108                   210  


Stock option activity

        43                             43  


Repayment of loans by ESOP

                        25             25  


Transition adjustment for adoption of FASB Interpretation No. 48 (See Note 1)

            11                         11  


Balance, December 31, 2007

  $ 484   $ 553   $ 7,963     $ (4,267 )   $     $ (582 )   $ 4,151  


 

Consolidated Statement of Comprehensive Income

           For the Year  
(Millions)      2007     

(Restated, See
Note 1)

2006

       2005  

Net income

     $ 834      $ 711        $ 596  


Other comprehensive income (loss), net of tax (See Note 17)

                              
   

Unrealized currency translation adjustment

       260        179          (215 )
   

   

Defined benefit pension and other postretirement benefit adjustments
(See Notes 1 and 14)

       90        170          (173 )
   

   

Unrealized gains on marketable equity securities

              3          1  
   

   

Net change – derivatives (See Note 11)

       7        (13 )        3  


Other comprehensive income (loss), net of tax

       357        339          (384 )


Comprehensive income

     $ 1,191      $ 1,050        $ 212  


The accompanying notes to the consolidated financial statements are an integral part of these consolidated statements.

 

36   2007 PPG ANNUAL REPORT AND FORM 10-K


Table of Contents

Consolidated Statement of Cash Flows

 

        

For the Year

 
(Millions)    2007     2006     2005  

Operating activities

                        

Net income

   $ 834     $ 711     $ 596  


Less: Income from discontinued operations, net of tax

     (19 )     (58 )     (38 )

Income from continuing operations, net of tax

     815       653       558  

Adjustments to reconcile to cash from operations

                        
   

Depreciation and amortization

     380       341       325  
   

   

Asbestos settlement, net of tax

     15       17       13  
   

   

Business restructuring

           35        
   

   

Restructuring cash spending

     (15 )     (31 )     (4 )
   

   

Bad debt expense

     14       13       22  
   

   

Equity affiliate (earnings) loss net of dividends

     (9 )     (17 )     6  
   

   

(Decrease) increase in net accrued pension benefit costs

     (7 )     21       72  
   

   

Increase in receivables

     (237 )     (120 )     (131 )
   

   

Increase in inventories

     (55 )     (113 )     (30 )
   

   

Increase in other current assets

     (24 )     (11 )     (11 )
   

   

Increase in accounts payable and accrued liabilities

     79       72       195  
   

   

Increase in noncurrent assets

     (101 )     (101 )     (83 )
   

   

Increase in noncurrent liabilities

     4       167       7  
   

   

Other

     65       50       44  


   

Cash from operating activities – continuing operations

     924       976       983  
   

Cash from operating activities – discontinued operations

     72       139       88  
   

Cash from operating activities

     996       1,115       1,071  


Investing activities

                        

Purchases of short-term investments (See Note 1)

           (963 )     (1,990 )


Proceeds from sales of short-term investments (See Note 1)

           963       2,040  


Capital spending

                        
   

Additions to property and investments

     (353 )     (351 )     (261 )
   

   

Business acquisitions, net of cash balances acquired

     (231 )     (387 )     (91 )


Reductions of other property and investments

     66       39       28  


Deposits held in escrow

     (1,718 )     (3 )     (67 )


Release of deposits held in escrow

     2       67        


   

Cash used for investing activities – continuing operations

     (2,234 )     (635 )     (341 )
   

Cash from (used for) investing activities – discontinued operations

     27       (27 )     (24 )
   

Cash used for investing activities

     (2,207 )     (662 )     (365 )


Financing activities

                        

Net change in borrowings with maturities of three months or less

     698       (4 )     9  


Proceeds from other short-term debt

     1,129       143       91  


Repayment of other short-term debt

     (83 )     (212 )     (56 )


Proceeds from long-term debt

                 360  


Repayment of long-term debt

     (71 )     (26 )     (486 )


Repayment of loans by employee stock ownership plan

     25       12       10  


Purchase of treasury stock

     (274 )     (153 )     (607 )


Issuance of treasury stock

     194       55       138  


Dividends paid

     (335 )     (316 )     (316 )


   

Cash from (used for) financing activities – continuing operations

     1,283       (501 )     (857 )
   

Cash from financing activities – discontinued operations

                  
   

Cash from (used for) financing activities

     1,283       (501 )     (857 )


Effect of currency exchange rate changes on cash and cash equivalents

     11       22       (36 )


Net increase (decrease) in cash and cash equivalents

     83       (26 )     (187 )


Cash and cash equivalents, beginning of year

     443       469       656  


Cash and cash equivalents, end of year

   $ 526     $ 443     $ 469  


The accompanying notes to the consolidated financial statements are an integral part of this consolidated statement.

 

2007 PPG ANNUAL REPORT AND FORM 10-K   37


Table of Contents

Notes to the Consolidated Financial Statements

 

1. Summary of Significant Accounting Policies

 

Principles of consolidation

The accompanying consolidated financial statements include the accounts of PPG Industries, Inc. (“PPG” or the “Company”), and all subsidiaries, both U.S. and non-U.S., that we control. We own more than 50% of the voting stock of the subsidiaries that we control. Investments in companies in which we own 20% to 50% of the voting stock and have the ability to exercise significant influence over operating and financial policies of the investee are accounted for using the equity method of accounting. As a result, our share of the earnings or losses of such equity affiliates is included in the accompanying consolidated statement of income and our share of these companies’ shareholders’ equity is included in investments in the accompanying consolidated balance sheet. Transactions between PPG and its subsidiaries are eliminated in consolidation.

 

Use of estimates in the preparation of financial statements

The preparation of financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements, as well as the reported amounts of income and expenses during the reporting period. Actual outcomes could differ from those estimates.

 

Basis of Presentation

In the third quarter of 2007, the Company entered into separate agreements to sell both its automotive OEM glass and automotive replacement glass and services businesses, (“automotive glass businesses”) and its fine chemicals business. As a result, the Company concluded that the accounting requirements of Statement of Financial Accounting Standards, (“SFAS”) No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets” for classifying these businesses as assets held for sale and reporting their results of operations and cash flows as discontinued operations were met. The amounts in these notes to the consolidated financial statements related to 2006 and 2005 have been adjusted to reflect the presentation of discontinued operations. See Note 3, “Discontinued Operations and Assets Held for Sale” for additional information.

 

Revenue recognition

Revenue from sales is recognized by all operating segments when goods are shipped and title to inventory and risk of loss passes to the customer or when services have been rendered.

 

Shipping and handling costs

Amounts billed to customers for shipping and handling are reported in “Net sales” in the accompanying consolidated statement of income. Shipping and handling costs incurred by the Company for the delivery of goods to customers are included in “Cost of sales, exclusive of depreciation and amortization” in the accompanying consolidated statement of income.

 

Selling, general and administrative costs

Amounts presented as “Selling, general and administrative” in the accompanying consolidated statement of income are comprised of selling, customer service, distribution and advertising costs, as well as the costs of providing corporate-wide functional support in such areas as finance, law, human resources and planning. Distribution costs pertain to the movement and storage of finished goods inventory at company-owned and leased warehouses, terminals and other distribution facilities. Certain of these costs may be included in cost of sales by other companies, resulting in a lack of comparability with other companies.

 

Legal costs

Legal costs are expensed as incurred.

 

Foreign currency translation

For all significant non-U.S. operations, the functional currency is their local currency. Assets and liabilities of those operations are translated into U.S. dollars using year-end exchange rates; income and expenses are translated using the average exchange rates for the reporting period. Unrealized currency translation adjustments are deferred in accumulated other comprehensive (loss) income, a separate component of shareholders’ equity.

 

Cash equivalents

Cash equivalents are highly liquid investments (valued at cost, which approximates fair value) acquired with an original maturity of three months or less.

 

Cash held in escrow

Cash held in escrow is restricted cash and consists of amounts deposited into third-party escrow accounts to comply with contractual stipulations or legal requirements. Cash deposited into escrow or released from escrow is classified as an investing activity in our consolidated statement of cash flows.

 

Short-term investments

Short-term investments are highly liquid investments that have stated maturities of three months to one year. The purchases and sales of these investments are classified as investing activities in our consolidated statement of cash flows.

 

Inventories

Most U.S. inventories are stated at cost, using the last-in, first-out (“LIFO”) method of accounting, which does not exceed market. All other inventories are stated at cost,

 

38   2007 PPG ANNUAL REPORT AND FORM 10-K


Table of Contents

Notes to the Consolidated Financial Statements

 

using the first-in, first-out (“FIFO”) method of accounting, which does not exceed market. We determine cost using either average or standard factory costs, which approximate actual costs, excluding certain fixed costs such as depreciation and property taxes.

 

In November 2004, the Financial Accounting Standards Board (“FASB”) issued SFAS No. 151, “Inventory Costs, an Amendment of ARB No. 43, Chapter 4.” SFAS No. 151 requires the exclusion of certain costs from inventories and the allocation of fixed production overheads to inventories to be based on the normal capacity of the production facilities. Effective January 1, 2006, PPG adopted the provisions of SFAS No. 151. Our adoption of this standard did not have a material effect on PPG’s consolidated results of operations, financial position or liquidity.

 

Marketable equity securities

The Company’s investment in marketable equity securities is recorded at fair market value and reported in “Other current assets” and “Investments” in the accompanying consolidated balance sheet with changes in fair market value recorded in income for those securities designated as trading securities and in other comprehensive (loss) income, net of tax, for those designated as available for sale securities.

 

Property

Property is recorded at cost. We compute depreciation by the straight-line method based on the estimated useful lives of depreciable assets. Additional expense is recorded when facilities or equipment are subject to abnormal economic conditions or obsolescence. Significant improvements that add to productive capacity or extend the lives of properties are capitalized. Costs for repairs and maintenance are charged to expense as incurred. When property is retired or otherwise disposed of, the original cost and related accumulated depreciation balance are removed from the accounts and any related gain or loss is included in income. Amortization of the cost of capitalized leased assets is included in depreciation expense. Property and other long-lived assets are reviewed for impairment whenever events or circumstances indicate that their carrying amounts may not be recoverable.

 

Goodwill and identifiable intangible assets

Goodwill represents the excess of the cost over the fair value of acquired identifiable tangible and intangible assets less liabilities assumed from acquired businesses. Identifiable intangible assets acquired in business combinations are recorded based upon their fair value at the date of acquisition.

 

The Company tests goodwill of each reporting unit for impairment at least annually in connection with our strategic planning process in the third quarter. The goodwill impairment test is performed by comparing the fair value of the associated reporting unit to its carrying value. The Company’s reporting units are its operating segments. (See Note 24, “Reportable Business Segment Information” for further information concerning our operating segments.) Fair value is estimated using discounted cash flow methodologies and market comparable information.

 

The Company has determined that certain acquired trademarks have indefinite useful lives. The Company tests the carrying value of these trademarks for impairment at least annually in the third quarter by comparing the fair value of each trademark to its carrying value. Fair value is estimated by using the relief from royalty method (a discounted cash flow methodology).

 

Identifiable intangible assets with finite lives are amortized on a straight-line basis over their estimated useful lives (2 to 25 years) and are reviewed for impairment whenever events or circumstances indicate that their carrying amount may not be recoverable.

 

Stock-based compensation

In December 2004, the FASB issued a revision to SFAS No. 123, “Share-Based Payment,” (“SFAS No. 123R”) which became effective January 1, 2006, and now requires that all stock-based compensation awards be expensed based on their fair value. PPG began expensing stock options effective January 1, 2004, and effective January 1, 2006, we adopted SFAS No. 123R using the modified prospective application transition method. Because the fair value recognition provisions of SFAS No. 123, “Accounting for Stock-Based Compensation”, and SFAS No. 123R are essentially the same as they relate to our equity plans, the adoption of SFAS No. 123R did not have a material impact on PPG’s consolidated results of operations, financial position or liquidity. Prior to our adoption of SFAS No. 123R, the benefits of tax deductions in excess of recognized compensation costs were reported as an operating cash flow. SFAS No. 123R requires such excess tax benefits to be reported as a financing cash inflow. The adoption of SFAS No. 123R did not have a material impact on PPG’s operating or financing cash flows for the years ended December 31, 2006 or 2007. See Note 20, “Stock-Based Compensation” for additional information.

 

Employee Stock Ownership Plan

We accounted for our employee stock ownership plan (“ESOP”) in accordance with Statement of Position (“SOP”) No. 93-6 for PPG common stock purchased after December 31, 1992 (“new ESOP shares”). As permitted by SOP No. 93-6, shares purchased prior to December 31, 1992 (“old ESOP shares”) were accounted for in accordance with SOP No. 76-3. ESOP shares were released for future allocation to participants based on the ratio of debt service paid during the year on loans used by

 

2007 PPG ANNUAL REPORT AND FORM 10-K   39


Table of Contents

Notes to the Consolidated Financial Statements

 

the ESOP to purchase the shares to the remaining debt service on these loans. These loans were a combination of borrowings guaranteed by PPG and borrowings by the ESOP directly from PPG. No loan balances remained outstanding as of December 31, 2007. The ESOP’s borrowings from third parties were included in debt in our consolidated balance sheet as of December 31, 2006 (see Note 9, “Debt and Bank Credit Agreements and Leases”). Unearned compensation was reflected as a reduction of shareholders’ equity as of December 31, 2006, which principally represented the unpaid balance of all of the ESOP’s loans. Dividends received by the ESOP were primarily used to pay debt service.

 

When old ESOP shares were released, compensation expense was equal to cash contributed to the ESOP by the Company less the appreciation on the allocated old ESOP shares. Cash contributions to the ESOP were reduced by $30 million in 2007 and $18 million in 2006 and 2005, for the appreciation on the old shares allocated to participants’ accounts in each of those years. Dividends paid on old ESOP shares were deducted from retained earnings. Old ESOP shares were considered to be outstanding in computing earnings per common share. For new ESOP shares, compensation expense was equal to the Company’s matching contribution (see Note 18, “Employee Stock Ownership Plan”). Dividends paid on released new ESOP shares were deducted from retained earnings, and dividends on unreleased shares were reported as a reduction of debt or accrued interest. New ESOP shares that were released were considered outstanding in computing earnings per common share. Unreleased new ESOP shares were not considered to be outstanding. For 2008 and beyond, compensation expense related to the ESOP will be equal to the Company’s matching contribution.

 

Derivative financial instruments and hedge activities

The Company recognizes all derivative instruments as either assets or liabilities at fair value on the balance sheet. The accounting for changes in the fair value of a derivative depends on the use of the derivative. To the extent that a derivative is effective as a cash flow hedge of an exposure to future changes in value, the change in fair value of the derivative is deferred in accumulated other comprehensive (loss) income. Any portion considered to be ineffective is reported in earnings immediately. To the extent that a derivative is effective as a hedge of an exposure to future changes in fair value, the change in the derivative’s fair value is offset in the consolidated statement of income by the change in fair value of the item being hedged. To the extent that a derivative or a financial instrument is effective as a hedge of a net investment in a foreign operation, the change in the derivative’s fair value is deferred as an unrealized currency translation adjustment in accumulated other comprehensive (loss) income.

 

Product warranties

The Company accrues for product warranties at the time the associated products are sold based on historical claims experience. As of December 31, 2007 and 2006, the reserve for product warranties was $9 million and $10 million, respectively. Pretax charges against income for product warranties in 2007, 2006 and 2005 totaled $ 5 million, $4 million and $5 million, respectively. Cash outlays related to product warranties were $ 6 million, $5 million and $4 million in 2007, 2006 and 2005, respectively. In addition, $7 million of warranty obligations were assumed as part of the Company’s 2006 business acquisitions.

 

Asset Retirement Obligations

An asset retirement obligation represents a legal obligation associated with the retirement of a tangible long-lived asset that is incurred upon the acquisition, construction, development or normal operation of that long-lived asset. We recognize asset retirement obligations in the period in which they are incurred, if a reasonable estimate of fair value can be made. The asset retirement obligation is subsequently adjusted for changes in fair value. The associated estimated asset retirement costs are capitalized as part of the carrying amount of the long-lived asset and depreciated over its useful life. PPG’s asset retirement obligations are primarily associated with closure of certain assets used in the chemicals manufacturing process.

 

The accrued asset retirement obligation was $11 million as of December 31, 2007 and $10 million as of December 31, 2006 and 2005.

 

In March 2005, the FASB issued FASB Interpretation (“FIN”) No. 47, “Accounting for Conditional Asset Retirement Obligations, an interpretation of FASB Statement No. 143”. FIN No. 47 clarifies the term conditional asset retirement obligation as used in SFAS No. 143, “Accounting for Asset Retirement Obligations”, and provides further guidance as to when an entity would have sufficient information to reasonably estimate the fair value of an asset retirement obligation.

 

Effective December 31, 2005, PPG adopted the provisions of FIN No. 47. Our only conditional asset retirement obligation relates to the possible future abatement of asbestos contained in certain PPG production facilities. The asbestos in our production facilities arises from the application of normal and customary building practices in the past when the facilities were constructed. This asbestos is encapsulated in place and, as a result, there is no current legal requirement to abate it. Inasmuch as there is no requirement to abate, we do not have any current plans or an intention to abate and therefore the timing, method

 

40   2007 PPG ANNUAL REPORT AND FORM 10-K


Table of Contents

Notes to the Consolidated Financial Statements

 

and cost of future abatement, if any, are not known. In accordance with the provisions of FIN No. 47, the Company has not recorded an asset retirement obligation associated with asbestos abatement, given the uncertainty concerning the timing of future abatement, if any.

 

The adoption of FIN No. 47 on December 31, 2005 has not resulted in any impact to our results of operations or financial position, and we do not expect the adoption to have a material impact on the Company’s future results of operations, financial position or liquidity.

 

Other new accounting standards

In June 2006, the FASB issued FIN No. 48, “Accounting for Uncertainty in Income Taxes, an interpretation of FASB Statement No. 109”. FIN No. 48 clarifies the accounting for uncertainty in income taxes recognized in an enterprise’s financial statements and prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return. The Company adopted the provisions of FIN No. 48 as of January 1, 2007. As a result of the implementation of FIN No. 48, the Company reduced its liability for unrecognized tax benefits by $11 million, which was recorded as a direct increase in retained earnings. Refer to Note 13, “Income Taxes” for additional information.

 

In September 2006, the FASB issued SFAS No. 157, “Fair Value Measurements,” which defines fair value, establishes a framework in generally accepted accounting principles for measuring fair value and expands disclosures about fair value measurements. This standard only applies when other standards require or permit the fair value measurement of assets and liabilities. It does not increase the use of fair value measurement. SFAS No. 157 is effective for fiscal years beginning after November 15, 2007, except as it relates to nonrecurring fair value measurements of nonfinancial assets and liabilities for which SFAS No. 157 is effective for fiscal years beginning after November 15, 2008. The Company evaluated the impact of adopting this Statement. It will not have a significant effect on PPG’s consolidated results of operations or financial position.

 

In February 2007, the FASB issued SFAS No. 159, “The Fair Value Option for Financial Assets and Financial Liabilities – Including an Amendment of FASB Statement No. 115.” SFAS No. 159 permits entities to choose to measure eligible items at fair value at specified election dates and report unrealized gains and losses on items for which the fair value option has been elected in earnings at each subsequent reporting date. SFAS No. 159 is effective for fiscal years beginning after November 15, 2007. The Company evaluated the impact of adopting this Statement. It will not have an effect on PPG’s consolidated results of operations or financial position.

 

In December 2007, the FASB issued SFAS No. 141 (revised 2007), “Business Combinations” (SFAS No.141(R)), which replaces SFAS No. 141, “Business Combinations.” SFAS No. 141(R) retains the underlying concepts of SFAS No. 141 in that all business combinations are still required to be accounted for at fair value under the acquisition method of accounting, but SFAS No. 141(R) changes the method of applying the acquisition method in a number of significant aspects. Acquisition costs will generally be expensed as incurred; noncontrolling interests will be valued at fair value at the acquisition date; in-process research and development will be recorded at fair value as an indefinite-lived intangible asset at the acquisition date; restructuring costs associated with a business combination will generally be expensed subsequent to the acquisition date; and changes in deferred tax asset valuation allowances and income tax uncertainties after the acquisition date generally will affect income tax expense. SFAS No. 141(R) is effective on a prospective basis for all business combinations for which the acquisition date is on or after the beginning of the first annual period subsequent to December 15, 2008, with an exception related to the accounting for valuation allowances on deferred taxes and acquired contingencies related to acquisitions completed before the effective date. SFAS No. 141(R) amends SFAS No. 109 to require adjustments, made after the effective date of this statement, to valuation allowances for acquired deferred tax assets and income tax positions to be recognized as income tax expense. Beginning January 1, 2009, PPG will apply the provisions of SFAS No. 141(R) to its accounting for applicable business combinations.

 

In December 2007, the FASB issued SFAS No. 160, “Noncontrolling Interests in Consolidated Financial Statements—an amendment of ARB No. 51.” This statement is effective for fiscal years, and interim periods within those fiscal years, beginning on or after December 15, 2008. SFAS No. 160 requires the recognition of a noncontrolling interest (minority interest) as equity in the consolidated financial statements and separate from the parent’s equity. The amount of net income attributable to the noncontrolling interest will be included in consolidated net income on the face of the income statement. SFAS No. 160 amends certain of ARB No. 51’s consolidation procedures for consistency with the requirements of SFAS No. 141(R). This statement requires changes in the parent’s ownership interest of consolidated subsidiaries to be accounted for as equity transactions. This statement also includes expanded disclosure requirements regarding the interests of the parent and its noncontrolling interest. We are currently evaluating the effects that SFAS No. 160 may have on our consolidated financial statements.

 

2007 PPG ANNUAL REPORT AND FORM 10-K   41


Table of Contents

Notes to the Consolidated Financial Statements

 

In November 2007, the Emerging Issues Task Force (“EITF”) issued EITF Issue No. 07-1, “Accounting for Collaborative Arrangements,” which defines collaborative arrangements and establishes reporting and disclosure requirements for such arrangements. EITF 07-1 is effective for fiscal years beginning after December 15, 2008. The Company is continuing to evaluate the impact of adopting the provisions EITF 07-1; however, it does not anticipate that adoption will have a material effect on PPG’s consolidated results of operations or financial position.

 

In March 2007, EITF Issue No. 06-10, “Accounting for Collateral Assignment Split-Dollar Life Insurance Arrangements,” was issued. Under the provisions of EITF 06-10, an employer is required to recognize a liability for the postretirement benefit related to a collateral assignment split-dollar life insurance arrangement in accordance with either SFAS No. 106, “Employers’ Accounting for Postretirement Benefits Other Than Pensions,” or Accounting Principles Board Opinion No. 12, “Omnibus Opinion – 1967,” if the employer has agreed to maintain a life insurance policy during the employee’s retirement or provide the employee with a death benefit based on the substantive arrangement with the employee. The provisions of EITF 06-10 also require an employer to recognize and measure the asset in a collateral assignment split-dollar life insurance arrangement based on the nature and substance of the arrangement. EITF 06-10 is effective as of January 1, 2008. PPG has collateral assignment split-dollar life insurance arrangements within the scope of EITF 06-10. The Company will adopt the provisions of EITF 06-10 as of January 1, 2008, and does not expect it to have a material effect on PPG’s consolidated results of operations or financial position.

 

Restatement of Previously Issued Financial Statements—Pensions and Other Postretirement Benefits

In September 2006, the FASB issued SFAS No. 158, “Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans, an amendment of FASB Statements No. 87, 88, 106, and 132(R).” Under this standard, a company must recognize a net liability or asset to report the funded status of its defined benefit pension and other postretirement benefit plans on its consolidated balance sheet as well as recognize changes in that funded status in the year in which the changes occur, through charges or credits to comprehensive income. SFAS No. 158 does not change how pensions and other postretirement benefits are accounted for and reported in the income statement. In adopting the recognition and disclosure provisions of SFAS No. 158 as of December 31, 2006, PPG incorrectly presented the transition adjustment as part of other comprehensive loss in its consolidated statement of comprehensive income and consolidated statement of shareholders’ equity for the year ended December 31, 2006. The transition adjustment should have been reported as a direct adjustment to the balance of accumulated other comprehensive loss as of December 31, 2006. The accompanying consolidated statement of comprehensive income for the year ended December 31, 2006 and consolidated statement of shareholders’ equity as of December 31, 2006 have been restated to correct the presentation of the SFAS No. 158 transition adjustment. Comprehensive income for 2006 was incorrectly reported as $545 million. The correct amount of comprehensive income for 2006 is $1,050 million. The “as reported” amount of other comprehensive loss for 2006 was $166 million and the “as revised” amount is other comprehensive income of $339 million.

 

Additionally, PPG included the portion of the SFAS No. 158 transition adjustment related to previously unrecognized accumulated actuarial gains related to the impact of the federal subsidy provided under the Medicare Prescription Drug, Improvement and Modernization Act of 2003 on the accumulated projected benefit obligation for other postretirement benefits in calculating the deferred tax impact on the transition adjustment. However, no deferred taxes should have been recorded related to this portion of the transition adjustment as the federal subsidy is non-taxable. Due to this error, the impact of the adoption of SFAS No. 158 on accumulated other comprehensive loss at December 31, 2006 was overstated by $46 million, and the net deferred tax asset balance was understated by the same amount. The previously reported adjustment to accumulated other comprehensive loss from the adoption of SFAS No. 158 of $505 million should have been $459 million. The accompanying consolidated balance sheet as of December 31, 2006 has been restated to increase other assets and to reduce accumulated other comprehensive loss by $46 million, as follows:

 

(Millions)

Balance Sheet Caption:


   As
previously
reported


   As
restated


 

Other assets

   $ 599    $ 643 (1)


Accumulated other comprehensive loss

   $ 985    $ 939  


(1)   Original restated amount was $645 million. Amount was subsequently reduced in 2007 to $643 million as a result of the reclassification of certain assets to “Assets held for sale.”

 

42   2007 PPG ANNUAL REPORT AND FORM 10-K


Table of Contents

Notes to the Consolidated Financial Statements

 

The following table presents the restated impact of adopting SFAS No. 158 on individual line items in the consolidated balance sheet as of December 31, 2006:

 

(Millions)

Balance Sheet Caption:


   Before
Application of

SFAS No.
158 (1)


    Adjustments

    After
Application of
SFAS No.
158


 

Other assets (2)

   $ 492     $ 151     $ 643  


Deferred income tax liability

     (193 )     57       (136 )


Accrued pensions (3)

     (370 )     (258 )     (628 )


Other postretirement benefits

     (619 )     (409 )     (1,028 )


Accumulated other comprehensive loss

     480       459       939  


(1)   Represents balances that would have been recorded under accounting standards prior to the adoption of SFAS No. 158.
(2)   Original restated amount was $645 million. Amount was subsequently reduced in 2007 to $643 million as a result of the reclassification of certain assets to “Assets held for sale.”
(3)   Original restated amount was $629 million. Amount was subsequently reduced in 2007 to $628 million as a result of the reclassification of certain assets to “Assets held for sale.”

 

See Note 14, “Pensions and Other Postretirement Benefits,” for additional information.

 

2. Acquisitions

 

The Company spent $231 million on several acquisitions in 2007, including purchase price adjustments related to 2006 acquisitions. The 2007 results of the acquired businesses have been included in PPG’s consolidated results of operations for the period since the acquisitions were completed. Sales in 2007 increased by approximately $575 million due to acquisitions and the acquired businesses were accretive to earnings in 2007. The largest of the transactions completed in 2007 were the acquisition of Barloworld Coatings Australia and the acquisition of the architectural and industrial coatings businesses of Renner Sayerlack, S.A.

 

In the third quarter of 2007, PPG acquired Barloworld Coatings Australia, the architectural paint unit of South African-based Barloworld, Ltd., a multinational industrial brand management company. Barloworld Coatings Australia, a leading Australian architectural paint manufacturer, produces Taubmans, Bristol and White Knight brands of architectural coatings. The acquisition includes a production facility in Villawood, New South Wales. Barloworld Coatings Australia distributes products through approximately 80 company-owned stores, a network of sole-brand distributors and numerous independent dealers. In addition, the company’s paints are sold through Bunnings, Australia’s largest home-improvement retailer, and exported to New Zealand. Barloworld Coatings Australia sales in 2006 were approximately $150 million.

 

During the first quarter of 2007, the Company acquired the architectural and industrial coatings businesses of Renner Sayerlack, S.A., Gravatai, Brazil, to expand its coatings businesses in Latin America. The acquired business operates manufacturing plants in Brazil, Chile, and Uruguay and each plant also serves as a distribution center. The purchase price allocation resulted in an excess of purchase price over the fair value of net assets acquired, which has been reflected as an addition to goodwill.

 

The following table summarizes the estimated fair value of assets acquired and liabilities assumed as a result of the acquisitions completed in 2007 and reflected in the preliminary purchase price allocations and adjustments recorded as of December 31, 2007.

 

(Millions)       

Current assets

   $ 124  


Property, plant, and equipment

     38  


Goodwill

     59  


Other non-current assets

     65  


Total assets

     286  




Current liabilities

     (48 )




Long-term liabilities

     (7 )


Net assets

   $ 231  


 

During 2006, the Company made several acquisitions, primarily in the coatings and optical products businesses. The total cost of these acquisitions was $467 million, consisting of $387 million of cash and the assumption of $80 million of debt. In addition, certain of these acquisitions also provide for contingent payments and/or escrowed holdbacks that could result in future adjustments to the cost of the acquisitions.

 

The largest of the transactions completed during 2006 were the acquisition of the performance coatings and finishes businesses of Ameron International Corporation, the acquisitions of Sierracin Corporation and Intercast Europe, S.p.A., and the acquisition of the remaining 50% share of Dongju Industrial Co., Ltd.

 

The following table summarizes the estimated fair value of assets acquired and liabilities assumed as a result of the acquisitions completed in 2006 and reflected in the purchase price allocations and adjustments recorded as of December 31, 2006.

 

(Millions)       

Current assets

   $ 284  


Property, plant, and equipment

     149  


Goodwill

     157  


Other non-current assets

     99  


Total assets

     689  




Short-term debt

     (69 )


Current liabilities

     (152 )


Long-term debt

     (11 )


Long-term liabilities

     (70 )


Net assets

   $ 387  


 

2007 PPG ANNUAL REPORT AND FORM 10-K   43


Table of Contents

Notes to the Consolidated Financial Statements

 

During 2005, the Company made acquisitions at a cost totaling $91 million, primarily related to four acquisitions. These included the acquisition of the business of International Polarizer Holdings Trust, the acquisition of the business of Crown Coatings Industries, the acquisition of a network of 42 architectural coatings service centers from Iowa Paint Manufacturing, and the acquisition of the 30% minority interest in PPG Coatings (Hong Kong).

 

Adjustments were made in 2007 to the preliminary purchase price allocations related to several acquisitions that occurred in 2006. The preliminary purchase price allocations related to the acquisitions made in 2007 have been completed. No significant adjustments to the allocations for acquisitions made in 2007 are expected.

 

SigmaKalon

 

On January 2, 2008, PPG completed the acquisition of SigmaKalon Group, (“SigmaKalon”), a worldwide coatings producer based in Uithoorn, Netherlands, from global private investment firm Bain Capital (“the seller”). SigmaKalon produces architectural, protective and marine and industrial coatings and is a leading coatings supplier in Europe and other key markets across the globe, with an increasing presence in Africa and Asia. SigmaKalon sells coatings through a combination of approximately 500 company-owned stores, home centers, paint dealers, independent distributors, and directly to customers.

 

The total transaction value was approximately $3.2 billion, consisting of cash paid to the seller of $1,673 million and debt assumed of $1,517 million. The cash paid to the seller consisted of €717 million ($1,056 million) and $617 million.

 

In 2007, PPG issued $617 million of commercial paper and borrowed $1,056 million (€717 million) under the €1 billion bridge loan agreement established in December 2007 in anticipation of completing the SigmaKalon acquisition. The proceeds from these borrowings were deposited into escrow in December 2007. Upon closing of the transaction on January 2, 2008, these amounts were released from escrow and paid to the seller. The funds held in escrow at December 31, 2007 were reported as “Cash held in escrow” in the accompanying consolidated balance sheet and as an investing activity in the accompanying consolidated statement of cash flows for the year ended December 31, 2007.

 

The preliminary purchase price allocation for the SigmaKalon acquisition will be recorded in the first quarter of 2008. Further adjustments to the purchase price allocation are expected as the Company finalizes estimates related to acquired assets and liabilities, which estimates are expected to be finalized by December 31, 2008. The following table summarizes the preliminary estimated fair value of assets acquired and liabilities assumed as a result of the acquisition:

 

(Millions)


 
 

Current assets (including cash of $136)

  $ 1,416  


Property, plant and equipment

    779  


Customer relationships

    806  


Acquired technology

    103  


Trade names

    220  


Goodwill (non deductible)

    1,123  


Other

    159  


Total assets

    4,606  


Short-term debt

    (1,507 )


Current liabilities

    (748 )


Long-term debt

    (10 )


Deferred taxes

    (455 )


Other long-term liabilities

    (237 )


Net assets

    1,649  


In process research and development

    24  


Total purchase price

  $ 1,673  


 

All identifiable intangible assets (customer relationships, acquired technology, trade names) are subject to amortization, which will be recorded over an estimated weighted-average amortization period of 15 years. Estimated future amortization expense related to these identifiable intangible assets is approximately $80 million in each of the next five years. The amount allocated to in-process research and development will be charged to expense in the first quarter of 2008. The assignment of goodwill to reporting units will be completed later in 2008. The results of SigmaKalon will be included in PPG’s consolidated results of operations from January 2, 2008 onward.

 

3. Discontinued Operations and Assets Held for Sale

During the third quarter of 2007, the Company entered into an agreement to sell its automotive glass businesses to Platinum Equity, (“Platinum”) for approximately $500 million. Accordingly, the assets and liabilities of these businesses were classified as held for sale. In the fourth quarter of 2007, PPG was notified that affiliates of Platinum had filed suit in the Supreme Court of the State of New York, County of New York, alleging that Platinum is not obligated to consummate the agreement. Platinum subsequently terminated the agreement. PPG has sued Platinum and certain of its affiliates for damages, including the $25 million breakup fee stipulated by the terms of the agreement, based on various alleged actions of the Platinum parties.

 

While the transaction with Platinum was terminated, PPG management remains committed to a sale of the automotive glass businesses. Accordingly, the assets and liabilities of these businesses continue to be classified as held for sale and are stated at depreciated cost, which is lower than fair value less cost to sell, in the accompanying

 

44   2007 PPG ANNUAL REPORT AND FORM 10-K


Table of Contents

Notes to the Consolidated Financial Statements

 

consolidated balance sheet as of December 31, 2007 and 2006. Further, the results of operations and cash flows of these businesses, which had previously been included in the Glass reportable segment, have been classified as discontinued operations in the accompanying consolidated statements of income and cash flows for the three years ended December 31, 2007.

 

The decision to sell these businesses triggered curtailments related to certain of PPG’s defined benefit pension and other postretirement benefit plans. In 2007, PPG recorded a pretax charge of $17 million ($11 million aftertax), primarily representing curtailment losses on certain defined benefit pension plans. The sale of these businesses may result in additional curtailments and possibly settlements of other PPG employee benefit plans to be recorded upon or after the closing of a sale.

 

Sales and earnings related to the automotive glass businesses for the three years ended December 31, 2007 were as follows:

 

(Millions)    2007     2006     2005  

Net sales

   $ 1,014     $ 1,077     $ 1,097  

 

Income from discontinued operations:

                        
   

Income from operations

   $ 89     $ 91     $ 108  
   

   

Curtailment losses

     (17 )            
   

   

Income tax expense

     (28 )     (34 )     (42 )
   

   

Minority interest

     (3 )     (3 )     (2 )


   

Income from discontinued operations, net of tax

   $ 41     $ 54     $ 64  

 

 

In the third quarter of 2007, PPG entered into an agreement to sell its fine chemicals business to ZaCh System S.p.A., a subsidiary of Zambon Company S.p.A., for approximately $65 million. The sale of this business was completed in November 2007. Accordingly, the assets and liabilities of this business have been reclassified as held for sale in the accompanying consolidated balance sheet as of December 31, 2006. Further, the results of operations and cash flows of this business, which had previously been included in the Optical and Specialty Materials reportable segment, have been classified as discontinued operations in the accompanying consolidated statements of income and cash flows for the three years ended December 31, 2007. PPG recorded a pretax loss on sale of the fine chemicals business of $25 million ($19 million aftertax) in 2007.

 

Sales and earnings related to the fine chemicals business for the three years ended December 31, 2007 were as follows:

 

(Millions)    2007     2006     2005  

Net sales

   $ 79     $ 99     $ 76  

 

(Loss) income from discontinued operations:

                        
   

(Loss) income from operations

   $ (5 )   $ 7     $ (42 )
   

   

Loss on sale of business

     (25 )            
   

   

Income tax benefit (expense)

     8       (3 )     16  


   

(Loss) income from discontinued operations, net of tax

   $ (22 )   $ 4     $ (26 )

 

 

The major classes of assets and liabilities of the automotive glass businesses classified as held for sale in the consolidated balance sheet at December 31, 2007 and of the automotive glass businesses and fine chemicals business classified as held for sale at December 31, 2006 are as follows:

 

(Millions)    2007    2006

Assets:

             
   

Cash

   $    $ 12
   
   

Receivables—net

     123      152
   
   

Inventories

     164      187
   
   

Other current assets

     5      7
   
   

Long-term assets (1)

     196      263

Total assets held for sale

   $ 488    $ 621

Liabilities:

             
   

Accounts payable and accrued expenses

   $ 70    $ 99
   
   

Minority Interest

     28      26
   
   

Other

     1      3

Total liabilities of businesses held for sale

   $ 99    $ 128

(1)   Amount at December 31, 2006 included $29 million of goodwill for the fine chemicals business.

 

4. Working Capital Detail

 

(Millions)    2007      2006  
Receivables                  
   

Customers

   $ 2,244      $ 1,878  
   

   

Equity affiliates

     35        31  
   

   

Other

     166        152  
   

   

Allowance for doubtful accounts

     (47 )      (45 )


   

Total

   $ 2,398      $ 2,016  


Inventories (1)                              
   

Finished products

   $ 824      $ 730  
   

   

Work in process

     121        110  
   

   

Raw materials

     312        257  
   

   

Supplies

     111        106  


   

Total

   $ 1,368      $ 1,203  


Accounts payable and accrued liabilities                              
   

Trade creditors

   $ 1,139      $ 1,015  
   

   

Accrued payroll

     310        303  
   

   

Other postretirement and pension benefits

     90        92  
   

   

Income taxes

     49        54  
   

   

Other

     562        527  


   

Total

   $ 2,150      $ 1,991  


(1)   Inventories valued using the LIFO method of inventory valuation comprised 46% and 52% of total gross inventory values as of December 31, 2007 and 2006, respectively. If the FIFO method of inventory valuation had been used, inventories would have been $ 206 million and $216 million higher as of December 31, 2007 and 2006, respectively. During the year ended December 31, 2007, certain inventories accounted for on the LIFO method of accounting were reduced, which resulted in the liquidation of certain quantities carried at costs prevailing in prior years. The net effect on earnings was not material.

 

2007 PPG ANNUAL REPORT AND FORM 10-K   45


Table of Contents

Notes to the Consolidated Financial Statements

 

5. Property

 

(Millions)   

Useful
Lives

(years)

   2007    2006
   

Land and land improvements

   5-30    $ 401    $ 366
   
   

Buildings

   20-40      1,272      1,182
   
   

Machinery and equipment

   5-25      5,487      5,201
   
   

Other

   3-20      507      435
   
   

Construction in progress

            166      207

   

Total (1)

        $ 7,833    $ 7,391

(1)   Interest capitalized in 2007, 2006 and 2005 was $11 million, $7 million and $5 million, respectively.

 

6. Investments

 

(Millions)    2007    2006
Investments in equity affiliates    $ 181    $ 182

Marketable equity securities              
   

Trading (See Note 14)

  

 

80

     77
   
   

Available for sale

     9      13
   
Other      90      71

   

Total

   $ 360    $ 343

 

The Company’s investments in equity affiliates are comprised principally of 50% ownership interests in a number of joint ventures that manufacture and sell coatings, glass and chemicals products, the most significant of which produce fiber glass products and are located in Asia.

 

In addition, we have a fifty-percent ownership interest in RS Cogen, L.L.C., which toll produces electricity and steam primarily for PPG and its joint venture partner. The joint venture was formed with a wholly-owned subsidiary of Entergy Corporation in 2000 for the construction and operation of a $300 million process steam, natural gas-fired cogeneration facility in Lake Charles, La., the majority of which was financed by a syndicate of banks. PPG’s future commitment to purchase electricity and steam from the joint venture approximates $25 million per year subject to contractually defined inflation adjustments for the next fifteen years. The purchases for the years ended December 31, 2007, 2006 and 2005 were $25 million, $24 million and $25 million, respectively.

 

Summarized financial information of our equity affiliates on a 100 percent basis, in the aggregate, is as follows:

 

(Millions)         2007     2006  

Working capital

              $ 56     $ 31  


Property, net

                804       715  


Short-term debt

                (75 )     (50 )


Long-term debt

                (389 )     (348 )


Other, net

                25       64  


Net assets

          $ 421     $ 412  


                                           
(Millions)    2007    2006     2005  

Revenues

   $ 555    $ 601     $ 549  


Net earnings

   $ 60    $ 66     $ 25  


 

PPG’s share of undistributed net earnings of equity affiliates was $ 74 million and $63 million as of December 31, 2007 and 2006, respectively. Dividends received from equity affiliates were $20 million, $ 16 million and $19 million in 2007, 2006 and 2005, respectively.

 

As of December 31, 2007 and 2006, there were unrealized pretax gains of $4 million and $3 million, respectively, and as of December 31, 2005 there were pretax losses of $1 million recorded in “Accumulated other comprehensive loss” in the accompanying consolidated balance sheet related to marketable equity securities available for sale. During 2007, PPG sold certain of these investments resulting in recognition of pretax gains of $2 million and proceeds of $8 million. During both 2006 and 2005, PPG sold certain of these investments resulting in recognition of pretax gains of $1 million and proceeds of $3 million.

 

7. Goodwill and Other Identifiable Intangible Assets

The change in the carrying amount of goodwill attributable to each reportable business segment for the years ended December 31, 2007 and 2006 was as follows:

 

(Millions)   Performance
Coatings
  Industrial
Coatings
  Optical
and
Specialty
Materials
    Glass   Total

Balance,
Jan. 1, 2006

  $ 814   $ 243   $ 2     $ 48   $ 1,107

Goodwill from
acquisitions

    84     25     48           157

Currency
translation

    45     17     5       6     73

Balance,
Dec. 31, 2006

  $ 943   $ 285   $ 55     $ 54   $ 1,337

Goodwill from
acquisitions

    55     7     (3 )         59

Currency
translation

    53     18     5       4     80

Balance,
Dec. 31, 2007

  $ 1,051   $ 310   $ 57     $ 58   $ 1,476

 

The carrying amount of acquired trademarks with indefinite lives as of December 31, 2007 and 2006 totaled $144 million.

 

The Company’s identifiable intangible assets with finite lives are being amortized over their estimated useful lives and are detailed below.

 

    Dec. 31, 2007   Dec. 31, 2006
(Millions)  

Gross

Carrying

Amount

 

Accumulated

Amortization

   

Net

 

Gross

Carrying

Amount

 

Accumulated

Amortization

    Net

Acquired technology

  $ 448   $ (188 )   $ 260   $ 389   $ (155 )   $ 234

Other (1)

    355     (147 )     208     328     (124 )     204

Balance

  $ 803   $ (335 )   $ 468   $ 717   $ (279 )   $ 438

(1)   Consists primarily of customer-related intangibles

 

46   2007 PPG ANNUAL REPORT AND FORM 10-K


Table of Contents

Notes to the Consolidated Financial Statements

 

Aggregate amortization expense was $ 58 million, $43 million and $32 million in 2007, 2006 and 2005, respectively. The estimated future amortization expense of identifiable intangible assets during the next five years is (in millions) $55 in 2008, $54 in 2009, $53 in 2010, $44 in 2011 and $40 in 2012. These amounts do not include amortization expense resulting from the SigmaKalon acquisition, which was completed on January 2, 2008. See Note 2, “Acquisitions” for more information.

 

8. Business Restructuring and Asset Impairment

During 2006, the Company finalized plans for certain actions to reduce its workforce and consolidate facilities and recorded a charge of $37 million for restructuring and other related activities, including severance costs of $35 million and loss on asset impairment of $2 million. These amounts were net of $5 million of amounts accrued in 2006 that were reversed later that year as a result of actions not being taken or being completed at a cost that was less than the estimated amount accrued. Of the $37 million restructuring charge recorded in 2006, $2 million related to the automotive glass businesses has been reclassified and is presented as discontinued operations in the accompanying consolidated statement of income. All actions related to the 2006 restructuring charge were substantially completed by the end of the second quarter of 2007.

 

The following table summarizes the details through December 31, 2007.

 

(Millions, except no. of
employees)
   Severance
Costs
   

Asset

Impairments

   

Total

Charge

   

Employees

Covered

 

Industrial Coatings

   $ 28     $ 1     $ 29     353  


Performance Coatings

     7       1       8     193  


Optical and Specialty Materials

     1             1     33  


Glass

     4             4     190  


Reversal

     (5 )           (5 )   (112 )


Total

   $ 35     $ 2     $ 37     657  


2006 Activity

     (26 )     (2 )     (28 )   (531 )


Balance as of
Dec. 31, 2006

   $ 9     $     $ 9     126  


2007 Activity

     (9 )           (9 )   (126 )


Balance as of
Dec. 31, 2007

   $     $     $      


 

In 2002, the Company recorded a charge of $81 million for restructuring and other related activities. The workforce reductions covered by this charge have been completed; however, as of December 31, 2007, $2 million of this reserve remained to be spent. This reserve relates to a group of approximately 75 employees in Europe, whose terminations were concluded under a different social plan than was assumed when the reserve was recorded. Under the terms of this social plan, severance payments will be paid to these 75 individuals through 2008.

 

In the fourth quarter of 2005, the Company evaluated our fine chemicals operating segment for impairment in accordance with SFAS No. 144, “Accounting for the Impairment of Long-Lived Assets”, and determined that indicators of impairment were present for certain long-lived assets at our fine chemicals manufacturing plant in the United States. In measuring the fair value of these assets, the Company utilized an expected cash flow methodology to determine that the carrying value of these assets exceeded their fair value. We also wrote down the assets of a small fine chemical facility in France to their estimated net realizable value. The Company recorded an asset impairment charge related to these fine chemicals assets of $27 million pretax in 2005, which has been reclassified and is presented as a reduction to income from discontinued operations in the accompanying consolidated statement of income for the year ended December 31, 2005.

 

9. Debt and Bank Credit Agreements and Leases

 

(Millions)    2007    2006  


6  1 / 2 % notes, due 2007 (1)

   $    $ 50  




7.05% notes, due 2009 (1)

     116      116  


6  7 / 8 % notes, due 2012 (1)

     71      71  


3  7 / 8 % notes, due 2015 (€300)

     436      394  


7  3 / 8 % notes, due 2016

     146      146  


6  7 / 8 % notes, due 2017

     74      74  


7.4% notes, due 2019

     198      198  


9% non-callable debentures, due 2021

     149      148  


Impact of derivatives on debt (1)

     9      (1 )


ESOP Notes

               
   

Fixed-rate notes, weighted average 8.5%

          9  
   

    Variable-rate notes , weighted average 4.7%           9  


Various other U.S. debt , weighted average 5.0%           1  


Various other non-U.S. debt, weighted average 1.6%
as of December 31, 2007
     2      3  


Capital lease obligations

     1      2  


     

Total

     1,202      1,220  


Less payments due within one year

     1      65  


   

Long-term debt

   $ 1,201    $ 1,155  


(1)   PPG entered into several interest rate swaps which have the effect of converting $275 million and $ 175 million as of December 31, 2007 and 2006, respectively, of these fixed rate notes to variable rates, based on either the three-month or the six-month London Interbank Offered Rate (LIBOR). The weighted average effective interest rate for these borrowings, including the effects of the outstanding swaps was 8.0% and 7.8% for the years ended December 31, 2007 and 2006, respectively. Refer to Notes 1 and 11 for additional information.

 

Aggregate maturities of long-term debt during the next five years are (in millions) $ 1 in 2008, $ 116 in 2009, $ 0 in 2010, $ 0 in 2011 and $71 in 2012.

 

 

2007 PPG ANNUAL REPORT AND FORM 10-K   47


Table of Contents

Notes to the Consolidated Financial Statements

 

The Company has a $1 billion revolving credit facility that expires in 2011. The annual facility fee payable on the committed amount is 7 basis points. This facility is available for general corporate purposes and also to support PPG’s commercial paper programs in the U.S. and Europe. As of December 31, 2007, no amounts were outstanding under this facility.

 

Our non-U.S. operations have other uncommitted lines of credit totaling $423 million of which $ 153 million was used as of December 31, 2007. These uncommitted lines of credit are subject to cancellation at any time and are generally not subject to any commitment fees. In addition, our non-U.S. operations have committed lines of credit totaling $52 million of which $1 million was used as of December 31, 2007. These committed lines of credit cannot be canceled until expiration and are not subject to any commitment fees.

 

In order to provide financing for the SigmaKalon acquisition, in December 2007, PPG and certain of its subsidiaries entered into a three year €650 million revolving credit facility with several banks and financial institutions and Societe Generale, as facility agent for the lenders. The facility has an annual fee of 7 basis points. In addition, PPG and a subsidiary entered into two bridge loan agreements, one in the amount of €1 billion with multiple lenders and Credit Suisse as administrative agent for those lenders and the other in the amount of $500 million with Credit Suisse as the lender. Each bridge loan has a term of 364 days.

 

In December 2007, PPG issued $617 million of commercial paper and borrowed $1,056 million (€717 million) under the €1 billion bridge loan agreement. The proceeds from these borrowings were deposited into escrow in December 2007. Upon closing of the acquisition on January 2, 2008, these amounts were released from escrow and paid to the seller. Also, in January 2008, PPG borrowed $1,143 million, representing the remaining $417 million (€283 million) available under the €1 billion bridge loan agreement and $726 million (€493 million) under the €650 million revolving credit facility. The proceeds from these borrowings and cash on hand of $116 million were used to repay $1,259 million of the SigmaKalon debt assumed in the acquisition. No amounts have been borrowed under the $500 million bridge loan agreement.

 

Short-term debt outstanding as of December 31, 2007 and 2006, was as follows:

 

(Millions)    2007    2006

€1 billion bridge loan agreement, 5.2%

   $ 1,047    $

Commercial paper, 5.6%

     617     

Other, weighted average 5.6% as of Dec. 31, 2007

     154      75

Total

   $ 1,818    $ 75

 

 

PPG is in compliance with the restrictive covenants under its various credit agreements, loan agreements and indentures. The Company’s revolving credit agreements, the €1 billion bridge loan agreement and the $500 million bridge loan agreement include a financial ratio covenant. The covenant requires that the amount of total indebtedness not exceed 60% of the Company’s total capitalization excluding the portion of accumulated other comprehensive income (loss) related to pensions and other postretirement benefit adjustments. As of December 31, 2007, total indebtedness was 37% of the Company’s total capitalization excluding the portion of accumulated other comprehensive income (loss) related to pensions and other postretirement benefit adjustments. Additionally, substantially all of our debt agreements contain customary cross-default provisions. Those provisions generally provide that a default on a debt service payment of $10 million or more for longer than the grace period provided (usually 10 days) under one agreement may result in an event of default under other agreements. None of our primary debt obligations are secured or guaranteed by our affiliates.

 

In June 2005, the Company issued €300 million of 3.875% Senior Notes due 2015 (the “Euro Notes”). The proceeds from the Euro Notes were used to repay short-term commercial paper obligations incurred in June 2005 in connection with the purchase of $100 million of 6.5% notes due 2007, $159 million of 7.05% notes due 2009 and $16 million of 6.875% notes due 2012, as well as for general corporate purposes. The Company recorded a second quarter 2005 pre-tax charge of approximately $19 million, ($12 million aftertax or 7 cents per share), for debt refinancing costs, which is included in “Other charges” in the accompanying consolidated statement of income for the year ended December 31, 2005.

 

The fixed rate notes that were retired had been converted to variable rate notes using interest rate swaps. As a result, the debt was reflected in the consolidated balance sheet at fair value through the inclusion of the impact of these derivatives on the debt. As a result of the early retirement of these debt instruments, $8 million of these fair value adjustments were recognized and included as a net reduction in the debt refinancing costs described above.

 

Interest payments in 2007, 2006 and 2005 totaled $102 million, $ 90 million and $82 million, respectively.

 

Rental expense for operating leases was $ 167 million, $140 million and $124 million in 2007, 2006 and 2005, respectively. Minimum lease commitments for operating leases that have initial or remaining lease terms in excess of one year as of December 31, 2007, are (in millions) $ 91 in 2008, $ 70 in 2009, $ 51 in 2010, $ 36 in 2011, $28 in

 

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2012 and $ 44 thereafter, which includes rent of approximately $12 million, per year, through 2010, and $6 million in 2011, related to the July 1999 sale-leaseback of our Pittsburgh headquarters complex.

 

The Company had outstanding letters of credit of $71 million as of December 31, 2007. The letters of credit secure the Company’s performance to third parties under certain self-insurance programs and other commitments made in the ordinary course of business. As of December 31, 2007 and 2006 guarantees outstanding were $70 million and $62 million, respectively. The guarantees relate primarily to debt of certain entities in which PPG has an ownership interest and selected customers of certain of our businesses. A portion of such debt is secured by the assets of the related entities. The carrying values of these guarantees were $3 million and $9 million as of December 31, 2007 and 2006, respectively, and the fair values were $17 million and $9 million, as of December 31, 2007 and 2006, respectively. The Company does not believe any loss related to these letters of credit or guarantees is likely.

 

10. Financial Instruments, Excluding Derivative Financial Instruments

Included in PPG’s financial instrument portfolio are cash and cash equivalents, cash held in escrow, marketable equity securities, company-owned life insurance and short- and long-term debt instruments. The fair values of the financial instruments approximated their carrying values, in the aggregate, except for long-term debt.

 

Long-term debt (excluding capital lease obligations), had carrying and fair values totaling $1,201 million and $1,226 million, respectively, as of December 31, 2007. The corresponding amounts as of December 31, 2006, were $1,218 million and $1,303 million, respectively. The fair values of the debt instruments were based on discounted cash flows and interest rates currently available to the Company for instruments of the same remaining maturities.

 

11. Derivative Financial Instruments and Hedge Activities

PPG’s policies do not permit speculative use of derivative financial instruments. PPG uses derivative instruments to manage its exposure to fluctuating natural gas prices through the use of natural gas swap contracts. PPG also uses forward currency and option contracts as hedges against its exposure to variability in exchange rates on short-term intercompany borrowings and cash flows denominated in foreign currencies and to translation risk. PPG uses foreign denominated debt to hedge investments in foreign operations. Interest rate swaps are used to manage the Company’s exposure to changing interest rates. We also use an equity forward arrangement to hedge a portion of our exposure to changes in the fair value of PPG stock that is to be contributed to the asbestos settlement trust as discussed in Note 15, “Commitments and Contingent Liabilities”.

 

PPG enters into derivative financial instruments with high credit quality counterparties and diversifies its positions among such counterparties in order to reduce its exposure to credit losses. The Company has not experienced any credit losses on derivatives during the three-year period ended December 31, 2007.

 

PPG manages its foreign currency transaction risk to minimize the volatility in cash flows caused by currency fluctuations by periodically forecasting foreign currency- denominated cash flows of each subsidiary for a rolling 12-month period and aggregating these cash inflows and outflows in each currency to determine the overall net transaction exposures. Decisions on whether to use derivative financial instruments to hedge the net transaction exposures are made based on the amount of those exposures, by currency, and an assessment of the near-term outlook for each currency. The Company’s policy permits the use of foreign currency forward and option contracts to hedge up to 70% of its anticipated net foreign currency cash flows over the next 12-month period. These contracts do not qualify for hedge accounting under the provisions of SFAS No. 133; therefore, the change in the fair value of these instruments is recorded in “Other charges” in the accompanying consolidated statement of income in the period of change. The amounts recorded in earnings related to this hedging activity for the years ended December 31, 2007, 2006 and 2005 were a loss of $2 million, loss of $ 1 million and income of $4 million, respectively. The fair value of these contracts as of December 31, 2007 and 2006 were assets of $0.4 million and $2 million, respectively.

 

In December 2007, PPG borrowed €717 million under the €1 billion bridge loan agreement established in December 2007 to finance a portion of the SigmaKalon acquisition. The Euro proceeds were converted to $1,056 million and deposited into escrow until the closing of the transaction on January 2, 2008. On the same day the $1,056 million was placed into escrow, the Company entered into a foreign currency forward contract to convert the U.S. dollars back to €717 million on January 2, 2008. A loss on the forward contract was recognized as of December 31, 2007 of $9 million, which was substantially offset by an $8 million gain on the Euro borrowing over the same time period.

 

The sales, costs, assets and liabilities of our non-U.S. operations must be reported in U.S. dollars in order to prepare consolidated financial statements which gives rise to translation risk. The Company monitors its exposure to translation risk and may enter into derivative foreign currency contracts to hedge its exposure, as deemed

 

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appropriate. This risk management strategy does not qualify for hedge accounting under the provisions of SFAS No. 133; therefore, changes in the fair value of these instruments would be recorded in “Other charges” in the accompanying consolidated statement of income in the period of change. No derivative instruments were acquired to hedge translation risk during 2007, 2006 or 2005.

 

The €300 million Euro Notes due in 2015 are designated as a hedge of a portion of our net investment in our European operations. As a result, the change in book value from adjusting these foreign denominated notes to current spot rates at each balance sheet date is deferred in accumulated other comprehensive (loss) income. As of December 31, 2007 and 2006, the amount recorded in accumulated other comprehensive (loss) income from this hedge of our net investment was an unrealized loss of $76 million and $34 million, respectively.

 

PPG designates forward currency contracts as hedges against the Company’s exposure to variability in exchange rates on short-term intercompany borrowings denominated in foreign currencies. To the extent effective, changes in the fair value of these instruments are deferred in accumulated other comprehensive (loss) income and subsequently reclassified to “Other charges” in the accompanying consolidated statement of income as foreign exchange gains and losses are recognized on the related intercompany borrowings. The portion of the change in fair value considered to be ineffective is recognized in “Other charges” in the accompanying consolidated statement of income. The amounts recorded in earnings for the years ended December 31, 2007, 2006 and 2005, were losses of $ 9 million, $5 million and $6 million, respectively. The fair value of these contracts was an asset of $ 5 million and a liability of $1 million as of December 31, 2007 and 2006, respectively.

 

The Company manages its interest rate risk by balancing its exposure to fixed and variable rates while attempting to minimize its interest costs. Generally, the Company maintains variable interest rate debt at a level of approximately 25% to 50% of total borrowings. PPG principally manages its fixed and variable interest rate risk by retiring and issuing debt from time to time and through the use of interest rate swaps. As of December 31, 2007 and 2006, these swaps converted $275 million and $175 million, respectively, of fixed rate debt to variable rate debt. These swaps are designated as fair value hedges. As such, the swaps are carried at fair value. Changes in the fair value of these swaps and that of the related debt are recorded in “Interest expense” in the accompanying consolidated statement of income, the net of which is zero. The fair value of these contracts was an asset of $6 million and a liability $7 million as of December 31, 2007 and 2006, respectively.

 

The Company uses derivative instruments to manage its exposure to fluctuating natural gas prices through the use of natural gas swap contracts. These instruments mature over the next 37 months. To the extent that these instruments are effective in hedging PPG’s exposure to price changes, changes in the fair values of the hedge contracts are deferred in accumulated other comprehensive (loss) income and reclassified to cost of sales as the natural gas is purchased. The amount of ineffectiveness, which is reported in “Cost of sales, exclusive of depreciation and amortization” in the accompanying consolidated statement of income for the years ended December 31, 2007, 2006, and 2005, was $0.4 million of income, $0.2 million of income and $0.2 million of expense, respectively. The fair value of these contracts was a liability of $8 million and $25 million as of December 31, 2007 and 2006, respectively. As of December 31, 2007 an after-tax loss of $7 million was deferred in accumulated other comprehensive (loss) income, which related to natural gas hedge contracts that mature within the next twelve months.

 

In November 2002, PPG entered into a one-year renewable equity forward arrangement with a bank in order to partially mitigate the impact of changes in the fair value of PPG stock that is to be contributed to the asbestos settlement trust as discussed in Note 15, “Commitments and Contingent Liabilities”. This instrument, which has been renewed, is recorded at fair value as an asset or liability and changes in the fair value of this instrument are reflected in “Asbestos settlement – net” in the accompanying consolidated statement of income. As of December 31, 2007 and 2006, PPG had recorded a current asset of $18 million and $14 million, respectively, and recognized income of $4 million for the year ended December 31, 2007, income of $4 million for the year ended December 31, 2006 and expense of $9 million for the year ended December 31, 2005.

 

In accordance with the terms of this instrument the bank had purchased 504,900 shares of PPG stock on the open market at a cost of $24 million through December 31, 2002, and during the first quarter of 2003 the bank purchased an additional 400,000 shares at a cost of $19 million, for a total principal amount of $43 million. PPG will pay to the bank interest based on the principal amount and the bank will pay to PPG an amount equal to the dividends paid on these shares during the period this instrument is outstanding. The difference between the principal amount, and any amounts related to unpaid interest or dividends, and the current market price for these shares will represent the fair value of the instrument as well as the amount that PPG would pay or receive if the bank chose to net settle the instrument. Alternatively, the bank may, at its option, require PPG to purchase the shares covered by the arrangement at the market price on the date of settlement.

 

No derivative instrument initially designated as a hedge instrument was undesignated or discontinued as a hedging instrument during 2007 or 2006.

 

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For the year ended December 31, 2007, other comprehensive (loss) income included a net gain due to derivatives of $7 million, net of tax. This income was comprised of realized losses of $20 million and unrealized losses of $13 million. The realized losses related to the settlement during the period of natural gas contracts, foreign currency contracts and interest rate swaps that were owned by one of the Company’s investees accounted for under the equity method of accounting. The unrealized losses related to the change in fair value of the natural gas contracts, foreign currency contracts and on interest rate swaps that are owned by one of the Company’s investees accounted for under the equity method of accounting.

 

For the year ended December 31, 2006, other comprehensive (loss) income included a net loss due to derivatives of $13 million, net of tax. This loss was comprised of realized losses of $22 million and unrealized losses of $35 million. The realized losses related to the settlement of natural gas swap contracts and to interest rate swaps owned by one of the Company’s investees accounted for under the equity method of accounting. These losses were offset in part by realized gains related to the settlement of foreign currency contracts. The unrealized losses related primarily to the change in fair value of the natural gas swap contracts. These unrealized losses were partially offset by unrealized gains on the Company’s foreign currency contracts and on interest rate swaps owned by one of the Company’s investees accounted for under the equity method of accounting.

 

The fair values of outstanding derivative instruments, excluding interest rate swaps, were determined using quoted market prices. The fair value of interest rate swaps was determined using discounted cash flows and current interest rates.

 

12. Earnings Per Common Share

The earnings per common share calculations for the three years ended December 31, 2007, are as follows:

 

(Millions, except per share amounts)

  2007   2006   2005

Earnings per common share

           
    Income from continuing operations   $ 815   $ 653   $ 558
   
    Income from discontinued operations   $ 19   $ 58   $ 38
   
    Net Income   $ 834   $ 711   $ 596
   
    Weighted average common shares outstanding     164.5  

 

165.7

 

 

169.6


 
    Earnings per common share:            
   

Income from continuing operations

  $ 4.95   $ 3.94   $ 3.29
   
   

Income from discontinued operations

  $ 0.12   $ 0.35   $ 0.22

 
   

Net Income

  $ 5.07   $ 4.29   $ 3.51

 

Earnings per common share -

assuming dilution

           
    Income from continuing operations   $ 815   $ 653   $ 558
   
    Income from discontinued operations   $ 19   $ 58   $ 38
   
    Net Income   $ 834   $ 711   $ 596
   
    Weighted average common shares outstanding     164.5  

 

165.7

 

 

169.6

   
    Effect of dilutive securities:                  
   

Stock options

    0.9     0.6     0.6
   
   

Other stock compensation plans

    0.5     0.2     0.7
   
    Potentially dilutive common shares     1.4     0.8     1.3
   
    Adjusted weighted average common shares outstanding     165.9     166.5     170.9

 
   

Earnings per common share -

assuming dilution:

           
   

Income from continuing operations

  $ 4.91   $ 3.92   $ 3.27
   
   

Income from discontinued operations

  $ 0.12   $ 0.35   $ 0.22

 
   

Net Income

  $ 5.03   $ 4.27   $ 3.49

 

 

There were 1.1 million, 4.0 million and 3.9 million outstanding stock options excluded in 2007, 2006 and 2005, respectively, from the computation of diluted earnings per common share due to their anti-dilutive effect.

 

13. Income Taxes

The following table presents a reconciliation of the statutory U.S. corporate federal income tax rate to our effective income tax rate:

 

(Percent of Pretax Income)

   2007     2006     2005  

U.S. federal income tax rate

   35.00 %   35.00 %   35.00 %

Changes in rate due to:

                  
   

State and local taxes – U.S.

   1.18     0.47     0.94  
   

   

Taxes on non-U.S. earnings

   (5.20 )   (3.10 )   (3.63 )
   

   

ESOP dividends

   (0.81 )   (1.14 )   (1.27 )
   

   

U.S. Federal Audit Settlement

       (2.23 )    
   

     

Other

   (1.61 )   (3.95 )   (2.06 )


   

Effective income tax rate

   28.56 %   25.05 %   28.98 %


 

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The 2007 effective income tax rate includes the tax benefit of $15 million for the reversal of a valuation allowance previously recorded against the benefit of a tax net operating loss carryforward of a non-U.S. subsidiary and the tax benefit associated with an enacted reduction in the Canadian federal corporate income tax rate. The impact of these items is presented as “Taxes on non-U.S. earnings” in the above rate reconciliation and accounted for most of the increase in the benefit that taxes on non-U.S. earnings had on the 2007 effective income tax rate.

 

The 2006 effective income tax rate included the tax benefit related to the settlement with the IRS of our tax returns for the years 2001-2003. The 2005 effective income tax rate included the one-time U.S. tax cost that was incurred in 2005 related to dividends that were repatriated under the provisions of the American Jobs Creation Act of 2004 (“AJCA 2004”). The impact of this item is presented as “Other” in the above rate reconciliation.

 

Income before income taxes of our non-U.S. operations for 2007, 2006 and 2005 was $ 508 million, $343 million and $320 million, respectively.

 

The following table gives details of income tax expense reported in the accompanying consolidated statement of income.

 

(Millions)

     2007       2006       2005  

Current income taxes

                        
   

U.S. federal

   $ 261     $ 190     $ 221  
   

   

Non-U.S.

     160       113       117  
   

   

State and local – U.S.

     32       30       32  
   

Total current

     453       333       370  

Deferred income taxes

                        
   

U.S. federal

     (66 )     (82 )     (85 )
   

   

Non-U.S.

     (25 )           (21 )
   

   

State and local – U.S.

     (7 )     (10 )     (9 )
   

Total deferred

     (98 )     (92 )     (115 )
   

Total

   $ 355     $ 241     $ 255  


 

Income tax payments in 2007, 2006 and 2005 totaled $475 million, $360 million and $377 million, respectively.

Net deferred income tax assets and liabilities as of December 31, 2007 and 2006, were as follows:

 

(Millions)

     2007       2006  

Deferred income tax assets related to

                
   

Employee benefits

   $ 644     $ 799  
   

   

Contingent and accrued liabilities

     507       490  
   

   

Operating loss and other carryforwards

     109       101  
   

   

Inventories

     25       21  
   

   

Property

     3       5  
   

   

Other

     66       54  
   

   

Valuation allowance

     (64 )     (65 )


   

Total

     1,290       1,405  


Deferred income tax liabilities related to

                
   

Property

     381       382  
   

   

Intangibles

     257       242  
   

   

Employee benefits

     42       40  
   

   

Other

     26       23  


   

Total

     706       687  


   

Deferred income tax assets – net

   $ 584     $ 718  


 

As of December 31, 2007, subsidiaries of the Company had available net operating loss carryforwards of approximately $329 million for income tax purposes, of which approximately $277 million has an indefinite expiration. The remaining $52 million expires between the years 2008 and 2021. A valuation allowance has been established for carry-forwards where the ability to utilize them is not likely.

 

No deferred U.S. income taxes have been provided on certain undistributed earnings of non-U.S. subsidiaries, which amounted to $ 2,661 million as of December 31, 2007 and $2,116 million as of December 31, 2006. These earnings are considered to be reinvested for an indefinite period of time or will be repatriated when it is tax effective to do so. It is not practicable to determine the deferred tax liability on these undistributed earnings. In October 2004, the AJCA 2004 was signed into law. Among its many provisions, the AJCA 2004 provided a limited opportunity through 2005 to repatriate the undistributed earnings of non-U.S. subsidiaries at a U.S. tax cost that could be lower than the normal tax cost on such distributions. During 2005, we repatriated $114 million of dividends under the provisions of AJCA 2004 resulting in income tax expense of $9 million. In the absence of AJCA 2004, the Company estimates the tax cost to repatriate these dividends would have been $23 million higher in 2005.

 

The Company files federal, state and local income tax returns in numerous domestic and foreign jurisdictions. In most tax jurisdictions, returns are subject to examination by the relevant tax authorities for a number of years after the returns have been filed. The Company is

 

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no longer subject to examinations by tax authorities in any major tax jurisdiction for years before 2001. Additionally, the Internal Revenue Service (“IRS”) has completed its examination of the Company’s U.S. federal income tax returns filed for years through 2003. The IRS has commenced an examination of the Company’s 2004 and 2005 federal income tax returns, which we currently believe will be completed in 2008. The Company does not expect a material impact on results of operations to result from the resolution of this examination.

 

The activity in the accrued liability for unrecognized tax benefits for the year ended December 31, 2007 was as follows:

 

(Millions)


  
 

Balance at January 1, 2007

   $ 77  


Additions based on tax positions related to the current year

     21  


Additions for tax positions of prior years

     19  


Reductions for tax positions of prior years

     (5 )


Reductions for expiration of the applicable statute of limitations

     (5 )


Settlements

     (1 )


Currency

     4  


Balance at December 31, 2007

   $ 110  


 

As of December 31, 2007, the amount of unrecognized tax benefits was $110 million, of which $88 million would impact the effective tax rate, if recognized. The Company recognizes accrued interest and penalties related to unrecognized tax benefits in income tax expense. As of December 31, 2007, the Company had $9 million accrued for estimated interest and penalties on unrecognized tax benefits. During the year ended December 31, 2007, the Company recognized $3 million of expense for estimated interest and penalties.

 

While it is expected that the amount of unrecognized tax benefits will change in the next 12 months, quantification of an estimated range cannot be made at this time. The Company does not expect this change to have a significant impact on the results of operations or financial position of the Company, however, actual settlements may differ from amounts accrued.

 

14. Pensions and Other Postretirement Benefits

 

Defined Benefit Plans

We have defined benefit pension plans that cover certain employees worldwide. PPG also sponsors welfare benefit plans that provide postretirement medical and life insurance benefits for certain U.S. and Canadian employees and their dependents. These programs require retiree contributions based on retiree-selected coverage levels for certain retirees and their dependents and provide for sharing of future benefit cost increases between PPG and participants based on management discretion. The Company has the right to modify or terminate certain of these benefit plans in the future. Salaried and certain hourly employees hired on or after October 1, 2004, are not eligible for postretirement medical benefits. Salaried employees hired, rehired or transferred to salaried status on or after January 1, 2006, and certain hourly employees hired in 2006 or thereafter are eligible to participate in a defined contribution retirement plan. These employees are not eligible for defined benefit pension plan benefits.

 

The Medicare Act of 2003 introduced a prescription drug benefit under Medicare (“Medicare Part D”) that provides several options for Medicare eligible participants and employers, including a federal subsidy payable to companies that elect to provide a retiree prescription drug benefit which is at least actuarially equivalent to Medicare Part D. During the third quarter of 2004, PPG concluded its evaluation of the provisions of the Medicare Act and decided to maintain its retiree prescription drug program and to take the subsidy available under the Medicare Act. The impact of the Medicare Act was accounted for in accordance with FASB Staff Position No. 106-2, “Accounting and Disclosure Requirements Related to the Medicare Prescription Drug, Improvement and Modernization Act of 2003” effective January 1, 2004. In addition, the plan was amended September 1, 2004, to provide that PPG management will determine the extent to which future increases in the cost of its retiree medical and prescription drug programs will be shared by certain retirees. The federal subsidy related to providing a retiree prescription drug benefit is not subject to U.S. federal income tax and was recorded as a reduction in our annual net periodic benefit cost of other postretirement benefits.

 

In August 2007, the Company’s U.S. other postretirement benefit plan was amended to consolidate the number of retiree health care options available for certain retirees and their dependents. The plan amendment is effective January 1, 2008. The amended plan also offers a fully-insured Medicare Part D prescription drug plan for certain retirees and their dependents. As such, beginning in 2008 PPG will no longer be eligible to receive the subsidy provided under the Medicare Act of 2003 for these retirees and their dependents. The impact of the plan amendment was to reduce the accumulated plan benefit obligation by $57 million.

 

The following table sets forth the changes in projected benefit obligations (“PBO”) (as calculated as of December 31), plan assets, the funded status and the

 

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amounts recognized in our consolidated balance sheet for our defined benefit pension and other postretirement benefit plans:

 

        Pensions    

Other
Postretirement

Benefits

 

(Millions)

    2007       2006       2007       2006  

Projected benefit

obligation, Jan. 1

  $ 3,790     $ 3,635     $ 1,107     $ 1,119  

Service cost

    69       74       24       27  

Interest cost

    214       197       64       62  

Plan amendments

    2       3       (57 )     (10 )

Actuarial (gains) losses

    (207 )     9       16       (7 )

Benefits paid

    (203 )     (202 )     (84 )     (84 )
Foreign currency translation adjustments     83       75       14        
Curtailment and special termination benefits     (7 )           (12 )      

Other

    3       (1 )            

Projected benefit

obligation, Dec. 31

  $ 3,744     $ 3,790     $ 1,072     $ 1,107  
                                     

Market value of plan

assets, Jan. 1

  $ 3,161     $ 2,812                  

Actual return on plan assets

    211       363                  

Company contributions

    149       124                  

Participant contributions

    3       3                  

Benefits paid

    (190 )     (187 )                

Plan expenses and other-net

    (2 )     (6 )                
Foreign currency translation adjustments     71       52                  

Market value of plan

assets, Dec. 31

  $ 3,403     $ 3,161                  
                                     

Funded Status

  $ (341 )   $ (629 )   $ (1,072 )   $ (1,107 )
Amounts recognized in the Consolidated Balance Sheet:                           

Other assets (long-term)

    64       6              
Accounts payable and accrued liabilities     (14 )     (13 )     (75 )     (79 )

Accrued pensions

    (391 )     (622 )            

Other postretirement benefits

                (997 )     (1,028 )

Net liability recognized

  $ (341 )   $ (629 )   $ (1,072 )   $ (1,107 )
                                     

 

The PBO is the actuarial present value of benefits attributable to employee service rendered to date, including the effects of estimated future pay increases. The accumulated benefit obligation (“ABO”) is the actuarial present value of benefits attributable to employee service rendered to date, but does not include the effects of estimated future pay increases. The ABO for all defined benefit pension plans as of December 31, 2007 and 2006 was $3,509 million and $3,511 million, respectively.

 

The aggregate projected benefit obligation and fair value of plan assets (in millions) for the pension plans with projected benefit obligations in excess of plan assets were $3,080 and $2,675, respectively, as of December 31, 2007, and $3,642 and $3,008, respectively, as of December 31, 2006. The aggregate accumulated benefit obligation and fair value of plan assets (in millions) for the pension plans with accumulated benefit obligations in excess of plan assets were $961 and $647, respectively, as of December 31, 2007, and $3,181 and $2,814, respectively, as of December 31, 2006.

 

Amounts not yet reflected in net periodic benefit cost and included in accumulated other comprehensive loss (pretax) include the following:

 

(Millions)    Pensions    Other
Postretirement
Benefits
 
       2007      2006      2007       2006  

Accumulated net actuarial losses

   $ 1,102    $ 1,313    $ 431     $ 460  
Accumulated prior service cost (credit)      21      37      (96 )     (51 )

Total

   $ 1,123    $ 1,350    $ 335     $ 409  


 

The accumulated net actuarial losses for pensions relate primarily to the actual return on plan assets being less than the expected return on plan assets in 2000, 2001 and 2002 and a decline in the discount rate since 1999. The accumulated net actuarial losses for other postretirement benefits relate primarily to actual healthcare costs increasing at a higher rate than assumed during the 2001-2003 period and the decline in the discount rate. Since the accumulated net actuarial losses exceed 10% of the higher of the market value of plan assets or the PBO at the beginning of the year, amortization of such excess over the average remaining service period of active employees expected to receive benefits has been included in net periodic benefit costs for pension and other postretirement benefits in each of the last three years. Accumulated prior service cost (credit) is amortized over the future service periods of those employees who are active at the dates of the plan amendments and who are expected to receive benefits.

 

The increase (decrease) in accumulated other comprehensive loss (pretax) in 2007 relating to defined benefit pension and other postretirement benefits consists of:

 

(Millions)    Pensions     Other
Postretirement
Benefits
 
Net actuarial (gain) loss arising during the year    $ (148 )   $ 16  

New prior service cost (credit)

     2       (57 )

Amortization of actuarial loss

     (77 )     (33 )

Amortization of prior service (cost) credit

     (14 )     12  

Impact of curtailment

     (20 )     (16 )
Foreign currency translation adjustments and other      30       4  

Net change

   $ (227 )   $ (74 )


 

The net actuarial gain arising during 2007 related to our pension plans was primarily due to an increase in the

 

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discount rate partially offset by lower than expected plan asset returns for our non-U.S. plans.

 

The estimated amounts of accumulated net actuarial loss and prior service cost for the defined benefit pension plans that will be amortized from accumulated other comprehensive (loss) income into net periodic benefit cost in 2008 are $61 million and $11 million, respectively. The estimated amounts of accumulated net actuarial loss and prior service (credit) for the other postretirement benefit plans that will be amortized from accumulated other comprehensive (loss) income into net periodic benefit cost in 2008 are $25 million and $(19) million, respectively.

 

Net periodic benefit cost for the three years ended December 31, 2007, includes the following:

 

    Pensions     Other
Postretirement
Benefits
 

(Millions)

    2007       2006       2005       2007       2006       2005  

Service cost

  $ 69     $ 74     $ 64     $ 24     $ 27     $ 24  

Interest cost

    214       197       189       64       62       63  
Expected return
on plan assets
    (267 )     (232 )     (224 )                  
Amortization of
prior service
cost (credit)
    14       15       19       (12 )     (15 )     (15 )
Amortization of actuarial losses     77       105       78       33       38       35  
Curtailments and special termination benefits     12                   5              

Net periodic
benefit cost

  $ 119     $ 159     $ 126     $ 114     $ 112     $ 107  


 

Net periodic benefit cost is included in “Cost of sales, exclusive of depreciation and amortization,” “Selling, general and administrative” and “Research and development” in the accompanying consolidated statement of income.

 

Assumptions

The following weighted average assumptions were used to determine the benefit obligation for our defined benefit pension and other postretirement plans as of December 31, 2007 and 2006:

 

     2007     2006  

Discount rate

   6.2 %   5.7 %

Rate of compensation increase

   4.1 %   4.0 %

The following weighted average assumptions were used to determine the net periodic benefit cost for our defined benefit pension and other postretirement benefit plans for the three years ended December 31, 2007:

 

     2007   

2006

  

2005

Discount rate

   5.7%    5.5%    5.9%

Expected return on assets

   8.3%    8.4%    8.4%

Rate of compensation increase

   4.0%    4.1%    4.0%

 

These assumptions are reviewed on an annual basis. In determining the expected return on plan asset assumption, the Company evaluates the mix of investments that comprise plan assets and external forecasts of future long-term investment returns. The expected return on plan assets assumption to be used in determining 2008 net periodic pension expense will be 8.5% for the U.S. plans, which is the same rate used for 2007.

 

As of December 31, 2005, the Company began to use a newer and more relevant mortality table known as RP 2000, in order to calculate its U.S. defined benefit pension and other postretirement liabilities. Previously, the Company had used the GAM 83 mortality table to calculate these liabilities. This change in the mortality assumption increased net periodic benefit costs in 2006 by approximately $13 million and $4 million for our defined benefit pension and other postretirement benefit plans, respectively.

 

The weighted-average healthcare cost trend rate used was 8.0% for 2007 declining to 5.0% in the year 2011. For 2008, the weighted-average healthcare cost trend rate used will be 8.0% declining to 5.0% in the year 2014. These assumptions are reviewed on an annual basis. In selecting rates for current and long-term health care assumptions, the Company takes into consideration a number of factors including the Company’s actual health care cost increases, the design of the Company’s benefit programs, the demographics of the Company’s active and retiree populations and expectations of future medical cost inflation rates. If these 2008 trend rates were increased or decreased by one percentage point per year, such increase or decrease would have the following effects:

 

     One-Percentage Point  
(Millions)    Increase    Decrease  
Increase (decrease) in the aggregate of service and interest cost components    $ 10    $ (8 )

Increase (decrease) in the benefit obligation

   $ 103    $ (86 )

 

Contributions

On August 17, 2006, the Pension Protection Act of 2006 (“PPA”) was signed into law, changing the funding requirements for our U.S. defined benefit pension plans beginning in 2008. Under current funding requirements, PPG did not have to make a mandatory contribution to our U.S. plans in 2007, and, while we are currently awaiting final guidance on the PPA, we do not expect to have a mandatory contribution to these plans in 2008 or 2009.

 

In both 2007 and 2006, we made voluntary contributions to our U.S. defined benefit pension plans of $100 million. We also made in 2007 and 2006 contributions to our non-U.S. defined benefit pension plans of $49 million and $24 million, respectively, some

 

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of which were required by local funding requirements. We expect to make mandatory contributions to our non-U.S. plans in 2008 of approximately $62 million and we may make voluntary contributions to our U.S. plans in 2008.

 

Benefit Payments

The estimated pension benefits to be paid under our defined benefit pension plans during the next five years are (in millions) $214 in 2008, $215 in 2009, $216 in 2010, $222 in 2011 and $227 in 2012 and are expected to aggregate $1,238 million for the five years thereafter. The estimated other postretirement benefits to be paid during the next five years are (in millions) $78 in 2008, $80 in 2009, $81 in 2010, $82 in 2011 and $82 in 2012 and are expected to aggregate $421 million for the five years thereafter. The Company expects to receive $2 million of subsidy under the Medicare Act of 2003 during each of the next five years and an aggregate amount of $6 million for the five years thereafter. The 2007 subsidy under the Medicare Act of 2003 was $6 million, of which $5 million was received as of December 31, 2007.

 

Plan Assets

The following summarizes the target pension plan asset allocation as of December 31, 2007, and the actual pension plan asset allocations as of December 31, 2007 and 2006:

 

Asset Category   

Target Asset
Allocation as of

Dec. 31, 200 7

   Percentage of
Plan Assets
      2007    2006

Equity securities

   50-75%    60%    70%

Debt securities

   25-50%    36%    26%

Real estate

   0-10%    4%    4%

Other

   0-10%    0%    0%

 

The pension plan assets are invested to generate investment earnings over an extended time horizon to help fund the cost of benefits promised under the plans while controlling investment risk. In 2007, the shift in the allocation of pension plan assets toward debt securities was accompanied by an increase in the active management of the portfolio in order to maintain the level of expected return on plan assets.

 

Other Plans

The Company incurred costs for multi-employer pension plans of $1 million in each of the years 2007, 2006 and 2005. The Company’s termination liability with respect to these plans is estimated to be $6 million as of December 31, 2007. Multi-employer healthcare costs totaled $1 million in each of the years 2007, 2006 and 2005.

 

The Company recognized expense for defined contribution pension plans in 2007, 2006 and 2005 of $17 million, $11 million and $10 million, respectively. As of December 31, 2007 and 2006, the Company’s liability related to defined contribution pension plans was $6 million and $7 million, respectively.

 

The Company has a deferred compensation plan for certain key managers which allows them to defer a portion of their compensation in a phantom PPG stock account or other phantom investment accounts. The amount deferred earns a return based on the investment options selected by the participant. The amount owed to participants is an unfunded and unsecured general obligation of the Company. Upon retirement, death, disability or termination of employment, the compensation deferred and related accumulated earnings are distributed in accordance with the participant’s election in cash or in PPG stock, based on the accounts selected by the participant.

 

The plan provides participants with investment alternatives and the ability to transfer amounts between the phantom non-PPG stock investment accounts. To mitigate the impact on compensation expense of changes in the market value of the liability, the Company has purchased a portfolio of marketable securities that mirror the phantom non-PPG stock investment accounts selected by the participants except the money market accounts. The changes in market value of these securities are also included in earnings. Trading will occur in this portfolio to align the securities held with the participant’s phantom non-PPG stock investment accounts except the money market accounts.

 

The cost of the deferred compensation plan, comprised of dividend equivalents accrued on the phantom PPG stock account, investment income and the change in market value of the liability, was expense in 2007, 2006 and 2005 of $12 million, $9 million and $7 million, respectively. These amounts are included in “Selling, general and administrative” in the accompanying consolidated statement of income. The change in market value of the investment portfolio in 2007, 2006 and 2005 was income of $9 million, $8 million and $6 million, respectively, of which $2 million, $4 million and $1 million was realized gains, respectively, and is also included in “Selling, general and administrative.”

 

The Company’s obligations under this plan, which are included in “Accounts payable and accrued liabilities” and “Other liabilities” in the accompanying consolidated balance sheet, totaled $119 million and $113 million as of December 31, 2007 and 2006, respectively, and the investments in marketable securities, which are included in “Investments” and “Other current assets” in the accompanying consolidated balance sheet, were $84 million and $77 million as of December 31, 2007 and 2006, respectively.

 

15. Commitments and Contingent Liabilities

PPG is involved in a number of lawsuits and claims, both actual and potential, including some that it has asserted against others, in which substantial monetary damages are sought. These lawsuits and claims, the most significant of

 

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which are described below, relate to contract, patent, environmental, product liability, antitrust and other matters arising out of the conduct of PPG’s current and past business activities. To the extent that these lawsuits and claims involve personal injury and property damage, PPG believes it has adequate insurance; however, certain of PPG’s insurers are contesting coverage with respect to some of these claims, and other insurers, as they had prior to the asbestos settlement described below, may contest coverage with respect to some of the asbestos claims if the settlement is not implemented. PPG’s lawsuits and claims against others include claims against insurers and other third parties with respect to actual and contingent losses related to environmental, asbestos and other matters.

 

The result of any future litigation of such lawsuits and claims is inherently unpredictable. However, management believes that, in the aggregate, the outcome of all lawsuits and claims involving PPG, including asbestos-related claims in the event the settlement described below does not become effective, will not have a material effect on PPG’s consolidated financial position or liquidity; however, such outcome may be material to the results of operations of any particular period in which costs, if any, are recognized.

 

Legacy Antitrust Matters

The Company has been named as a defendant, along with various other co-defendants, in a number of antitrust lawsuits filed in federal and state courts. These suits allege that PPG acted with competitors to fix prices and allocate markets in the flat glass and automotive refinish industries. The plaintiffs in these cases are seeking economic and, in certain cases, treble damages and injunctive relief. As described below, we have either settled or agreed to settle the most significant of these cases.

 

Twenty-nine glass antitrust cases were filed in federal courts, all of which were consolidated as a class action in the U.S. District Court for the Western District of Pennsylvania located in Pittsburgh, Pa. By 2003, all of the other defendants in the glass class action antitrust case settled with the plaintiffs and were dismissed from the case. On May 29, 2003, the Court granted PPG’s motion for summary judgment dismissing the claims against PPG in the glass class action antitrust case. The plaintiffs in that case appealed that order to the U.S. Third Circuit Court of Appeals. On September 30, 2004, the U.S. Third Circuit Court of Appeals affirmed in part and reversed in part the dismissal of PPG and remanded the case for further proceedings. PPG petitioned the U.S. Supreme Court for permission to appeal the decision of the U.S. Third Circuit Court of Appeals, however, the U.S. Supreme Court rejected PPG’s petition for review.

 

On October 19, 2005, PPG entered into a settlement agreement to settle the federal glass class action antitrust case in order to avoid the ongoing expense of this protracted case, as well as the risks and uncertainties associated with complex litigation involving jury trials. Pursuant to the settlement agreement, PPG agreed to pay $60 million and to bear up to $500,000 in settlement administration costs. PPG recorded a charge for $61 million which is included in “Other charges” in the accompanying consolidated statement of income for the year ended December 31, 2005. These amounts were held in escrow until the U.S. District Court entered an order on February 7, 2006, approving the settlement. This order is no longer appealable. As a result of the settlement, PPG also paid $900,000 pursuant to a pre-existing contractual obligation to a plaintiff that did not participate in the federal glass class action antitrust case. Separately, on November 8, 2006, PPG entered into a class-wide settlement agreement to resolve all claims of indirect purchasers of flat glass in California. PPG agreed to make a payment of $2.5 million, inclusive of attorneys’ fees and costs. On January 30, 2007, the Court granted preliminary approval of the settlement. The Court has also approved the form of notice to the settlement class. A hearing on final approval of the settlement was cancelled and has not been rescheduled. Independent state court cases remain pending in Tennessee involving claims that are not included in the settlement of the federal and California glass class action antitrust cases. Notwithstanding that PPG has agreed to settle the federal and California glass class action antitrust cases, and is considering settlement of the Tennessee cases, PPG continues to believe that there was no wrongdoing on the part of the Company and also believes that PPG has meritorious defenses to the independent state court cases.

 

Approximately 60 cases alleging antitrust violations in the automotive refinish industry were filed in various state and federal jurisdictions. The approximately 55 federal cases were consolidated as a class action in the U.S. District Court for the Eastern District of Pennsylvania located in Philadelphia, Pa. Certain of the defendants in the federal automotive refinish case settled prior to PPG. Neither PPG’s investigation conducted through its counsel of the allegations in these cases nor the discovery conducted in the case has identified a basis for the plaintiffs’ allegations that PPG participated in a price-fixing conspiracy in the U.S. automotive refinish industry. PPG’s management continues to believe that there was no wrongdoing on the part of the Company and that it has meritorious defenses in the federal automotive refinish case. Nonetheless, it remained uncertain whether the federal court ultimately would dismiss PPG, or whether the case would go to trial. On September 14, 2006, PPG agreed to settle the federal class action for $23 million to avoid the ongoing expense of this protracted case, as well as the risks and uncertainties associated with complex litigation involving jury trials. PPG recorded a

 

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charge for $23 million. This amount was included in “Other charges” in the accompanying consolidated statement of income for the year ended December 31, 2006. This amount was held in escrow and, on December 28, 2007, the federal court approved the class action settlement agreement. In January 2008, the $23 million was released from escrow.

 

Class action lawsuits that mimic the federal class action have been filed in five states (California, Maine, Massachusetts, Tennessee and Vermont) pursuant to state statutes on behalf of indirect purchasers of automotive refinish products. A similar suit brought in a federal court in New York City was dismissed on May 8, 2007. In the fourth quarter of 2007, the case in Tennessee was dismissed. PPG believes that there was no wrongdoing on its part, and believes it has meritorious defenses to the independent state court cases. Notwithstanding the foregoing, to avoid the ongoing expense of protracted litigation, as well as the risks and uncertainties associated with complex litigation, PPG has agreed to settle the cases in California, Maine and Massachusetts and is considering potential settlement of the case in Vermont.

 

Other Legacy Matter

Beginning in April 1994, the Company was a defendant in a suit filed by Marvin Windows and Doors (“Marvin”) alleging numerous claims, including breach of warranty. All of the plaintiff’s claims, other than breach of warranty, were dismissed. However, on February 14, 2002, a federal jury awarded Marvin $136 million on the remaining claim. Subsequently, the court added $20 million for interest bringing the total judgment to $156 million. PPG appealed that judgment and the appeals court heard the parties’ arguments on June 9, 2003. On March 23, 2005, the appeals court ruled against PPG. Subsequent to the ruling by the court, PPG and Marvin agreed to settle this matter for $150 million and PPG recorded a charge for that amount in the first quarter of 2005, which is included in “Other charges” in the accompanying consolidated statement of income for the year ended December 31, 2005. PPG paid the settlement on April 28, 2005. PPG subsequently received $51 million in insurance recoveries related to this settlement; of which $33 million is included in “Other charges” for the year ended December 31, 2006, and the remainder was received in the third quarter of 2005.

 

New Antitrust Matters

Early in 2008, five purported antitrust class actions naming PPG and other flat glass producers were filed in three different federal courts. The complaints allege that the defendants conspired to fix, raise, maintain and stabilize the price and the terms and conditions of sale of flat glass in the United States in violation of federal antitrust laws. These cases and additional similar cases that may follow will most likely be consolidated into one Federal Court class action. Many allegations in the complaints are similar to those raised in recently concluded proceedings in Europe in which fines were levied against other flat glass producers arising out of alleged antitrust violations. PPG was not involved in any of the proceedings in Europe. PPG divested its European flat glass business in 1998. PPG is aware of no wrongdoing or conduct on its part that violated any antitrust laws and it intends to vigorously defend its position.

 

Asbestos Matters

For over 30 years, PPG has been a defendant in lawsuits involving claims alleging personal injury from exposure to asbestos. As of December 31, 2007, PPG was one of many defendants in numerous asbestos-related lawsuits involving approximately 114,000 open claims served on PPG. Most of PPG’s potential exposure relates to allegations by plaintiffs that PPG should be liable for injuries involving asbestos-containing thermal insulation products manufactured and distributed by Pittsburgh Corning Corporation (“PC”). PPG and Corning Incorporated are each 50% shareholders of PC. PPG has denied responsibility for, and has defended, all claims for any injuries caused by PC products.

 

On April 16, 2000, PC filed for Chapter 11 Bankruptcy in the U.S. Bankruptcy Court for the Western District of Pennsylvania located in Pittsburgh, Pa. Accordingly, in the first quarter of 2000, PPG recorded an after-tax charge of $35 million for the write-off of all of its investment in PC. As a consequence of the bankruptcy filing and various motions and orders in that proceeding, the asbestos litigation against PPG (as well as against PC) has been stayed and the filing of additional asbestos suits against them has been enjoined, until 30 days after the effective date of a confirmed plan of reorganization for PC substantially in accordance with the settlement arrangement among PPG and several other parties discussed below. The stay may be terminated if the Bankruptcy Court determines that such a plan will not be confirmed, or the settlement arrangement set forth below is not likely to be consummated.

 

On May 14, 2002, PPG announced that it had agreed with several other parties, including certain of its insurance carriers, the official committee representing asbestos claimants in the PC bankruptcy, and the legal representatives of future asbestos claimants appointed in the PC bankruptcy, on the terms of a settlement arrangement relating to asbestos claims against PPG and PC (the “PPG Settlement Arrangement”).

 

On March 28, 2003, Corning Incorporated announced that it had separately reached its own arrangement with the representatives of asbestos claimants for the settlement of certain asbestos claims that might arise from PC products or operations (the “Corning Settlement Arrangement”).

 

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The terms of the PPG Settlement Arrangement and the Corning Settlement Arrangement have been incorporated into a bankruptcy reorganization plan for PC along with a disclosure statement describing the plan, which PC filed with the Bankruptcy Court on April 30, 2003. Amendments to the plan and disclosure statement were filed on August 18 and November 20, 2003. Creditors and other parties with an interest in the bankruptcy proceeding were entitled to file objections to the disclosure statement and the plan of reorganization, and a few parties filed objections. On November 26, 2003, after considering objections to the second amended disclosure statement and plan of reorganization, the Bankruptcy Court entered an order approving such disclosure statement and directing that it be sent to creditors, including asbestos claimants, for voting. The Bankruptcy Court established March 2, 2004 as the deadline for receipt of votes. In order to approve the plan, at least two thirds in amount and more than one-half in number of the allowed creditors in a given class must vote in favor of the plan, and for a plan to contain a channeling injunction for present and future asbestos claims under §524(g) of the Bankruptcy Code, as described below, 75 percent of the asbestos claimants voting must vote in favor of the plan. On March 16, 2004, notice was received that the plan of reorganization received the required votes to approve the plan with a channeling injunction. From May 3-7, 2004, the Bankruptcy Court judge conducted a hearing regarding the fairness of the settlement, including whether the plan would be fair with respect to present and future claimants, whether such claimants would be treated in substantially the same manner, and whether the protection provided to PPG and its participating insurers would be fair in view of the assets they would convey to the asbestos settlement trust (the “Trust”) to be established as part of the plan. At that hearing, creditors and other parties in interest raised objections to the PC plan of reorganization. Following that hearing, the Bankruptcy Court set deadlines for the parties to develop agreed-upon and contested Findings of Fact and Conclusions of Law and scheduled oral argument for contested items.

 

The Bankruptcy Court heard oral arguments on the contested items on November 17-18, 2004. At the conclusion of the hearing, the Bankruptcy Court agreed to consider certain post-hearing written submissions. In a further development, on February 2, 2005, the Bankruptcy Court established a briefing schedule to address whether certain aspects of a decision of the U.S. Third Circuit Court of Appeals in an unrelated case have any applicability to the PC plan of reorganization. Oral arguments on the briefs were held on March 16, 2005. During an omnibus hearing on February 28, 2006, the Bankruptcy Judge stated that she was prepared to rule on the PC plan of reorganization in the near future, provided certain amendments were made to the plan. Those amendments were filed, as directed, on March 17, 2006. After further conferences and supplemental briefings, the Court held final oral arguments on July 21, 2006 during an omnibus hearing.

 

On December 21, 2006, the Bankruptcy Court issued a ruling denying confirmation of the second amended PC plan of reorganization. Several parties in interest, including PPG, filed motions for reconsideration and/or to alter or amend the December 21, 2006 ruling. Final written submissions were filed on January 26, 2007. Oral argument on the motions was held on March 5, 2007. Upon reconsideration, the Bankruptcy Court may adhere to its December 21, 2006 decision, may alter that decision and confirm the plan or may amend the decision in a manner that may provide further guidance on how the plan could be modified and become confirmable in the Bankruptcy Court’s view. During a January 10, 2008 hearing before the Bankruptcy Court, certain parties in interest, including PPG, reported progress toward a third amended plan of reorganization. It was reported that those parties in interest anticipate that a third amended plan of reorganization, if finally approved by the parties, would address issues raised in the Court’s December 21, 2006 ruling. During a hearing on February 15, 2008, the parties reported continued progress toward a third amended plan, and the Bankruptcy Court ordered that a further update be provided at an omnibus hearing later in the first quarter of 2008.

 

However, if the Bankruptcy Court reconsiders its decision and determines that the second amended plan is confirmable, or if the Bankruptcy Court’s ruling is reversed on appeal and the case remanded, the Bankruptcy Court may enter a confirmation order. That order may be appealed to or otherwise reviewed by the U.S. District Court for the Western District of Pennsylvania, located in Pittsburgh, Pa. Assuming that the District Court approves a confirmation order following any such appeal, interested parties could further appeal the District Court’s order to the U.S. Third Circuit Court of Appeals and subsequently seek review of any decision of the Third Circuit Court of Appeals by the U. S. Supreme Court. The PPG Settlement Arrangement will not become effective until 30 days after the PC plan of reorganization is finally approved by an appropriate court order that is no longer subject to appellate review (the “Effective Date”).

 

If the PC plan of reorganization incorporating the terms of the PPG Settlement Arrangement and the Corning Settlement Arrangement is approved by the Bankruptcy Court, the Court would enter a channeling injunction under §524(g) and other provisions of the Bankruptcy Code, prohibiting present and future claimants from asserting bodily injury claims after the Effective Date against PPG or its subsidiaries or PC

 

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relating to the manufacture, distribution or sale of asbestos-containing products by PC or PPG or its subsidiaries. The injunction would also prohibit codefendants in those cases from asserting claims against PPG for contribution, indemnification or other recovery. All such claims would be filed with the Trust and only paid from the assets of the Trust.

 

The channeling injunction would not extend to claims against PPG alleging injury caused by asbestos on premises owned, leased or occupied by PPG (so called “premises claims”), or claims alleging property damage resulting from asbestos. There are no property damage claims pending against PPG or its subsidiaries. Historically, a small proportion of the claims against PPG and its subsidiaries have been premises claims. As a result of the settlements described below, and based upon recent review and analysis, PPG believes that the number of premises claims currently comprises less than 2% of the total asbestos-related claims against PPG. PPG believes that it has adequate insurance for the asbestos claims that would not be covered by any channeling injunction and that any financial exposure resulting from such claims will not have a material effect on PPG’s consolidated financial position, liquidity or results of operations.

 

Beginning in late 2006, the Bankruptcy Court lifted the stay with respect to certain premises claims against PPG. As a result, PPG and its primary insurers have settled approximately 450 premises claims and are evaluating the voluminous factual, medical, and other relevant information pertaining to an additional 550 claims that are being considered for potential settlement. PPG’s insurers agreed to provide insurance coverage for a major portion of the payments made in connection with the settled claims. PPG accrued the portion of the settlement amounts not covered by insurance. Other asbestos-related claims remain subject to the stay, as outlined above, although certain claimants have requested the Court to lift the stay with respect to these claims.

 

PPG has no obligation to pay any amounts under the PPG Settlement Arrangement entered into in 2002 until the Effective Date. PPG and certain of its insurers (along with PC) would then make payments to the Trust, which would provide the sole source of payment for all present and future asbestos bodily injury claims against PPG, its subsidiaries or PC alleged to be caused by the manufacture, distribution or sale of asbestos products by these companies. PPG would convey the following assets to the Trust. First, PPG would convey the stock it owns in PC and Pittsburgh Corning Europe. Second, PPG would transfer 1,388,889 shares of PPG’s common stock. Third, PPG would make aggregate cash payments to the Trust of approximately $998 million, payable according to a fixed payment schedule over 21 years, beginning on June 30, 2003, or, if later, the Effective Date. PPG would have the right, in its sole discretion, to prepay these cash payments to the Trust at any time at a discount rate of 5.5% per annum as of the prepayment date. Under the payment schedule, the amount due June 30, 2003 was $75 million. In addition to the conveyance of these assets, PPG would pay $30 million in legal fees and expenses on behalf of the Trust to recover proceeds from certain historical insurance assets, including policies issued by certain insurance carriers that are not participating in the settlement, the rights to which would be assigned to the Trust by PPG.

 

PPG’s participating historical insurance carriers would make cash payments to the Trust of approximately $1.7 billion between the Effective Date and 2023. These payments could also be prepaid to the Trust at any time at a discount rate of 5.5% per annum as of the prepayment date. In addition, as referenced above, PPG would assign to the Trust its rights, insofar as they relate to the asbestos claims to be resolved by the Trust, to the proceeds of policies issued by certain insurance carriers that are not participating in the PPG Settlement Arrangement and from the estates of insolvent insurers and state insurance guaranty funds.

 

PPG would grant asbestos releases to all participating insurers, subject to a coverage-in-place agreement with certain insurers for the continuing coverage of premises claims (discussed above). PPG would grant certain participating insurers full policy releases on primary policies and full product liability releases on excess coverage policies. PPG would also grant certain other participating excess insurers credit against their product liability coverage limits.

 

In the second quarter of 2002, an initial charge of $772 million was recorded for the estimated cost of the PPG Settlement Arrangement which included the net present value as of December 31, 2002, using a discount rate of 5.5% of the aggregate cash payments of approximately $998 million to be made by PPG to the Trust. That amount also included the carrying value of PPG’s stock in Pittsburgh Corning Europe, the fair value as of June 30, 2002 of 1,388,889 shares of PPG common stock and $30 million in legal fees of the Trust to be paid by PPG, which together with the first payment originally scheduled to be made to the Trust on June 30, 2003, were reflected in the current liability for PPG’s asbestos settlement in the consolidated balance sheet as of June 30, 2002. The net present value at that date of the remaining payments of $566 million was recorded in the noncurrent liability for asbestos settlement. The following table summarizes the impact on our financial statements for the three years ended December 31, 2007 resulting from the PPG Settlement Arrangement including the change in fair value of the stock to be transferred to the asbestos settlement trust and the equity forward instrument (see Note 11, “Derivative Financial Instruments and Hedge

 

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Activities”) and the increase in the net present value of the future payments to be made to the Trust.

 



        Consolidated Balance Sheet

           
        Asbestos Settlement Liability

 

Equity

Forward

(Asset)

        Pretax
Charge
 
(Millions)           Current     Long-term              
               
Balance as of January 1, 2005           $ 404     $ 440         $ (19 )       $ 32  


     


Change in fair value:

                                               
   

PPG stock

            (14 )                         (14 )
   

     


   

Equity forward instrument

                            9           9  


     


Accretion of

asbestos liability

                  27                     27  


     


Reclassification

            82       (82 )                    


     


Balance as of and Activity for the year ended

December 31, 2005

          $ 472     $ 385         $ (10 )       $ 22  


     


Change in fair value:

                                               
   

PPG stock

            9                           9  
   

     


   

Equity forward instrument

                            (4 )         (4 )


     


Accretion of

asbestos liability

                  23                     23  


     


Reclassification

            76       (76 )                    


     


Balance as of and Activity for the year ended December 31, 2006           $ 557     $ 332         $ (14 )       $ 28  


     


Change in fair value:

                                               
   

PPG stock

            8                           8  
   

     


   

Equity forward instrument

                            (4 )         (4 )


     


Accretion of

asbestos liability

                  20                     20  


     


Reclassification

            28       (28 )                    


     




     


Balance as of and Activity for the year ended December 31, 2007           $ 593     $ 324         $ (18 )       $ 24  


     


 

The fair value of the equity forward instrument is included as an other current asset as of December 31, 2007 and 2006 in the accompanying consolidated balance sheet. Payments under the fixed payment schedule require annual payments that are due each June. The current portion of the asbestos settlement liability included in the accompanying consolidated balance sheet as of December 31, 2007, consists of all such payments required through June 2008, the fair value of PPG’s common stock and legal fees and expenses. The amount due June 30, 2009, of $38 million and the net present value of the remaining payments is included in the long-term asbestos settlement liability in the accompanying consolidated balance sheet. For 2008, accretion expense associated with the asbestos liability will be approximately $5 million per quarter.

 

Because the filing of asbestos claims against the Company has been enjoined since April 2000, a significant number of additional claims may be filed against the Company if the Bankruptcy Court stay were to expire. If the PPG Settlement Arrangement (or any potential modification of that arrangement) is not implemented, for any reason, and the Bankruptcy Court stay expires, the Company intends to vigorously defend the pending and any future asbestos claims against it and its subsidiaries. The Company believes that it is not responsible for any injuries caused by PC products, which represent the preponderance of the pending bodily injury claims against it. Prior to 2000, PPG had never been found liable for any such claims, in numerous cases PPG had been dismissed on motions prior to trial, and aggregate settlements by PPG to date have been immaterial. In January 2000, in a trial in a state court in Texas involving six plaintiffs, the jury found PPG not liable. However, a week later in a separate trial also in a state court in Texas, another jury found PPG, for the first time, partly responsible for injuries to five plaintiffs alleged to be caused by PC products. PPG intends to appeal the adverse verdict in the event the settlement does not become effective, or the stay is lifted as to these claims, which are the subject of a motion to lift the stay as described above. Although PPG has successfully defended asbestos claims brought against it in the past, in view of the number of claims, and the questionable verdicts and awards that other companies have experienced in asbestos litigation, the result of any future litigation of such claims is inherently unpredictable.

 

Environmental Matters

 

It is PPG’s policy to accrue expenses for environmental contingencies when it is probable that a liability has been incurred and the amount of loss can be reasonably estimated. Reserves for environmental contingencies are exclusive of claims against third parties and are generally not discounted. In management’s opinion, the Company operates in an environmentally sound manner and the outcome of the Company’s environmental contingencies will not have a material effect on PPG’s financial position or liquidity; however, any such outcome may be material to the results of operation of any particular period in which costs, if any, are recognized. Management anticipates that the resolution of the Company’s environmental contingencies will occur over an extended period of time.

 

As of December 31, 2007 and 2006, PPG had reserves for environmental contingencies totaling $276 million and $282 million, respectively, of which $57 million and $65 million, respectively, were classified as current liabilities. Pretax charges against income for environmental remediation costs in 2007, 2006 and 2005 totaled $12 million, $207 million and $27 million, respectively, and are included in “Other charges” in the accompanying consolidated statement of income. Cash outlays related to such environmental remediation aggregated $19 million, $22 million and $14 million in 2007, 2006 and 2005, respectively.

 

Charges for estimated environmental remediation costs in 2006 were significantly higher than our historical range.

 

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Our continuing efforts to analyze and assess the environmental issues associated with a former chromium manufacturing plant site located in Jersey City, NJ and at the Calcasieu River Estuary located near our Lake Charles, LA chlor-alkali plant resulted in a pre-tax charge of $173 million in the third quarter of 2006 for the estimated costs of remediating these sites. Excluding 2006, pretax charges against income have ranged between $10 million and $49 million per year for the past 15 years. We anticipate that charges against income in 2008 for environmental remediation costs will be within this historical range.

 

We expect cash outlays for environmental remediation costs to be approximately $45 million in 2008 and to range from $35 million to $60 million annually through 2012. It is possible that technological, regulatory and enforcement developments, the results of environmental studies and other factors could alter our expectations with respect to charges against income and future cash outlays. Specifically, the level of expected cash outlays is highly dependent upon activity related to the former chromium manufacturing plant site in New Jersey, as PPG awaits approval of workplans that have been submitted to the applicable regulatory agencies.

 

In New Jersey, PPG continues to perform its obligations under an Administrative Consent Order (“ACO”) with the New Jersey Department of Environmental Protection (“NJDEP”). Since 1990, PPG has remediated 47 of 61 residential and nonresidential sites under the ACO. The most significant of the 14 remaining sites is the former chromium manufacturing location in Jersey City. The principal contaminant of concern is hexavalent chromium. Based on current estimates, at least 500,000 tons of soil may be potentially impacted for all remaining sites. As of December 31, 2007 and 2006 PPG had reserves of $195 million and $198 million, respectively, for environmental contingencies associated with all New Jersey sites. The Company submitted a feasibility study work plan to the NJDEP in October 2006 that includes review of the available remediation technology alternatives for the former chromium manufacturing location. Under the feasibility study work plan, remedial alternatives which will be assessed include, but are not limited to, soil excavation and offsite disposal in a licensed disposal facility, in situ chemical stabilization of soil and groundwater, and in situ solidification of soils. A feasibility study is expected to be completed in 2009. In addition, PPG is planning to conduct Interim Remedial Measures (“IRMs”) at the site during 2008. Implementation of these IRMs will assist in the evaluation of remedial technologies required in the feasibility study. PPG has submitted a Remedial Action Work Plan for one other of the remaining sites under the ACO. This proposal has been submitted to the NJDEP for approval. In addition, investigation activities are ongoing for an additional six sites covered by the ACO adjacent to the former manufacturing site with completion expected in 2008. Investigation activities have not yet begun for the remaining six sites covered by the ACO, but we believe the results of the study at the former chromium manufacturing location will also provide us with relevant information concerning remediation alternatives at these sites.

 

As a result of the extensive analysis undertaken in connection with the preparation and submission of the feasibility study work plan for the former chromium manufacturing location described above, the Company recorded a pretax charge of $165 million in the third quarter of 2006. The charge included estimated costs for remediation at the 14 remaining ACO sites, including the former manufacturing site, and for the resolution of litigation filed by NJDEP in May 2005 as discussed below. The principal estimated cost elements of the third quarter 2006 charge and of the remaining reserve at December 31, 2007 were based on competitively derived or readily available remediation industry cost data for representative remedial options e.g., excavation and in situ stabilization/ solidification. The major cost components are (i) in place soil treatment and transportation and disposal of excavated soil and (ii) construction services (related to soil excavation, groundwater management and site security), which account for approximately 50% and 30% of the reserve, respectively, as of December 31, 2007. The reserve also includes estimated costs for remedial investigation, interim remedial measures, engineering and project management. The most significant assumptions underlying the reserve are those related to the extent and concentration of chromium impacts in the soil, as these will determine the quantity of soil that must be treated in place, the quantity that will have to be excavated and transported for offsite disposal, and the nature of disposal required. The charges are exclusive of any third party indemnification, as management believes the likelihood of receiving any such amounts to be remote.

 

Multiple future events, including completion of feasibility studies, remedy selection, remedy design and remedy implementation involving governmental agency action or approvals will be required, and considerable uncertainty exists regarding the timing of these future events for the remaining 14 sites covered by the ACO. Final resolution of these events is expected to occur over an extended period of time. However, based on current information, it is expected that feasibility study approval and remedy selection could occur during 2009 for the former chromium plant and six adjacent sites, while remedy design and approval could occur during 2009 to 2010, and remedy implementation could occur during 2010 to 2014, with some period of long-term monitoring for remedy effectiveness to follow related to these seven sites. One other site is expected to be remediated during 2008 to 2009. Activities at the six other sites have not yet

 

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Notes to the Consolidated Financial Statements

 

begun and the timing of future events related to these sites cannot be predicted at this time. As these events occur and to the extent that the cost estimates of the environmental remediation remedies change, the existing reserve for this environmental remediation will be adjusted. Based on current information, we expect cash outlays related to remediation efforts in New Jersey to range from $15 million to $20 million in 2008 and $30 million to $45 million annually from 2009 through 2012.

 

In May 2005, the NJDEP filed a complaint against PPG and two other former chromium producers seeking to hold the parties responsible for a further 53 sites where the source of chromium contamination is not known and to recover costs incurred by the agency in connection with its response activities at certain of those sites. This case is in discovery with ongoing mediation to resolve the allocation of these additional sites among the three companies.

 

In Lake Charles, the U.S. Environmental Protection Agency (“USEPA”) has completed investigation of contamination levels in the Calcasieu River estuary and issued a Final Remedial Investigation Report in September 2003, which incorporates the Human Health and Ecological Risk Assessments, indicating that elevated levels of risk exist in the estuary. PPG and other potentially responsible parties are performing a feasibility study under the authority of the Louisiana Department of Environmental Quality (“LDEQ”). PPG’s exposure with respect to the Calcasieu Estuary is focused on the lower few miles of Bayou d’Inde, a small tributary to the Calcasieu Estuary near PPG’s Lake Charles facility, and about 150 to 200 acres of adjacent marshes. The Company and three other potentially responsible parties submitted a draft remediation feasibility study report to the LDEQ in October 2006. The proposed remedial alternatives include sediment dredging, sediment capping, and biomonitoring of fish and shellfish. Principal contaminants of concern which may require remediation include various metals, dioxins and furans, and polychlorinated biphenyls. In response to agency comments on the draft study, the companies are undertaking additional investigation and will update the study. As a result of the analysis undertaken in connection with the preparation and submission of the draft feasibility study, PPG recorded a pretax charge of $8 million in the third quarter of 2006 for its estimated share of the remediation costs at this site.

 

Multiple future events, such as feasibility studies, remedy selection, remedy design and remedy implementation involving agency action or approvals will be required and considerable uncertainty exists regarding the timing of these future events. Final resolution of these events is expected to occur over an extended period of time. However, based on currently available information it is expected that feasibility study approval and remedy selection could occur in 2008, remedy design and approval could occur during 2008 or 2009, and remedy implementation could occur during 2009 to 2012 with some period of long-term monitoring for remedy effectiveness to follow.

 

In addition to the amounts currently reserved for environmental remediation, the Company may be subject to loss contingencies related to environmental matters estimated to be as much as $200 million to $300 million, which range is unchanged since December 31, 2006. Such unreserved losses are reasonably possible but are not currently considered to be probable of occurrence. This range of reasonably possible unreserved loss relates to environmental matters at a number of sites; however, about 40% of this range relates to additional costs at the former chromium manufacturing plant site and related sites in Jersey City, NJ, and about 30% relates to three operating PPG plant sites in our chemicals businesses. The loss contingencies related to these sites include significant unresolved issues such as the nature and extent of contamination at these sites and the methods that may have to be employed to remediate them.

 

The status of the remediation activity at the sites in New Jersey and at the Calcasieu River estuary in Louisiana and the factors that could result in the need for additional environmental remediation reserves at those sites are described above. Initial remedial actions are occurring at the three operating plant sites in our chemicals businesses. These three operating plant sites include our Barberton, OH, Lake Charles, LA and Natrium, WV locations. At Barberton, we have completed a Facility Investigation and Corrective Measure Study (“CMS”) under USEPA’s Resource Conservation and Recycling Act (“RCRA”) Corrective Action Program. Currently, we are implementing the remediation alternatives recommended in the CMS using a performance-based approach with USEPA Region V oversight. Similarly, we have completed a Facility Investigation and CMS for our Lake Charles facility under the oversight of the LDEQ. The LDEQ has accepted our proposed remedial alternatives which are expected to be incorporated into the facility’s RCRA operating permit during 2008. Planning for or implementation of these proposed alternatives is in progress. At our Natrium facility, a Facility Investigation has been completed, initial interim remedial measures have been implemented to mitigate soil impacts but additional investigation is required to more fully define the nature and extent of groundwater contamination and to identify appropriate, additional remedial actions.

 

With respect to certain waste sites, the financial condition of any other potentially responsible parties also

 

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Notes to the Consolidated Financial Statements

 

contributes to the uncertainty of estimating PPG’s final costs. Although contributors of waste to sites involving other potentially responsible parties may face governmental agency assertions of joint and several liability, in general, final allocations of costs are made based on the relative contributions of wastes to such sites. PPG is generally not a major contributor to such sites.

 

The impact of evolving programs, such as natural resource damage claims, industrial site reuse initiatives and state remediation programs, also adds to the present uncertainties with regard to the ultimate resolution of this unreserved exposure to future loss. The Company’s assessment of the potential impact of these environmental contingencies is subject to considerable uncertainty due to the complex, ongoing and evolving process of investigation and remediation, if necessary, of such environmental contingencies, and the potential for technological and regulatory developments.

 

Other Matters

In June 2003, our partners in a fiber glass joint venture in Venezuela filed for bankruptcy. These proceedings have been in progress since 2003 and remain unresolved, which has created uncertainty concerning the future of the joint venture. After an extensive evaluation of a variety of options concerning the path forward, we have concluded that we will not be able to recover the carrying amount of our investment in and receivables from this joint venture and have written those assets off in the first quarter of 2007 by taking a pre-tax charge against earnings of $10 million which is included in “Other charges” in the accompanying consolidated statement of income.

 

16. Shareholders’ Equity

A class of 10 million shares of preferred stock, without par value, is authorized but unissued. Common stock has a par value of $1.66  2 / 3 per share; 600 million shares are authorized.

 

The following table summarizes the shares outstanding for the three years ended December 31, 2007:

 

   

Common

Stock

 

Treasury

Stock

   

ESOP

Shares

   

Shares

Outstanding

 
Balance,
January 1, 2005
  290,573,068   (118,438,561 )   (132,712 )   172,001,795  

Purchases

    (9,401,300 )       (9,401,300 )

Issuances/releases

    2,669,955     6,840     2,676,795  
Balance,
December 31, 2005
  290,573,068   (125,169,906 )   (125,872 )   165,277,290  

Purchases

    (2,343,215 )       (2,343,215 )

Issuances/releases

    1,139,214     8,464     1,147,678  
Balance,
December 31, 2006
  290,573,068   (126,373,907 )   (117,408 )   164,081,753  

Purchases

    (3,682,791 )       (3,682,791 )

Issuances/releases

    3,284,298     117,408     3,401,706  
Balance,
December 31, 2007
  290,573,068   (126,772,400 )       163,800,668  


 

ESOP shares represent the unreleased new shares held by the ESOP that are not considered outstanding under SOP 93-6 (see Note 1, “Summary of Significant Accounting Policies” and Note 18, “Employee Stock Ownership Plan”). The number of ESOP shares changes as a result of the purchases of new shares and releases of shares to participant accounts by the ESOP.

 

PPG has a Shareholders’ Rights Plan, under which each share of the Company’s outstanding common stock has an associated preferred share purchase right. The rights are exercisable only under certain circumstances and allow holders of such rights to purchase common stock of PPG or an acquiring company at a discounted price, which would generally be 50% of the respective stocks’ then current fair market value. The Shareholders’ Rights Plan expires April 30, 2008.

 

Per share cash dividends paid were $2.04 in 2007, $1.91 in 2006 and $1.86 in 2005.

 

17. Accumulated Other Comprehensive Loss

 

(Millions)  

Unrealized
Currency
Translation

Adjustment

   

Pension and
Other
Postreti-
rement
Benefit

Adjustments

   

Unrealized
Gain (Loss)
on

Marketable
Securities

   

Unrealized
Gain (Loss)
on

Derivatives

    Accum-
ulated
Other
Compre-
hensive
(Loss)
Income
 

Balance,

                                       

January 1, 2005

  $ 168     $ (595 )   $ (1 )   $ (7 )   $ (435 )

Net change

    (215 )     (173 )     1       3       (384 )

Balance,

                                       

December 31, 2005

    (47 )     (768 )       —       (4 )     (819 )

Net change

    179       (289 )     3       (13 )     (120 )

Balance,

                                       

December 31, 2006

    132       (1,057 )     3       (17 )     (939 )

Net Change

    260       90             7       357  

Balance,

December 31, 2007

  $ 392     $ (967 )   $ 3     $ (10 )   $ (582 )


 

Unrealized currency translation adjustments exclude income tax expense (benefit) given that the earnings of non-U.S. subsidiaries are deemed to be reinvested for an indefinite period of time. The tax (cost) benefit related to the adjustment for pension and other postretirement benefits for the years ended December 31, 2007, 2006 and 2005 was $(211) million, $243 million and $107 million, respectively. The cumulative tax benefit related to the adjustment for pension and other postretirement benefits at December 31, 2007 and 2006 was $491 million and $702 million, respectively. The tax (cost) related to the change in the unrealized gain (loss) on marketable securities for the years ended December 31, 2007, 2006 and 2005 was $(0.3) million, $(2) million and $(0.4) million, respectively. The tax (cost) benefit related to the change in the unrealized gain (loss) on derivatives for the years ended December 31, 2007, 2006 and 2005 was $(5) million, $9 million and $(2) million, respectively.

 

18. Employee Stock Ownership Plan

Our ESOP covers substantially all U.S. employees. The Company makes matching contributions to the ESOP

 

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Notes to the Consolidated Financial Statements

 

based upon participants’ savings, subject to certain limitations. For most participants not covered by a collective bargaining agreement, Company-matching contributions for the two-year period ended December 31, 2006, were computed by multiplying each participant’s monthly contribution or portion thereof, as defined by the ESOP’s plan document, by a percentage based on the Company’s return on capital of the prior year. Effective January 1, 2007, the ESOP’s plan document was amended to state that the Company match rate established each year will be at the discretion of the Company with the match being 100% in 2007, applied to a maximum of 6% of eligible participant compensation. For those participants whose employment is covered by a collective bargaining agreement, the level of Company-matching contributions, if any, is determined by the collective bargaining agreement.

 

Compensation expense related to the ESOP for 2007, 2006 and 2005 totaled $ 16 million, $15 million and $17 million, respectively. Cash contributions to the ESOP for 2007, 2006 and 2005 totaled $ 14 million, $16 million and $19 million, respectively. Interest expense totaled $1 million for 2007, $2 million for 2006 and $3 million for 2005, respectively. The tax deductible dividends on PPG shares held by the ESOP were $ 29 million, $33 million and $34 million for 2007, 2006 and 2005, respectively.

 

Shares held by the ESOP as of December 31, 2007 and 2006, are as follows:

 

    2007   2006
    Old
Shares
  New
Shares
  Old

Shares

  New
Shares

Allocated shares

  13,400,334   3,974,446   12,823,689   3,857,038

Unreleased shares

      576,645   117,408

Total

  13,400,334   3,974,446   13,400,334   3,974,446

 

The fair value of unreleased new ESOP shares was $8 million as of December 31, 2006.

 

19. Other Earnings

 

(Millions)

     2007      2006      2005

Interest income

   $ 20    $ 14    $ 13

Royalty income

     48      43      35

Share of net earnings of equity affiliates (See Note 6)      30      33      13

Other

     57      41      46

Total

   $ 155    $ 131    $ 107

 

20. Stock-Based Compensation

The Company’s stock-based compensation includes stock options, restricted stock units (“RSUs”) and annual grants of contingent shares that are earned based on achieving targeted levels of total shareholder return. On April 20, 2006, the PPG Industries, Inc. Omnibus Incentive Plan (“PPG Omnibus Plan”) was approved by shareholders of the Company. The PPG Omnibus Plan consolidated into one plan several of the Company’s previously existing compensatory plans providing for equity-based and cash incentive awards to certain of the Company’s employees and directors. Effective April 20, 2006, all grants of stock options, RSUs and contingent shares are made under the PPG Omnibus Plan. The provisions of the PPG Omnibus Plan do not modify the terms of awards that were granted under the Company’s previously existing compensatory plans. Shares available for future grants under the PPG Omnibus Plan were 8.7 million as of December 31, 2007.

 

Total stock-based compensation cost was $46 million, $34 million and $75 million in 2007, 2006 and 2005, respectively. Stock-based compensation cost for 2005 includes $50 million for amounts paid under the Company’s incentive compensation and management award plans, which allowed for payment partially in PPG common stock in 2005. These plans no longer allow for payment in PPG common stock, and therefore are not included in the amount of total stock-based compensation cost in 2007 and 2006. The total income tax benefit recognized in the income statement related to the stock-based compensation was $17 million, $12 million and $29 million in 2007, 2006 and 2005, respectively.

 

Stock Options

PPG has outstanding stock option awards that have been granted under three stock option plans: the PPG Industries, Inc. Stock Plan (“PPG Stock Plan”), the PPG Industries, Inc. Challenge 2000 Stock Plan (“PPG Challenge 2000 Stock Plan”) and the PPG Omnibus Plan. Under the PPG Omnibus Plan and the PPG Stock Plan, certain employees of the Company have been granted options to purchase shares of common stock at prices equal to the fair market value of the shares on the date the options were granted. The options are generally exercisable beginning from six to 48 months after being granted and have a maximum term of 10 years. Upon exercise of a stock option, shares of Company stock are issued from treasury stock. The PPG Stock Plan includes a restored option provision for options originally granted prior to January 1, 2003 that allows an optionee to exercise options and satisfy the option price by certifying ownership of mature shares of PPG common stock with equivalent market value.

 

On July 1, 1998, under the PPG Challenge 2000 Stock Plan, the Company granted to substantially all active employees of the Company and its majority owned subsidiaries the option to purchase 100 shares of common stock at its then fair market value of $70 per share. The options became exercisable on July 1, 2003 and expire on June 30, 2008.

 

The fair value of stock options issued to employees is measured on the date of grant and is recognized as expense

 

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Notes to the Consolidated Financial Statements

 

over the requisite service period. PPG estimates the fair value of stock options using the Black-Scholes option pricing model. The risk-free interest rate is determined by using the U.S. Treasury yield curve at the date of the grant and using a maturity equal to the expected life of the option. The expected life of options is calculated using the average of the vesting term and the maximum term, as prescribed by SEC Staff Accounting Bulletin No. 107, “Share-Based Payment”. The expected dividend yield and volatility are based on historical stock prices and dividend amounts over past time periods equal in length to the expected life of the options. The fair value of each grant was calculated with the following weighted average assumptions:

 

     2007    2006    2005

Risk free interest rate

   4.5%    4.7%    3.8%

Expected life of option in years

   5.5    5.3    4.3

Expected dividend yield

   3.1%    3.1%    3.1%

Expected volatility

   22.6%    24.1%    26.3%

 

The weighted average fair value of options granted was $14.08 per share, $12.91 per share, and $12.57 per share for the years ended December 31, 2007, 2006, and 2005, respectively.

 

A summary of stock options outstanding and exercisable and activity for the year ended December 31, 2007 is presented below:

 


  Number of
Shares

    Weighted
Average
Exercise
Price

   Weighted
Average

Remaining
Contractual
Life
(in years)

   Intrinsic
Value
(in millions)

Outstanding, Jan. 1, 2007

  10,961,249     $ 60.57    4.4    $ 62

Granted

  1,261,261     $ 70.69            

Exercised

  (3,687,153 )   $ 61.58            

Forfeited/Expired

  (235,774 )   $ 69.90            

Outstanding, Dec. 31, 2007

  8,299,583     $ 61.40    4.6    $ 76

Vested or expected to vest,
Dec. 31, 2007

 

8,265,815

 

  $ 61.59    4.5    $ 74

Exercisable, Dec. 31, 2007

  5,950,939     $ 59.09    3.3    $ 68

 

At December 31, 2007, there was $10 million of total unrecognized compensation cost related to outstanding stock options that have not yet vested. This cost is expected to be recognized as expense over a weighted average period of 1.4 years.

 

The following table presents stock option activity for the years ended December 31, 2007, 2006 and 2005:

 

(Millions)


   2007

   2006

   2005

Total intrinsic value of stock options exercised

   $ 47    $ 16    $ 42

Cash received from stock option exercises

     194      55      138

Income tax benefit from the exercise of stock options

     17      6      16

Total fair value of stock options vested

     29      4      11

 

Restricted Stock Units

Long-term incentive value is delivered to selected key management employees by granting RSUs, which have either time or performance-based vesting features. The fair value of an RSU is equal to the market value of a share of stock on the date of grant. Time-based RSUs vest over the three-year period following the date of grant, unless forfeited, and will be paid out in the form of stock, cash or a combination of both at the Company’s discretion at the end of the three-year vesting period. Performance-based RSUs vest based on achieving specific annual performance targets for earnings per share growth and cash flow return on capital over the three-year period following the date of grant. Unless forfeited, the performance-based RSUs will be paid out in the form of stock, cash or a combination of both at the Company’s discretion at the end of the three-year vesting period if PPG meets the performance targets. The actual award for performance-based vesting may range from 0% to 150% of the original grant, as 50% of the grant vests in each year that targets are met during the three-year period. If the designated performance targets are not met in any of the three years in an award period, no payout will be made on the performance-based RSUs. The performance-based RSUs granted in 2005 will vest at the 150% level. For the purposes of expense recognition we have assumed that performance-based RSUs granted in 2006 and 2007 will vest at the 100% level. The performance targets for 2005, 2006, and 2007 were achieved.

 

The following table summarizes RSU activity for the year ended December 31, 2007:

 

     Number of
Shares
 
 
   
 
 
Weighted
Average
Fair Value
    
 
 
Intrinsic
Value
(in millions)

Outstanding, Jan. 1, 2007

   475,388     $ 59.95    $ 31

Granted

   259,135     $ 63.09       

Additional Shares Vested

   87,880     $ 66.33       

Forfeited

   (13,990 )   $ 63.11       

Outstanding, Dec. 31, 2007

   808,413     $ 61.60    $ 57

Vested or expected to vest,
Dec. 31, 2007

   789,706     $ 61.64    $ 55

 

There was $11 million of total unrecognized compensation cost related to nonvested RSUs outstanding as of December 31, 2007. This cost is expected to be recognized as expense over a weighted average period of 1.5 years.

 

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Notes to the Consolidated Financial Statements

 

Contingent Share Grants

The Company also provides grants of contingent shares to selected key executives that may be earned based on PPG total shareholder return over the three-year period following the date of grant. Contingent share grants (“TSR”) are made annually and are paid out at the end of each three-year period based on the Company’s performance. For awards granted in 2006 and 2007, performance is measured by determining the percentile rank of the total shareholder return of PPG Common Stock (stock price plus accumulated dividends) in relation to the total shareholder return of the S&P 500 and, the S&P 500 Materials sector. (For awards prior to 2006, performance was measured against only the S&P 500 Materials sector.) The payment of awards following the three-year award period will be based on performance achieved in accordance with the scale set forth in the plan agreement and may range from 0% to 220% of the initial grant. A payout of 100% is earned if the target performance is achieved. Contingent share awards earn dividend equivalents during the three-year award period, which are credited to participants in the form of common stock equivalents. Any payments made at the end of the award period may be in the form of stock, cash or a combination of both. The TSR awards qualify as liability awards, and compensation expense is recognized over the three-year award period based on the fair value of the awards (giving consideration to the Company’s percentile rank of total shareholder return) remeasured in each reporting period until settlement of the awards.

 

As of December 31, 2007, there was $4 million of total unrecognized compensation cost related to outstanding TSR awards based on the current estimate of fair value. This cost is expected to be recognized as expense over a weighted average period of 1.7 years.

 

21. Advertising Costs

Advertising costs are expensed in the year incurred and totaled $156 million, $121 million and $103 million in 2007, 2006 and 2005, respectively.

 

22. Research and Development

 

(Millions)

     2007      2006      2005

Research and development – total

   $ 354    $ 321    $ 310

Less depreciation on research facilities

     15      16      16

Research and development – net

   $ 339    $ 305    $ 294

 

23. Quarterly Financial Information (unaudited)

 


  2007 Quarter Ended

  Total

Millions
(except per share amounts)


  March 31

  June 30

  Sept. 30

    Dec. 31

 

Net sales (1)

  $ 2,632   $ 2,877   $ 2,823     $ 2,874   $ 11,206

Cost of Sales (1)(2)

    1,677     1,802     1,762       1,846     7,087

Income from
continuing operations (1)

    176     231     215       193     815

Income from
discontinued operations

    18     18     (24 )     7     19

Net income

  $ 194   $ 249   $ 191     $ 200   $ 834

Earnings Per Common Share:

                               
   

Income from continuing operations

  $ 1.07   $ 1.40   $ 1.30     $ 1.18   $ 4.95
   
   

Income from discontinued operations

    0.11     0.11     (0.14 )     0.04     0.12
   

Net income

  $ 1.18   $ 1.51   $ 1.16     $ 1.22   $ 5.07

Earnings Per Common Share – Assuming Dilution:

                               
   

Income from
continuing operations

  $ 1.06   $ 1.39   $ 1.29     $ 1.17   $ 4.91
   
   

Income from discontinued operations

    0.11     0.11     (0.14 )     0.04     0.12
   

Net income

  $ 1.17   $ 1.50   $ 1.15     $ 1.21   $ 5.03

 

        2006 Quarter Ended

Millions
(except per share amounts)


  March 31

  June 30

  Sept. 30

  Dec. 31

  Total

Net sales (1)

  $ 2,351   $ 2,506   $ 2,504   $ 2,500   $ 9,861

Cost of Sales (1)(2)

    1,470     1,512     1,575     1,596     6,153

Income from
continuing operations (1)

    172     261     70     150     653

Income from
discontinued operations

    12     19     20     7     58

Net income

  $ 184   $ 280   $ 90   $ 157   $ 711

Earnings Per Common Share:

                             
   

Income from
continuing operations

  $ 1.04   $ 1.57   $ 0.42   $ 0.91   $ 3.94
   
   

Income from discontinued operations

    0.07     0.12     0.12     0.04     0.35
   

Net income

  $ 1.11   $ 1.69   $ 0.54   $ 0.95   $ 4.29

Earnings Per Common Share – Assuming Dilution:

                             
   

Income from
continuing operations

  $ 1.04   $ 1.56   $ 0.42   $ 0.90   $ 3.92
   
   

Income from discontinued operations

    0.07     0.12     0.12     0.04     0.35
   

Net income

  $ 1.11   $ 1.68   $ 0.54   $ 0.94   $ 4.27

 

(1)   Amounts exclude the operating results related to the Company’s automotive glass businesses and fine chemicals businesses, which were reclassified to discontinued operations beginning in the third quarter of 2007. See Note 3, “Discontinued Operations and Assets Held for Sale.”
(2)   Exclusive of depreciation and amortization.

 

24. Reportable Business Segment Information

Segment Organization and Products

PPG is a multinational manufacturer with 11 operating segments that are organized based on our major products lines. These operating segments are also our reporting units for purposes of testing goodwill for impairment (see Note 1, “Summary of Significant Accounting Policies”). The operating segments have been aggregated based on economic similarities, the nature of their products, production processes, end-use markets and methods of distribution into five reportable business segments.

 

2007 PPG ANNUAL REPORT AND FORM 10-K   67


Table of Contents

Notes to the Consolidated Financial Statements

 

The Performance Coatings reportable segment is comprised of the refinish, aerospace and architectural coatings operating segments. This reportable segment primarily supplies a variety of protective and decorative coatings, sealants and finishes along with paint strippers, transparent armor, transparencies, stains and related chemicals that are used by customers in addition to our coatings, sealants and finishes.

 

The Industrial Coatings reportable segment is comprised of the automotive, industrial and packaging coatings operating segments. This reportable segment primarily supplies a variety of protective and decorative coatings and finishes along with adhesives, sealants, inks and metal pretreatment products.

 

The Optical and Specialty Materials reportable segment is comprised of the optical products and silica operating segments. The primary Optical and Specialty Materials products are Transitions ® lenses, sunlenses, optical materials, polarized film and amorphous precipitated silica products. Transitions ® lenses are processed and distributed by PPG’s 51%-owned joint venture with Essilor International.

 

The Commodity Chemicals reportable segment is comprised of the chlor-alkali and derivatives operating segment. The primary chlor-alkali and derivative products are chlorine, caustic soda, vinyl chloride monomer, chlorinated solvents, chlorinated benzenes, calcium hypochlorite, ethylene dichloride and phosgene derivatives.

 

The Glass reportable segment is comprised of the performance glazings and fiber glass operating segments. This reportable segment primarily supplies flat glass and continuous-strand fiber glass products.

 

Production facilities and markets for Performance Coatings, Industrial Coatings, Optical and Specialty Materials, Commodity Chemicals and Glass are predominantly in North America and Europe. Our reportable segments continue to pursue opportunities to further develop markets in Asia, Eastern Europe and Latin America. Each of the reportable segments in which PPG is engaged is highly competitive. However, the diversification of product lines and worldwide markets served tends to minimize the impact on PPG’s total sales and earnings from changes in demand in a particular market or in a particular geographic area.

 

The accounting policies of the operating segments are the same as those described in the summary of significant accounting policies. The Company allocates resources to operating segments and evaluates the performance of operating segments based upon segment income, which is earnings before interest expense – net, income taxes and minority interest and which may exclude certain charges which are considered to be unusual or non-recurring. Legacy costs include current costs related to former operations of the Company, including certain environmental remediation, pension and other postretirement benefit costs, and certain charges for legal and other matters which are considered to be unusual or non-recurring. These legacy costs are excluded from the segment income that is used to evaluate the performance of the operating segments. A substantial portion of corporate administrative expenses is allocated to the operating segments. The portion not allocated to the operating segments primarily represents the cost of corporate legal cases, net of related insurance recoveries, a business process redesign project in Europe and certain insurance and employee benefit programs and is included in the amount presented as Corporate unallocated loss. Net periodic pension expense is allocated to the operating segments.

 

For Optical and Specialty Materials, Commodity Chemicals and Glass, intersegment sales and transfers are recorded at selling prices that approximate market prices. Product movement between Performance Coatings and Industrial Coatings is very limited, is accounted for as an inventory transfer and is recorded at cost plus a mark-up, the impact of which is not significant to the segment income of the two coatings reportable segments.

 

68   2007 PPG ANNUAL REPORT AND FORM 10-K


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Notes to the Consolidated Financial Statements

 

(Millions)

Reportable Business Segments


  Performance
Coatings

  Industrial
Coatings


  Optical
and
Specialty
Materials


  Commodity
Chemicals (1)


    Glass

  Corporate /
Eliminations (2)


    Consolidated
Totals


 

2007

                                               

Net sales to external customers

  $ 3,811   $ 3,646   $ 1,029   $ 1,539     $ 1,181   $     $ 11,206  

Intersegment net sales

            4     8       1     (13 )      

Total net sales


  $

3,811

  $

3,646

  $

1,033

  $

1,547

 

  $

1,182

  $

(13

)

  $

11,206

 

Segment income (loss)

  $ 563   $ 370   $ 235   $ 243     $ 90   $     $ 1,501  

Corporate unallocated

                                            (67 )

Legacy costs (3)

                                            (39 )

Acquisition related costs

                                            (9 )

Asbestos settlement – net (see Note 15)

                                            (24 )

Interest – Net

                                            (73 )

Unallocated stock based compensation (See Note 20) (4)

                                            (46 )

Income before income taxes and minority interest


 
 
 
 

 
 

  $

1,243

 

Depreciation and amortization (see Note 1)

  $ 108   $ 87   $ 38   $ 46     $ 73   $ 28     $ 380  

Share of net earnings (loss) of equity affiliates

    1     2         2       25           30  

Segment assets (5)

    3,848     2,508     630     650       1,033     3,960       12,629  

Investment in equity affiliates

    3     15         4       144     15       181  

Expenditures for property

    119     89     46     61       39     21       375  

2006

                                               

Net sales to external customers

  $ 3,088   $ 3,236   $ 904   $ 1,483     $ 1,150   $     $ 9,861  

Intersegment net sales

    3         4     8       1     (16 )      

Total net sales


  $

3,091

  $

3,236

  $

908

  $

1,491

 

  $

1,151

  $

(16

)

  $

9,861

 

Segment income (loss)

  $ 514   $ 349   $ 217   $ 285     $ 99   $     $ 1,464  

Corporate unallocated

                                            (103 )

Restructuring (see Note 8)

                                            (35 )

Legacy costs (3)

                                            (233 )

Asbestos settlement – net (see Note 15)

                                            (28 )

Interest – Net

                                            (69 )

Unallocated stock based compensation (See Note 20) (4)

                                            (34 )

Income before income taxes and minority interest


 
 
 
 

 
 

  $

962

 

Depreciation and amortization (see Note 1)

  $ 84   $ 87   $ 35   $ 43     $ 71   $ 21     $ 341  

Share of net earnings of equity affiliates

        9               24           33  

Segment assets (5)

    3,297     2,216     548     609       1,073     2,324       10,067  

Investment in equity affiliates

        16         5       146     15       182  

Expenditures for property

    128     116     59     63       49     29       444  

2005

                                               

Net sales to external customers

  $ 2,668   $ 2,921   $ 791   $ 1,531     $ 1,117   $     $ 9,028  

Intersegment net sales

    3         3     6       2     (14 )      

Total net sales


  $

2,671

  $

2,921

  $

794

  $

1,537

 

  $

1,119

  $

(14

)

  $

9,028

 

Segment income (loss)

  $ 464   $ 284   $ 199   $ 313     $ 60   $     $ 1,320  

Corporate unallocated

                                            (69 )

Legacy costs (3)

                                            (256 )

Asbestos settlement – net (see Note 15)

                                            (22 )

Interest – Net

                                            (68 )

Unallocated stock based compensation (See Note 20) (4)

                                            (25 )

Income before income taxes and minority interest


 
 
 
 

 
 

  $

880

 

Depreciation and amortization (see Note 1)

  $ 76   $ 82   $ 28   $ 44     $ 72   $ 23     $ 325  

Share of net earnings (loss) of equity affiliates

        9         (8 )     12           13  

Segment assets (5)

    2,649     1,906     403     580       971     2,172       8,681  

Investment in equity affiliates

    1     38         6       108     15       168  

Expenditures for property

    51     52     29     32       70     19       253  

(continued on next page)

 

2007 PPG ANNUAL REPORT AND FORM 10-K   69


Table of Contents

Notes to the Consolidated Financial Statements

 

(continued)


(Millions)                   

Geographic Information

     2007      2006      2005

  

Net sales (6)

                    
       

The Americas

                    
       
       

United States

   $ 6,236    $ 5,956    $ 5,648
       
       

Other Americas

     1,013      801      757
       
       

Europe

     2,728      2,275      2,023
       
       

Asia

     1,229      829      600

       

Total

   $ 11,206    $ 9,861    $ 9,028

Segment income

                    
       

The Americas

                    
       
       

United States (7)

   $ 966    $ 1,036    $ 965
       
       

Other Americas

     71      59      35
       
       

Europe

     276      224      205
       
       

Asia

     188      145      115

       

Total

   $ 1,501    $ 1,464    $ 1,320

Property—net

                    
       

The Americas

                    
       
       

United States

   $ 1,340    $ 1,325    $ 1,299
       
       

Other Americas

     181      153      160
       
       

Europe

     575      556      487
       
       

Asia

     330      273      151

       

Total

   $ 2,426    $ 2,307    $ 2,097

(1)   Commodity Chemicals segment income includes pretax earnings of $10 million from an insurance recovery in 2006 and pretax charges of $29 million due to direct costs of hurricanes in 2005.
(2)   Corporate intersegment net sales represent intersegment net sales eliminations. Corporate unallocated income (loss) represents unallocated corporate income and expenses. Corporate loss for 2007 decreased as compared to 2006 largely due to lower employee benefit costs in 2007, including pension costs. Corporate loss for 2006 increased as compared to 2005 in part due to higher compensation, medical, pension and legal costs and a reduction in the amount of insurance recoveries.
(3)   Legacy costs include current costs related to former operations of the Company, including certain environmental remediation, pension and other postretirement benefit costs and certain charges which are considered to be unusual or non-recurring. In 2006, these costs include environmental remediation costs at sites related to our former chromium manufacturing facility and related sites in Jersey City, NJ of $185 million, a charge for the settlement of the federal refinish antitrust case of $23 million, and insurance recoveries related to the Marvin litigation settlement of $33 million. In 2005, these costs included charges of $132 million for the Marvin litigation settlement, net of insurance recoveries, and $61 million for the settlement of the federal glass class action antitrust case.
(4)   Unallocated stock based compensation includes the cost of stock options, restricted stock units and contingent share grants which are not allocated to the operating segments.
(5)   Segment assets are the total assets used in the operation of each segment. Corporate assets are principally cash and cash equivalents, cash held in escrow, deferred tax assets and assets held for sale.
(6)   Net sales to external customers are attributed to geographic regions based upon the location of the operating unit shipping the product.
(7)   Includes pretax earnings of $11 million for insurance recoveries in 2006 and pretax charges of $34 million due to direct costs of hurricanes.

 

70   2007 PPG ANNUAL REPORT AND FORM 10-K


Table of Contents

 

Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure

 

None.

 

Item 9a. Controls and Procedures

 

(a)   Evaluation of disclosure controls and procedures.

Based on their evaluation as of the end of the period covered by this Form 10-K, the Company’s principal executive officer and principal financial officer have concluded that the Company’s disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”)) are effective to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in Securities and Exchange Commission rules and forms and to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive and principal financial officers, as appropriate, to allow timely decisions regarding required disclosure.

 

(b)   Changes in internal control.

There were no changes in the Company’s internal control over financial reporting that occurred during the Company’s most recent fiscal quarter that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.

 

See Management Report on page 33 for management’s annual report on internal control over financial reporting. See Report of Independent Registered Public Accounting Firm on page 32 for Deloitte & Touche LLP’s attestation report on the Company’s internal control over financial reporting.

 

Item 9b. Other Information

 

None.

 

Part III

 

Item 10. Directors, Executive Officers and Corporate Governance

 

The information required by Item 10 and not otherwise set forth below is contained under the caption “Proposal 1: To Elect Three Directors” in our definitive Proxy Statement for our 2008 Annual Meeting of Shareholders (the “Proxy Statement”) which we anticipate filing with the Securities and Exchange Commission, pursuant to Regulation 14A, not later than 120 days after the end of the Company’s fiscal year, and is incorporated herein by reference.

 

The executive officers of the Company are elected by the Board of Directors. The information required by this item concerning our executive officers is incorporated by reference herein from Part I of this report under the caption “Executive Officers of the Company.”

 

The information required by Item 405 of Regulation S-K is included in the Proxy Statement under the caption “Other Information – Section 16(a) Beneficial Ownership Reporting Compliance” and is incorporated herein by reference.

 

Information regarding the Company’s Audit Committee is included in the Proxy Statement under the caption “Corporate Governance – Audit Committee” and is incorporated herein by reference.

 

Information regarding the Company’s codes of ethics is included in the Proxy Statement under the caption “Corporate Governance – Codes of Ethics” and is incorporated herein by reference.

 

Item 11. Executive Compensation

 

The information required by Item 11 is contained in the Proxy Statement under the captions “Compensation Discussion and Analysis,” “Compensation of Executive Officers,” “Corporate Governance – Compensation Committee Interlocks and Insider Participation,” and “Corporate Governance – Officers-Directors Compensation Committee Report to Shareholders” and is incorporated herein by reference.

 

Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

 

The information required by Item 12 is contained in the Proxy Statement under the caption “Other Information – Beneficial Ownership Table” and in Part II, Item 5 of this report under the caption “Equity Plan Compensation Information” and is incorporated herein by reference.

 

Item 13. Certain Relationships and Related Transactions, and Director Independence

 

The information required by Item 13 is contained in the Proxy Statement under the captions “Corporate Governance – Director Independence,” “Corporate Governance – Review and Approval or Ratification of Transactions with Related Persons” and “Corporate Governance – Certain Relationships and Related Transactions” and is incorporated herein by reference.

 

Item 14. Principal Accounting Fees and Services

 

The information required by Item 14 is contained in the Proxy Statement under the caption “Proposal 2: To Endorse Deloitte & Touche LLP as our Independent Registered Public Accounting Firm for 2008” and is incorporated herein by reference.

 

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Table of Contents

 

Part IV

 

Item 15. Exhibits, Financial Statement Schedules

 

(a)   Consolidated Financial Statements and Reports of Independent Registered Public Accounting Firm (see Part II, Item 8 of this Form 10-K).

 

The following information is filed as part of this Form 10-K:

     Page

Internal Controls – Report of Independent Registered Public Accounting Firm    32
Management Report    33
Consolidated Financial Statements – Report of Independent Registered Public Accounting Firm    33
Consolidated Statement of Income for the Years Ended December 31, 2007, 2006 and 200 5    34
Consolidated Balance Sheet as of December 31, 2007 and 200 6    35
Consolidated Statement of Shareholders’ Equity for the Years Ended December 31, 2007, 2006 and 200 5    36
Consolidated Statement of Comprehensive Income for the Years Ended December 31, 2007, 2006 and 200 5    36
Consolidated Statement of Cash Flows for the Years Ended December 31, 2007, 2006 and 200 5    37

Notes to the Consolidated Financial Statements

   38

 

(b)   Consolidated Financial Statement Schedule for years ended December 31, 2007, 2006 and 2005.

The following should be read in conjunction with the previously referenced financial statements:

 

Schedule II – Valuation and Qualifying Accounts

 

For the Years Ended December 31, 2007, 2006 and 2005

(Millions)  

Balance at

Beginning
of Year

 

Charged to

Costs and
Expenses

  Other
Additions(1)
  Deductions(2)    

Balance at

End of
Year

Allowance for doubtful accounts:              
    2007   $ 45   $ 14   $ 2   $ (14 )   $ 47
   
 

 

 

 


 

    2006   $ 36   $ 13   $ 7   $ (11 )   $ 45
   
 

 

 

 


 

   

2005

  $ 34   $ 22     $—   $ (20 )   $ 36

 
 

 

 

 


 

(1)   Allowance for doubtful notes and accounts receivable relating to acquisitions.
(2)   Notes and accounts receivable written off as uncollectible, net of recoveries, and changes attributable to foreign currency translation.

 

All other schedules are omitted because they are not applicable.

(c)   Exhibits. The following exhibits are filed as a part of, or incorporated by reference into, this Form 10-K.
  3      PPG Industries, Inc. Restated Articles of Incorporation, as amended, were filed as Exhibit 3 to the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 1995.
  3.1   Statement with Respect to Shares, amending the Restated Articles of Incorporation effective April 21, 1998, was filed as Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K for the period ended Dec. 31, 1998.
  3.2   Amendment to Restated Articles of Incorporation of PPG Industries, Inc. as amended, effective April 27, 2007, was filed as Exhibit 3.1b to the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2007.
  3.3   PPG Industries, Inc. Bylaws, as amended and restated on April 19, 2007, were filed as Exhibit 3.2 to the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2007.
  4      Rights Agreement, dated as of Feb. 19, 1998, was filed as Exhibit 4 to the Registrant’s Current Report on Form 8-K dated Feb. 19, 1998.
  4.1   Indenture, dated as of Aug. 1, 1982, was filed as Exhibit 4.1 to the Registrant’s Registration Statement on Form S-3 (No. 333-44397) dated Jan. 16, 1998.
  4.2   First Supplemental Indenture, dated as of April 1, 1986, was filed as Exhibit 4.2 to the Registrant’s Registration Statement on Form S-3 (No. 333-44397) dated Jan. 16, 1998.
  4.3   Second Supplemental Indenture, dated as of Oct. 1, 1989, was filed as Exhibit 4.3 to the Registrant’s Registration Statement on Form S-3 (No. 333-44397) dated Jan. 16, 1998.
  4.4   Third Supplemental Indenture, dated as of Nov. 1, 1995, was filed as Exhibit 4.4 to the Registrant’s Registration Statement on Form S-3 (No. 333-44397) dated Jan. 16, 1998.
  4.5   Indenture, dated as of June 24, 2005, was filed as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K dated June 20, 2005.
  *10      PPG Industries, Inc. Nonqualified Retirement Plan, as amended and restated December 13, 2006.
  *10.1   PPG Industries, Inc. Supplemental Executive Retirement Plan II, as amended, was filed as Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q for the period ended Sept. 30, 1995.
  †*10.2       Form of Change in Control Employment Agreement entered into with executives prior to January 1, 2008, as amended.
  *10.3   PPG Industries, Inc. Directors’ Common Stock Plan, as amended Feb. 20, 2002, was filed as Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2003.
  *10.4   PPG Industries, Inc. Deferred Compensation Plan for Directors, as amended Feb. 15, 2006 was filed as Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2006.
  *10.5   PPG Industries, Inc. Deferred Compensation Plan, as amended and restated December 13, 2006.
    *10.6  

PPG Industries, Inc. Executive Officers’ Long Term Incentive Plan was filed as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K dated Feb. 16, 2005.

 

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    *10.7   PPG Industries, Inc. Long Term Incentive Plan for Key Employees was filed as Exhibit 10.2 to the Registrant’s Current Report on Form 8-K dated Feb. 16, 2005.
    *10.8   Form of TSR Share Award Agreement was filed as Exhibit 10.3 to the Registrant’s Current Report on Form 8-K dated Feb.  16, 2005.
    *10.9   Form of Restricted Stock Unit Award Agreement was filed as Exhibit 10.2 to the Registrant’s Current Report on Form 8-K dated Feb. 15, 2005.
    *10.10   PPG Industries, Inc. Executive Officers’ Annual Incentive Compensation Plan, as amended effective Feb. 18, 2004, was filed as Exhibit 10.1 to the Registrant’s Annual Report on Form 10-K for the period ended Dec. 31, 2003.
    *10.11   PPG Industries, Inc. Incentive Compensation and Deferred Income Plan for Key Employees, as amended Feb. 15, 2006, was filed as Exhibit 10.11 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2005.
    *10.12   PPG Industries, Inc. Management Award and Deferred Income Plan was filed as Exhibit 10.1 to the Registrant’s Annual Report on Form 10-K for the period ended Dec. 31, 2002.
    *10.13   PPG Industries, Inc. Stock Plan, dated as of April 17, 1997, as amended July 20, 2005, was filed as Exhibit 10.13 to the Registrant’s Quarterly Report on Form 10-Q for the period ended Sept. 30, 2005.
    *10.14   Form of Non-Qualified Option Agreement was filed as Exhibit 10.3 to the Registrant’s Current Report on Form 8-K dated Feb. 15, 2005.
    *10.15   Form of Non-Qualified Option Agreement for Directors was filed as Exhibit 10.4 to the Registrant’s Current Report on Form 8-K dated Feb. 15, 2005.
    *10.16   Summary of Non-Employee Director Compensation and Benefits was filed as Exhibit 10.16 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2005.
    *10.17   PPG Industries, Inc. Challenge 2000 Stock Plan was filed as Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2003.
    *10.18   PPG Industries, Inc. Omnibus Incentive Plan was filed as Exhibit 10.18 to the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2006.
    †10.19   Amended and Restated Agreement for the Sale and Purchase of SigmaKalon (BC) HoldCo B.V. dated December 4, 2007.
  †*10.20   Form of letter to certain executives regarding 2008 deferred compensation plan elections.
    †10.21   €1 billion bridge loan dated as of December 7, 2007 and entered into among PPG Industries, Inc. and a subsidiary with multiple lenders and Credit Suisse as administrative agent for those lenders.
    †10.22   $500 million bridge loan dated as of December 7, 2007 among PPG Industries, Inc. and a subsidiary with Credit Suisse as lender.
    †10.23   €650 million credit facility dated December 3, 2007 and entered into among PPG Industries, Inc. and certain of its subsidiaries with multiple banks and financial institutions and Societe Generale, as facility agent for the lenders.
  †*10.24   Form of Change in Control Employment Agreement to be entered into with executives on or after January 1, 2008.
    †12   Computation of Ratio of Earnings to Fixed Charges for the Five Years Ended December 31, 2007.
    †13.1   Market Information, Dividends and Holders of Common Stock.
    †13.2   Selected Financial Data for the Five Years Ended December 31, 2007.
    †21   Subsidiaries of the Registrant.
    †23   Consent of Independent Registered Public Accounting Firm.
    †24   Powers of Attorney.
    †31.1   Certification of Principal Executive Officer Pursuant to Rule 13a-14(a) or 15d-14(a) of the Exchange Act, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
    †31.2   Certification of Principal Financial Officer Pursuant to Rule 13a-14(a) or 15d-14(a) of the Exchange Act, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
    †32.1   Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
    †32.2   Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

† Filed herewith.

  *   Management contracts, compensatory plans or arrangements required to be filed as an exhibit hereto pursuant to Item 601 of Regulation S-K.

 

2007 PPG ANNUAL REPORT AND FORM 10-K   73


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Signatures

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized on February 21, 2008.

 

PPG INDUSTRIES, INC.

(Registrant)

By

 

/s/ William H. Hernandez

 


   

W. H. Hernandez, Senior Vice President, Finance and Chief Financial Officer

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed by the following persons on behalf of the Registrant and in the capacities indicated on February 21, 2008.

 

Signature.


  

Capacity


          

/s/ Charles E. Bunch


C. E. Bunch

   Director, Chairman of the Board and Chief Executive
    Officer

/s/ William H. Hernandez

 


W. H. Hernandez

   Senior Vice President, Finance and Chief Financial Officer
    (Principal Financial and Accounting Officer)

J.G. Berges

   Director  

)

)

)

)

)

)

)

)

)

)

)

)

)
)

)

)

      

H. Grant

   Director         

V. F. Haynes

   Director         

M. J. Hooper

   Director       

/s/ William H. Hernandez

By                                                                                                             

   W. H. Hernandez,  Attorney-in-Fac t

R. Mehrabian

   Director       

M.H. Richenhagen

   Director       

R. Ripp

   Director         

T. J. Usher

   Director         

 

74   2007 PPG ANNUAL REPORT AND FORM 10-K


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PPG Industries Inc. and Consolidated Subsidiaries

Index to Exhibits

 

Exhibits

    
    3    PPG Industries, Inc. Restated Articles of Incorporation, as amended, were filed as Exhibit 3 to the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 1995.
    3.1    Statement with Respect to Shares, amending the Restated Articles of Incorporation effective April 21, 1998, was filed as Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K for the period ended Dec. 31, 1998.
    3.2    Amendment to Restated Articles of Incorporation of PPG Industries, Inc. as amended, effective April 27, 2007, was filed as Exhibit 3.1b to the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2007.
    3.3    PPG Industries, Inc. Bylaws, as amended and restated on April 19, 2007, were filed as Exhibit 3.2 to the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2007.
    4    Rights Agreement, dated as of Feb. 19, 1998, was filed as Exhibit 4 to the Registrant’s Current Report on Form 8-K dated Feb. 19, 1998.
    4.1    Indenture, dated as of Aug. 1, 1982, was filed as Exhibit 4.1 to the Registrant’s Registration Statement on Form S-3 (No. 333-44397) dated Jan. 16, 1998.
    4.2    First Supplemental Indenture, dated as of April 1, 1986, was filed as Exhibit 4.2 to the Registrant’s Registration Statement on Form S-3 (No. 333-44397) dated Jan. 16, 1998.
    4.3    Second Supplemental Indenture, dated as of Oct. 1, 1989, was filed as Exhibit 4.3 to the Registrant’s Registration Statement on Form S-3 (No. 333-44397) dated Jan. 16, 1998.
    4.4    Third Supplemental Indenture, dated as of Nov. 1, 1995, was filed as Exhibit 4.4 to the Registrant’s Registration Statement on Form S-3 (No. 333-44397) dated Jan. 16, 1998.
    4.5    Indenture, dated as of June 24, 2005, was filed as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K dated June 20, 2005.
*10    PPG Industries, Inc. Nonqualified Retirement Plan, as amended and restated Dec. 13, 2006.
*10.1    PPG Industries, Inc. Supplemental Executive Retirement Plan II, as amended, was filed as Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q for the period ended Sept. 30, 1995.
†10.2    Form of Change in Control Employment Agreement entered into with executives prior to January, 1, 2008, as amended.


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*10.3      PPG Industries, Inc. Directors’ Common Stock Plan, as amended Feb. 20, 2002, was filed as Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2003.
*10.4      PPG Industries, Inc. Deferred Compensation Plan for Directors, as amended Feb. 15, 2006, was filed as Exhibit 10.4 to the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2006.
*10.5      PPG Industries, Inc. Deferred Compensation Plan, as amended and restated Dec. 13, 2006.
*10.6      PPG Industries, Inc. Executive Officers’ Long Term Incentive Plan was filed as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K dated Feb. 16, 2005.
*10.7      PPG Industries, Inc. Long Term Incentive Plan for Key Employees was filed as Exhibit 10.2 to the Registrant’s Current Report on Form 8-K dated Feb. 16, 2005.
*10.8      Form of TSR Share Award Agreement was filed as Exhibit 10.3 to the Registrant’s Current Report on Form 8-K dated Feb. 16, 2005.
*10.9      Form of Restricted Stock Unit Award Agreement was filed as Exhibit 10.2 to the Registrant’s Current Report on Form 8-K dated Feb. 15, 2005.
*10.10    PPG Industries, Inc. Executive Officers’ Annual Incentive Compensation Plan, as amended effective Feb. 18, 2004, was filed as Exhibit 10.1 to the Registrant’s Annual Report on Form 10-K for the period ended Dec. 31, 2003.
*10.11    PPG Industries, Inc. Incentive Compensation and Deferred Income Plan for Key Employees, as amended Feb. 15, 2006, was filed as Exhibit 10.11 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2005.
*10.12    PPG Industries, Inc. Management Award and Deferred Income Plan was filed as Exhibit 10.1 to the Registrant’s Annual Report on Form 10-K for the period ended Dec. 31, 2002.
*10.13    PPG Industries, Inc. Stock Plan, dated as of April 17, 1997, as amended July 20, 2005, was filed as Exhibit 10.13 to the Registrant’s Quarterly Report on Form 10-Q for the period ended Sept. 30, 2005.
*10.14    Form of Non-Qualified Option Agreement was filed as Exhibit 10.3 to the Registrant’s Current Report on Form 8-K dated Feb. 15, 2005.
*10.15    Form of Non-Qualified Option Agreement for Directors was filed as Exhibit 10.4 to the Registrant’s Current Report on Form 8-K dated Feb. 15, 2005.
*10.16    Summary of Non-Employee Director Compensation and Benefits, was filed as Exhibit 10.16 to the Registrant’s Annual Report on Form 10-K for the period ended December 31, 2005.


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*10.17    PPG Industries, Inc. Challenge 2000 Stock Plan was filed as Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2003.
*10.18    PPG Industries, Inc. Omnibus Incentive Plan was filed as Exhibit 10.18 to the Registrant’s Quarterly Report on Form 10-Q for the period ended March 31, 2006.
†10.19    Amended and Restated Agreement for the Sale and Purchase of SigmaKalon (BC) HoldCo B.V. dated December 4, 2007.
†*10.20    Form of letter to certain executives regarding 2008 deferred compensation plan elections.
†10.21    €1 billion bridge loan dated as of December 7, 2007 and entered into among PPG Industries, Inc. and a subsidiary with multiple lenders and Credit Suisse as administrative agent for those lenders.
†10.22    $500 million bridge loan dated as of December 7, 2007 among PPG Industries, Inc. and a subsidiary with Credit Suisse as lender.
†10.23    €650 million credit facility dated December 3, 2007 and entered into among PPG Industries, Inc. and certain of its subsidiaries with multiple banks and financial institutions and Societe Generale, as facility agent for the lenders.
†*10.24    Form of Change in Control Employment Agreement to be entered into with executives on or after January 1, 2008.
†12         Computation of Ratio of Earnings to Fixed Charges for the Five Years Ended December 31, 2007.
†13.1      Market Information, Dividends and Holders of Common Stock.
†13.2      Selected Financial Data for the Five Years Ended December 31, 2007.
†21         Subsidiaries of the Registrant.
†23         Consent of Independent Registered Public Accounting Firm.
†24         Powers of Attorney.
†31.1      Certification of Principal Executive Officer Pursuant to Rule 13a-14(a) or 15d-14(a) of the Exchange Act, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
†31.2      Certification of Principal Financial Officer Pursuant to Rule 13a-14(a) or 15d-14(a) of the Exchange Act, as Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
†32.1      Certification of Chief Executive Officer Pursuant to 18 U.S.C Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
†32.2      Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

 

Filed herewith.

 

* Management contracts, compensatory plans or arrangements required to be filed as an exhibit hereto pursuant to Item 601 of Regulation S-K.

Exhibit 10.2

CHANGE IN CONTROL

EMPLOYMENT AGREEMENT

(for current executives)

AGREEMENT by and between PPG Industries, Inc., a Pennsylvania corporation (the “Company”), and                      (the “Executive”), dated as of                      ,              .

The Board of Directors of the Company (the “Board”), has determined that it is in the best interests of the Company and its shareholders to assure that the Company will have the continued dedication of the Executive, notwithstanding the possibility, threat or occurrence of a Change in Control (as defined below) of the Company. The Board believes it is imperative to diminish the inevitable distraction of the Executive by virtue of the personal uncertainties and risks created by a pending or threatened Change in Control and to encourage the Executive’s full attention and dedication to the Company currently and in the event of any threatened or pending Change in Control, and to provide the Executive with compensation and benefits arrangements upon a Change in Control which ensure that the compensation and benefits expectations of the Executive will be satisfied and which are competitive with those of other corporations. Therefore, in order to accomplish these objectives, the Board has caused the Company to enter into this Agreement.

NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:

1. Certain Definitions. (a) The “Effective Date” shall mean the first date during the Change in Control Period (as defined in Section l(b)) while the Executive is an employee of the Company on which a Change in Control (as defined in Section 2) occurs. Anything in this Agreement to the contrary notwithstanding, if a Change in Control


occurs and if the Executive’s employment with the Company is terminated prior to the date on which the Change in Control occurs, and if it is reasonably demonstrated by the Executive that such termination of employment (i) was at the request of a third party who has taken steps reasonably calculated to effect a Change in Control or (ii) otherwise arose in connection with or anticipation of a Change in Control, then for all purposes of this Agreement the “Effective Date” shall mean the date immediately prior to the date of such termination of employment.

(b) The “Change in Control Period” shall mean the period commencing on the date hereof and ending on the earlier of (i) the Executive’s date of Retirement, or (ii) the third anniversary of the date hereof; provided, however, that commencing on the date one year after the date hereof, and on each annual anniversary of such date (such date and each annual anniversary thereof shall be hereinafter referred to as the “Renewal Date”), unless previously terminated, the Change in Control Period shall be automatically extended so as to terminate the earlier of (i) the Executive’s date of Retirement, or (ii) three years from such Renewal Date, unless at least 60 days prior to the Renewal Date the Company shall give notice to the Executive that the Change in Control Period shall not be so extended.

(c) “Retirement” shall mean termination of employment on or after (i) an Executive’s “normal retirement date” as defined in the PPG Industries, Inc. Retirement Income Plan, provided such termination is voluntary, or (ii) with respect to any Executive that the Company may subject to compulsory retirement under the Age Discrimination in Employment Act (29 U.S.C. Section 621 et. seq.) (ADEA) as a “bona fide executive or a high policy maker”, such Executive’s “normal retirement date”.

(d) “Code” shall mean the Internal Revenue Code of 1986, as amended.

 

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(e) The “Compensation Multiplier” shall mean: (i) if the Executive is subject to compulsory retirement, then the number of years and fractions of years remaining (such fractions to be expressed as the number of whole months and any partial month, divided by 12) from the Executive’s Date of Termination (as defined in Section 5(e)) to his normal retirement date, not to exceed three (unless such Executive’s termination of employment is a Window Period Termination, as defined in Section 5(c), in which case the multiplier shall not exceed two) or, (ii) if the Executive is not subject to compulsory retirement, then the multiplier shall be three, or if the Executive’s termination of employment is a Window Period Termination, then two.

(f) “Specified Employee” shall mean a key employee (as defined in Section 416(i) of the Code without regard to Section 416(i)(5) of the Code) of the Company, determined in accordance with Section 409A of the Code and any regulations or other guidance thereunder.

2. Change in Control. For the purpose of this Agreement, a “Change in Control” shall mean:

(a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (i) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (a), the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly from the Company, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or

 

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any corporation controlled by the Company or (iv) any acquisition by any corporation pursuant to a transaction which complies with clauses (i), (ii) and (iii) of subsection (c) of this Section 2; or

(b) Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

(c) Approval by the shareholders of the Company of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), in each case, unless, following such Business Combination, (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 60% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Common Stock and

 

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Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination;

(d) Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company; or

(e) A majority of the Board otherwise determines that a Change in Control shall have occurred.

3. Employment Period. The Company hereby agrees to continue the Executive in its employ, and the Executive hereby agrees to remain in the employ of the Company subject to the terms and conditions of this Agreement, for the period commencing on the Effective Date and ending on the earlier of (i) the Executive’s date of Retirement and (ii) the third anniversary of the Effective Date, (the “Employment Period”).

4. Terms of Employment. (a) Position and Duties. (i) During the Employment Period, (A) the Executive’s position (including status, offices, titles and reporting requirements), authority, duties and responsibilities shall be at least commensurate in all material respects with the most significant of those held, exercised and assigned at any time during the 120-day period immediately preceding the Effective Date and (B) the Executive’s services shall be performed at the location where the Executive was employed immediately preceding the Effective Date or any office or location less than 35 miles from such location.

 

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(ii) During the Employment Period, and excluding any periods of vacation and sick leave to which the Executive is entitled, the Executive agrees to devote reasonable attention and time during normal business hours to the business and affairs of the Company and, to the extent necessary to discharge the responsibilities assigned to the Executive hereunder, to use the Executive’s reasonable best efforts to perform faithfully and efficiently such responsibilities. During the Employment Period it shall not be a violation of this Agreement for the Executive to (A) serve on corporate, civic or charitable boards or committees, (B) deliver lectures, fulfill speaking engagements or teach at educational institutions and (C) manage personal investments, so long as such activities do not significantly interfere with the performance of the Executive’s responsibilities as an employee of the Company in accordance with this Agreement. It is expressly understood and agreed that to the extent that any such activities have been conducted by the Executive prior to the Effective Date, the continued conduct of such activities (or the conduct of activities similar in nature and scope thereto) subsequent to the Effective Date shall not thereafter be deemed to interfere with the performance of the Executive’s responsibilities to the Company.

(b) Compensation. (i) Base Salary. During the Employment Period, the Executive shall receive an annual base salary (“Annual Base Salary”), which shall be paid at a monthly rate, at least equal to twelve times the highest monthly base salary paid or payable, including any base salary which has been earned but deferred, to the Executive by the Company and its affiliated companies in respect of the twelve-month period immediately preceding the month in which the Effective Date occurs. During the Employment Period, the Annual Base Salary shall be reviewed no more than 12 months after the last salary increase awarded to the Executive prior to the Effective Date and

 

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thereafter at least annually. Any increase in Annual Base Salary shall not serve to limit or reduce any other obligation to the Executive under this Agreement. Annual Base Salary shall not be reduced after any such increase and the term Annual Base Salary as utilized in this Agreement shall refer to Annual Base Salary as so increased. As used in this Agreement, the term “affiliated companies” shall include any company controlled by, controlling or under common control with the Company.

(ii) Annual Bonus. In addition to Annual Base Salary during the Employment Period, the Executive shall be awarded, for each fiscal year ending during the Employment Period, an annual bonus (the “Annual Bonus”) in cash at least equal to the Executive’s highest bonus under the Company’s Incentive Compensation and Deferred Income Plan for Key Employees, or any comparable bonus under any predecessor or successor plan, for the last three full fiscal years prior to the Effective Date (annualized in the event that the Executive was not employed by the Company for the whole of such fiscal year) (the “Recent Annual Bonus”). Each such Annual Bonus shall be paid no later than the fifteenth day of the third month of the fiscal year next following the fiscal year for which the Annual Bonus is awarded, unless the Executive shall elect to defer the receipt of such Annual Bonus.

(iii) Incentive, Savings and Retirement Plans. During the Employment Period, the Executive shall be entitled to participate in all incentive, savings and retirement plans, practices, policies and programs applicable generally to other peer executives of the Company and its affiliated companies, but in no event shall such plans, practices, policies and programs provide the Executive with incentive opportunities (measured with respect to both regular and special incentive opportunities, to the extent, if any, that such distinction is applicable), savings opportunities and retirement benefit opportunities, in each case, less favorable, in the aggregate, than the most favorable of those provided by the Company and its affiliated companies for the Executive under such plans, practices, policies and programs as in effect at any time during the 120-day period

 

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immediately preceding the Effective Date or if more favorable to the Executive, those provided generally at any time after the Effective Date to other peer executives of the Company and its affiliated companies.

(iv) Welfare Benefit Plans. During the Employment Period, the Executive and/or the Executive’s family, as the case may be, shall be eligible for participation in and shall receive all benefits under welfare benefit plans, practices, policies and programs provided by the Company and its affiliated companies (including, without limitation, medical, prescription, dental, disability, salary continuance, employee life, group life, accidental death and travel accident insurance plans and programs) to the extent applicable generally to other peer executives of the Company and its affiliated companies, but in no event shall such plans, practices, policies and programs provide the Executive with benefits which are less favorable, in the aggregate, than the most favorable of such plans, practices, policies and programs in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, those provided generally at any time after the Effective Date to other peer executives of the Company and its affiliated companies.

(v) Expenses. During the Employment Period, the Executive shall be entitled to receive prompt reimbursement for all reasonable expenses incurred by the Executive in accordance with the most favorable policies, practices and procedures of the Company and its affiliated companies in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies.

(vi) Fringe Benefits. During the Employment Period, the Executive shall be entitled to fringe benefits, including, without limitation, tax and financial planning services, payment of club dues, and, if applicable, use of an automobile and payment of

 

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related expenses, in accordance with the most favorable plans, practices, programs and policies of the Company and its affiliated companies in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies.

(vii) Office and Support Staff. During the Employment Period, the Executive shall be entitled to an office or offices of a size and with furnishings and other appointments, and to exclusive personal secretarial and other assistance, at least equal to the most favorable of the foregoing provided to the Executive by the Company and its affiliated companies at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as provided generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies.

(viii) Vacation. During the Employment Period, the Executive shall be entitled to paid vacation in accordance with the most favorable plans, policies, programs and practices of the Company and its affiliated companies as in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies.

5. Termination of Employment. (a) Death or Disability. The Executive’s employment shall terminate automatically upon the Executive’s death during the Employment Period. If the Company determines in good faith that the Disability of the Executive has occurred during the Employment Period (pursuant to the definition of Disability set forth below), it may give to the Executive written notice in accordance with Section 12(b) of this Agreement of its intention to terminate the Executive’s employment. In such event, the Executive’s employment with the Company shall terminate effective

 

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on the 90th day after receipt of such notice by the Executive (the “Disability Effective Date”), provided that, within the 90 days after such receipt, the Executive shall not have returned to full-time performance of the Executive’s duties. For purposes of this Agreement, “Disability” shall mean disability which, after the expiration of more than 52 weeks after its commencement, is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to the Executive or the Executive’s legal representative (such agreement to acceptability not to be withheld unreasonably).

(b) Cause. The Company may terminate the Executive’s employment during the Employment Period for Cause. For purposes of this Agreement, “Cause” shall mean:

(i) the willful and continued failure of the Executive to perform substantially the Executive’s duties with the Company or one of its affiliates (other than any such failure resulting from incapacity due to physical or mental illness), after a written demand for substantial performance is delivered to the Executive by the Board or the Chief Executive Officer of the Company which specifically identifies the manner in which the Board or Chief Executive Officer believes that the Executive has not substantially performed the Executive’s duties, or

(ii) the willful engaging by the Executive in illegal conduct or gross misconduct which is materially and demonstrably injurious to the Company.

For purposes of this provision, no act or failure to act, on the part of the Executive, shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the instructions of the Chief Executive Officer or a senior officer of the Company or based upon the advice of counsel for the

 

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Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company. The cessation of employment of the Executive shall not be deemed to be for Cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the entire membership of the Board at a meeting of the Board called and held for such purpose (after reasonable notice is provided to the Executive and the Executive is given an opportunity, together with counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive is guilty of the conduct described in subparagraph (i) or (ii) above, and specifying the particulars thereof in detail.

(c) Good Reason. The Executive’s employment may be terminated by the Executive for Good Reason. For purposes of this Agreement, “Good Reason” shall mean:

(i) the assignment to the Executive of any duties inconsistent in any respect with the Executive’s position (including status, offices, titles and reporting requirements), authority, duties or responsibilities as contemplated by Section 4(a) of this Agreement, or any other action by the Company which results in a diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive;

(ii) any failure by the Company to comply with any of the provisions of Section 4(b) of this Agreement, other than an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive;

 

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(iii) the Company’s requiring the Executive to be based at any office or location other than as provided in Section 4(a)(i)(B) hereof;

(iv) any purported termination by the Company of the Executive’s employment otherwise than as expressly permitted by this Agreement; or

(v) any failure by the Company to comply with and satisfy Section 11(c) of this Agreement.

In order to qualify as a termination for “Good Reason” all of the following conditions must occur: (1) the Executive must terminate employment with the Company within a period of two (2) years following the initial existence of circumstances constituting “Good Reason” under (i) through (v) above, (2) the Executive must give notice of the circumstances constituting “Good Reason” under (i) through (v) above within ninety (90) days of the initial existence of such circumstances, and (3) the Company must have a period of thirty (30) days following receipt of the Executive’s notice to remedy such circumstances. Anything in this Agreement to the contrary notwithstanding, a termination by the Executive for any reason during the 30-day period immediately following the first anniversary of the Effective Date (herein referred to as a “Window Period Termination”) shall be deemed to be a termination for Good Reason for all purposes of this Agreement.

(d) Notice of Termination. Any termination by the Company for Cause, or by the Executive for Good Reason, shall be communicated by Notice of Termination to the other party hereto given in accordance with Section 12(b) of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to

 

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provide a basis for termination of the Executive’s employment under the provision so indicated and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date (which date shall be not more than thirty days after the giving of such notice). The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company, respectively, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.

(e) Date of Termination. “Date of Termination” means (i) if the Executive’s employment is terminated by the Company for Cause, or by the Executive for Good Reason, the date of receipt of the Notice of Termination or any later date specified therein, as the case may be, (ii) if the Executive’s employment is terminated by the Company other than for Cause or Disability, the Date of Termination shall be the date on which the Company notifies the Executive of such termination and (iii) if the Executive’s employment is terminated by reason of death or Disability, the Date of Termination shall be the date of death of the Executive or the Disability Effective Date, as the case may be.

6. Obligations of the Company upon Termination. (a) Good Reason; Other Than for Cause, Death or Disability. If, during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause or Disability or the Executive shall terminate employment for Good Reason:

(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:

A. the sum of (1) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the higher

 

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of (I) the Recent Annual Bonus and (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve full months or during which the Executive was employed for less than twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the “Highest Annual Bonus”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) shall be hereinafter referred to as the “Accrued Obligations”); and

B. the amount equal to the product of (1) the Executive’s Compensation Multiplier and (2) the sum of (x) the Executive’s Annual Base Salary and (y) the Highest Annual Bonus; and

C. an amount equal to the difference between (a) the actuarial equivalent of the benefit under the Company’s qualified defined benefit retirement plan (the “Retirement Plan”) (utilizing actuarial assumptions no less favorable to the Executive than those in effect immediately prior to the Effective Date) and under any excess or supplemental retirement plan or plans in which the Executive participates (together, the “SERP”) which the Executive would receive if the Executive’s employment continued for a number of years (including fractional parts, if any) equal to the Executive’s Compensation Multiplier after the Date of Termination assuming for this purpose that all accrued benefits are fully vested, and, assuming that the Executive’s compensation in each of such years (and fraction of years, if any) is that required by Section 4(b)(i) and Section 4(b)(ii), and (b) the actuarial equivalent of the Executive’s actual benefit (paid or payable), if any, under the Retirement Plan and the SERP as of the Date of Termination;

 

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(ii) for a number of years (including fractional parts, if any) equal to the Executive’s Compensation Multiplier after the Executive’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive’s family at least equal to those which would have been provided to them in accordance with the Company’s life insurance, medical and dental plans if the Executive’s employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive life insurance, medical or dental benefits under another employer provided plan, the life insurance, medical and dental benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed for the number of years (including fractional parts, if any) after the Date of Termination equal to the Executive’s Compensation Multiplier and to have retired on the last day of such period;

(iii) if, on the Date of Termination, the Company was paying the expense of providing financial counseling for the Executive, the Company shall, continue to pay the expense of comparable financial counseling services for a number of years (including fractional parts, if any) equal to the Executive’s Compensation Multiplier. The scope and provider of such counseling shall be selected by the Executive in his sole discretion; and

 

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(iv) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies in accordance with the terms and conditions of such applicable plan, program, policy or practice or contract or agreement (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).

(b) Death. If the Executive’s employment is terminated by reason of the Executive’s death during the Employment Period, this Agreement shall terminate without further obligations to the Executive’s legal representatives under this Agreement, other than for payment of Accrued Obligations and the timely payment or provision of Other Benefits. Accrued Obligations shall be paid to the Executive’s estate or beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of Termination. With respect to the provision of Other Benefits, the term Other Benefits as utilized in this Section 6(b) shall include, without limitation, and the Executive’s estate and/or beneficiaries shall be entitled to receive, benefits at least equal to the most favorable benefits provided by the Company and affiliated companies to the estates and beneficiaries of peer executives of the Company and such affiliated companies under such plans, programs, practices and policies relating to death benefits, if any, as in effect with respect to other peer executives and their beneficiaries at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive’s estate and/or the Executive’s beneficiaries, as in effect on the date of the Executive’s death with respect to other peer executives of the Company and its affiliated companies and their beneficiaries.

(c) Disability. If the Executive’s employment is terminated by reason of the Executive’s Disability during the Employment Period, this Agreement shall terminate without further obligations to the Executive, other than for payment of Accrued

 

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Obligations and the timely payment or provision of Other Benefits. Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days of the Date of Termination. With respect to the provision of Other Benefits, the term Other Benefits as utilized in this Section 6(c) shall include, and the Executive shall be entitled after the Disability Effective Date to receive, disability and other benefits at least equal to the most favorable of those generally provided by the Company and its affiliated companies to disabled executives and/or their families in accordance with such plans, programs, practices and policies relating to disability, if any, as in effect generally with respect to other peer executives and their families at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive and/or the Executive’s family, as in effect at any time thereafter generally with respect to other peer executives of the Company and its affiliated companies and their families.

(d) Cause; Other than for Good Reason. If the Executive’s employment shall be terminated for Cause during the Employment Period, this Agreement shall terminate without further obligations to the Executive other than the obligation to pay to the Executive (x) his Annual Base Salary through the Date of Termination, (y) the amount of any compensation previously deferred by the Executive, and (z) Other Benefits, in each case to the extent theretofore unpaid. If the Executive voluntarily terminates employment during the Employment Period, excluding a termination for Good Reason, this Agreement shall terminate without further obligations to the Executive, other than for Accrued Obligations and the timely payment or provision of Other Benefits. In such case, all Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days of the Date of Termination.

(e) Compliance with Section 409A . Notwithstanding the foregoing, and solely to the extent required by Section 409A of the Code and not otherwise eligible for exclusion from the requirements of Section 409A, if the Executive is deemed to be a Specified Employee as of the date of the Executive’s “separation from service” (within

 

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the meaning of Section 409A of the Code and the regulations ) from the Company, no payment or other distribution required to be made to the Executive hereunder (including any payment of cash, any transfer of property and any provision of taxable benefits) as a result of the Executive’s separation from service shall be made earlier than the date that is six (6) months and one day following the date on which the Employee separates from service with the Company.

7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company or any of its affiliated companies and for which the Executive may qualify, nor, subject to Section 12(f), shall anything herein limit or otherwise affect such rights as the Executive may have under any contract or agreement with the Company or any of its affiliated companies. Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Company or any of its affiliated companies at or subsequent to the Date of Termination shall be payable in accordance with such plan, policy, practice or program or contract or agreement except as explicitly modified by this agreement.

8. Full Settlement; Legal Fees. The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against the Executive or others. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement and such amounts shall not be reduced whether or not the Executive obtains other employment. The Company agrees to pay as incurred, to the full extent permitted by law, all legal fees and expenses which the Executive may reasonably incur as a result of any contest (regardless of the outcome thereof) by the Company, the

 

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Executive or others of the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive about the amount of any payment pursuant to this Agreement), plus in each case interest on any delayed payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code.

9. Certain Additional Payments by the Company.

(a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 9) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then unless the Executive’s termination was a Window Period Termination, the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.

(b) Subject to the provisions of Section 9(c), all determinations required to be made under this Section 9, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Deloitte & Touche LLP or such other certified public accounting firm as may be designated by the Executive (the “Accounting Firm”)

 

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which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive.

(c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would, pursuant to this Section 9, require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of

 

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taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall:

(i) give the Company any information reasonably requested by the Company relating to such claim,

(ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company,

(iii) cooperate with the Company in good faith in order effectively to contest such claim, and

(iv) permit the Company to participate in any proceedings relating to such claim;

provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 9(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any

 

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administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

(d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Section 9(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

 

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(e) For purposes of Section 409A of the Code and not by way of limitation of any of the foregoing provisions, in no event shall the Gross-Up Payment be made later than the last day of the calendar year next following the calendar year in which the Executive pays any related taxes.

10. Other Employment. (a) The Executive shall have no obligation to seek or accept other employment after termination of employment with the Company in mitigation of the amount of payment received from the Company pursuant to this Agreement. However, in the event that the Executive does accept other employment, he shall be required to return to the Company such part (if any) of the payment received from the Company pursuant to this Agreement as may be required by the provisions of Section 10(b).

(b) If the Executive obtains employment with another employer within the period of time after his Termination Date that is equal in years (and fractions thereof, if any) to such Executive’s Compensation Multiplier (the “Mitigation Period”), then the Executive shall remit to the Company such portion of the Executive’s lump sum payment from the Company (without interest) which is equal to the cash value of any salary and bonus payments received (or earned but deferred) from his new employer during the Mitigation Period.

11. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company all secret or confidential information, knowledge or data relating to the Company or any of its affiliated companies, and their respective businesses, which shall have been obtained by the Executive during the Executive’s employment by the Company or any of its affiliated companies and which shall not be or become public knowledge (other than by acts by the Executive or representatives of the Executive in violation of this Agreement). After termination of the Executive’s employment with the Company, the Executive shall not, without the prior written consent

 

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of the Company or as may otherwise be required by law or legal process, communicate or divulge any such information, knowledge or data to anyone other than the Company and those designated by it. In no event shall an asserted violation of the provisions of this Section 10 constitute a basis for deferring or withholding any amounts otherwise payable to the Executive under this Agreement.

12. Successors. (a) This Agreement is personal to the Executive and without the prior written consent of the Company shall not be assignable by the Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’s legal representatives.

(b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.

(c) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

13. Miscellaneous. (a) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without reference to principles of conflict of laws. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors and legal representatives.

 

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(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:

If to the Executive:

 

 

   

 

   

 

   

If to the Company:

PPG Industries, Inc.

One PPG Place

Pittsburgh, Pennsylvania 15272

Attention: General Counsel

or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective when actually received by the addressee.

(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.

(d) The Company may withhold from any amounts payable under this Agreement such Federal, state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation.

(e) The Executive’s or the Company’s failure to insist upon strict compliance with any provision hereof or any other provision of this Agreement or the failure to assert any right the Executive or the Company may have hereunder, including, without

 

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limitation, the right of the Executive to terminate employment for Good Reason pursuant to Section 5(c)(i)-(v) of this Agreement, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.

(f) The Executive and the Company acknowledge that, except as may otherwise be provided under any other written agreement between the Executive and the Company, the employment of the Executive by the Company is “at will” and, prior to the Effective Date, the Executive’s employment may be terminated by either the Executive or the Company at any time prior to the Effective Date, in which case the Executive shall have no further rights under this Agreement. From and after the Effective Date this Agreement shall supersede any other agreement between the parties with respect to the subject matter hereof and any such other agreement shall be null and void in its entirety and of no effect.

 

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IN WITNESS WHEREOF and intending to be legally bound hereby, the Executive has hereunto set the Executive’s hand and, pursuant to the authorization from its Board of Directors, the Company has caused this Agreement to be executed in its name on its behalf, all as of the date first written above.

 

 

[Typed name of Executive]
PPG INDUSTRIES, INC.
By:  

 

Name:   Charles W. Wise
Title:   Vice President, Human Resources

 

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Exhibit 10.19

 


Amended and Restated

Agreement for the Sale and Purchase of

SIGMAKALON (BC) HOLDCO B.V.

 


KIRKLAND & ELLIS INTERNATIONAL LLP

30 St Mary Axe

London EC3A 8AF

Tel: +44 (0)20 7469 2000

Fax: +44 (0)20 7469 2001

www.kirkland.com


CONTENTS

 

Clause        Page
1.   Interpretation    2
2.   Sale and Purchase    7
3.   Consideration    8
4.   Locked Box    9
5.   Conditions Precedent    10
6.   Completion    13
7.   Escrow    14
8.   Seller Warranties    15
9.   Parent and Buyer Warranties    18
10.   Conduct of Business    21
11.   Redemption of Luxco Interest    21
12.   Non-Solicitation    21
13.   Access to Information    22
14.   Confidential Information    22
15.   Announcements    23
16.   Costs    23
17.   Guarantee    24
18.   General    25
19.   Entire Agreement    26
20.   Assignment    27
21.   Notices    27
22.   Governing Law and Jurisdiction    28
23.   Counterparts    29

Schedule 1: The Company

  

Schedule 2: Escrow Documents

  

Schedule 3: Mandatory Competition Clearance

  

 

i


Schedule 4: Scheduled Receipts

  

Schedule 5: Pre-Completion Conduct of Business

  

Schedule 6: Locked Box Accounts

  

 

ii


THIS AMENDED AND RESTATED AGREEMENT is made on 4 December 2007

BETWEEN:

 

(i) SigmaKalon Luxco 2, S.à r.l., a société à responsabilité limitée with registered office at 9a, Parc d’Activité Syrdall in L-5365 Munsbach, Grand Duchy of Luxembourg and registered with the Luxembourg trade and companies register under the number B92000 (the “ Seller ”);

 

(ii) PPG Industries, Inc., a Pennsylvania corporation with registered office at One PPG Place, Pittsburgh, Pennsylvania 15272, United States of America (the “ Parent ”); and

 

(iii) PPG Europe B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands, having its corporate seat (statutaire zetel) at J.F. Kennedylaan 7, 4191 MZ Geldermalsen, The Netherlands and registered with the Dutch Trade Register of the Chambers of Commerce (the “ Buyer ”);

IN THE PRESENCE OF:

 

(iv) SigmaKalon (BC) HoldCo B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands, having its corporate seat (statutaire zetel) at Uithoorn, The Netherlands and its office at 1422 AD Uithoorn, Amsterdamseweg 14, The Netherlands and registered with the Dutch Trade Register of the Chambers of Commerce under number 29044246 (the “ Company ”).

RECITALS:

 

(A) Further brief particulars of the Company are set out in Schedule 1 hereto.

 

(B) The Seller is the owner of the entire issued share capital of the Company, represented by 4,538 ordinary shares (the “ Shares ”).

 

(C) The terms and conditions set forth in the Offer Letter (as defined herein) have been satisfied or waived in full prior to the date hereof.

 

(D) The Seller and the Parent entered into the sale and purchase agreement, dated 4 October 2007, pursuant to which the Parent or its designee agreed to acquire the Shares from the Seller (the “ Original Agreement ”).

 

(E) On 1 November 2007 (the “ Adherence Date ”), the Parent duly nominated the Buyer as its designee for purposes of acquiring the Shares and the Buyer adhered to the Original Agreement.

 

(F) The parties now wish to amend and restate the Original Agreement in its entirety pursuant to the terms of this Agreement.

 

1


THE PARTIES AGREE as follows:

 

1. Interpretation

 

1.1 In this Agreement:

Accrued Interest ” means:

 

  (i) if the Satisfaction Date occurs on or after 27 December 2007, an amount of interest accrued on the Euro Cash Consideration and the Dollar Cash Consideration for the period from 1 January 2008 up to and including the Completion Date at the rate of LIBOR plus 2% per annum (calculated on the basis of a 365 day year); or

 

  (ii) if the Satisfaction Date occurs prior to 27 December 2007 and Completion does not occur on 2 January 2008, a daily fee equal to (i) €358,200 in respect of the Euro Cash Consideration, plus (ii) US$308,500 in respect of the Dollar Cash Consideration, for each day in the period from 3 January 2008 up to and including the Completion Date;

Adherence Date ” has the meaning set forth in the Recitals hereto;

Affiliate ” means, with respect to any person, each Subsidiary, parent, partner, manager and ultimate shareholder of such person and such Subsidiaries, parents, partners and ultimate shareholders’ Subsidiaries and partners, provided that no Group Company shall be deemed an Affiliate of the Seller for the purposes of this Agreement;

Agent ” means ING Bank NV, acting in its capacity as facility agent under the Bank Facilities;

Bank Facilities ” means the Mezzanine Facility Agreement and the Senior Facilities Agreement;

Bidder Confidentiality Agreement ” means each confidentiality agreement entered into by the Seller, the Company and or any Subsidiary thereof with prospective buyers of the Group in connection with the auction conducted for the sale of the Group by the Seller;

Business Day ” means a day other than a Saturday or Sunday on which banks in London, Amsterdam and New York are open for business;

Buyer Note ” means the note to be issued by the Buyer in favor of the Seller on commercially acceptable terms as partial payment of the Consideration hereunder in an amount equal to the Luxco Interest Valuation;

Buyer’s Group ” means the Buyer and each Subsidiary, parent and ultimate shareholder of the Buyer, including, for the avoidance of doubt, each Group Company after Completion;

Cash Consideration ” has the meaning set forth in Clause 3.1;

 

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Competition Authorities ” means, as applicable, the European Commission, the Relevant NCA, the Federal Trade Commission and any other national competition authority in any country having jurisdiction in relation to the Transaction;

Completion ” means completion of the sale and purchase of the Shares in accordance with the terms of this Agreement;

Completion Date ” has the meaning set forth in Clause 6.1 or Clause 7.1, as applicable;

Confidentiality Agreement ” means the confidentiality agreement, dated 22 May 2007, between Luxco and PPG Industries Inc.;

Conditions ” has the meaning set forth in Clause 5.1;

Consideration ” has the meaning set forth in Clause 3.1;

Contract ” means any agreement, arrangement or commitment, whether conditional or unconditional and whether written, oral or otherwise;

CPECs ” has the meaning set forth in Clause 8.2;

Debt Settlement Amount ” means all monies due or payable in respect of the repayment of the Bank Facilities at Completion in order to discharge in full and final settlement all liabilities of the Group thereunder;

Dollar Cash Consideration ” has the meaning set forth in Clause 3.1;

Dollar Notary Account ” means the following third-party bank account ( derdengeldenrekening ) of the Notary:

 

  Bank:    ABN AMRO Bank N.V., Rotterdam
  Account Number:    XXXXXXX
  IBAN:    XXXXXXX
  Dutch SWIFT:    ABNANL2A
  US SWIFT:    ABNAUS33
  Account Name:   

Allen & Overy LLP Derdengelden

Notarissen Kwaliteitsrekening

Dutchco ” means SigmaKalon BC I BV.;

EC Merger Regulation ” means the Council Regulation (EC) No. 139/2004 of January 2004 on the control of concentration between undertakings;

Encumbrance ” means any mortgage, charge, pledge, lien, option, restriction, right of first refusal, right of preemption, third-party right or interest, voting right, other encumbrance, restriction, limitation or security interest of any kind (or an agreement or commitment to create any of the same);

 

3


Escrow Accounts ” means the New York Escrow Account and the London Escrow Account;

Escrow Agent ” means JPMorgan Chase Bank, National Association;

Escrow Agreement ” means the escrow agreement, dated on or about the date hereof, between the Escrow Agent, the Parent, the Buyer and the Seller and acknowledged by the Notary, relating to the management of the Escrow Accounts by the Escrow Agent;

Escrow Date ” has the meaning set forth in Clause 7.2;

Escrow Documents ” means the documents set out in Schedule 2 ;

Euro Cash Consideration ” has the meaning set forth in Clause 3.1;

Euro Notary Account ” means the following third-party bank account ( derdengeldenrekening ) of the Notary:

 

  Bank:    ABN AMRO Bank N.V., Rotterdam
  Account Number:    XXXXXXX
  IBAN:    XXXXXXX
  Dutch SWIFT:    ABNANL2A
  Account Name:   

Allen & Overy LLP Derdengelden

Notarissen Kwaliteitsrekening

Financing Agreements ” has the meaning set forth in Clauses 9.1.8 and 9.2.8;

Group ” means the Company and its Subsidiaries;

Group Company ” means the Company or any Subsidiary of the Company;

Guaranteed Obligations ” has the meaning set forth in Clause 17.1;

Joint Documentary Escrow Agents ” means Linklaters LLP and Allen & Overy LLP;

LIBOR ” means, with respect to any amount as of any date of determination, the applicable screen rate as of 11:00am on such date for the offering of deposits of such amount in sterling for a three-month period, and the “screen rate” means The British Bankers’ Association Interest Settlement Rate for sterling for the period displayed on the appropriate page of the Telerate Screen;

Locked Box Accounts ” means the consolidated balance sheet of the Group as of the Locked Box Date agreed among the parties and attached as Exhibit A hereto;

Locked Box Date ” means 31 December 2006;

London Escrow Account ” means the escrow account at JPMorgan Chase Bank, National Association designated by the account number 37691901;

 

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Loss ” means any loss, liability, charge (including any taxation), cost or claim;

Luxco ” means SigmaKalon Luxco S.C.A.;

Luxco Interest ” has the meaning set forth in Clause 11;

Luxco Interest Valuation ” means the fair market value of the Luxco Interest at the time of the planned redemption thereof by Luxco pursuant to the Redemption;

Mandatory Competition Clearances ” means the competition clearances and approvals of (i) the European Commission under the EC Merger Regulation (and/or, if applicable, of one or more member states of the EEA), and (ii) the competent competition authorities in the jurisdictions set forth in Schedule 3 hereto;

Mezzanine Facility Agreement ” means the €132,000,000 mezzanine facility agreement dated 29 June 2005 as amended on 12 July 2005 and on or about 13 September 2005 and made between, amongst others, ING Finance France S.A., Merrill Lynch International and CCF S.A. as lead arrangers with ING Bank NV, Merrill Lynch International Bank Limited, Merrill Lynch Capital Markets Bank Limited and CCF S.A. as underwriters, ING Bank NV as facility agent and security trustee and Veveo Coatings B.V.;

New York Escrow Account ” means the escrow account at JPMorgan Chase Bank, National Association designated by the account number 771051588;

Notary ” means Robert Jan Jozef Lijdsman of Allen & Overy LLP or his designee;

Notary Letter ” means the notary letter, dated on or about the date hereof, between the Notary, the Parent, the Buyer, the Seller and the Agent;

Offer Letter ” means the offer letter delivered by the Parent and countersigned by the Seller on 18 July 2007 in connection with the Transaction;

Original Agreement ” has the meaning set forth in the Recitals hereto;

Outside Date ” has the meaning set forth in Clause 5.6;

PECs ” has the meaning set forth in Clause 8.2;

Permitted Dividend ” has the meaning set forth in Schedule 4 ;

Permitted Fees ” has the meaning set forth in Schedule 4 ;

Redemption ” has the meaning set forth in Clause 11;

Redemption Steps ” has the meaning set forth in Clause 11;

Relevant NCA ” means a national competition authority in a Member State of the European Union or the EEA;

 

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Satisfaction Date ” means the date on which all of the conditions set forth in Clause 5.1 are fulfilled or waived (to the extent permitted by applicable law or otherwise permitted in this Agreement);

Senior Facilities Agreement ” means the €1,235,000,000 senior facilities agreement dated 29 June 2005 as amended on 12 July 2005 and on or about 13 September 2005 and made between, amongst others, ING Finance France S.A., Merrill Lynch International and CCF S.A. as lead arrangers with ING Bank NV, Merrill Lynch International Bank Limited, Merrill Lynch Capital Markets Bank Limited and CCF S.A. as underwriters, ING Bank NV as facility agent, security trustee and issuing bank and Veveo Coatings B.V.;

Shares ” has the meaning set forth in the Recitals hereto;

Specified Subsidiaries ” means D&M Coatings France SAS, SPETH NewCo SAS, and each of the Group Companies designated as “Direct Subsidiaries” on Schedule 1 hereto;

Sterling Notary Account ” means the following third-party bank account ( derdengeldenrekening ) of the Notary:

 

  Bank:    ABN AMRO Bank N.V., Rotterdam
  Account Number:    XXXXXXX
  IBAN:    XXXXXXX
  Dutch SWIFT:    ABNANL2A
  Account Name:   

Allen & Overy LLP Derdengelden

Notarissen Kwaliteitsrekening

Subsidiary ” means, with respect to any person, each corporation or other person with respect to which such first person (i) owns or controls, directly or indirectly, capital stock or other equity interests representing at lest 50% of the outstanding voting stock or other equity interests or (ii) has the right to appoint or remove a majority of the members of the board of directors or equivalent managing body;

Substitute Payment ” has the meaning set forth in Clause 17.4;

Tax Authority ” means any government, state or municipality or any local, state, federal or other authority, body or official anywhere in the world exercising a fiscal, revenue, customs or excise function;

Termination Fee ” has the meaning set forth in Clause 5.6;

Transaction ” means the acquisition by the Buyer of the Shares pursuant to this Agreement;

Transfer Deed ” means the notarial deed of transfer of the Shares prepared in accordance with Dutch law, by and among the Buyer, the Seller and the Company, to be executed before the Notary at Completion for the purpose of passing the full and unencumbered legal and beneficial title to the Shares from the Seller to the Buyer;

 

6


Vendor Reports ” means (i) the draft report prepared by Pricewaterhouse-Coopers entitled “Project Penguin Abridged Report”, dated 11 May 2007, (ii) the supplement thereto provided to the Parent on or about 29 June 2007 and (iii) the draft report prepared by Ashurst, Allen & Overy and Gide entitled “Project Tahiti Legal Due Diligence Report”, dated 21 May 2007; and

Warranty ” means each statement contained in Clause 8.1.

 

1.2 In this Agreement, a reference to:

 

  1.2.1 liability under, pursuant to or arising out of (or any analogous expression) any Contract or other instrument includes a reference to any and all contingent liabilities thereunder;

 

  1.2.2 a statutory provision includes a reference to the statutory provision as modified or reenacted or both from time to time before or on the date of the Original Agreement or after the date of the Original Agreement, except to the extent that the liability of any party is thereby increased or extended, and any subordinate legislation made under the statutory provision (as so modified or reenacted);

 

  1.2.3 a “person” includes a reference to any individual, firm, company, corporation or other body corporate, government, state or agency of a state or any joint venture, association or partnership, works council or employee representative body (whether or not having separate legal personality);

 

  1.2.4 a person includes a reference to that person’s legal personal representatives;

 

  1.2.5 a “party” includes a reference to that party’s successors and permitted assigns;

 

  1.2.6 a Clause, sub-Clause, paragraph or Schedule, unless the context otherwise requires, is a reference to a Clause, sub-Clause or paragraph of, or Schedule to, this Agreement; and

 

  1.2.7 times of the day is to London time.

 

1.3 The headings in this Agreement do not affect its interpretation.

 

2. Sale and Purchase

 

2.1 Subject to the Conditions in Clause 5 being satisfied or waived, the Seller hereby sells and transfers the Shares, and the Buyer hereby buys and accepts the Shares and assumes all rights and liabilities attaching thereto, free and clear of all Encumbrances.

 

2.2 At Completion, the Shares shall be transferred ( geleverd ) free from all Encumbrances. Good and valid title to and beneficial ownership of the Shares shall pass on Completion together with all associated rights and benefits attaching or accruing to them on or after Completion.

 

7


3. Consideration

 

3.1 The aggregate consideration to be paid by the Buyer to the Seller at Completion for the purchase of the Shares shall consist of (i) a cash payment in the amount of €717,000,000 (the “ Euro Cash Consideration ”) and a cash payment in the amount of US $617,400,000 (the “ Dollar Cash Consideration ”), plus any Accrued Interest (the Euro Cash Consideration, the Dollar Cash Consideration and any Accrued Interest together being the “ Cash Consideration ”), and (ii) the Buyer Note (together with the Cash Consideration, the “ Consideration ”).

 

3.2 On Completion:

 

   

the Buyer or the Escrow Agent, as the case may be, shall deliver the Cash Consideration to the Notary in accordance with Clause 6 or 7, as applicable;

 

   

the Buyer or the Joint Documentary Escrow Agents, as the case may be, shall deliver the Buyer Note to the Notary in accordance with Clause 6 or 7, as applicable; and

 

   

the Parent shall pay or procure the payment of the Debt Settlement Amount to the Notary in accordance with Clause 6 or 7, as applicable.

 

3.3 Immediately after execution of the Transfer Deed pursuant to Clause 6.3.7 or 7.4.8, as applicable, the Notary shall transfer or deliver, as appropriate:

 

   

the amount in cash equal to the Debt Settlement Amount to a bank account or accounts in the name of, and designated in writing to the parties prior to Completion by, the Agent;

 

   

the amount in cash equal to the Euro Cash Consideration together with the relevant amount in euros of Accrued Interest (if any) to the Seller’s bank account set forth below:

 

  Bank:   

Société Générale Bank & Trust

11, Avenue Emile Reuter

2420 Luxembourg

  IBAN:    XXXXXXX
  SWIFT:    SGABLULL
  Contact:   

Catherine Watrin

Telephone: +352 47 93 11 52 17

Facsimile: +352 26 20 08 36

Email: catherine.watrin@socgen.com; and

 

   

the amount in cash equal to the Dollar Cash Consideration together with the relevant amount in US dollars of Accrued Interest (if any) to the Seller’s bank account set forth below:

 

  Bank:   

Société Générale Bank & Trust

11, Avenue Emile Reuter

2420 Luxembourg

  IBAN:    XXXXXXX
  SWIFT:    SGABLULL
  Contact:   

Catherine Watrin

Telephone: +352 47 93 11 52 17

Facsimile: +352 26 20 08 36

Email: catherine.watrin@socgen.com.

 

8


   

the Buyer Note to the Seller.

None of the Buyer, the Parent, the Escrow Agent, the Joint Documentary Escrow Agents or the Notary shall be concerned as to the application of such funds and such payment shall be a good discharge of the Cash Consideration, which discharge will be confirmed by the Seller in the Transfer Deed.

 

3.4 For the avoidance of doubt, the parties hereby agree that the transfer of the Shares and the payment of the Debt Settlement Amount by the Notary shall be deemed to occur simultaneously for all purposes hereunder.

 

3.5 For the purposes of this Agreement, including Clause 8.4, any translation of US dollar amounts into euro amounts shall be made at a rate of US $1.00 = €0.7289 and euro amounts into US dollar amounts shall be made at a rate of €1.00 = US $1.3720.

 

4. Locked Box

 

4.1 The Seller warrants to the Buyer and the Parent that (other than as set forth in Schedule 4 hereto) as at Completion:

 

  4.1.1 since the Locked Box Date, no management charge or fee has been levied by the Seller or any of its Affiliates against any Group Company and there has been no payment of any management, service or other fees or compensation from any Group Company to the Seller or any of its Affiliates;

 

  4.1.2 since the Locked Box Date, no share or loan capital of any Group Company has been issued, redeemed, purchased or repaid to or in favour of the Seller or any of its Affiliates;

 

  4.1.3 since the Locked Box Date, the only payments received by the Seller or any of its Affiliates from the Group Companies have been payments set forth in Schedule 4 hereto;

 

  4.1.4 since the Locked Box Date, no dividend or other distribution of profits or assets or any bonus or other payment of any nature has been paid or declared or made by any Group Company to or in favour of the Seller or any of its Affiliates;

 

  4.1.5 since the Locked Box Date, no Group Company has paid or accrued any advisory fees, Transaction fees or out-of-pocket expenses or management incentive payments of any kind in connection with the Transaction or the other transactions contemplated hereunder (other than as set forth in Schedule 4 hereto);

 

9


  4.1.6 since the Locked Box Date, no Group Company has waived any amount owed to the Group by the Seller or its Affiliates; and

 

  4.1.7 neither the Seller nor any of its Affiliates has made or entered into any agreement or arrangement relating to any of the matters referred to in this Clause 4.1 (other than as set forth in Schedule 4 hereto).

Notwithstanding the foregoing, no transaction undertaken on an arms’ length basis and in the ordinary course of business between (x) any Group Company, on the one hand, and (y) any other portfolio company of any private equity fund or similar investment vehicle managed or advised by any direct or indirect shareholder of the Seller or any Affiliate of such shareholder, on the other hand, shall be deemed a breach of the warranties set forth in this Clause 4.1.

 

4.2 The Seller shall notify the Buyer and the Parent in writing promptly after becoming aware of any receipt by the Seller of any payment constituting a breach of the warranties set forth in Clause 4.1.

 

4.3 Subject to Clauses 8.4 and 8.5, the Seller shall indemnify the Parent and the Buyer (as trustee for and on behalf of each member of the Buyer’s Group) on a euro for euro basis in respect of any breach by it of any of the warranties set forth in Clause 4.1. Any payment under this Clause 4.3 shall be treated as an adjustment to the Cash Consideration.

 

5. Conditions Precedent

 

5.1 Completion of the sale and purchase of the Shares shall be subject to the satisfaction or waiver (to the extent permitted by applicable law) of all of the following conditions precedent (the “ Conditions ”):

 

  5.1.1 the Mandatory Competition Clearances shall have been fulfilled, it being agreed that Mandatory Competition Clearances shall be deemed to have been fulfilled:

 

  (a) in the case of Category 1 Mandatory Competition Clearances where the Buyer elects by notice in writing to the Seller to proceed to Completion prior to fulfilment of such Mandatory Competition Clearance and undertakes in writing to the Seller to assume all risks, financial or otherwise, arising as a result of such election or otherwise waives this Condition in respect of such Category 1 Mandatory Competition Clearance; and

 

  (b)

in the case of Category 2 Mandatory Competition Clearances and clearance from the European Commission (and/or, if at all applicable, one or more Relevant NCA), where prior to the fulfilment of such Mandatory Competition Clearance, the Buyer directs the Seller to transfer the Shares to a third-party trustee or, in the case of a Category 2 Mandatory Competition Clearance or an EU member state clearance,

 

10


 

the shares in the Subsidiary or Subsidiaries located in the relevant jurisdiction, it being understood that all costs and risks associated with any such transfer shall be borne by the Buyer; and

 

  5.1.2 there shall not be in effect any injunction or other order issued by a court of competent jurisdiction or Competition Authority restraining or prohibiting the consummation of the Transaction.

 

5.2 The Buyer shall:

 

  5.2.1 use its reasonable best efforts to (i) obtain the Mandatory Competition Clearances as soon as practicable and (ii) make all necessary filings (or at least submission of draft filings when this is an advisable first stage) to obtain such approvals as soon as permitted under the relevant competition laws within ten Business Days after the later of (x) the signing of the Original Agreement and (y) the date on which the Seller has made available to the Buyer all information and documents in the possession of the Seller that are reasonably required to make such filings;

 

  5.2.2 accept all conditions or undertakings, including any and all remedies imposed by or contained in any decision by any Competition Authority and offer to restructure or dispose of any relevant activities of the Group or its own business to satisfy such conditions or undertakings; and

 

  5.2.3 for the avoidance of doubt, compliance with this Clause shall not constitute a breach of paragraphs 8, 9 and 10 of the Confidentiality Agreement.

 

5.3 The Buyer may voluntarily make one or more offers to the relevant Competition Authorities to remedy the concerns of such Competition Authorities.

 

5.4 The Buyer undertakes to keep the Seller fully informed as to its progress towards satisfaction of the Conditions. Without limiting the generality of the foregoing, the Buyer further undertakes to:

 

  5.4.1 notify the Seller as soon as reasonably practicable regarding, and provide copies of, any communications from any Competition Authority in relation to obtaining any consent, approval or action where such communications have not been simultaneously supplied to the Seller;

 

  5.4.2 promptly provide the Seller (or any advisers nominated by the Seller) with draft copies of all submissions and communications with the Competition Authorities in relation to obtaining any consent, approval or action at such time as will allow the Seller a fully satisfactory opportunity to provide comments on such submissions and communications before they are submitted or sent, and take account of the Seller’s reasonable comments in relation to the form and content of such submissions and communications, and provide the Seller (or such nominated advisers) with copies of all such submissions and communications at the same time and in the same form finally submitted or sent (save that in relation to all disclosures to the Seller under this Clause, the Buyer may redact business secrets and other confidential material and such information shall be provided on an outside counsel-to-counsel, confidential basis); and

 

11


  5.4.3 where requested by the Seller and where permitted by the Competition Authorities, allow persons nominated by the Seller to attend all meetings with the Competition Authorities and to make oral submissions at such meetings.

 

5.5 The Seller undertakes to use its reasonable best efforts to cooperate with the Buyer in respect of the fulfilment of the Conditions and in particular to promptly provide to the Buyer information in its possession and not otherwise contained in any due diligence reports or other materials previously made available by the Seller and/or its advisers which the Buyer may reasonably request for the purposes of making any necessary submissions to the Competition Authorities, provided that insofar as any such information is competitively sensitive, such information shall be provided on an outside counsel-to-counsel, confidential basis.

 

5.6 In the event that Completion has not occurred before the date which is 120 days following the date of the Original Agreement (the “ Outside Date ”), the parties shall continue to perform their respective obligations under this Clause 5 and the other Clauses of this Agreement. Following the Outside Date, the Seller shall deliver notice on a monthly basis (for which such notice electronic mail sent to and received by the Buyer’s counsel shall be sufficient) to the Buyer, informing the Buyer of the Seller’s election, taken in the Seller’s sole discretion, to either (i) require the continued performance by the Buyer of its obligations under this Clause 5 and the other Clauses of this Agreement during the next subsequent calendar month or (ii) exercise its rights under Clause 5.6.1 or 5.6.2 below.

 

  5.6.1 At the Seller’s election pursuant to Clause 5.6 above, the parties shall complete the Transaction, with Completion to occur on a date to be agreed by the parties but in any event no later than twenty Business Days following the Outside Date or the date of such relevant notice as the case may be. Prior to such Completion, the Buyer shall notify the Seller in writing of the manner in which the Transaction is to be implemented in accordance with the competition laws of any jurisdiction for which a Mandatory Competition Clearance has not been obtained prior to the Outside Date or the date of such relevant notice as the case may be. Such manner of implementation shall be subject to the Seller’s consent, not to be unreasonably withheld, and may include, inter alia , (i) the transfer of the Shares, one or more Group Companies or any specific assets of the Group to a third-party trustee or (ii) the temporary management of one or more Group Companies or any specific assets of the Group by the Seller on behalf of the Buyer. The Buyer shall assume all risks, financial or otherwise, arising as a result of the consummation of the Transaction in such manner of implementation. At Completion, the Transaction and the other transactions contemplated to occur at Completion hereunder shall be consummated and, for the avoidance of doubt, the Buyer shall deliver the full Consideration to the Seller in accordance with Clauses 3 and 6.3.1 to 6.3.5. Notwithstanding the foregoing, the Seller shall not be entitled to elect the option described in this Clause 5.6.1 if the Condition set forth in Clause 5.1.1 has not been fulfilled with respect to the approval of the European Commission on or prior to the Outside Date or at the date of such relevant notice as the case may be.

 

12


  5.6.2 Following the Outside Date and at the Seller’s election pursuant to Clause 5.6 above, this Agreement shall be terminated and the Buyer shall pay to the Seller a termination fee in the amount of €50,000,000 (the “ Termination Fee ”) by wire transfer of immediately available funds no later than five Business Days following the date of such termination to an account designated by the Seller in writing. The Termination Fee shall not be payable by the Buyer if the Seller’s failure to comply with this Agreement and in particular its obligations under Clause 5.5 contributed materially to the Buyer’s failure to achieve Completion by the Outside Date.

 

5.7 Following any termination of this Agreement pursuant to Clause 5.6.2, this Agreement shall become void and have no force or effect and no party to this Agreement shall have any liability or further obligation to the other party hereto, except (i) in respect of the provisions of Clauses 14 to 23 which will continue in full force and effect, (ii) termination shall not affect any party’s accrued rights and obligations as of the date of termination (save that neither the Parent nor the Buyer shall have any further liability pursuant to this Clause 5 following payment of the full amount due under Clause 5.6.1 or 5.6.2, if applicable), and (iii) notwithstanding anything to the contrary in this Agreement, termination will not relieve a party from any liability resulting from such party’s wilful breach of this Agreement.

 

6. Completion

 

6.1 If the Satisfaction Date occurs on or after 27 December 2007, then the remaining provisions of this Clause 6 shall apply and, for the avoidance of doubt, the provisions of Clause 7 shall not apply.

 

6.2 Subject to the parties’ compliance with the provisions of this Clause 6, Completion shall take place at the offices of Allen & Overy LLP, Apollolaan 15, 1077 AB Amsterdam, PO Box 75440, 1070 AK Amsterdam, The Netherlands on the third Business Day following the Satisfaction Date (the “ Completion Date ”).

 

6.3 At Completion:

 

  6.3.1 the Buyer shall pay an amount in cash equal to the Euro Cash Consideration, plus the relevant amount in euros of Accrued Interest (if any), by transfer of funds for same day value to the Euro Notary Account;

 

  6.3.2 the Buyer shall pay an amount in cash equal to the Dollar Cash Consideration, plus the relevant amount in US dollars of Accrued Interest (if any), by transfer of funds for same day value to the Dollar Notary Account;

 

  6.3.3 the Parent shall pay or procure the payment of an amount in cash equal to the euro denominated portion of the Debt Settlement Amount by transfer of funds for same day value to the Euro Notary Account;

 

  6.3.4 the Parent shall pay or procure the payment of an amount in cash equal to the GBP sterling denominated portion of the Debt Settlement Amount by transfer of funds for same day value to the Sterling Notary Account;

 

  6.3.5 the Buyer shall deliver the Buyer Note to the Notary;

 

13


  6.3.6 the Buyer shall deliver or procure the delivery to the Seller, as evidence of the authority of each person executing this Agreement on the Buyer’s behalf, (i) a copy of the minutes of a duly held meeting of the directors of the Buyer authorising the execution of the Agreement, as the case may be, by such person; or (ii) a copy of a power of attorney conferring such authority, in each case certified to be a true copy by a director or the secretary of the Buyer;

 

  6.3.7 immediately following receipt by the Notary of the Cash Consideration and the Debt Settlement Amount pursuant to Clauses 6.3.1 to 6.3.4 and the Buyer Note pursuant to Clause 6.3.5, the Transfer Deed shall be executed by the Notary and the appointees of the Buyer, the Seller and the Company specified in Schedule 2 ;

 

  6.3.8 immediately following execution of the Transfer Deed pursuant to Clause 6.3.7, the Notary shall effect the actions described in Clause 3.3; and

 

  6.3.9 the Company shall register the transfer of the Shares in its shareholders register.

 

7. Escrow

 

7.1 If the Satisfaction Date occurs prior to 27 December 2007, then the remaining provisions of this Clause 7 shall apply and, for the avoidance of doubt, the provisions of Clause 6 shall not apply.

 

7.2 On the third Business Day following the Satisfaction Date (the “ Escrow Date ”):

 

  7.2.1 the Parent shall deliver, or procure the delivery of, an amount in cash equal to the Euro Cash Consideration and an amount in cash equal to the Dollar Cash Consideration by transfer of funds for same day value to the New York Escrow Account;

 

  7.2.2 the Parent or the Buyer, as applicable, shall deliver, or procure the delivery of, the Escrow Documents set out in Part 1 of Schedule 2 to the Joint Documentary Escrow Agents; and

 

  7.2.3 the Seller shall deliver the Escrow Documents set out in Part 2 of Schedule 2 to the Joint Documentary Escrow Agents.

 

7.3 Subject to the parties’ compliance with the provisions of this Clause 7, Completion shall take place at the offices of Allen & Overy LLP, Apollolaan 15, 1077 AB Amsterdam, PO Box 75440, 1070 AK Amsterdam, The Netherlands on 2 January 2008 (the “ Completion Date ”).

 

7.4 At Completion:

 

  7.4.1 the Escrow Agent shall pay an amount in cash equal to the Euro Cash Consideration by transfer of funds for same day value to the Euro Notary Account;

 

14


  7.4.2 the Escrow Agent shall pay an amount in cash equal to the Dollar Cash Consideration by transfer of funds for same day value to the Dollar Notary Account;

 

  7.4.3 the Buyer shall pay an amount in cash equal to the relevant amount in euros of Accrued Interest (if any) by transfer of funds for same day value to the Euro Notary Account;

 

  7.4.4 the Buyer shall pay an amount in cash equal to the relevant amount in US dollars of Accrued Interest (if any) by transfer of funds for same day value to the Dollar Notary Account;

 

  7.4.5 the Parent shall pay, or procure the payment of, an amount in cash equal to the euro denominated portion of the Debt Settlement Amount by transfer of funds for same day value to the Euro Notary Account;

 

  7.4.6 the Parent shall pay, or procure the payment of, an amount in cash equal to the GBP sterling denominated portion of the Debt Settlement Amount by transfer of funds for same day value to the Sterling Notary Account;

 

  7.4.7 the Joint Documentary Escrow Agents shall release the Escrow Documents from escrow and deliver them to the Notary;

 

  7.4.8 immediately following receipt by the Notary of the Cash Consideration pursuant to Clauses 7.4.1 to 7.4.4, the Debt Settlement Amount pursuant to Clause 7.4.5 and 7.4.6 and the Buyer Note pursuant to Clause 7.4.7, the Transfer Deed shall be executed by the Notary and the appointees of the Buyer, the Seller and the Company specified in Schedule 2 ;

 

  7.4.9 immediately following execution of the Transfer Deed pursuant to Clause 7.4.8, the Notary shall effect the actions described in Clause 3.3; and

 

  7.4.10 the Company shall register the transfer of the Shares in its shareholders register.

 

7.5 The Parent and the Buyer acknowledge and agree that the Escrow Agreement constitutes a true and valid escrow agreement under New York law.

 

8. Seller Warranties

 

8.1 The Seller warrants to the Buyer and the Parent that the statements contained in this Clause 8.1: (x) were correct and complete as of the date of the Original Agreement (other than Clauses 8.1.3, 8.1.4 and 8.1.5); (y) are correct and complete as of the date of this Agreement; and (z) shall be correct and complete as of Completion.

 

  8.1.1 The Seller is the sole registered holder of, and is entitled to sell and transfer full legal and beneficial ownership of, the Shares to the Buyer, free and clear from all Encumbrances and with all rights attaching thereto at Completion and thereafter. Upon delivery and payment for the Shares at Completion, the Buyer shall acquire good and valid title to all of the Shares.

 

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  8.1.2 The Seller, the Company and certain of the Company’s Subsidiaries are together the sole record and beneficial owners of the shares of the Specified Subsidiaries and have the right to exercise all voting and other rights over such shares.

 

  8.1.3 The Seller has the requisite power and authority to enter into, and to perform its obligations under, this Agreement and to consummate the Transaction.

 

  8.1.4 The Seller has obtained or satisfied all corporate, regulatory and other approvals and any other conditions necessary to execute and perform its obligations under this Agreement.

 

  8.1.5 This Agreement, once executed, will constitute a legal, valid and binding obligation of the Seller, enforceable against the Seller, in accordance with the terms hereof.

 

  8.1.6 No Specified Subsidiary is insolvent under the laws of its jurisdiction of incorporation or unable to pay its debts as they fall due.

 

  8.1.7 The Seller had the requisite power and authority to enter into, and to perform its obligations under the Original Agreement.

 

8.2 The Seller hereby confirms that, for the avoidance of doubt, all preferred equity certificates (“ PECs ”) and convertible preferred equity certificates (“ CPECs ”) issued by Luxco are the sole obligation of Luxco and shall not give rise to any obligation on the part of any Group Company.

 

8.3 The Buyer and the Parent acknowledge and confirm that:

 

  8.3.1 except for the Warranties, (i) neither the Seller nor any of its Affiliates nor any other person (whether or not a party to this Agreement and whether or not authorized by the Seller or any of its Affiliates) makes, or has made, any representations or warranties, express or implied, at law or in equity, relating to the Shares or to itself, any Group Company, or any of their respective businesses, assets, liabilities or operations, including with respect to merchantability or fitness for any particular purpose or otherwise in connection with the Transaction and the other transactions contemplated by this Agreement, (ii) neither the Buyer nor the Parent is relying on nor has it been induced to enter into this Agreement by any such representations or warranties, and (iii) any such representations or warranties are hereby disclaimed;

 

  8.3.2

no person has been authorised by the Seller or any of its Affiliates to make any representations or warranties relating to the Shares or to the Seller, any Group Company, or any of their respective businesses, assets, liabilities or operations or otherwise in connection with the Transaction and the other transactions contemplated by this Agreement, and if made, (i) such representations or warranties shall not be relied upon by the Buyer as having been authorized by such party, (ii) such representations or warranties are hereby expressly disclaimed, and (iii) no such person shall have any liability to the Buyer, the Parent or any member of the Buyer’s Group with respect to such

 

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representations or warranties and the Buyer undertakes not to, and undertakes to procure that no member of the Buyer’s Group shall, bring any claim or action against any such person in respect of such representations or warranties, including, without limitation, in the event that such representations or warranties are, are alleged to be, or become inaccurate, incomplete or misleading;

 

  8.3.3 any estimates, projections, predictions, data, financial information, memoranda, presentations or any other materials or information or information provided or addressed to the Buyer, any member of the Buyer’s Group or any of their respective representatives are not and shall not be deemed to be or include any representations or warranties unless any such materials or information are the actual subject of any of the Warranties, there is no assurance that any estimates, projections, predictions or any other forward-looking statements in any such materials or information will be achieved, and, for the avoidance of doubt, neither the Buyer nor any member of the Buyer’s Group shall be entitled to, and the Buyer undertakes not to, and undertakes to procure that no member of the Buyer’s Group shall, bring any claim or action in connection with any such materials or information;

 

  8.3.4 the Buyer and the Parent shall have no claim or remedy against the Seller or any of its Affiliates in respect of any representations or warranties of any kind whatsoever made on or prior to the date of this Agreement (other than the Warranties).

 

8.4 The aggregate liability of the Seller under this Agreement shall not exceed an amount equal to the Consideration.

 

8.5 The liability of the Seller pursuant to Clause 4 and this Clause 8 shall terminate on the date that is three months following Completion, unless prior to that date the Buyer has notified the Seller of a claim thereunder.

 

8.6 The Seller shall not be liable for any indirect or consequential losses or loss of profit, turnover, business, goodwill or reputation, or damages, claims, demands, proceedings, costs, expenses, penalties, legal and other professional fees and costs in relation to such indirect or consequential losses or damages which may be suffered or incurred by the Buyer or which arise directly or indirectly in connection with any claim against the Buyer or the Group Companies by any third party.

 

8.7 In the event of a breach or alleged breach of this Agreement by the Seller, the Buyer and the Parent shall not be entitled to rescind this Agreement or treat this Agreement as terminated but shall only be entitled to claim damages in accordance with this Agreement in respect of such matter. Accordingly, the Buyer and the Parent hereby waive any and all rights of rescission they may have in respect of any such matter (howsoever arising or deemed to arise).

 

8.8 Any payment in respect of the Warranties in this Clause 8 shall be treated as an adjustment to the Cash Consideration.

 

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9. Parent and Buyer Warranties

 

9.1 The Parent warrants to the Seller that the statements contained in this Clause 9.1: (x) were correct and complete as of the date of the Original Agreement (other than Clauses 9.1.1, 9.1.2, 9.1.3, 9.1.7 and 9.1.8); (y) are correct and complete as of the date of this Agreement (other than Clauses 9.1.7 and 9.1.8); and (z) shall be correct and complete as of the Completion Date (other than Clause 9.1.5).

 

  9.1.1 The Parent has the requisite power and authority to enter into, and to perform its obligations under, this Agreement and to consummate the Transaction.

 

  9.1.2 Subject to the satisfaction of the Conditions, the Parent has obtained or satisfied all corporate, regulatory and other approvals and any other conditions necessary to execute and perform its obligations under this Agreement.

 

  9.1.3 This Agreement, once executed, will constitute a legal, valid and binding obligation of the Parent, enforceable against the Parent, in accordance with the terms hereof.

 

  9.1.4 The Parent has received access to (i) such information concerning the Group and the Shares as it deems necessary to enable it to make an informed decision concerning the transactions contemplated hereunder, (ii) all relevant executives and employees of the Group and has had a sufficient opportunity to ask questions of, and receive satisfactory answers from, such executives and employees, and (iii) all additional information requested by it to verify the accuracy of all information furnished in connection with the transactions contemplated hereunder.

 

  9.1.5 The Parent is not aware of any fact or circumstance that may allow it to bring a claim of any nature against the Seller for breach of any provision of this Agreement.

 

  9.1.6 The Parent is not insolvent or unable to pay its debts within the meaning of any laws relating to insolvency applicable to the Parent.

 

  9.1.7 Either:

 

  (a) if Clause 6 applies, the Buyer’s Group will have as of the Completion Date immediately available on an unconditional basis (subject only to Completion) the necessary cash resources to meet the obligations of the Buyer and the Parent under this Agreement; or

 

  (b) if Clause 7 applies, (x) the Escrow Agent, in respect of the Dollar Cash Consideration and the Euro Cash Consideration, will have in the Escrow Accounts as of the Escrow Date and the Completion Date and (y) the Buyer’s Group will have on the Completion Date, immediately available on an unconditional basis (subject only to Completion) the necessary cash resources to meet the obligations of the Buyer and the Parent under this Agreement.

 

  9.1.8

The Buyer’s obligations hereunder are not subject to any conditions regarding its or any other person’s ability to obtain financing for the consummation of

 

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the Transaction. The Buyer’s Group has, or as of Completion will have, (i) cash on hand and/or (ii) definitive fundable loan agreements from its financing sources (the “ Financing Agreements ”), which together are sufficient to enable the Buyer or the Parent, as applicable, to perform each of its obligations hereunder, consummate the Transaction, and pay all related fees and expenses, including payment of the Consideration and the Termination Fee (if any), issuance of the Buyer Note and repayment or refinancing of any indebtedness of the Company due at Completion. True and correct copies of the Financing Agreements will have been provided to the Seller on or prior to the Completion Date. As of the Completion Date, the Financing Agreements will have been duly executed and delivered by the parties thereto, will be in full force and effect and will be enforceable against the parties thereto in accordance with their terms. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of any member of the Buyer’s Group under any term or condition of the Financing Agreements. As of the date hereof, the Buyer and the Parent will have no reason to believe that they will be unable to satisfy on a timely basis any term or condition of completion to be satisfied by the Buyer and the Parent contained in the Financing Agreements. The Parent has fully paid any and all commitment fees or other fees required by the Financing Agreements to be paid on or before the Completion Date hereof.

 

  9.1.9 The Parent had the requisite power and authority to enter into, and to perform its obligations under the Original Agreement.

 

9.2 The Buyer warrants to the Seller that the statements contained in this Clause 9.2: (x) were correct and complete as of the Adherence Date (other than Clauses 9.2.1, 9.2.2, 9.2.3, 9.2.7 and 9.2.8); (y) are correct and complete as of the date of this Agreement (other than Clauses 9.2.7 and 9.2.8); and (z) shall be correct and complete as of the Completion Date (other than Clause 9.2.5).

 

  9.2.1 The Buyer has the requisite power and authority to enter into, and to perform its obligations under this Agreement and consummate the Transaction.

 

  9.2.2 Subject to the satisfaction of the Conditions, the Buyer has obtained or satisfied all corporate, regulatory and other approvals and any other conditions necessary to execute and perform its obligations under this Agreement.

 

  9.2.3 This Agreement constitutes legal, valid and binding obligations of the Buyer, enforceable against the Buyer, in accordance with its terms.

 

  9.2.4 The Buyer has received access to (i) such information concerning the Group and the Shares as it deems necessary to enable it to make an informed decision concerning the transactions contemplated hereunder, (ii) all relevant executives and employees of the Group and has had a sufficient opportunity to ask questions of, and receive satisfactory answers from, such executives and employees, and (iii) all additional information requested by it to verify the accuracy of all information furnished in connection with the transactions contemplated hereunder.

 

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  9.2.5 The Buyer is not aware of any fact or circumstance that may allow it to bring a claim of any nature against the Seller for breach of any provision of this Agreement.

 

  9.2.6 The Buyer is not insolvent or unable to pay its debts within the meaning of any laws relating to insolvency applicable to the Buyer.

 

  9.2.7 Either:

 

  (a) if Clause 6 applies, the Buyer’s Group will have as of the Completion Date immediately available on an unconditional basis (subject only to Completion) the necessary cash resources to meet the obligations of the Buyer and the Parent under this Agreement; or

 

  (b) if Clause 7 applies, (x) the Escrow Agent, in respect of the Dollar Cash Consideration and the Euro Cash Consideration, will have in the Escrow Accounts as of the Escrow Date and the Completion Date and (y) the Buyer’s Group will have on the Completion Date, immediately available on an unconditional basis (subject only to Completion) the necessary cash resources to meet the obligations of the Buyer and the Parent under this Agreement.

 

  9.2.8 The Buyer’s obligations hereunder are not subject to any conditions regarding its or any other person’s ability to obtain financing for the consummation of the Transaction. The Buyer’s Group has, or as of Completion will have, (i) cash on hand and/or (ii) definitive fundable loan agreements from its financing sources (the “ Financing Agreements ”), which together are sufficient to enable the Buyer or the Parent, as applicable, to perform each of its obligations hereunder, consummate the Transaction, and pay all related fees and expenses, including payment of the Consideration and the Termination Fee (if any), issuance of the Buyer Note and repayment or refinancing of any indebtedness of the Company due at Completion. True and correct copies of the Financing Agreements will have been provided to the Seller on or prior to the Completion Date. As of the Completion Date, the Financing Agreements will have been duly executed and delivered by the parties thereto, will be in full force and effect and will be enforceable against the parties thereto in accordance with their terms. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of any member of the Buyer’s Group under any term or condition of the Financing Agreements. As of the date hereof, the Buyer and the Parent will have no reason to believe that they will be unable to satisfy on a timely basis any term or condition of completion to be satisfied by the Buyer and the Parent contained in the Financing Agreements. The Parent has fully paid any and all commitment fees or other fees required by the Financing Agreements to be paid on or before the Completion Date hereof.

 

  9.2.9 The Buyer had the requisite power and authority to enter into, and to perform its obligations under the Original Agreement.

 

9.3

Each of the Parent and the Buyer undertakes to the Seller that it has no rights against, and may not make any claim against, any Affiliate, employee, director, manager,

 

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agent, officer or adviser of the Seller or any of their respective Affiliates, upon whom or which it may have relied before agreeing to any term of, or entering into, the Original Agreement or this Agreement.

 

9.4 In relation to Clauses 9.1.5 and 9.2.5, the statement shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Parent or the Buyer or by reason that the Parent or the Buyer knew or should have known after the date of the Original Agreement in the case of the Parent, or the Adherence Date in the case of the Buyer, that the statement is or might be inaccurate.

 

10. Conduct of Business

 

10.1 Other than as set forth in the Vendor Reports and in addition as set forth in Schedule 5 hereto, the Seller undertakes to the Buyer and the Parent that, during the period from the date of the Original Agreement until Completion, (i) the business of the Group has been and shall be conducted as a going concern in the ordinary and usual course as carried on in the 12 months prior to the date of the Original Agreement and (ii) neither the Seller nor any Group Company shall, without the Buyer’s prior written consent, take any action which would constitute a breach of the warranties given pursuant to Clause 4.1.

 

10.2 The Seller shall procure that the Buyer, the Parent and their representatives and advisers, upon reasonable notice, are provided with reasonable access to the management, premises and records of the Group (including, without limitation, all financial information relating to the operation of the Group) during the period from the date of the Original Agreement until Completion.

 

11. Redemption of Luxco Interest

 

11.1 The Seller undertakes to the Buyer and the Parent that it shall procure the redemption of Dutchco’s interest in Luxco, represented by 4,752 B shares, 2,527 C shares and 2,303 D shares thereof (the “ Luxco Interest ”), prior to, at or around Completion (the “ Redemption ”). The Redemption shall be implemented in a manner agreed between the Parent, the Buyer and the Seller. The Seller hereby confirms that the Redemption and all steps taken by the Seller and/or its Affiliates to implement such Redemption (the “ Redemption Steps ”) shall be implemented in a manner which is economically neutral to the Buyer, the Parent and the Group and indemnifies the Buyer, the Parent and the Group against any and all Loss (including, but not limited to, any tax liabilities (for example withholding taxes)) arising as a result of implementing or failing to implement the Redemption Steps.

 

11.2 The liability of the Seller under this Clause 11 shall terminate upon the earlier of 7 years from the date of the Original Agreement or such date as the relevant tax authorities close the relevant audit.

 

12. Non-Solicitation

The Seller undertakes to the Buyer and the Parent that it shall not without the prior written consent of the Buyer (such consent not to be unreasonably withheld or delayed), whether by itself or through its employees, its agents or third parties, and whether directly or indirectly, for a period of twelve months from the Completion

 

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Date solicit or entice away or endeavour to solicit or entice away from any Group Company any full time director or senior manager employed or otherwise engaged by such Group Company.

 

13. Access to Information

For a period of seven years after Completion, the Buyer shall make available to the Seller and/or any of its Affiliates all information in the possession or control of the Buyer and/or the Group relating to the business and affairs of the Group which the Seller and/or any of its Affiliates may from time to time reasonably request in order to prepare tax returns required by any Tax Authority or comply with any statutory or regulatory obligations.

 

14. Confidential Information

 

14.1 Subject to Clause 14.2 and Clause 15, the Seller undertakes to the Buyer and the Parent, for itself and as agent and trustee for each Group Company, and each of the Buyer and the Parent undertakes to the Seller, for itself and as agent and trustee for its Affiliates, that it shall treat as confidential all information received or obtained in connection with the execution and performance of the Original Agreement or this Agreement which relates to:

 

  14.1.1 the other party (including, where that other party is the Seller, its Affiliates, and where that other party is the Buyer or the Parent, the Buyer’s Group);

 

  14.1.2 the provisions or the subject matter of this Agreement and any claim or potential claim thereunder; or

 

  14.1.3 the negotiations relating to the Original Agreement or this Agreement.

 

14.2 Notwithstanding the foregoing, any party may disclose such confidential information:

 

  14.2.1 to the extent required by law, by a rule of a listing authority or stock exchange to which such party is subject or submits, or by a governmental authority or other authority with relevant powers to which such party is subject or submits, whether or not the requirement has the force of law, provided that the disclosure shall, so far as is practicable, be made after consultation with the other party and after taking into account the other party’s reasonable requirements as to the timing, content and manner of the disclosure;

 

  14.2.2 to an adviser for the purpose of advising in connection with the Transaction, provided that such disclosure is essential for such purpose and that such adviser remains subject to the obligations set forth in Clause 14.1;

 

  14.2.3 to a director, manager, officer or employee of the Buyer, the Parent or the Seller whose function requires him or her to have access to the relevant confidential information; or

 

  14.2.4 to the extent that the confidential information has been made public by, or with the consent of, the other party.

 

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14.3 All rights and obligations of the parties to the Confidentiality Agreement shall terminate on Completion, provided that, subject to Clause 5.2.3 and compliance with applicable laws, rules and regulatory requirements, such rights and obligations set forth in paragraph 9 of the Confidentiality Agreement shall remain in full force and effect for a period of twelve months following Completion in accordance with the terms thereof.

 

14.4 The restrictions contained in this Clause 14 shall continue to apply after Completion or termination of this Agreement without limit in time.

 

14.5 The Seller hereby undertakes as soon as reasonably practicable after the date of the Original Agreement to use its, or procure that the relevant Group Company uses its, reasonable best efforts to procure the return or destruction of all confidential information provided to all other potential buyers of the Group prior to date of the Original Agreement under the terms of the Bidder Confidentiality Agreements.

 

15. Announcements

 

15.1 Subject to Clause 15.2, no party may, prior to or after Completion, make or send a public announcement, communication or circular concerning the Transaction unless it has first obtained the written consent of the other party, such consent not to be unreasonably withheld or delayed, unless such public announcement, communication or circular concerning the Transaction has already been made or sent pursuant to Clause 15.2.2.

 

15.2 Clause 15.1 shall not apply to any announcement, communication or circular:

 

  15.2.1 to which the parties have previously consented, provided that the prevailing facts and circumstances in respect of such announcement, communication or circular have not changed in any material respect;

 

  15.2.2 required by law, by a rule of a stock exchange or by a governmental authority or other authority with relevant powers to which a party is subject or submits, whether or not the requirement has the force of law, provided that the disclosure shall, so far as is practicable, be made after consultation with the other party and after taking into account the other party’s reasonable requirements as to the timing, content and manner of the disclosure; or

 

  15.2.3 made by the Seller, the Parent or the Buyer to any of their respective Affiliates.

 

16. Costs

 

16.1 Except where this Agreement provides otherwise, each party shall pay its own costs relating to the negotiation, preparation, execution and performance by such party of the Original Agreement and this Agreement.

 

16.2

The Buyer and the Parent acknowledge and agree that the Company shall be responsible for its own costs incurred in connection with the Transaction and the other transactions contemplated hereunder, provided that, for the avoidance of doubt, other than as set forth in Schedule 4 hereto, no Group Company shall be responsible for any broker, finder, adviser or similar fee for professional services incurred in connection

 

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with the Transaction or any increase in the remuneration of the Group’s management to be paid in connection with the Transaction (which shall include, without limitation, any bonus or other incentive payment or arrangement which is conditional in whole or in part upon Completion of the Transaction and/or any payment or arrangement made or promised in order to retain any member of the management of the Group Companies pending Completion or in contemplation of the Transaction).

 

16.3 Without prejudice to Clauses 16.1 and 16.2, the Buyer shall pay any stamp duty, transfer tax or notarial fee payable in any jurisdiction in respect of the transfer of the Shares.

 

17. Guarantee

 

17.1 The Parent hereby irrevocably and unconditionally guarantees, as principal and not as surety, to the Seller, the due and punctual payment of all monetary obligations payable by the Buyer and/or the Escrow Agent to the Seller (whether directly or indirectly through the Dollar Notary Account and/or the Euro Notary Account) pursuant to this Agreement (collectively, the “ Guaranteed Obligations ”). The Parent’s obligations under this Clause 17 shall terminate and be of no further force or effect upon Completion. In accordance with Clause 8.4, the Seller acknowledges that it shall have no right to recover any amount in excess of the Consideration from the Parent hereunder as the result of, in connection with or arising from the Guaranteed Obligations.

 

17.2 The Parent guarantees that the Guaranteed Obligations will be duly and punctually paid, as if the Parent were the primary obligor in accordance with the terms of this Agreement. If for any reason the Buyer or the Escrow Agent, as the case may be, shall fail or be unable duly and punctually to pay any Guaranteed Obligation as and when due, then the Parent shall, subject to the terms and conditions of this Agreement (and, in the case of any such failure or inability on the part of the Escrow Agent, notwithstanding the terms of the Escrow Agreement), forthwith duly and punctually pay such Guaranteed Obligation. The Parent further agrees its obligations under this Clause 17 constitute a guarantee of payment when due and not merely a guarantee of collection and are in no way conditioned upon any attempt to collect from the Buyer or the Escrow Agent, as the case may be. The Parent’s liability under this Agreement shall be absolute, unconditional, irrevocable shall not be released or discharged by any acceleration, extension, renewal, settlement, compromise, waiver or release in any respect of any Guaranteed Obligation, by operation of law or otherwise.

 

17.3

The Parent hereby unconditionally waives, to the fullest extent permitted by applicable law, (i) any and all notices, including promptness, diligence, notice of acceptance of this Agreement and any other notice with respect to any of the Guaranteed Obligations, this Agreement, (ii) any presentment, demand, performance, protest, notice of non-payment as the same pertains to the Buyer, suit or the taking of other action by the Seller against, and any other notice to, the Buyer, the Escrow Agent, the Parent or others with respect to any of the Guaranteed Obligations, (iii) any right to require the Seller to proceed against the Buyer or the Escrow Agent or to exhaust any security held by the Seller or to pursue any other remedy, and (iv) any defense based upon an election of remedies by the Seller, unless the same would excuse performance by the Buyer or the Escrow Agent, as the case may be, under this Agreement with respect to any of the Guaranteed Obligations. The Seller may at any

 

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time without notice to or consent of the Parent and without impairing or releasing the obligations of the Parent hereunder, with respect to any of the Guaranteed Obligations, (A) agree with the Buyer to make any change in the terms of the Guaranteed Obligations, (B) take or fail to take any action of any kind in respect of any security for the Guaranteed Obligations, (C) exercise or refrain from exercising any rights against the Buyer, the Escrow Agent or others, or (D) compromise or subordinate the Guaranteed Obligations, including any security therefor. Any other suretyship defenses are hereby waived by the Parent.

 

17.4 For the avoidance of doubt, in the event that the Escrow Agent fails to satisfy any payment obligation hereunder and the Parent makes any such payment to the Seller or the Notary in lieu of the Escrow Agent pursuant to the Parent’s obligations under this Clause 17 (a “ Substitute Payment ”), (i) an amount equal to such Substitute Payment shall become repayable to the Parent out of the Escrow Accounts and (ii) the Seller shall sign a Unanimous Instruction (as defined in the Escrow Agreement), instructing the Escrow Agent to immediately release such amount to the Parent in accordance with the Escrow Agreement. If the Seller subsequently receives any such amount in error which should otherwise have been repaid to the Parent pursuant to the foregoing sentence, then the Seller shall immediately repay such amount to the Parent by wire transfer of immediately available funds to an account designated by the Parent, provided that the Seller has received payment in full in respect of the Euro Cash Consideration and the Dollar Cash Consideration and shall be entitled to retain the Euro Cash Consideration and the Dollar Cash Consideration.

 

18. General

 

18.1 Any amendment to or modification or variation of this Agreement, and any waiver hereunder, shall be valid only if it is in writing and signed by or on behalf of each party.

 

18.2 The failure to exercise or delay in exercising any right or remedy provided by this Agreement or by law shall not impair such right or remedy or constitute a waiver of such right or remedy or an impairment or waiver of any other right or remedy. No single or partial exercise of a right or remedy provided by this Agreement or by law shall constitute a waiver other than with respect to the specific matter described in such writing or shall prevent further exercise of such right or remedy or the exercise of another right or remedy.

 

18.3 The parties’ rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

 

18.4 Except to the extent that they have been performed and except where this Agreement provides otherwise, the obligations contained in this Agreement remain in force after Completion.

 

18.5 If a party fails to pay a sum due hereunder on the due date of payment in accordance with the provisions of this Agreement, such party shall pay interest on the overdue sum from such due date until the date on which its obligation to pay the sum is discharged at the rate of 600 basis points above LIBOR accrued daily whether before or after judgment.

 

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18.6 Except as expressly provided in this Agreement, nothing in this Agreement shall confer any rights upon any person or entity other than the parties hereto and their respective heirs, successors and permitted assigns. Notwithstanding the foregoing, each direct and indirect shareholder of the Seller shall be entitled to enforce this Agreement on behalf of and in substitution for the Seller.

 

18.7 All sums payable under this Agreement shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as may be required by law. If any deductions or withholdings are required by law the party making the payment shall (except in the case of any interest payable) be obliged to pay to the other party such sum as will after such deduction or withholding has been made leave the other party with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding, provided that if either party to this Agreement shall have assigned the benefit in whole or in part of this Agreement then the liability of the other party under this Clause 18.7 shall be limited to that (if any) which it would have been had no such assignment taken place.

 

18.8 From the date of the Original Agreement, each of the Buyer, the Parent and the Seller shall from time to time execute such documents and perform such acts and things as any party may reasonably require to transfer the Shares to the Buyer and to give any party the full benefit of this Agreement.

 

18.9 The Seller shall provide all reasonable assistance to the Buyer and the Parent on a timely basis, in order to allow the Buyer and the Parent to refinance any third-party debt of the Group at Completion, and in particular shall provide all information (including all books, records and contracts) and grant such access to any management and employees as is reasonably necessary for the refinancing or settlement of any third-party debt which the Group has outstanding at the Completion Date.

 

18.10 If any provision of this Agreement, including any phrase, sentence, clause, section or subsection, is inoperative or unenforceable for any reason, such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative, or unenforceable to any extent whatsoever. If any provision of this Agreement shall be adjudged to be excessively broad as to duration, geographical scope, activity or subject, the parties hereto intend that such provision shall be deemed modified to the minimum degree necessary to make such provision valid and enforceable under applicable law and that such modified provision shall thereafter be enforced to the fullest extent possible.

 

19. Entire Agreement

 

19.1 This Agreement, together with the Escrow Agreement and the Notary Letter, constitutes the entire agreement among the parties hereto and supersedes any previous agreements, including the Original Agreement, as adhered to on the Adherence Date by the Buyer, whether written or oral, among the parties hereto relating to the subject matter of this Agreement. In the event of any inconsistency between the provisions of this Agreement and those of the Escrow Agreement or the Notary Letter, the provisions of this Agreement shall prevail as between the parties hereto.

 

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19.2 Nothing in this Agreement shall have the effect of limiting or restricting any liability arising as a result of, or constitute a waiver of any available remedy for, any fraud, wilful misconduct or wilful concealment.

 

20. Assignment

 

20.1 This Agreement shall be binding upon and inure for the benefit of the successors of each of the parties to this Agreement.

 

20.2 Subject to Clause 20.3, no party shall assign, transfer, declare a trust of the benefit of or in any other way alienate any of its rights under this Agreement, whether in whole or in part, without the prior written consent of the other party, and any such purported assignment, transfer, declaration or alienation shall be void, except that the Seller and/or the Buyer may assign its rights (but not its obligations) to one of its Affiliates or a member of the Buyer’s Group, respectively, for so long as such assignee remains a member of such group and provided that the non-assigning party shall be under no greater obligation as a result of such assignment.

 

20.3 The Buyer or any member of the Buyer’s Group may charge and/or assign the benefit of this Agreement to any bank or financial institution by way of security for the purposes of or in connection with the financing or refinancing (whether in whole or in part) by the Buyer of the acquisition of the Shares, provided that any assignment or transfer pursuant to this Clause 20.3 shall not result in any increase in the liability of the Seller pursuant to this Agreement.

 

20.4 A party shall notify the other party of any assignment pursuant to Clause 20.2 or 20.3 within five Business Days of such assignment.

 

21. Notices

All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (i) when delivered personally to the recipient, (ii) when faxed to the recipient (with hard copy sent to the recipient by internationally reputable overnight courier service (charges prepaid) that same day) if faxed before 6:00pm on a Business Day, or (iii) two Business Days after being sent to the recipient by internationally reputable overnight courier service (charges prepaid). Such notices, demands and other communications shall be sent to the Buyer, the Parent and the Seller at the respective addresses set forth below, or at such address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party.

 

If to the Seller:
SigmaKalon Luxco 2, S.à r.l.
9a, Parc d’Activité Syrdall
L-5365 Munsbach
Grand Duchy of Luxembourg
Telephone:   +352 2678 6837
Facsimile:   +352 2678 6867
Attention:   Ailbhe Marie Jennings
  Walid Sarkis

 

27


with a copy (which shall not constitute notice hereunder) to:

 

Kirkland & Ellis International LLP
30 St. Mary Axe
London EC3A 8AF
United Kingdom

Telephone:

  +44 207 469 2000
Facsimile:   +44 207 469 2001
Attention:   James L. Learner

If to the Buyer or the Parent:

 

PPG Industries, Inc.
One PPG Place
Pittsburgh, Pennsylvania
15272
United States of America

Telephone:

  +1 412 434 2787
  +1 412 434 2911
Facsimile:   +1 412 434 2134
Attention:   Maurice Peconi, Vice President Corporate Development
  James C. Diggs, Senior Vice President, General Counsel and Secretary

with a copy (which shall not constitute notice hereunder) to:

 

Linklaters LLP
One Silk Street
London EC2Y 8HQ
United Kingdom

Telephone:

  +44 20 7456 2000
Facsimile:   +44 20 7456 2222
Attention:   Mark Stamp
  Sarah Wiggins

 

22. Governing Law and Jurisdiction

This Agreement shall be governed in all respects by the laws of the State of New York, without giving effect to the conflict of laws rules thereof to the extent such rules would require or permit the application of the laws of another jurisdiction. The parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of New York and the Federal courts of the United States of America located in the State, City and County of New York, and hereby waive, and agree not to assert, any defense in any action, suit or proceeding for the interpretation or enforcement hereof, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement may not be enforced in or by said courts, and the parties hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard and determined in such a New York State or Federal court. The parties hereby consent to and grant any such court jurisdiction over the person of

 

28


such parties and over the subject matter of any such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Clause 21, or in such other manner as may be permitted by applicable law, shall be valid and sufficient service thereof.

 

23. Counterparts

This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which taken together shall constitute one and the same agreement.

 

29


Signed by   )
  )
  )

/s/ Marc Valentiny

  )
Name: Marc Valentiny   )
Title: Manager   )
  )
for and on behalf of   )
SIGMAKALON LUXCO 2, S.À R.L.   )
Signed by   )
  )
  )

/s/ Maurice Peconi

  )
Name: Maurice Peconi   )
Title: V.P. Corp. Dev. & Services   )
  )
for and on behalf of   )
PPG INDUSTRIES, INC.   )
Signed by   )
  )
  )

/s/ Michael H. McGarry

  )
Name: Michael H. McGarry   )
Title: Chairman, Board of Directors   )
  )
for and on behalf of   )
PPG EUROPE B.V.   )
Signed by   )
  )
  )

/s/ Jo Theunissen

  )
Name: Jo Theunissen   )
Title: Director   )
  )
for and on behalf of   )
PPG EUROPE B.V.   )


By signing hereunder, the Company acknowledges the terms of this Agreement.

 

Signed by   )
  )
  )

/s/ J-L Baudhuim

  )
Name: J-L Baudhuim   )
Title: Manager   )
  )
for and on behalf of   )

SIGMAKALON (BC) HOLDCO B.V.

  )

Exhibit 10.20

[PPG INDUSTRIES, INC. LETTERHEAD]

January 2008

[Name and Address of Executive]

Dear                      :

As you know, you made an election in 2006 under the PPG Industries, Inc. Deferred Compensation Plan (“the Plan”) to defer a certain percentage of your Salary (as defined in the Plan) for the 2007 calendar year. Believing that your 2006 election was perpetual for subsequent years and that you were required to file an election form in 2007 only if you were making changes to your 2006 election, you inadvertently failed to make an election in 2007 for calendar year 2008. This letter memorializes PPG’s agreement to recognize, to the extent it is able, your intended elections for the 2008 calendar year.

Specifically, due to your oversight in not making an election by the end of 2007, you are not permitted to defer any of your Salary during 2008; however, PPG will contribute to your existing deferred compensation account an amount equal to the Savings Plan Restoration Contributions (as defined in the Plan) to which you would have been entitled under the terms of the Plan had you elected, for the 2008 calendar year, to defer receipt of the same percentage of your Salary that you elected to defer for the 2007 calendar year. This amount will be treated for purposes of the Plan as a Savings Plan Restoration Contribution, and will be subject to the same terms and conditions of the Plan as are applicable to all other Savings Plan Restoration Contributions, including the investment and payment thereof.

 

Yours truly,

/s/ G. Thomas Welsh

G. Thomas Welsh
Director, Payroll and Benefits

Exhibit 10.21

Execution Version

€1.0 Billion

364-DAY CREDIT AGREEMENT

Dated as of December 7, 2007

among

PPG INDUSTRIES, INC.

and

PPG INDUSTRIES SECURITIES, INC.

as Borrowers

and

THE INITIAL LENDERS NAMED HEREIN

as Initial Lenders

and

CREDIT SUISSE, CAYMAN ISLANDS BRANCH

as Administrative Agent

and

THE BANK OF TOKYO – MITSUBISHI UFJ, LTD., NEW YORK BRANCH and DEUTSCHE BANK AG CAYMAN

ISLANDS BRANCH

as Co- Syndication Agents

and

JPMORGAN CHASE BANK, N.A. and MORGAN STANLEY BANK

as Co-Documentation Agents

and

CREDIT SUISSE SECURITIES (USA) LLC

THE BANK OF TOKYO – MITSUBISHI UFJ, LTD., NEW YORK BRANCH

DEUTSCHE BANK SECURITIES INC.

J.P. MORGAN SECURITIES INC.

and

MORGAN STANLEY BANK

as Joint Lead Arrangers and Joint Book Managers

PPG 364 Day Credit Agreement


TABLE OF CONTENTS

 

          Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS

SECTION 1.01.

  

Certain Defined Terms

   1

SECTION 1.02.

  

Computation of Time Periods

   11

SECTION 1.03.

  

Accounting Terms

   11
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES

SECTION 2.01.

  

The Advances

   11

SECTION 2.02.

  

Making the Advances

   11

SECTION 2.03.

  

Fees

   12

SECTION 2.04.

  

Repayment

   12

SECTION 2.05.

  

Interest on Advances

   13

SECTION 2.06.

  

Interest Rate Determination

   13

SECTION 2.07.

  

[Intentionally Omitted]

   14

SECTION 2.08.

  

Prepayments of Advances

   14

SECTION 2.10.

  

Illegality

   15

SECTION 2.11.

  

Payments and Computations

   15

SECTION 2.12.

  

Taxes

   16

SECTION 2.13.

  

Sharing of Payments, Etc.

   18

SECTION 2.14.

  

Evidence of Debt

   18

SECTION 2.15.

  

Use of Proceeds

   19
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING

SECTION 3.01.

  

Conditions Precedent to Effectiveness

   19

SECTION 3.02.

  

Conditions Precedent to First Borrowing

   20

 

i

PPG 364 Day Credit Agreement


SECTION 3.03.

  

Conditions Precedent to Second Borrowing

   21

SECTION 3.04.

  

Determinations Under Section 3.01, 3.02 and 3.03

   21
ARTICLE IV
REPRESENTATIONS AND WARRANTIES

SECTION 4.01.

  

Representations and Warranties of PPG

   21
ARTICLE V
COVENANTS OF THE BORROWERS

SECTION 5.01.

  

Affirmative Covenants

   24

SECTION 5.02.

  

Negative Covenants

   25
ARTICLE VI
EVENTS OF DEFAULT

SECTION 6.01.

  

Events of Default

   28
ARTICLE VII
GUARANTY

SECTION 7.01.

  

Guaranty

   29

SECTION 7.02.

  

Guaranty Absolute

   30

SECTION 7.03.

  

Waivers and Acknowledgments

   31

SECTION 7.04.

  

Subrogation

   31

SECTION 7.05.

  

Subordination

   31

SECTION 7.06.

  

Continuing Guaranty; Assignments

   32
ARTICLE VIII
THE ADMINISTRATIVE AGENT

SECTION 8.01.

  

Authorization and Action

   32

SECTION 8.02.

  

Administrative Agent's Reliance, Etc.

   33

SECTION 8.03.

  

Credit Suisse and Affiliates

   33

SECTION 8.04.

  

Lender Credit Decision

   33

SECTION 8.05.

  

Indemnification

   33

SECTION 8.06.

  

Successor Administrative Agent

   34

 

ii

PPG 364 Day Credit Agreement


SECTION 8.07.

  

Other Agents

   34
ARTICLE IX
MISCELLANEOUS

SECTION 9.01.

  

Amendments, Etc.

   35

SECTION 9.02.

  

Notices, Etc.

   35

SECTION 9.03.

  

No Waiver; Remedies

   35

SECTION 9.04.

  

Costs and Expenses

   36

SECTION 9.05.

  

Right of Set-off

   36

SECTION 9.06.

  

Binding Effect

   37

SECTION 9.07.

  

Assignments and Participations

   37

SECTION 9.08.

  

Confidentiality

   39

SECTION 9.09.

  

Governing Law

   39

SECTION 9.10.

  

Execution in Counterparts

   39

SECTION 9.11.

  

Judgment

   40

SECTION 9.12.

  

Jurisdiction, Etc.

   40

SECTION 9.13.

  

Substitution of Currency

   40

SECTION 9.14.

  

Waiver of Jury Trial

   40

SECTION 9.15.

  

USA PATRIOT ACT

   41

 

iii

PPG 364 Day Credit Agreement


Schedules

 

Schedule I       List of Applicable Lending Offices
Schedule 1.01       Mandatory Cost
Schedule 2.15       Existing Target Debt and Surviving Target Debt
Exhibits      
Exhibit A      

Form of Note

Exhibit B-1      

Form of Notice of Borrowing

Exhibit B-2      

Form of Notice of Continuation

Exhibit C      

Form of Assignment and Acceptance

Exhibit D-1      

Form of Opinion of Counsel for PPG

Exhibit D-2      

Form of Opinion of In-House Counsel for PPG

 

iv

PPG 364 Day Credit Agreement


364-DAY CREDIT AGREEMENT

Dated as of December 7, 2007

PPG INDUSTRIES, INC., a Pennsylvania corporation (“ PPG ”), PPG INDUSTRIES SECURITIES, INC., a Delaware corporation (collectively with PPG, the “ Borrowers ”) the banks, financial institutions and other institutional lenders (the “ Initial Lenders ”) listed on the signature pages hereof, CREDIT SUISSE, CAYMAN ISLANDS BRANCH (“ Credit Suisse ”), as administrative agent (the “ Administrative Agent ”) for the Lenders, THE BANK OF TOKYO – MITSUBISHI UFJ, LTD., NEW YORK BRANCH and DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH, as co-syndication agents, JPMORGAN CHASE BANK, N.A. and MORGAN STANLEY BANK, as co-documentation agents, and CREDIT SUISSE SECURITIES (USA) LLC, THE BANK OF TOKYO – MITSUBISHI UFJ, LTD., NEW YORK BRANCH, DEUTSCHE BANK SECURITIES INC., J.P. MORGAN SECURITIES INC. and MORGAN STANLEY BANK, as joint lead arrangers and joint book managers (collectively, the “ Joint Lead Arrangers ”), agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

SECTION 1.01. Certain Defined Terms . As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

Acquisition ” means the acquisition by PPG of all of the Equity Interests in the Target pursuant to the Acquisition Agreement.

Acquisition Agreement ” means the Amended and Restated Agreement for the Sale and Purchase of SigmaKalon (BC) Holdco B.V. dated December 4, 2007 between PPG and the Seller, as amended or otherwise modified or as any of the terms or conditions thereof may be waived from time to time with the consent of the Administrative Agent.

Additional Margin ” means, (a) 0.0% during the period from and including the Effective Date up to, but excluding, the two month anniversary of the Effective Date, (b) 0.10% per annum during the period from and including the two month anniversary of the Effective Date up to, but excluding, the four month anniversary of the Effective Date, (c) 0.20% per annum during the period from and including the four month anniversary of the Effective Date up to, but excluding, the sixth month anniversary of the Effective Date, and (d) 0.30% per annum during the period beginning on the sixth month anniversary of the Effective Date and thereafter.

Advance ” means an advance by a Lender to any Borrower as part of a Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate Advance (each of which shall be a “ Type ” of Advance).

Affiliate ” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. For purposes of this definition, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) of a Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by contract or otherwise.

Agent’s Account ” means (a) in the case of Advances denominated in Dollars, the account of the Administrative Agent maintained by the Administrative Agent at Bank of New York, ABA No.: 021000018, Account Name: CS Cayman A/C, Account No.: XXXXXXXXXX, Reference: PPG, (b) in the case of Advances denominated in Euro, the account of the Administrative Agent maintained by the

 

1

PPG 364 Day Credit Agreement


Administrative Agent at Citibank N.A. London, SWIFT: CITIGB2L, F/O: CS NYC, SWIFT Code: CRESUS33, Account No.: XXXXXXXX, Reference: PPG, and (c) in any such case, such other account of the Administrative Agent as is designated in writing from time to time by the Administrative Agent to the Borrowers and the Lenders for such purpose.

Applicable Lending Office ” means, with respect to each Lender, such Lender’s Domestic Lending Office in the case of a Base Rate Advance (which shall only occur pursuant to the provisions of Section 2.06 or 2.10) and such Lender’s Eurocurrency Lending Office in the case of a Eurocurrency Rate Advance.

Applicable Margin ” means (a) for Base Rate Advances, 0% per annum, and (b) for Eurocurrency Rate Advances, a percentage per annum determined by reference to the Corporate Rating in effect on such date as set forth below:

 

Corporate Rating

S&P/Moody’s

   Applicable Margin for
Eurocurrency Rate Advances
 

Level 1

AA- or Aa3 or above

   0.25 %

Level 2

Lower than Level 1 but at least A- or A3

   0.30 %

Level 3

Lower than Level 2 but at least BBB- or Baa3

   0.45 %

Level 4

Lower than Level 3

   0.75 %

Assignment and Acceptance ” means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in substantially the form of Exhibit C hereto or any other form approved by the Administrative Agent and PPG, PPG’s consent not to be unreasonably withheld or delayed.

Bankruptcy Law ” means any proceeding of the type referred to in Section 6.01(h) or 6.01(i) or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.

Base Rate ” means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the higher of:

(a) the rate of interest per annum then most recently announced by Credit Suisse in New York, New York, from time to time, as Credit Suisse’s prime rate for Dollars loaned in the United States; and

(b)  1 / 2 of 1% per annum above the Federal Funds Rate.

The Base Rate is an index rate and is not necessarily intended to be the lowest or best rate of interest charged to other customers in connection with extensions of credit or to other banks.

Base Rate Advance ” means an Advance denominated in Dollars that bears interest as provided in Section 2.05(a)(ii).

Borrowing ” means a borrowing consisting of simultaneous Advances made by each of the Lenders pursuant to Section 2.01.

Borrowing Minimum ” means €10,000,000.

 

2

PPG 364 Day Credit Agreement


Borrowing Multiple ” means €1,000,000.

Business Day ” means a day of the year on which banks are not required or authorized by law to close in New York City and, if the applicable Business Day relates to any Eurocurrency Rate Advances, on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.

Commitment ” means as to any Lender (a) the Euro amount set forth opposite such Lender’s name on the signature pages hereof or (b) if such Lender has entered into any Assignment and Acceptance, the Euro amount set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(d).

Completion Date ” means the date on which “Completion” (as defined in the Acquisition Agreement) occurs.

Confidential Information ” means any and all information and data of PPG and any of PPG’s Subsidiaries that is furnished or otherwise becomes known to the Administrative Agent or any Lender by or through PPG and its Subsidiaries, but does not include any such information that is or becomes generally available to the public (other than, in the case of the Administrative Agent or any Lender, as a result of the disclosure thereof by the Administrative Agent or such Lender, as the case may be) or that is or becomes available to the Administrative Agent or such Lender from a source other than PPG that, to the knowledge of the Administrative Agent or such Lender, as the case may be, is under no duty or obligation to keep such information or data confidential.

Consolidated ” refers to the consolidation of accounts in accordance with GAAP.

Consolidated Subsidiaries ” means the subsidiaries of PPG whose accounts are consolidated with the accounts of PPG in PPG’s consolidated financial statements prepared in accordance with GAAP.

Corporate Rating ” means, as of any date of determination, the corporate rating or corporate family rating as determined by either S&P or Moody’s, respectively, of the Borrower. For purposes of the foregoing, (a) if only one of S&P and Moody’s shall have in effect a Corporate Rating, the Applicable Margin shall be determined by reference to the available rating; (b) if neither S&P nor Moody’s shall have in effect a Corporate Rating, the Applicable Margin will be set in accordance with Level 4 under the definition of “ Applicable Margin ”; (c) if the ratings established by S&P and Moody’s shall fall within different levels, the Applicable Margin shall be based upon (i) if such different levels differ by only one level, the higher rating and (ii) if such different levels differ by more than one level, the level immediately below the higher rating; (d) if any rating established by S&P or Moody’s shall be changed, such change shall be effective as of the date on which such change is first announced publicly by the rating agency making such change; and (e) if S&P or Moody’s shall change the basis on which ratings are established, each reference to the Corporate Rating announced by S&P or Moody’s, as the case may be, shall refer to the then equivalent rating by S&P or Moody’s, as the case may be.

Default ” means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.

Disclosed Matters ” means the actions, suits and proceedings disclosed or otherwise described in PPG’s Annual Report on Form 10-K for the fiscal year ended December 31, 2006 or Quarterly Reports on Forms 10-Q for the quarters ended March 31, 2007, June 30, 2007 and September 30, 2007.

Dollars ” and the “ $ ” sign each means lawful currency of the United States of America.

Domestic Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify to the Borrowers and the Administrative Agent.

 

3

PPG 364 Day Credit Agreement


Effective Date ” has the meaning specified in Section 3.01.

Eligible Assignee ” means any Person approved by the Administrative Agent, each such approval not to be unreasonably withheld or delayed; provided , however , that neither PPG nor an Affiliate of PPG shall qualify as an Eligible Assignee.

EMU Legislation ” means (a) the Treaty on European Union (the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998), and (b) legislative measures of the European Council (including without limitation European Council regulations) for the introduction of, changeover to or operation of the Euro, in each case as amended or supplemented from time to time.

Equity Interests ” means, with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized or otherwise existing on any date of determination.

Equivalent ” in Dollars or Euro on any date means the equivalent in Dollars or Euro determined by using the quoted spot rate at which the Administrative Agent’s principal office in London offers to exchange Dollars or Euro, as the case may be, for such currency in London prior to 4:00 P.M. (London time) (unless otherwise indicated by the terms of this Agreement) on such date as is required pursuant to the terms of this Agreement.

ERISA ” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time.

ERISA Affiliate ” means any trade or business (whether or not incorporated) that is a member of a group of which PPG is a member and which is treated as a single employer under Section 414 of the Internal Revenue Code.

Escrow Accounts ” means accounts established at the Escrow Agent, in the name of the Escrow Agent, pursuant to the terms of the Escrow Agreement.

Escrow Agent ” means JPMorgan Chase Bank, N.A.

Escrow Agreement ” means that certain Escrow Agreement dated as of December 4, 2007 (as amended or otherwise modified or as any of the terms or conditions thereof may be waived from time to time with the consent of the Administrative Agent), by and among PPG, PPG Europe B.V., the Seller and the Escrow Agent, and acknowledged by the Notary, pursuant to which, subject to the occurrence of the Satisfaction Date before December 27, 2007, the proceeds of the First Borrowing will be deposited in an Escrow Account.

EURIBO Rate ” means, for any Interest Period for each Eurocurrency Rate Advance comprising part of the same Borrowing consisting of Euro, (a) the rate per annum equal to the Banking Federation of the European Union EURIBOR Rate (“ BFEA EURIBOR ”), as published by Bloomberg (or another commercially available source providing quotations of BFEA EURIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 A.M., Brussels time, two Business Days

 

4

PPG 364 Day Credit Agreement


prior to the commencement of such Interest Period, for deposits in Euro (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, or (b) if for any reason such rate is not available at such time, the rate per annum determined by the Administrative Agent to be the rate per annum at which deposits in Euro are offered by the principal office of Credit Suisse in London, England to prime banks in the London interbank market at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period in an amount substantially equal to Credit Suisse’s Eurocurrency Rate Advance comprising part of such Borrowing to be outstanding during such Interest Period and for a period equal to such Interest Period, or (c) if for any reason neither of such rates is available at such time, the average of the rate per annum at which deposits in Euro are offered by the principal office of each of the Reference Banks in London, England to prime banks in the London interbank market at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period in an amount substantially equal to such Reference Bank’s Eurocurrency Rate Advance comprising part of such Borrowing to be outstanding during such Interest Period and for a period equal to such Interest Period.

Euro ” and the “ ” sign each means the lawful currency of the European Union as constituted by the treaty establishing the European Community being the Treaty of Rome, as amended from time to time and as referred to in the EMU legislation.

Eurocurrency Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “Eurocurrency Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify to the Borrowers and the Administrative Agent.

Eurocurrency Liabilities ” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

Eurocurrency Rate ” means for any Interest Period for each Eurocurrency Rate Advance comprising part of the same Borrowing, an interest rate per annum equal to the EURIBO Rate.

Eurocurrency Rate Advance ” means an Advance that bears interest as provided in Section 2.05(a)(i).

Events of Default ” has the meaning specified in Section 6.01.

Existing Target Debt ” means Indebtedness of the Target and its Subsidiaries outstanding immediately before the occurrence of the Effective Date.

Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

First Borrowing ” means a Borrowing or Borrowings in the aggregate amount of up to €750,000,000, less the aggregate amount of any Net Cash Proceeds that PPG and its Subsidiaries receive following the Effective Date.

$500 Million Credit Agreement ” means that certain $500 Million 364-Day Credit Agreement dated as of December 7, 2007, among PPG Industries, Inc., certain other borrowers party thereto, certain lenders party thereto, Credit Suisse, Cayman Islands Branch, as Administrative Agent for such lenders, and Credit Suisse Securities (USA) LLC, as sole lead arranger and sole book manager.

 

5

PPG 364 Day Credit Agreement


Funded Debt ” means all Indebtedness for money borrowed which by its terms matures at or is extendable or renewable at the option of the obligor to a date more than twelve months after the date of the creation of such Indebtedness.

GAAP ” has the meaning specified in Section 1.03.

Guarantee ” of or by any Person means any obligation, contingent or otherwise, of such Person guaranteeing any Indebtedness of any other Person, whether directly or indirectly, and including any obligation of such Person, direct or indirect, to purchase or pay such Indebtedness or to purchase any security for the payment of such Indebtedness; provided , however , that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business.

Guaranteed Obligations ” has the meaning specified in Section 7.01.

Guaranty ” means Guarantee by PPG contained in Article VII.

Indebtedness ” of any Person at any time means, without duplication, (a) all obligations for money borrowed or raised, all obligations (other than accounts payable and other similar items arising in the ordinary course of business) for the deferred payment of the purchase price of property, and all capital lease obligations which, in each case in accordance with GAAP, would be included in determining total liabilities as shown on the liability side of the balance sheet of such Person and (b) all Guarantees by such Person.

Interest Period ” means, initially, for each Eurocurrency Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Eurocurrency Rate Advance and ending on the last day of the period selected by the applicable Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by such Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one, two, three or six months, as the applicable Borrower may select upon notice received by the Administrative Agent not later than 11:00 A.M. (New York City time), provided , however , that:

(a) such Borrower may not select any Interest Period that ends after the Termination Date;

(b) Interest Periods commencing on the same date for Eurocurrency Rate Advances comprising part of the same Borrowing shall be of the same duration;

(c) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided , however , that, if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day;

(e) whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month; and

(f) if the aggregate principal amount of Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than the Borrowing Minimum, or if an Event of Default shall have occurred and shall be continuing under Section 6.01(a), any new Interest Period therefor shall not exceed one month.

 

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Internal Revenue Code ” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

Lenders ” means the Initial Lenders and each Person that shall become a party hereto pursuant to Section 9.07.

Lien ” means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.

Loan Documents ” means, collectively, this Agreement and the Notes.

Mandatory Cost ” means, with respect to any period, the percentage rate per annum determined in accordance with Schedule 1.01.

Margin Stock ” shall have the meaning given such term under Regulation U of the Board as from time to time in effect, including all official interpretations thereunder or thereof.

Material Adverse Effect ” means a materially adverse effect on the business, assets, operations or financial condition of PPG and its Subsidiaries, taken as a whole, or a material impairment of the ability of PPG to perform any of its obligations under this Agreement or any of the other Loan Documents to which it is or will be a party.

Moody’s ” means Moody’s Investors Service, Inc.

Net Cash Proceeds ” means:

(a) with respect the offering, incurrence or issuance of any Indebtedness by PPG or any of its Subsidiaries (other than (i) issuances of commercial paper by PPG in the ordinary course of business consistent with past practices, including, without limitation, any such issuances the proceeds of which are to be used to satisfy any amounts due under supplier arrangements, legal settlements, regulatory obligations or judgments or to pay all or any portion of the consideration in respect of any strategic acquisitions, (ii) Indebtedness under any senior bank credit facility, including, without limitation, the $500 Million Credit Agreement and the €650 Million Credit Agreement, (iii) Indebtedness under the SigmaKalon Securitization in an aggregate amount not to exceed €150,000,000 outstanding at any time and (iv) other Indebtedness in an aggregate amount not to exceed $100,000,000 outstanding at any time), the excess of (A) the sum of the cash and cash equivalents received in connection with such offering, incurrence or issuance over (B) the underwriting discounts and commissions or other similar payments, and other out-of-pocket costs, fees, commissions, premiums and expenses incurred by PPG and its Subsidiaries in connection with such offering, incurrence or issuance to the extent such amounts were not deducted in determining the amount referred to in clause (A); and

(b) with respect to the offering, sale or issuance of any Equity Interests (including, without limitation, the receipt of any capital contribution) by PPG or any of its Subsidiaries (other than equity interests issued to PPG or any of its Subsidiaries), the excess of (i) the sum of the cash and cash equivalents received in connection with such sale or issuance over (ii) the underwriting discounts and commissions or similar payments, and other out-of-pocket costs, fees, commissions, premiums and expenses, incurred by PPG and its Subsidiaries in connection with such offering, sale or issuance to the extent such amounts were not deducted in determining the amount referred to in clause (i); provided , however , that Net Cash Proceeds shall not include (x) any funds received in connection with the exercise of stock options granted to employees or directors of PPG or any of its Subsidiaries, (y) funds received in connection with dividend reinvestment programs, or (z) funds received from the sale of the automotive original equipment manufacture glass and

 

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automotive replacement glass and services businesses of PPG and its Subsidiaries to Platinum Equity, LLC and the sale of the fine chemicals business of PPG and its Subsidiaries to ZaCh System S.p.A.

Notary ” means Robert Jan Jozef Lijdsman of Allen & Overy LLP, Amsterdam.

Notary Letter ” means that certain letter dated as of December 4, 2007 (as amended or otherwise modified or as any of the terms or conditions thereof may be waived from time to time with the consent of the Administrative Agent), by the Notary to the Seller, PPG, PPG Europe B.V. and ING Bank N.V.

Note ” means a promissory note of any Borrower payable to the order of any Lender, delivered pursuant to a request made under Section 2.14 in substantially the form of Exhibit A hereto, evidencing the aggregate indebtedness of such Borrower to such Lender resulting from the Advances made by such Lender to such Borrower.

Notice of Borrowing ” has the meaning specified in Section 2.02(a).

Notice of Continuation ” has the meaning specified in Section 2.02(f).

Overnight Eurocurrency Rate ” means the average of the rates that represent the cost of overnight funds in Euro to each of the Reference Banks for such day. The Administrative Agent shall determine the Overnight Eurocurrency Rate for Euro by obtaining appropriate rate quotes from the Reference Banks, and if any such bank fails to timely provide such quote for any day, then the Overnight Eurocurrency Rate for such day shall be determined by the average based on the quotes from the banks that provided such quotes on that day.

Participating Member State ” means each state so described in any EMU Legislation.

Payment Office ” means, for Euro, such office of Credit Suisse as shall be from time to time selected by the Administrative Agent and notified by the Administrative Agent to the Borrowers and the Lenders.

PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

Person ” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.

Plan ” means any pension plan subject to the provisions of Title IV of ERISA or Section 412 of the Internal Revenue Code which is maintained for employees of PPG or any ERISA Affiliate.

Post Petition Interest ” has the meaning specified in Section 7.05(b).

Reference Banks ” means Credit Suisse, JPMorgan Chase Bank, N.A. and Deutsche Bank AG New York Branch.

Register ” has the meaning specified in Section 9.07(d).

Reportable Event ” means any reportable event as defined in Section 4043(b) of ERISA or the regulations issued thereunder with respect to a Plan (other than a Plan maintained by an ERISA Affiliate which is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Internal Revenue Code).

 

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Required Lenders ” means at any time Lenders holding more than 50% of the sum of the then aggregate unpaid principal amount of the Advances owing to Lenders, or, if no such principal amount is then outstanding, Lenders having more than 50% of the Commitments.

Restricted Subsidiary ” means:

(a) any Subsidiary of PPG other than

(i) a Subsidiary substantially all of the physical properties of which are located, or substantially all of the business of which is carried on, outside the United States of America (“United States of America” shall not include the territories and possessions thereof), other than the Target, or

(ii) a Subsidiary the primary business of which consists of purchasing accounts receivable and/or making loans secured by accounts receivable or inventories and/or making investments in real estate or providing services directly related thereto, or which is otherwise primarily engaged in the business of a finance or real estate investment company, or

(iii) a Subsidiary the primary business of which consists of leasing equipment, machinery, vehicles, rolling stock and other articles for use in the business of PPG, or

(iv) a Subsidiary the stock of which is held primarily for the purpose of securing the investment of PPG in such Subsidiary, while the management of such Subsidiary is accumulating funds for the purchase of such stock pursuant to written contract, and

(b) any Subsidiary specified in clauses (i) through (iv) of paragraph (a) above which at the time of determination shall be designated a Restricted Subsidiary pursuant to designation by the board of directors of PPG. PPG may, by a resolution adopted by its board of directors, designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that in the opinion of the board of directors of PPG such Subsidiary does not own a manufacturing or research property, plant or facility which is of material importance to the business of PPG and its Restricted Subsidiaries taken as a whole, and may designate any Unrestricted Subsidiary to be a Restricted Subsidiary. PPG may by a resolution adopted by its board of directors designate a newly acquired or formed Subsidiary other than the Target to be an Unrestricted Subsidiary, provided such designation takes place within 90 days of such acquisition or formation.

S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

Satisfaction Date ” has the meaning set forth in the Acquisition Agreement, without taking into account any waiver unless consented to in writing by the Administrative Agent.

Second Borrowing ” means a Borrowing or Borrowings in the aggregate amount of €1,000,000,000, less the aggregate amount of the First Borrowing, less the aggregate amount of any Net Cash Proceeds that PPG and its Subsidiaries receive following the Effective Date that have not been used to reduce the First Borrowing.

Secured Debt ” means Indebtedness for money borrowed if such Indebtedness is secured by a mortgage, pledge, lien, security interest or encumbrance on any of the manufacturing or research property, plant or facilities of PPG or any Restricted Subsidiary (but not including a property determined not to be a principal property of PPG or a Restricted Subsidiary by the board of directors of PPG in its discretion) or on any shares of stock or indebtedness of any Restricted Subsidiary.

 

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Seller ” means SigmaKalon Luxco 2, S.à.r.l., a société à responsabilité limitée .

Shareholders’ Interest ” means as of any particular time, the aggregate of equity capital and surplus of PPG and its Consolidated Subsidiaries, after deducting the cost of the shares of PPG held in PPG’s treasury (i.e., shares which had been previously issued and outstanding but have been reacquired and are presently held by PPG), as shown on a consolidated balance sheet of PPG and its Consolidated Subsidiaries, prepared in accordance with GAAP, as of the end of the latest fiscal year ended prior to such determination.

SigmaKalon Securitization ” means the €150,000,000 trade receivables securitization program entered into as of April 28, 2006 by and among HSBC France and certain Subsidiaries of the Target.

€650 Million Credit Agreement ” means that certain €650 Million Credit Facility dated as of December 3, 2007, among PPG and certain subsidiaries of PPG listed on Schedule 1 thereof as the original borrowers, BNP Paribas Securities Corp. and SG Americas Securities, LLC, as mandated lead arrangers, Société Générale, New York Branch, as swingline agent in relation to the US$ swingline facility, Société Générale, as swingline agent in relation to the Euro swingline facility, Société Générale, as Facility Agent and BNP Paribas Securities Corp., as Syndication Agent.

Subordinated Obligations ” has the meaning specified in Section 7.05.

Subsidiary ” of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such limited liability company, partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries.

Surviving Target Debt ” means Indebtedness of the Target and its Subsidiaries outstanding immediately before and after giving effect to the Advances as described on Part II of Schedule 2.15.

Target ” means SigmaKalon (BC) Holdco B.V.

Termination Date ” means the earlier of (a) December 5, 2008, (b) April 30, 2008, unless on or before such date the Acquisition has been consummated and all conditions specified in Sections 3.01, 3.02 and 3.03 have been satisfied or waived, (c) January 31, 2008, if the Satisfaction Date has occurred prior to December 27, 2007, unless on or before January 31, 2008 the Acquisition has been consummated and all conditions specified in Sections 3.01, 3.02 and 3.03 have been satisfied or waived, and (d) the date of termination in whole of the Commitments pursuant to Section 6.01.

Total Capitalization ” means, as at any date, with respect to PPG and its Consolidated Subsidiaries, the sum (determined on a consolidated basis without duplication in accordance with GAAP) of (a) Total Indebtedness as at such date plus (b) the amount that should be set forth on the consolidated balance sheet of PPG and its Consolidated Subsidiaries prepared as at such date opposite the caption “Total Shareholders’ Equity” (or the equivalent caption), excluding the amount reported in the financial statements as “Accumulated Other Comprehensive Income (Loss)” related to “Pension and Other Postretirement Benefit Adjustments”.

 

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Total Indebtedness ” means, as at any date, the total amount of Indebtedness of PPG and its Consolidated Subsidiaries on such date, determined on a consolidated basis without duplication in accordance with GAAP.

Unrestricted Subsidiary ” means any Subsidiary of PPG which is not a Restricted Subsidiary.

Voting Stock ” means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.

Wholly-owned Restricted Subsidiary ” means a Restricted Subsidiary all of the outstanding capital stock of which, other than directors’ qualifying shares, and all of the Funded Debt of which, shall at the time be owned by PPG or by one or more Wholly-owned Restricted Subsidiaries, or by PPG in conjunction with one or more Wholly-owned Restricted Subsidiaries.

SECTION 1.02. Computation of Time Periods . In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.

SECTION 1.03. Accounting Terms . All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles consistent with those applied in the preparation of the audited financial statements referred to in Section 4.01(c) (“ GAAP ”).

ARTICLE II

AMOUNTS AND TERMS OF THE ADVANCES

SECTION 2.01. The Advances . Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make one or more Advances to the Borrowers in respect of the First Borrowing and the Second Borrowing in an aggregate amount not to exceed the amount of such Lender’s Commitment. Each Borrowing shall consist of Eurocurrency Rate Advances made simultaneously by the Lenders to the same Borrower ratably according to their Commitments. Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed. Anything contained herein to the contrary notwithstanding, (a) no Borrowings shall be made after April 30, 2008 (or, if the Satisfaction Date has occurred prior to December 27, 2007, January 31, 2008), and (b) to the extent that PPG and its Subsidiaries receives any Net Cash Proceeds following the Effective Date, the unfunded Commitments of the Lenders hereunder shall be ratably reduced by the aggregate amount of such Net Cash Proceeds.

SECTION 2.02. Making the Advances . (a) Each Borrowing shall be made on notice, given not later than 5:00 P.M. (New York City time) on the third Business Day prior to the date of such Borrowing, by the applicable Borrower to the Administrative Agent, which shall give to each Lender prompt notice thereof. Each notice of Borrowing (a “ Notice of Borrowing ”) shall be by telephone, confirmed immediately in writing, or telecopier or telex in substantially the form of Exhibit B-1 hereto, specifying therein the requested (i) date of such Borrowing (which shall be a Business Day) and identity of the applicable Borrower, (ii) aggregate amount of such Borrowing, and (iii) initial Interest Period. Each Lender shall, before 11:00 A.M. (London time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the applicable Agent’s Account, in same day funds, such Lender’s ratable portion of each Borrowing. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower that requested such Advances via wire transfer as directed by such Borrower in the applicable Notice of Borrowing, provided that (A) if the First Borrowing occurs before December 27, 2007, the proceeds thereof shall be disbursed to the Escrow Agent pursuant to the terms of the Escrow Agreement, and (B) in all other cases, the proceeds of the applicable Borrowing shall be disbursed to the Notary.

 

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(b) Anything in subsection (a) above to the contrary notwithstanding, (i) the aggregate amount of each Borrowing shall not be less than the Borrowing Minimum and, if in excess thereof, shall be in a Borrowing Multiple in excess thereof and (ii) no more than six separate Borrowings may be outstanding at any time hereunder.

(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower giving such Notice of Borrowing. The Borrower giving any Notice of Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as part of such Borrowing when such Advance, as a result of such failure, is not made on such date.

(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and the applicable Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of a Borrower, the higher of (A) the interest rate applicable at the time to Advances comprising such Borrowing and (B) the cost of funds incurred by the Administrative Agent in respect of such amount and (ii) in the case of such Lender, the Overnight Eurocurrency Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Advance as part of such Borrowing for purposes of this Agreement.

(e) The failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of such Borrowing.

(f) Each Borrower shall continue all or any portion of any Eurocurrency Rate Advance upon the expiration of the applicable Interest Period, and the succeeding Interest Period of any such continued Eurocurrency Rate Advance shall commence on the last day of the Interest Period of the Eurocurrency Rate Advance to be continued. Any Eurocurrency Rate Advance or group of Eurocurrency Rate Advances having the same proposed Interest Period to be continued as a Eurocurrency Rate Advance shall be not less than the Borrowing Minimum and, if in excess thereof, in a Borrowing Multiple in excess thereof. Any such continuation must be made by 11:00 A.M. (New York City time) on the fourth Business Day prior to the end of the Interest Period with respect to any Eurocurrency Rate Advance to be continued as such. Each continuation must be made pursuant to a written notice to the Administrative Agent by telephone, confirmed immediately in writing or by telecopier in substantially the form of Exhibit B-2 hereto (a “ Notice of Continuation ”). If no Notice of Continuation is received by the Administrative Agent with respect to a Eurocurrency Rate Advance by 11:00 A.M. (New York City time) on the fourth Business Day prior to the end of the Interest Period with respect thereto, such Eurocurrency Rate Advance shall be continued in accordance with Section 2.06(c).

SECTION 2.03. Fees . The Borrowers shall pay to the Administrative Agent for its own account such fees as may from time to time be agreed between PPG and the Administrative Agent.

SECTION 2.04. Repayment . The Borrowers shall repay to the Administrative Agent for the ratable account of the Lenders on the Termination Date the aggregate principal amount of the Advances then outstanding.

 

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SECTION 2.05. Interest on Advances . (a)  Scheduled Interest . The Borrowers shall pay interest on the unpaid principal amount of each Advance owing to each Lender from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum:

(i) Eurocurrency Rate Advances . During such periods as such Advance is a Eurocurrency Rate Advance, a rate per annum equal at all times during each Interest Period for such Advance to the sum of (w) the Eurocurrency Rate for such Interest Period for such Advance plus (x) the Applicable Margin in respect of Eurocurrency Rate Advances in effect from time to time plus (y) the Additional Margin in effect from time to time plus (z) the Mandatory Cost, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such Eurocurrency Rate Advance shall be Converted or paid in full

(ii) Base Rate Advances . During such periods as such Advance is a Base Rate Advance (which shall only occur pursuant to the provisions of Section 2.06 or 2.10), a rate per annum equal at all times to the sum of (x) the Base Rate in effect from time to time plus (y) the Applicable Margin in respect of Base Rate Advances in effect from time to time plus (z) the Additional Margin in effect from time to time, payable in arrears quarterly on the last Business Day of each March, June, September and December during such periods and on the date such Base Rate Advance shall be Converted or paid in full.

(b) Default Interest . Upon the occurrence and during the continuance of an Event of Default under Section 6.01(a), the Administrative Agent may, and upon the request of the Required Lenders shall, require the Borrowers to pay interest (“ Default Interest ”) on (i) the unpaid principal amount of each Advance owing to each Lender, payable in arrears on the dates referred to in clause (a) above, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Advance pursuant to clause (a) above and (ii) to the fullest extent permitted by law, the amount of any interest, fee or other amount payable hereunder that is not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on Base Rate Advances pursuant to clause (a)(ii) above; provided , however , that, following acceleration of the Advances pursuant to Section 6.01, Default Interest shall accrue and be payable hereunder whether or not previously required by the Administrative Agent.

SECTION 2.06. Interest Rate Determination . (a) If it is necessary to determine the Eurocurrency Rate or the Overnight Currency Rate, each Reference Bank agrees to furnish to the Administrative Agent timely information for the purpose of determining each Eurocurrency Rate and each Overnight Eurocurrency Rate. If any one or more of the Reference Banks shall not furnish such timely information to the Administrative Agent for the purpose of determining any such interest rate, the Administrative Agent shall determine such interest rate on the basis of timely information furnished by the remaining Reference Banks. The Administrative Agent shall give prompt notice to the Borrowers and the Lenders of the applicable interest rate determined by the Administrative Agent for purposes of Section 2.05(a), and the rate, if any, furnished by each Reference Bank for the purpose of determining the interest rate under Section 2.05(a)(i).

(b) If, with respect to any Eurocurrency Rate Advances, the Required Lenders notify the Administrative Agent that (i) they are unable to obtain matching deposits in the London inter-bank market at or about 11:00 A.M. (London time) on the second Business Day before the making of a Borrowing in sufficient amounts to fund their respective Advances as a part of such Borrowing during its Interest Period or (ii) the Eurocurrency Rate for any Interest Period for such Advances will not adequately reflect the cost to such Required Lenders of making, funding or maintaining their respective Eurocurrency Rate Advances for such Interest Period, the Administrative Agent shall forthwith so notify the Borrowers and the Lenders, whereupon (A) the applicable Borrower will, on the last day of the then existing Interest Period therefor, either (x) prepay such Advances or (y) exchange such Advances into an Equivalent amount of Dollars and convert such Advances into Base Rate Advances and (B) the obligation of the Lenders to provide Eurocurrency Rate Advances shall be suspended until the Administrative Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist; provided that (1) the applicable Borrower may elect, by notice to the Administrative Agent and the Lenders, to continue such Advances for a period of not longer than 30 days, which Advances shall bear interest at a rate per annum equal to the Applicable Margin in respect of Eurocurrency Rate Advances, plus the Additional

 

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Margin, plus, for each Lender, the cost to such Lender (expressed as a rate per annum) of funding its Eurocurrency Rate Advances by whatever means it reasonably determines to be appropriate, plus, without duplication, the Mandatory Cost and (2) if the circumstances causing such suspension shall cease to exist, any conversion of Advances back to Eurocurrency Rate Advances shall be on such terms and conditions as the Administrative Agent may reasonably require. Each Lender shall certify its cost of funds for each Interest Period to the Administrative Agent and the applicable Borrower as soon as practicable (but in any event not later than ten Business Days after the first day of such period).

(c) If any Borrower shall fail to select the duration of any Interest Period for any Eurocurrency Rate Advances in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01 and Section 2.02(f), the Administrative Agent will forthwith so notify such Borrower and the Lenders and the Interest Period for such Advances will automatically, on the last day of the then existing Interest Period therefor, become one month.

(d) If information necessary for determining any Eurocurrency Rate is unavailable and fewer than two Reference Banks furnish timely information to the Administrative Agent for determining the Eurocurrency Rate for any Eurocurrency Rate Advances,

(i) the Administrative Agent shall forthwith notify the applicable Borrower and the Lenders that the interest rate cannot be determined for such Eurocurrency Rate Advances,

(ii) each Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, be prepaid by the applicable Borrower or be automatically exchanged for an Equivalent amount of Dollars and be converted into a Base Rate Advance, and

(iii) the obligation of the Lenders to provide Eurocurrency Rate Advances shall be suspended until the Administrative Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist.

SECTION 2.07. [ Intentionally Omitted ].

SECTION 2.08. Prepayments of Advances . (a)  Optional . Any Borrower may, upon notice at least three Business Days’ prior to the date of such prepayment, in the case of Eurocurrency Rate Advances, and not later than 11:00 A.M. (New York City time) on the date of such prepayment, in the case of Base Rate Advances, to the Administrative Agent stating the proposed date and aggregate principal amount of the prepayment, and if such notice is given such Borrower shall, prepay the outstanding principal amount of the Advances comprising part of the same Borrowing in whole or ratably in part, together with, notwithstanding Section 2.05(a), accrued interest to the date of such prepayment on the principal amount prepaid; provided , however , that (x) each partial prepayment shall be in an aggregate principal amount not less than the Borrowing Minimum or Borrowing Multiple in excess thereof and (y) in the event of any such prepayment of a Eurocurrency Rate Advance, the applicable Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section 9.04(c).

(b) Mandatory . (i) On the date of receipt of any Net Cash Proceeds by any Borrower or any of its Subsidiaries (other than any such Net Cash Proceeds the amount of which is applied to reduce the aggregate amount of the unfunded Commitments as provided in Section 2.01), the Borrowers shall prepay an aggregate principal amount of the Advances (as specified by PPG prior to such prepayment or, in the absence of such specification, as determined by the Administrative Agent) in an amount equal to the amount of such Net Cash Proceeds.

(ii) Each prepayment made pursuant to this Section 2.08(b) shall be made together with, notwithstanding Section 2.05(a), any interest accrued to the date of such prepayment on the principal amounts prepaid and, in the case of any prepayment of a Eurocurrency Rate Advance on a date other than the last day of an Interest Period or at its maturity, any additional amounts which the Borrowers shall be obligated to reimburse to the Lenders in respect thereof pursuant to Section 9.04(c).

 

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SECTION 2.09. Increased Costs . (a) If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other governmental authority including, without limitation, any agency of the European Union or similar monetary or multinational authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances (excluding for purposes of this Section 2.09 any such increased costs resulting from (1) Taxes or Other Taxes (as to which Section 2.12 shall govern) and (2) changes in the basis of taxation of overall net income or overall gross income by the United States of America or by the foreign jurisdiction or state under the laws of which such Lender is organized or has its Applicable Lending Office or any political subdivision thereof), then the Borrowers shall from time to time, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to the Borrowers and the Administrative Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest error.

(b) If any Lender determines that compliance with any law or regulation or any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Lender or any Person controlling such Lender and that the amount of such capital is increased by or based upon the existence of such Lender’s commitment to lend hereunder and other commitments of this type, then, upon demand by such Lender (with a copy of such demand to the Administrative Agent), the Borrowers shall pay to the Administrative Agent for the account of such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender or such Person in the light of such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender’s commitment to lend hereunder. A certificate as to such amounts submitted to the Borrowers and the Administrative Agent by such Lender shall be conclusive and binding for all purposes, absent manifest error.

SECTION 2.10. Illegality . Notwithstanding any other provision of this Agreement, if any Lender shall notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful, for any Lender or its Eurocurrency Lending Office to perform its obligations hereunder to make Eurocurrency Rate Advances or to fund or maintain Eurocurrency Rate Advances hereunder, (a) each Eurocurrency Rate Advance will automatically, upon such demand, be exchanged into an Equivalent amount of Dollars and be converted into a Base Rate Advance, and (b) the obligation of the Lenders to provide Eurocurrency Rate Advances shall be suspended until the Administrative Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, provided that if the circumstances causing such suspension shall cease to exist, any conversion of Advances back to Eurocurrency Rate Advances shall be on such terms and conditions as the Administrative Agent may reasonably require.

SECTION 2.11. Payments and Computations . (a) The Borrowers shall make each payment hereunder, without counterclaim or set-off, not later than 11:00 A.M. (at the Payment Office) on the day when due to the Administrative Agent, by deposit of such funds to the applicable Agent’s Account in same day funds,, with payments being received by the Administrative Agent on any Business Day after 11:00 A.M. New York City time or at the Payment Office, as the case may be (or on a day that is not a Business Day), being deemed (in the Administrative Agent’s sole discretion) to have been received on the next succeeding Business Day. The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest ratably (other than amounts payable pursuant to Section 2.09, 2.12 or 9.04(c)) to the Lenders for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 9.07(c), from and after the effective date specified in such Assignment and Acceptance, the Administrative Agent shall make all payments hereunder and under the other Loan Documents in respect of the interest assigned thereby to the Lender assignee thereunder for any period after the effective date specified in such Assignment and Acceptance, and to the Lender assignor for periods prior to such effective date.

 

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(b) Each Borrower hereby authorizes each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or under the other Loan Documents, to charge from time to time against any or all of such Borrower’s accounts with such Lender any amount so due.

(c) All computations of interest based on the Base Rate shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, all computations of interest based on the Eurocurrency Rate, Overnight Eurocurrency Rate or the Federal Funds Rate shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable. Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.

(d) Except as otherwise provided herein, whenever any payment hereunder or under the other Loan Documents shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest; provided , however , that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.

(e) Unless the Administrative Agent shall have received notice from a Borrower prior to the date on which any payment is due to the Lenders hereunder or under the other Loan Documents that such Borrower will not make such payment in full, the Administrative Agent may assume that such Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent such Borrower shall not have so made such payment in full to the Administrative Agent, each Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent, at the cost of funds incurred by the Administrative Agent in respect of such amount.

(f) To the extent that the Administrative Agent receives funds for application to the amounts owing by any Borrower under or in respect of this Agreement or any of the other Loan Documents in currencies other than the currency or currencies required to enable the Administrative Agent to distribute funds to the Lenders in accordance with the terms of this Section 2.11, the Administrative Agent shall be entitled to convert or exchange such funds into Euro to the extent necessary to enable the Administrative Agent to distribute such funds in accordance with the terms of this Section 2.11; provided that each Borrower and each of the Lenders hereby agrees that the Administrative Agent shall not be liable or responsible for any loss, cost or expense suffered by such Borrower or such Lender as a result of any conversion or exchange of currencies affected pursuant to this Section 2.11(f) or as a result of the failure of the Administrative Agent to effect any such conversion or exchange unless such loss, cost or expense or such failure is the result of fraudulent acts or omissions, gross negligence or willful misconduct of the Administrative Agent; and provided , further , that each Borrower, jointly and severally with each other Borrower, agrees to indemnify the Administrative Agent and each Lender, and hold the Administrative Agent and each Lender harmless, for any and all losses, costs and expenses incurred by the Administrative Agent or any Lender for any conversion or exchange of currencies (or the failure to convert or exchange any currencies) in accordance with this Section 2.11(f) except to the extent such losses, costs or expenses arose as a result of fraudulent acts or omissions, gross negligence or willful misconduct of the Administrative Agent.

SECTION 2.12. Taxes . (a) Any and all payments by the Borrowers to or for the account of any Lender or the Administrative Agent hereunder or under any of the other Loan Documents shall be made, in accordance with Section 2.11 or the applicable provisions of such other documents, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding , in the case of each Lender and the Administrative Agent, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction under the laws of which such Lender or the Administrative Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction of such Lender’s Applicable Lending Office or any

 

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political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder or under any of the other Loan Documents being hereinafter referred to as “ Taxes ”). If the Borrowers shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any of the other Loan Documents or any other documents to be delivered hereunder or thereunder to any Lender or the Administrative Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.12) such Lender or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrowers shall make such deductions and (iii) the Borrowers shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.

(b) In addition, the Borrowers shall be jointly and severally liable for the payment of and shall pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from any payment made hereunder or under any of the other Loan Documents or any other documents to be delivered hereunder or thereunder or from the execution, delivery or registration of, performing under, or otherwise with respect to, this Agreement or any of the other Loan Documents or any other documents to be delivered hereunder or thereunder (hereinafter referred to as “ Other Taxes ”).

(c) The Borrowers shall jointly and severally indemnify each Lender and the Administrative Agent for and hold it harmless against the full amount of Taxes or Other Taxes (including, without limitation, taxes of any kind imposed or asserted by any jurisdiction on amounts payable under this Section 2.12) imposed on or paid by such Lender or the Administrative Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30 days from the date such Lender or the Administrative Agent (as the case may be) makes written demand therefor.

(d) Within 30 days after the date of any payment of Taxes, the Borrowers shall furnish to the Administrative Agent, at its address referred to in Section 9.02, the original or a certified copy of a receipt evidencing such payment to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent. In the case of any payment hereunder or under the Notes or any other documents to be delivered hereunder by or on behalf of any Borrower through an account or branch outside the United States or by or on behalf of any Borrower by a payor that is not a United States person, if the applicable Borrower determines that no Taxes are payable in respect thereof, such Borrower shall furnish, or shall cause such payor to furnish, to the Administrative Agent, at such address, an opinion of counsel acceptable to the Administrative Agent stating that such payment is exempt from Taxes. For purposes of this subsection (d) and subsection (e) below, the terms “ United States ” and “ United States person ” shall have the meanings specified in Section 7701 of the Internal Revenue Code.

(e) Each Lender organized under the laws of a jurisdiction outside the United States, on or prior to the date of its execution and delivery of this Agreement in the case of each Initial Lender and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender in the case of each other Lender, and from time to time thereafter as reasonably requested in writing by the Borrowers (but only so long as such Lender remains lawfully able to do so), shall provide each of the Administrative Agent and the Borrowers with two original Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate of United States withholding tax on payments pursuant to this Agreement or the Notes. If the form provided by a Lender at the time such Lender first becomes a party to this Agreement indicates a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such form; provided , however , that, if at the date of the Assignment and Acceptance pursuant to which a Lender assignee becomes a party to this Agreement, the Lender assignor was entitled to payments under subsection (a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to the Lender assignee on such date. If any form or document referred to in this subsection (e) requires the disclosure of information, other than information necessary to compute the tax payable and information required on the date hereof by Internal Revenue Service form W-8BEN or W-8ECI, that the Lender reasonably considers to be confidential, the Lender shall give notice thereof to the Borrowers and shall not be obligated to include in such form or document such confidential information.

 

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(f) For any period with respect to which a Lender has failed to provide the Borrowers with the appropriate form, certificate or other document described in Section 2.12(e) ( other than if such failure is due to a change in law, or in the interpretation or application thereof, occurring subsequent to the date on which a form, certificate or other document originally was required to be provided, or if such form otherwise is not required under subsection (e) above), such Lender shall not be entitled to indemnification under Section 2.12(a) or (c) with respect to Taxes imposed by the United States of America by reason of such failure; provided , however , that should a Lender become subject to Taxes because of its failure to deliver a form, certificate or other document required hereunder, the Borrowers shall take such steps as the Lender shall reasonably request to assist the Lender to recover such Taxes.

SECTION 2.13. Sharing of Payments, Etc . If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the Advances owing to it (other than pursuant to Section 2.09, 2.12 or 9.04(c)) in excess of its ratable share of payments on account of the Advances obtained by all the Lenders holding such Advances, such Lender shall forthwith purchase from the other Lenders such participations in the Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided , however , that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. Each Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.13 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of such Borrower in the amount of such participation.

SECTION 2.14. Evidence of Debt . (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Advance owing to such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder in respect of Advances. Each Borrower agrees that upon notice by any Lender to such Borrower (with a copy of such notice to the Administrative Agent) to the effect that one or more Notes is or are required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) any of the Advances owing to, or to be made by, such Lender, such Borrower shall promptly execute and deliver to such Lender one or more Notes payable to the order of such Lender in an aggregate principal amount up to the unfunded Commitment of such Lender and the aggregate principal amount of Advances owing to such Lender.

(b) The Register maintained by the Administrative Agent pursuant to Section 9.07(d) shall include a control account, and a subsidiary account for each Lender, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from each Borrower to each Lender hereunder and (iv) the amount of any sum received by the Administrative Agent from any Borrower hereunder and each Lender’s share thereof.

(c) Entries made in good faith by the Administrative Agent in the Register pursuant to subsection (b) above, and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the applicable Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement, absent manifest error; provided , however , that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of any Borrower under this Agreement.

 

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SECTION 2.15. Use of Proceeds . The proceeds of the Advances shall be available (and each Borrower agrees that it shall use such proceeds) solely to pay all or a portion of (a) the aggregate cash consideration of €717 million and $617.4 million to the Seller pursuant to the Acquisition Agreement, (b) the amount required to refinance the Existing Target Debt described on Part I of Schedule 2.15, and (c) the fees and expenses incurred in connection with the foregoing and in connection with this Agreement. Each Borrower agrees that it shall apply the proceeds of the Advances in compliance with all applicable laws.

ARTICLE III

CONDITIONS TO EFFECTIVENESS AND LENDING

SECTION 3.01. Conditions Precedent to Effectiveness . This Agreement (other than the several obligations of the Lenders to make Advances hereunder pursuant to section 2.01) shall become effective on and as of the first date (the “ Effective Date ”) occurring on or prior to December 7, 2007 on which the following conditions precedent have been satisfied:

(a) The Lenders shall have been given such access to the management, records, books of account, contracts and properties of PPG and its Subsidiaries as they shall have reasonably requested.

(b) The Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) the “ Patriot Act ”).

(c) PPG shall have notified the Administrative Agent in writing as to the proposed Effective Date.

(d) PPG shall have paid all accrued fees and expenses of the Administrative Agent (including the accrued fees and expenses of counsel to the Administrative Agent).

(e) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of PPG, dated the Effective Date, stating that:

(i) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and

(ii) No event has occurred and is continuing that constitutes a Default.

(f) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and (except for the Notes) in sufficient copies for each Lender:

(i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.14.

(ii) Certified copies of the resolutions of the Board of Directors of PPG and each other Borrower approving this Agreement and the other Loan Documents, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Loan Documents.

(iii) A certificate of the Secretary or an Assistant Secretary of PPG and each other Borrower certifying the names and true signatures of the officers of PPG and each other Borrower authorized to sign this Agreement and the other Loan Documents and the other documents to be delivered hereunder or thereunder.

 

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(iv) Favorable opinions of (A) Kirkpatrick & Lockhart Preston Gates Ellis LLP, counsel for PPG and the other Borrowers, and (B) James C. Diggs, counsel for PPG, substantially in the form of Exhibits D-1 and D-2 hereto, respectively, and as to such other matters as any Lender through the Administrative Agent may reasonably request.

(g) The Administrative Agent shall have received such other approvals, opinions or documents as the Administrative Agent or any Lender through the Administrative Agent may reasonably request.

SECTION 3.02. Conditions Precedent to First Borrowing . The several obligations of the Lenders to make Advances hereunder comprising a part of the First Borrowing pursuant to Section 2.01 shall become effective on and as of the first date occurring on or prior to April 30, 2008 (or, if the Satisfaction Date has occurred prior to December 27, 2007, January 31, 2008) on which the following conditions precedent have been satisfied:

(a) Except for the Disclosed Matters, there shall exist no action, suit, investigation, litigation or proceeding affecting PPG or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) if adversely decided would have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any of the other Loan Documents or the consummation of the transactions contemplated hereby or thereby.

(b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby (other than the Acquisition) shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.

(c) PPG shall have notified the Administrative Agent in writing as to the proposed date of the First Borrowing.

(d) The Administrative Agent and the Lenders shall be satisfied that all Surviving Target Debt shall be on terms and conditions reasonably satisfactory to the Administrative Agent and the Lenders.

(e) PPG shall have paid all accrued fees and expenses of the Administrative Agent (including the accrued fees and expenses of counsel to the Administrative Agent).

(f) If the Satisfaction Date has occurred prior to December 27, 2007, the Escrow Agreement and the Notary Letter shall be in full force and effect without any amendment or other modification thereto except to the extent approved in writing by the Administrative Agent.

(g) On the date of the First Borrowing, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of PPG, dated the date of the First Borrowing, stating that:

(i) The representations and warranties contained in Section 4.01 (except the representations and warranties set forth in subsection (u) thereof) are correct on and as of the date of the First Borrowing, before and after giving effect to the Borrowing or Borrowings to be made on such date and to the application of the proceeds therefrom, as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date,

(ii) no event has occurred and is continuing, or would result from the Borrowing or Borrowings to be made on such date or from the application of the proceeds therefrom, that constitutes a Default, and

 

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(iii) the Satisfaction Date has occurred.

(h) If the Satisfaction Date has not occurred prior to December 27, 2007, the conditions precedent set forth in Section 3.03 shall have been satisfied.

(i) The Administrative Agent shall have received such other approvals, opinions or documents as the Administrative Agent or any Lender through the Administrative Agent may reasonably request.

SECTION 3.03. Conditions Precedent to Second Borrowing . The several obligations of the Lenders to make Advances hereunder comprising a part of the Second Borrowing pursuant to Section 2.01 shall become effective on and as of the first date occurring on or prior to April 30, 2008 (or, if the Satisfaction Date has occurred prior to December 27, 2007, January 31, 2008) on which the following conditions precedent have been satisfied:

(a) The conditions precedent set forth in Section 3.02 shall have occurred.

(b) The Completion Date shall have occurred.

(c) All Existing Target Debt, other than Surviving Target Debt, has been, or is simultaneously being, prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments relating thereto terminated.

(d) PPG shall have notified the Administrative Agent in writing as to the proposed date of the Second Borrowing (which, if the Satisfaction Date has not occurred prior to December 27, 2007, shall be the same as the date of the First Borrowing).

(e) At least three Business Days prior to the date of the date of the Second Borrowing, PPG shall have confirmed in writing to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent, that the conditions precedent set forth in clauses (a) and (b) above will be satisfied simultaneously with the Advances to be made on such date.

SECTION 3.04. Determinations Under Section 3.01, 3.02 and 3.03 . For purposes of determining compliance with the conditions specified in Section 3.01, 3.02 and 3.03, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the date that PPG, by notice to the Lenders, designates as the proposed Effective Date or the date for any Borrowing, as applicable, specifying such Lender’s objection thereto. The Administrative Agent shall promptly notify the Lenders and PPG in writing of the occurrence of the Effective Date and the date of each Borrowing, as applicable.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

SECTION 4.01. Representations and Warranties of PPG . PPG represents and warrants as follows:

(a) It is a corporation validly existing and in good standing under the laws of the Commonwealth of Pennsylvania, with all requisite corporate authority to own its properties and to carry on the business in which it is engaged; and it is duly qualified to transact the business in which it is engaged and is in good standing (to the extent such concept is recognized) in those jurisdictions in which the real or personal property owned or leased or the business conducted by it are material to its operations, except where failure to so qualify

 

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would not have a Material Adverse Effect. Each other Borrower is a corporation validly existing and in good standing under the laws of the jurisdiction of its incorporation, with all requisite corporate authority to own its properties and to carry on the business in which it is engaged; and is duly qualified to transact the business in which it is engaged and is in good standing (to the extent such concept is recognized) in those jurisdictions in which the real or personal property owned or leased or the business conducted by it are material to its operations, except where failure to so qualify would not have a Material Adverse Effect.

(b) Each Borrower has the corporate power and authority to execute, deliver and perform this Agreement, to make the Borrowings provided for herein, to execute and deliver each of the other Loan Documents to which it is a party and to perform its obligations under each of the other Loan Documents to which it is a party; and all such action has been duly authorized by all necessary corporate proceedings on its part.

(c) The audited consolidated balance sheets and related consolidated statements of income, shareholders’ equity, comprehensive income and cash flows contained in PPG’s Registration Statement on Form S-3, filed with the Securities and Exchange Commission on August 2, 2007, have been prepared in accordance with GAAP and present fairly, in all material respects, the financial position of PPG and its Consolidated Subsidiaries as of December 31, 2006 and 2005 and the results of operations and cash flows of PPG and its Consolidated Subsidiaries for each of the three fiscal years ending on December 31, 2006, 2005 and 2004. The unaudited consolidated balance sheets and related consolidated statements of income contained in PPG’s Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2007, have been prepared in accordance with GAAP applicable to interim unaudited financial statements and, except for the absence of footnotes and other information required to be included in audited financial statements prepared in accordance with GAAP, present fairly, in all material respects, the financial position of PPG and its Consolidated Subsidiaries as of September 30, 2007 and the results of operations of PPG and its Consolidated Subsidiaries for the three and nine months then ended.

(d) Neither the execution and delivery of this Agreement or any of the other Loan Documents to which it or any other Borrower is a party, nor the consummation of the transactions herein contemplated, nor compliance with the terms and provisions hereof or thereof, will violate or result in a breach (i) of any of the terms, conditions or provisions of the Restated Articles of Incorporation or bylaws of PPG or the articles of incorporation or charter or bylaws of any other Borrower; or (ii) of any order, writ, injunction, judgment or decree of any court or any law or regulation of the Federal government, the State of New York or any state or other jurisdiction in which the real or personal property owned or leased or the business conducted by PPG or any of its Subsidiaries is material to their respective operations, or any instrumentality of such government; or (iii) of any agreement or instrument to which PPG or any of its Subsidiaries is a party or by which it or any of its Subsidiaries is bound, the violation or breach of which would have a Material Adverse Effect or would constitute a default thereunder; or (iv) of any agreement or instrument to which PPG or any of its Subsidiaries is a party or by which it or any of its Subsidiaries is bound which would result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property of PPG or any of its Subsidiaries, which lien, charge or encumbrance would have a Material Adverse Effect.

(e) This Agreement and each of the other Loan Documents to which it or any other Borrower is a party have been duly and validly executed and delivered by PPG and each of the other Borrowers and constitute legal, valid and binding obligations of PPG and each such other Borrower enforceable in accordance with their respective terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights.

(f) Each of PPG and its Subsidiaries has fulfilled its obligations under ERISA and the Internal Revenue Code with respect to each Plan and is in compliance with the presently applicable provisions of ERISA and the Internal Revenue Code with respect to each Plan, except for such failures or non-compliance as would not have a Material Adverse Effect. No Reportable Event has occurred and is continuing with respect to any Plan, except for such Reportable Events as would not have a Material Adverse Effect. Neither PPG nor any of its Subsidiaries has incurred any liability to PBGC or under ERISA and the Internal Revenue Code with respect to any Plan, except for premiums not yet due and payable or liabilities as would not have a Material Adverse Effect.

(g) No authorization, consent, approval, license or other action by, and no registration or filing with, any government agency or instrumentality is necessary in connection with the execution and delivery of

 

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this Agreement or the Notes, the consummation of the transactions herein contemplated or the performance of or compliance with the terms and conditions hereof and thereof, except for such authorizations, consents, approvals, licenses or other actions by, and such registrations or filings with, such government agencies or instrumentalities as have been or will be timely made or obtained.

(h) There is no threatened or, to the knowledge of PPG, pending proceeding by or before any court, government agency or instrumentality or arbitrator against or affecting PPG or any of its Subsidiaries which (i) except for the Disclosed Matters, if adversely decided would have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.

(i) No part of the Advances will be utilized for the purpose of enabling PPG to buy or carry any Margin Stock and neither PPG nor any Subsidiary is in the business of extending credit to others for such purpose.

(j) (i) PPG and its Subsidiaries have good and marketable title to, or valid leasehold interests in, all of their respective material properties and assets, except for minor defects in title that do not materially interfere with the ability to conduct their respective businesses as currently conducted or to utilize such properties and assets for their intended purposes.

(ii) PPG and its Subsidiaries have complied with all obligations under all material leases to which each of them is a party and all such leases are in full force and effect, except where failure to so comply would not have a Material Adverse Effect. PPG and its Subsidiaries enjoy peaceful and undisturbed possession under all such material leases, except where the lack of such peaceful and undisturbed possession would not have a Material Adverse Effect.

(iii) PPG and its Subsidiaries own or possess all the patents, trademarks, service marks, trade names, copyrights, licenses, franchises, permits and rights with respect to the foregoing necessary to own and operate their respective properties and to carry on their respective business as presently conducted and as presently planned to be conducted without conflict with the rights of others in any manner that would have a Material Adverse Effect.

(k) No statement made by PPG in any certificate, report or document furnished by or on behalf of PPG under or in connection with this Agreement or any of the other Loan Documents is false or misleading in any material respect and no such certificate, report or document omits to state a material fact necessary to make the statements contained therein not misleading.

(l) [Intentionally omitted].

(m) PPG has filed all United States Federal income tax returns and all other material tax returns which are required to be filed by it and has paid all taxes due pursuant to such returns or pursuant to any assessment received by PPG except for any taxes or assessments that PPG is contesting in good faith. The charges, accruals and reserves on the books of PPG in respect of taxes or other governmental charges are, in the opinion of PPG, adequate.

(n) PPG and its Subsidiaries are in compliance in all material respects with all laws and regulations relating to the protection of the environment except where the failure to do so, either singly or in the aggregate, would not have a Material Adverse Effect.

(o) No Borrower is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.

(p) Other than Liens permitted pursuant to Section 5.02(c) and Liens which would not result in a Material Adverse Effect, no Lien exists over all or any of the present or future revenues or assets of PPG or any of its Subsidiaries.

 

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(q) Each Borrower (other than PPG) is a Wholly-owned Restricted Subsidiary of PPG.

(r) No financial statement contained in any filing by PPG with the United States Securities and Exchange Commission when filed is false or misleading in any material respect or omits to state a material fact necessary to make the statements contained therein not misleading.

(s) Immediately after giving effect to the Advances, the Target will not have any Indebtedness other than the Indebtedness described on Part II of Schedule 2.15.

(t) On and as of the Completion Date, the Acquisition will have been consummated in accordance with the Acquisition Agreement and applicable Law.

(u) Since December 31, 2006, there has been no material adverse change in the business, assets, operations or condition, financial or otherwise, of PPG, or of PPG and its Consolidated Subsidiaries taken as a whole.

As used in this Section 4.01, “material” shall mean material in the context of the financial condition of PPG and its Consolidated Subsidiaries taken as a whole.

ARTICLE V

COVENANTS OF THE BORROWERS

SECTION 5.01. Affirmative Covenants . So long as any Advances shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrowers will:

(a) Reports, Financial Statements and Other Information . (i) File or cause to be filed with the United States Securities and Exchange Commission in compliance with the requirements thereof each Current Report on Form 8-K, Quarterly Report on Form 10-Q and Annual Report on Form 10-K required to be filed by PPG and deliver to the Administrative Agent, within 120 days of the end of each fiscal year of PPG, a certificate of the chief financial officer of PPG as to compliance with the terms of this Agreement and setting forth in reasonable detail the calculations necessary to demonstrate compliance with the ratio of Total Indebtedness of PPG and its Consolidated Subsidiaries to Total Capitalization as provided in Section 5.02(b) hereof, provided that, to the extent that any Lender is required pursuant to applicable law to obtain directly from the Borrowers any financial statements included in any such report filed with the United States Securities and Exchange Commission, the Borrowers shall promptly provide such financial statements upon reasonable request of such Lender through the Administrative Agent; (ii) promptly furnish to the Administrative Agent for distribution to the Lenders, subject to reasonable confidentiality requirements if appropriate, such information respecting the financial condition and affairs of PPG as the Administrative Agent or any Lender through the Administrative Agent may reasonably require; and (iii) promptly after the commencement thereof, furnish to the Administrative Agent for distribution to the Lenders, subject to reasonable confidentiality requirements if appropriate, notice of all actions and proceedings before any court, governmental agency or arbitrator affecting PPG or any of its Subsidiaries of the type described in Section 4.01(h), provided that the Borrowers shall have no obligation to furnish the notice referred to in this clause (iii) with respect to such actions or proceedings referred to in Section 4.01(h)(i) which are not reasonably likely to be adversely decided.

(b) Notice of Default . Within five days after any officer of PPG obtains knowledge of any Default or Event of Default, PPG will provide to each Lender a certificate of PPG setting forth the details thereof and the action which PPG is taking or proposes to take with respect thereto.

(c) Maintenance of Properties . Maintain and keep, and shall cause its Subsidiaries to maintain and keep, their respective properties in such repair, working order and condition, and make or cause to be made all such needful and proper repairs, renewals and replacements thereto, as in the judgment

 

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of PPG are necessary and in the interests of PPG or such Subsidiary; provided , however , subject to Section 5.02(d), that nothing in this Section 5.01(c) shall prevent PPG (or any Subsidiary thereof) from selling, abandoning or otherwise disposing of any of its respective businesses from time to time if, in the judgment of PPG or such Subsidiary, such sale, abandonment, disposition or discontinuance is advisable.

(d) Existence; Business and Properties . Do or cause to be done, except in the case of any of its Subsidiaries where the failure to do so would not have a Material Adverse Effect, all things necessary to preserve, renew and keep in full force and effect its legal existence in its jurisdiction of incorporation, and do or cause to be done all things necessary to obtain, preserve, renew, extend and keep in full force and effect the rights, licenses, permits, franchises, authorizations, patents, copyrights, trademarks and trade names material to the conduct of its business as its board of directors shall determine in its judgment.

(e) Compliance with Laws, Etc . Comply, and cause each of its Subsidiaries to comply, in all material respects, with all applicable laws, rules, regulations and orders, such compliance to include, without limitation, compliance with ERISA and environmental laws.

(f) Maintenance of Insurance . Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which PPG or such Subsidiary operates; provided , however , that PPG and its Subsidiaries may self-insure to the extent consistent with prudent business practice as reasonably determined by PPG and such Subsidiary.

SECTION 5.02. Negative Covenants . So long as any Advances shall remain unpaid or any Lender shall have any Commitment hereunder, PPG will not, and will not permit any of its Restricted Subsidiaries (or (i) in the case of clause (b) below, its Consolidated Subsidiaries and (ii) in the case of clauses (f) and (g) below, its Subsidiaries) to:

(a) Sale of Assets, Consolidation, Merger, etc . (i) Sell, transfer or lease all or substantially all of its assets, business or property; or (ii) enter into any merger or consolidation, unless PPG or such Restricted Subsidiary shall be the surviving corporation.

(b) Financial Undertaking . Permit the ratio of Total Indebtedness to Total Capitalization to exceed 60% at any time.

(c) Secured Debt . Issue, assume, guarantee, create or incur any Secured Debt without effectively providing that the Advances (together with, if PPG shall so determine, any other Indebtedness of PPG or such Restricted Subsidiary then existing or thereafter created ranking equally with the Advances, including Guarantees of Indebtedness of others) shall be secured equally and ratably with (or prior to) such Secured Debt so long as such Secured Debt shall be so secured, except that this Section 5.02(c) shall not apply to Secured Debt secured by:

(i) mortgages on property of any corporation existing at the time such corporation becomes a Subsidiary;

(ii) mortgages on property existing at the time of acquisition thereof or to secure the payment of all or any part of the purchase price thereof or to secure any Indebtedness incurred prior to, at the time of or within 90 days after the acquisition of such property for the purpose of financing all or any part of the purchase price thereof;

(iii) mortgages on particular property to secure Indebtedness incurred in financing all or any part of the cost of exploration or development of such property, or to secure all or any part of the cost of improvements to such property which is, in the opinion of the board of directors of PPG, substantially unimproved, or to secure any Indebtedness incurred to provide funds for such purpose;

 

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(iv) mortgages on property in favor of the United States of America or any State thereof, or any other country, or any political subdivision of any of the foregoing, to secure payments pursuant to any contract or statute or to secure any Indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the property subject to such mortgages;

(v) mortgages which secure Indebtedness owing to PPG or a Wholly-owned Restricted Subsidiary by a Subsidiary of PPG; and

(vi) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any mortgage referred to in the foregoing clauses (i) to (v), inclusive, or of any Indebtedness secured thereby; provided that such extension, renewal or replacement mortgage shall be limited to all or any part of the same property that secured the mortgage extended, renewed or replaced (plus improvements on such property).

As used in clauses (i) through (vi) above, the terms “mortgage” or “mortgages” shall include pledges, liens, and security interests.

Notwithstanding the foregoing provisions of this Section 5.02(c), PPG and any one or more Restricted Subsidiaries may, without equally and ratably securing the Advances, issue, assume, guarantee, create or incur Secured Debt which would otherwise be subject to the foregoing restrictions if, after giving effect to the Secured Debt to be issued, assumed, guaranteed, created or incurred, the sum of (a) the aggregate amount of all such Secured Debt of PPG and its Restricted Subsidiaries (not including Secured Debt permitted under clauses (i) through (vi) above) and (b) the aggregate value of the Sale and Leaseback Transactions (as defined in Section 5.02(d)) in existence at such time (except Sale and Leaseback Transactions the proceeds of which have been applied in accordance with Section 5.02(d)(i)(B)) does not exceed 5% of the Shareholders’ Interest.

 

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(d) Limitation on Sales and Leasebacks and Transfers of Assets to Unrestricted Subsidiaries .

(i) Enter into any arrangement with any bank, insurance company or other lender or investor, or to which any such lender or investor is a party, providing for the leasing to PPG or such Restricted Subsidiary of any real property (except a lease for a temporary period not to exceed three years by the end of which it is intended that the use of such real property by the lessee will be discontinued) which has been or is to be sold or transferred by PPG or such Restricted Subsidiary to such lender or investor or to any person to whom funds have been or are to be advanced by such lender or investor on the security of such real property (herein referred to as a “ Sale and Leaseback Transaction ”) unless either:

(A) PPG or such Restricted Subsidiary could create Secured Debt secured by a mortgage, in accordance with Section 5.02(c), on the real property to be leased, in an amount equal to the value (as hereinafter defined) of such Sale and Leaseback Transaction, without equally and ratably securing the Advances, or

(B) PPG applies (and in any case PPG covenants that it will apply) within 120 days after the Sale and Leaseback Transaction, regardless of whether such Sale and Leaseback Transaction may have been made by PPG or by a Restricted Subsidiary, an amount equal to the greater of (i) the net proceeds of the sale of the real property leased pursuant to such Sale and Leaseback Transaction and (ii) the fair value of the real property so leased at the time of entering into such Sale and Leaseback Transaction (as determined by the board of directors of PPG) to the retirement of Funded Debt of PPG; provided that the amount to be applied to the retirement of Funded Debt of PPG shall be reduced by

(1) the principal amount of any Advances outstanding on the date of the Sale and Leaseback Transaction repaid by PPG within 120 days after such Sale and Leaseback Transaction, and

(2) the principal amount of Funded Debt, other than Advances, voluntarily retired by PPG within 120 days after such sale;

provided that no repayment or retirement referred to in this clause (B) may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or any mandatory prepayment provision.

For purposes of this Section 5.02(d) and Section 5.02(c), the term “value” shall mean, with respect to a Sale and Leaseback Transaction, as of any particular time, the amount equal to the greater of (i) the net proceeds of the sale of the real property leased pursuant to such Sale and Leaseback Transaction and (ii) the fair value of the real property so leased at the time of entering into such Sale and Leaseback Transaction (as determined by the board of directors of PPG), divided first by the number of full years in the term of the lease and then multiplied by the number of full years of such term remaining at the time of determination, without regard to any renewal or extension options contained in the lease.

(ii) Transfer any assets which, in the reasonable opinion of the board of directors of PPG, constitute a major manufacturing or research property, plant or facility of PPG and its Restricted Subsidiaries, taken as a whole, to any Unrestricted Subsidiary.

(e) Margin Stock . Purchase or hold any Margin Stock if more than 25% of the value of its assets (as defined in said Regulation U) is or would be represented by Margin Stock.

(f) Accounting Changes . Make or permit any change in accounting policies or reporting practices, except as required or permitted by United States or applicable foreign generally accepted accounting principles or by the United States Securities and Exchange Commission or the Public Company Accounting Oversight Board or any similar foreign governmental agency or instrumentality.

 

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(g) Change in Nature of Business . Make any material change in the nature of its business as carried on at the date hereof.

(h) Amendments, Modifications and Waivers . Amend or otherwise modify, or consent to any waiver of any conditions or other terms or provisions under, the Acquisition Agreement, the Escrow Agreement or the Notary Letter, in each case, without the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld.

ARTICLE VI

EVENTS OF DEFAULT

SECTION 6.01. Events of Default . If any of the following events (“ Events of Default ”) shall occur and be continuing:

(a) (i) PPG or any other Borrower shall default (whether as direct obligor or guarantor) in the payment of principal of any Advance when due; or (ii) PPG shall default (whether as direct obligor or guarantor) in the payment of any interest, fee or any other amount payable under this Agreement or under any other Loan Document and such default shall have continued for a period of five (5) Business Days thereafter;

(b) PPG or any Subsidiary shall default (whether as direct obligor or guarantor) (i) in any payment of principal of or interest on any other obligation for borrowed money in excess of $50,000,000 in unpaid principal amount beyond any period of grace provided with respect thereto, or (ii) in the performance of any other agreement, term or condition contained in any agreement under which any such other obligation for borrowed money in excess of $50,000,000 is created and shall not have cured such default within any period of grace provided by such agreement, if the effect of such default is to cause, or permit the holder or holders of such obligation (or a trustee or agent on behalf of such holder or holders) to cause, such obligation to become due prior to its stated maturity;

(c) Any representation or warranty made herein or pursuant hereto by PPG, or any certificate furnished pursuant to the provisions hereof, shall prove to have been false or misleading in any material respect as of the time made or furnished;

(d) PPG shall default in the performance of any covenant contained in Section 5.01(b) or Section 5.02 hereof;

(e) PPG or any other Borrower shall default in the performance of any other covenant, term, condition or provision of this Agreement or any other Loan Document and such default shall not be remedied for a period of thirty (30) days after written notice thereof to PPG from the Administrative Agent at the request of any Lender;

(f) A final judgment or order for the payment of money in excess of $50,000,000 shall be rendered by a court of record against PPG or any Subsidiary and such judgment or order shall not be appealable and shall continue unsatisfied and unstayed for a period of thirty (30) days;

(g) Any of the following shall have occurred: (i) any person or group of persons shall have acquired beneficial ownership of a majority in interest of the outstanding Voting Stock of PPG (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations thereunder) unless such acquisition of beneficial ownership is approved by a majority of the Incumbent Board (as such term is defined in clause (ii) of this paragraph (g)), or (ii) individuals who,

 

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as of the date of this Agreement were directors of PPG, together with any replacement or additional directors whose election was recommended by or who were elected by a majority of directors then in office (such directors together herein called the “ Incumbent Board ”), cease to constitute a majority of the board of directors of PPG or (iii) PPG shall cease to own, directly or indirectly, 100% of the Voting Stock of any other Borrower;

(h) A proceeding shall have been instituted in a court having jurisdiction in the premises seeking a decree or order for relief in respect of any Borrower in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or for the appointment of a receiver, liquidator, assignee, trustee, custodian or sequestrator (or other similar official) for any substantial part of its property, or for the winding-up or liquidation of its affairs, and such proceeding shall remain undismissed or unstayed and in effect for a period of sixty (60) consecutive days or such court shall enter a decree or order granting the relief sought in such proceeding;

(i) Any Borrower shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian or sequestrator (or other similar official) of any Borrower or for any substantial part of its property, or shall make a general assignment for the benefit of creditors, or shall admit in writing its inability generally to pay its debts as they become due, or shall take any corporate action in furtherance of any of the foregoing; or

(j) PPG shall fail to meet its minimum funding requirements under ERISA with respect to any Plan or if any Plan shall be terminated by act of the PBGC or a trustee shall be appointed for any Plan, except when such failure is of an amount which is not material to the financial condition of PPG or such termination or appointment would not result in the imposition on PPG of material liability, or when such failure is the result of contesting such minimum funding requirements in good faith and PPG has established on its books any reserve which is required by GAAP with respect thereto;

then, and in any such event, the Administrative Agent shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrowers, declare the Advances, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Advances, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each Borrower; provided , however , that in the event of an actual or deemed entry of an order for relief with respect to any Borrower under the Federal Bankruptcy Code, the Advances, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by each Borrower.

ARTICLE VII

GUARANTY

SECTION 7.01. Guaranty . PPG hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all obligations of each other Borrower now or hereafter existing under or in respect of this Agreement and each of the other Loan Documents to which such Borrower is a party (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such obligations being the “ Guaranteed Obligations ”), and agrees to pay any and all expenses (including, without limitation, fees and expenses of counsel) incurred by the Administrative Agent or any Lender in enforcing any rights under this Guaranty. Without limiting the generality of the foregoing, PPG’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Borrower to the Administrative Agent or any Lender under or in respect of this Agreement and each of the other Loan Documents to which such other Borrower is a party but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Borrower.

 

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SECTION 7.02. Guaranty Absolute . PPG guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the applicable Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Administrative Agent or any Lender with respect thereto. The obligations of PPG under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other obligations of any other Borrower under or in respect of this Agreement and the applicable Loan Documents, and a separate action or actions may be brought and prosecuted against PPG to enforce this Guaranty, irrespective of whether any action is brought against any other Borrower or whether any other Borrower is joined in any such action or actions. The liability of PPG under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and PPG hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:

(a) any lack of validity or enforceability of this Agreement, any Loan Document or any agreement or instrument relating thereto;

(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other obligations of any other Borrower under or in respect of this Agreement or any of the other Loan Documents, or any other amendment or waiver of or any consent to departure from this Agreement or any of the other Loan Documents, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Borrower or any of its Subsidiaries or otherwise;

(c) any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;

(d) any manner of application of any collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or any other obligations of any Borrower under this Agreement or any of the other Loan Documents or any other assets of any Borrower or any of its Subsidiaries;

(e) any change, restructuring or termination of the corporate structure or existence of any Borrower or any of its Subsidiaries;

(f) any failure of the Administrative Agent or any Lender to disclose to any Borrower any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Borrower now or hereafter known to the Administrative Agent or such Lender (PPG waiving any duty on the part of the Administrative Agent and the Lenders to disclose such information);

(g) the release or reduction of liability of any other guarantor or surety with respect to the Guaranteed Obligations; or

(h) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Administrative Agent or any Lender that might otherwise constitute a defense available to, or a discharge of, any Borrower or any other guarantor or surety.

This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the Administrative Agent or any Lender or any other Person upon the insolvency, bankruptcy or reorganization of any other Borrower or otherwise, all as though such payment had not been made.

 

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SECTION 7.03. Waivers and Acknowledgments . (a) PPG hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the Administrative Agent or any Lender protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Borrower or any other Person or any collateral.

(b) PPG hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.

(c) PPG hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by the Administrative Agent or any Lender that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of PPG or other rights of PPG to proceed against any of the other Borrowers, any other guarantor or any other Person or any collateral and (ii) any defense based on any right of set-off or counterclaim against or in respect of the obligations of PPG hereunder.

(d) PPG hereby unconditionally and irrevocably waives any duty on the part of the Administrative Agent or any Lender to disclose to PPG any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Borrower or any of its Subsidiaries now or hereafter known by the Administrative Agent or such Lender.

(e) PPG acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by this Agreement and that the waivers set forth in Section 7.02 and this Section 7.03 are knowingly made in contemplation of such benefits.

SECTION 7.04. Subrogation . PPG hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against any other Borrower or any other insider guarantor that arise from the existence, payment, performance or enforcement of PPG’s obligations under or in respect of this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Administrative Agent or any Lender against any Borrower or any other insider guarantor or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Borrower or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and the Commitments shall have expired or been terminated. If any amount shall be paid to PPG in violation of the immediately preceding sentence at any time prior to the later of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and (b) the Termination Date, such amount shall be received and held in trust for the benefit of the Administrative Agent and the Lenders, shall be segregated from other property and funds of PPG and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (i) PPG shall make payment to the Administrative Agent or any Lender of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and (iii) the Termination Date shall have occurred, the Administrative Agent and the Lenders will, at PPG’s request and expense, execute and deliver to PPG appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to PPG of an interest in the Guaranteed Obligations resulting from such payment made by PPG pursuant to this Guaranty.

SECTION 7.05. Subordination . PPG hereby subordinates any and all debts, liabilities and other Obligations owed to PPG by each other Borrower (the “ Subordinated Obligations ”) to the Guaranteed Obligations to the extent and in the manner hereinafter set forth in this Section 7.05:

 

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(a) Prohibited Payments, Etc . Except during the continuance of a Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any other Borrower), PPG may receive regularly scheduled payments from any other Borrower on account of the Subordinated Obligations. After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any other Borrower), however, unless the Required Lenders otherwise agree, PPG shall not demand, accept or take any action to collect any payment on account of the Subordinated Obligations.

(b) Prior Payment of Guaranteed Obligations . In any proceeding under any Bankruptcy Law relating to any other Borrower, PPG agrees that the Administrative Agent and the Lenders shall be entitled to receive payment in full in cash of all Guaranteed Obligations (including all interest and expenses accruing after the commencement of a proceeding under any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding (“ Post Petition Interest ”)) before PPG receives payment of any Subordinated Obligations.

(c) Turn-Over . After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any other Borrower), PPG shall, if the Administrative Agent so requests, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Administrative Agent and the Lenders and deliver such payments to the Administrative Agent on account of the Guaranteed Obligations (including all Post Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of PPG under the other provisions of this Guaranty.

(d) Administrative Agent Authorization . After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any other Borrower), the Administrative Agent is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name of PPG, to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon to the Guaranteed Obligations (including any and all Post Petition Interest), and (ii) to require PPG (A) to collect and enforce, and to submit claims in respect of, Subordinated Obligations and (B) to pay any amounts received on such obligations to the Administrative Agent for application to the Guaranteed Obligations (including any and all Post Petition Interest).

SECTION 7.06. Continuing Guaranty; Assignments . This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the later of (i) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and (ii) the Termination Date, (b) be binding upon PPG, its successors and assigns and (c) inure to the benefit of and be enforceable by the Administrative Agent and the Lenders and their respective successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, the Administrative Agent or any Lender may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments, the Advances owing to it and the Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to the Administrative Agent or such Lender herein or otherwise, in each case as and to the extent provided in Section 9.07.

ARTICLE VIII

THE ADMINISTRATIVE AGENT

SECTION 8.01. Authorization and Action . Each of the Lenders hereby appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and under the other Loan Documents as are delegated to the Administrative Agent by the terms hereof or thereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by this Agreement and in the other Loan Documents (including, without limitation, enforcement or collection of the Notes), the Administrative Agent shall not be required to exercise any discretion or

 

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take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided , however , that the Administrative Agent shall not be required to take any action that exposes the Administrative Agent to personal liability or that is contrary to this Agreement, the other Loan Documents or applicable law. The Administrative Agent agrees to give to each Lender prompt notice of each notice given to it by PPG or any other Borrower pursuant to the terms of this Agreement or the other Loan Documents.

SECTION 8.02. Administrative Agent’s Reliance, Etc . Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement or the other Loan Documents, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Administrative Agent: (i) may treat the Lender that made any Advances as the holder of the Indebtedness resulting therefrom until the Administrative Agent receives and accepts an Assignment and Acceptance entered into by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07; (ii) may consult with legal counsel (including counsel for the Borrowers), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement or any of the other Loan Documents; (iv) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of this Agreement or any of the other Loan Documents on the part of any Borrower or the existence at any time of any Default or to inspect the property (including the books and records) of any Borrower; (v) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any of the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (vi) shall incur no liability under or in respect of this Agreement or any of the other Loan Documents by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopier, telegram or telex) believed by it to be genuine and signed or sent by the proper party or parties; and (vii) shall not be deemed to have knowledge of any Default or the event or events that give or may give rise to any Default unless and until written notice describing such Default and such event or events is given to the Administrative Agent by the Borrower or any Lender.

SECTION 8.03. Credit Suisse and Affiliates . With respect to its Commitment, the Advances made by it and the Note issued to it, Credit Suisse shall have the same rights and powers under this Agreement and the other Loan Documents as any other Lender and may exercise the same as though it were not the Administrative Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include Credit Suisse in its individual capacity. Credit Suisse and its Affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, PPG, any of its Subsidiaries and any Person who may do business with or own securities of PPG or any such Subsidiary, all as if Credit Suisse were not the Administrative Agent and without any duty to account therefor to the Lenders. The Administrative Agent shall have no duty to disclose information obtained or received by it or any of its affiliates relating to PPG or its Subsidiaries to the extent such information was obtained or received in any capacity other than as Administrative Agent.

SECTION 8.04. Lender Credit Decision . Each of the Lenders acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on the financial statements referred to in Section 4.01(c) and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each of the Lenders also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.

SECTION 8.05. Indemnification . The Lenders agree to indemnify the Administrative Agent (to the extent not reimbursed by the Borrowers), ratably according to the respective principal amounts of the Advances then owed to each of them (or if no Advances are at the time outstanding, ratably according to the respective amounts of their Commitments), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed

 

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on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Administrative Agent under this Agreement (collectively, the “ Indemnified Costs ”), provided that no Lender shall be liable for any portion of the Indemnified Costs resulting from the Administrative Agent’s gross negligence or willful misconduct, and provided , further , that the obligations of each Lender that shall cease to be a party to this Agreement in accordance with Section 9.07 shall terminate on the date of the applicable assignment except to the extent any claim hereunder relates to an event arising prior to such assignment. Without limitation of the foregoing, each Lender agrees to reimburse the Administrative Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Administrative Agent is not reimbursed for such expenses by the Borrowers. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 8.05 applies whether any such investigation, litigation or proceeding is brought by the Administrative Agent, any Lender or a third party.

SECTION 8.06. Successor Administrative Agent . The Administrative Agent may resign at any time by giving written notice thereof to the Lenders and the Borrowers and may be removed at any time with or without cause by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of resignation or the Required Lenders’ removal of the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents. After any retiring Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this Article VIII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Loan Documents.

SECTION 8.07. Other Agents . Each of the Lenders and each of the Borrowers hereby acknowledges that none of the co-syndication agents, co-documentation agents or co-lead arrangers and co-book managers has any liability hereunder other than in its capacity as a Lender.

 

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ARTICLE IX

MISCELLANEOUS

SECTION 9.01. Amendments, Etc . No amendment or waiver of any provision of this Agreement or the Notes, nor consent to any departure by any Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no amendment, waiver or consent shall, unless in writing and signed by all the Lenders, do any of the following: (a) waive any of the conditions specified in Section 3.01, 3.02 or 3.03, (b) increase the Commitments of the Lenders, (c) reduce the principal of, or interest on, the Advances or any fees or other amounts payable hereunder, (d) postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts payable hereunder, (e) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Advances, or the number of Lenders, that shall be required for the Lenders or any of them to take any action hereunder, (f) reduce or limit the obligations of PPG under Section 7.01 or release PPG or otherwise limit PPG’s liability with respect to the obligations owing to the Administrative Agent and the Lenders or (g) amend this Section 9.01; provided , further , that no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above to take such action, affect the rights or duties of the Administrative Agent under this Agreement or any Note.

SECTION 9.02. Notices, Etc . (a) All notices and other communications provided for hereunder shall be in writing (including telecopier, telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed or delivered, if to any Borrower, at the address of PPG at One PPG Place, Pittsburgh, Pennsylvania 15272, telecopy number 412-434-4416, Attention: Treasurer, with a copy to PPG at One PPG Place, Pittsburgh, Pennsylvania 15272, telecopy number 412-434-2490, Attention: Corporate Law Department; if to any Initial Lender, at its Domestic Lending Office specified opposite its name on Schedule I hereto; if to any other Lender, at its Domestic Lending Office specified in the Assignment and Acceptance pursuant to which it became a Lender; and if to the Administrative Agent, at its address at 11 Madison Avenue, New York, New York 10010, telecopy number 212-325-8304, Attention: Agency Group Manager, or, as to the Borrowers or the Administrative Agent, at such other address as shall be designated by such party in a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Borrowers and the Administrative Agent. All such notices and communications shall, when mailed, telecopied, telegraphed or telexed, be effective when deposited in the mails, telecopied, delivered to the telegraph company or confirmed by telex answerback, respectively, except that notices and communications to the Administrative Agent pursuant to Article II, III or VIII shall not be effective until received by the Administrative Agent. Delivery by telecopier of an executed counterpart of any amendment or waiver of any provision of this Agreement or the Notes or of any Exhibit hereto to be executed and delivered hereunder shall be effective as delivery of a manually executed counterpart thereof.

(b) Notwithstanding anything to the contrary contained in this Agreement or any Note, (i) any notice to the Borrowers or to any one of them required under this Agreement or any such Note that is delivered to PPG shall constitute effective notice to the Borrowers or to any such Borrower, including PPG and (ii) any Notice of Borrowing or any notice of Conversion delivered pursuant to the terms of this Agreement may be delivered by any Borrower or by PPG, on behalf of any other Borrower. Each Borrower (other than PPG) hereby irrevocably appoints PPG as its authorized agent to receive and deliver notices in accordance with this Section 9.02, and hereby irrevocably agrees that (A) in the case of clause (i) of the immediately preceding sentence, the failure of PPG to give any notice referred to therein to any such Borrower to which such notice applies shall not impair or affect the validity of such notice with respect thereto and (B) in the case of clause (ii) of the immediately preceding sentence, the delivery of any such notice by PPG, on behalf of any other Borrower, shall be binding on such other Borrower to the same extent as if such notice had been executed and delivered directly by such Borrower.

SECTION 9.03. No Waiver; Remedies . No failure on the part of any Borrower, any Lender or the Administrative Agent to exercise, and no delay in exercising, any right hereunder or under any Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

 

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SECTION 9.04. Costs and Expenses . (a) PPG agrees to pay all reasonable and customary out-of-pocket costs and expenses of the Administrative Agent (within 10 days of receipt of a written itemized statement, together with supporting documentation, identifying in reasonable detail the amounts of such costs and expenses) incurred in connection with the preparation, execution and delivery of this Agreement, the other Loan Documents and the other documents to be delivered hereunder or thereunder, including, without limitation, all due diligence, syndication (including printing, distribution and bank meetings), transportation, computer, duplication, appraisal, consultant, and audit expenses and the reasonable fees and expenses of counsel for the Administrative Agent with respect thereto. PPG further agrees to pay all costs and expenses, if any, of the Administrative Agent and the Lenders incurred in connection with the enforcement of this Agreement, any of the other Loan Documents and the other documents to be delivered hereunder or thereunder, including, without limitation, reasonable fees and expenses of counsel for the Administrative Agent and each Lender in connection with the enforcement of rights under this Section 9.04(a).

(b) The Borrowers agree to indemnify and hold harmless the Administrative Agent and each Lender and each of their respective Affiliates and their respective officers, directors, employees, agents and advisors (each, an “ Indemnified Party ”) from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (i) this Agreement, any of the other Loan Documents, any of the transactions contemplated herein or therein or the actual or proposed use of the proceeds of the Advances or (ii) the actual or alleged presence of hazardous materials on any property of PPG or any of its Subsidiaries or any environmental action relating in any way to PPG or any of its Subsidiaries, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s fraudulent acts or omissions, gross negligence or willful misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 9.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Borrower, its directors, equity holders or creditors or an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated. Each Borrower also agrees not to assert any claim for special, indirect, consequential or punitive damages against the Administrative Agent, any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, arising out of or otherwise relating to this Agreement, any of the other Loan Documents, any of the transactions contemplated herein or therein or the actual or proposed use of the proceeds of the Advances.

(c) If any payment of principal of, or Conversion of, any Eurocurrency Rate Advance is made by any Borrower to or for the account of a Lender (i) other than on the last day of the Interest Period for such Advances, as a result of a payment or Conversion pursuant to Section 2.06, 2.08 or 2.10, acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason, or by an Eligible Assignee to a Lender other than on the last day of the Interest Period for such Advances upon an assignment of rights and obligations under this Agreement pursuant to Section 9.07 as a result of a demand by PPG pursuant to Section 9.07(a) or (ii) as a result of a payment or Conversion pursuant to Section 2.06, 2.08 or 2.10, such Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advances.

(d) Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers contained in Sections 2.09, 2.12 and 9.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the Notes.

SECTION 9.05. Right of Set-off . Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 6.01 to authorize the Administrative Agent to declare the Notes due and payable pursuant to the provisions of Section 6.01, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final)

 

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at any time held and other indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account of any Borrower against any and all of the obligations of any Borrower now or hereafter existing under this Agreement and the Note held by such Lender, whether or not such Lender shall have made any demand under this Agreement or such Note and although such obligations may be unmatured. Each Lender agrees promptly to notify the applicable Borrower after any such set-off and application, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender and its Affiliates under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Lender and its Affiliates may have.

SECTION 9.06. Binding Effect . This Agreement shall become effective (other than Section 2.01 which shall only become effective upon satisfaction of the conditions precedent set forth in Section 3.02) when it shall have been executed by PPG and the Administrative Agent and when the Administrative Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and when the conditions set forth in Section 3.01 have been satisfied, and thereafter shall be binding upon and inure to the benefit of the Borrowers, the Administrative Agent and each Lender and their respective successors and assigns, except that no Borrower (including PPG as guarantor under Article VII) shall have the right to assign any of its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders, provided that any Borrower other than PPG may assign its rights or obligations to PPG or any other Borrower without such prior written consent.

SECTION 9.07. Assignments and Participations . (a) Each Lender may and, if demanded by PPG (following a demand by such Lender pursuant to Section 2.09 or 2.12) upon at least five Business Days’ notice to such Lender and the Administrative Agent, will assign to one or more Persons all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided , however , that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was an Affiliate of a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the Commitment of the assigning Lender or the aggregate amount of the Commitments of assigning Lenders that are Affiliates being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than the applicable Borrowing Minimum or an integral multiple of Borrowing Multiple in excess thereof, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by PPG pursuant to this Section 9.07(a) shall be arranged by PPG after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by PPG pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Borrowers or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent (or, if previously agreed with the Agent, manually), and shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent), provided , however , that in the case of each assignment made as a result of a demand by PPG, such recordation fee shall be payable by PPG except that no such recordation fee shall be payable in the case of an assignment made at the request of PPG to an Eligible Assignee that is an existing Lender, (vii) the Eligible Assignee, if it is not an existing Lender, shall deliver to the Administrative Agent an administrative questionnaire in such form as may be supplied by the Administrative Agent and any tax forms required hereunder, and (viii) any Lender may, without the approval of PPG, assign all or a portion of its rights to any of its Affiliates. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Section 2.09, 2.12 and 9.04 to the extent any claim

 

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thereunder relates to an event arising prior such assignment) and be released from its obligations under this Agreement (other than its obligations under Section 8.05 to the extent any claim thereunder relates to an event arising prior to such assignment) (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).

(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender.

(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers; provided that the failure of the Administrative Agent to provide such notice to the Borrowers with respect to any Assignment and Acceptance shall not affect the validity of such Assignment and Acceptance.

(d) The Administrative Agent shall maintain at its address referred to in Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the “ Register ”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.

(e) Each Lender may sell participations to one or more banks or other entities (other than PPG or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and any Note or Notes held by it); provided , however , that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrowers hereunder) and the other Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement and the other Loan Documents, (iv) the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any of the other Loan Documents, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would increase the commitment of such participant to the extent subject to such participation, reduce the principal of, or interest on, the Notes or any fees or

 

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PPG 364 Day Credit Agreement


other amounts payable hereunder or thereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the value of the guaranty set forth in Article VII.

(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to PPG furnished to such Lender by or on behalf of PPG; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information relating to PPG received by it from such Lender.

(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.

(h) Notwithstanding anything to the contrary contained herein, any Lender (a “ Granting Lender ”) may grant to a special purpose funding vehicle (an “ SPC ”), upon the identification as such in writing from time to time by such Granting Lender to the Administrative Agent and PPG and upon the prior written consent of PPG in its sole and absolute discretion, the option to provide to any Borrower all or any part of any Advance that such Granting Lender would otherwise be obligated to make to such Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Advance, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent and as if such Advance were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with such Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 9.07, any SPC may (i) with notice to, but without the prior written consent of, PPG and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to the Granting Lender or to any financial institutions (consented to by PPG and the Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances and (ii) disclose on a confidential basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.07(h) may not be amended without the written consent of the SPC.

SECTION 9.08. Confidentiality . None of the Administrative Agent or any Lender shall disclose any Confidential Information to any other Person without the consent of PPG, other than (a) to the Administrative Agent’s or such Lender’s Affiliates and their officers, directors, employees, agents and advisors and, as contemplated by Section 9.07(f), to actual or prospective assignees and participants, in each case only on a confidential need-to-know basis, (b) as required by any law, rule or regulation or judicial process and (c) as requested or required by any state, federal or foreign authority or examiner regulating banks or banking or financial institutions.

SECTION 9.09. Governing Law . This Agreement and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 9.10. Execution in Counterparts . This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.

 

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PPG 364 Day Credit Agreement


SECTION 9.11. Judgment . (a) If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in Dollars into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase Dollars with such other currency at its principal office in London at 11:00 A.M. (London time) on the Business Day preceding that on which final judgment is given.

(b) If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in Euro into Dollars, the parties agree to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase Euro with Dollars at its principal office in London at 11:00 A.M. (London time) on the Business Day preceding that on which final judgment is given.

(c) The obligation of the Borrowers in respect of any sum due from it in any currency (the “ Primary Currency ”) to any Lender or the Administrative Agent hereunder shall, notwithstanding any judgment in any other currency, be discharged only to the extent that on the Business Day following receipt by such Lender or the Administrative Agent (as the case may be), of any sum adjudged to be so due in such other currency, such Lender or the Administrative Agent (as the case may be) may in accordance with normal banking procedures purchase the applicable Primary Currency with such other currency; if the amount of the applicable Primary Currency so purchased is less than such sum due to such Lender or the Administrative Agent (as the case may be) in the applicable Primary Currency, each Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Administrative Agent (as the case may be) against such loss, and if the amount of the applicable Primary Currency so purchased exceeds such sum due to any Lender or the Administrative Agent (as the case may be) in the applicable Primary Currency, such Lender or the Administrative Agent (as the case may be) agrees to remit to such Borrower such excess.

SECTION 9.12. Jurisdiction, Etc . (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the Notes, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court. The Borrowers hereby consent to the service of process in any action or proceeding in such courts by the mailing thereof by any parties hereto by registered or certified mail, postage prepaid, to such Borrower at its address specified pursuant to Section 9.02. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law. Nothing in this Agreement shall affect any right that any party may otherwise have to serve legal process in any other manner permitted by applicable law or to bring any action or proceeding relating to this Agreement or the Notes in the courts of any jurisdiction.

(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the Notes in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

SECTION 9.13. Substitution of Currency . If a change in the Euro occurs pursuant to any applicable law, rule or regulation of any governmental, monetary or multi-national authority, this Agreement (including, without limitation, the definition of Eurocurrency Rate) will be amended to the extent determined by the Administrative Agent (acting reasonably and in consultation with PPG) to be necessary to reflect the change in currency and to put the Lenders and the Borrowers in the same position, so far as possible, that they would have been in if no change in the Euro had occurred.

SECTION 9.14. Waiver of Jury Trial . EACH OF THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON

 

40

PPG 364 Day Credit Agreement


CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.

SECTION 9.15. USA PATRIOT ACT . Each Lender hereby notifies each Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), it is required to obtain, verify and record information that identifies such Borrower, which information includes the name and address of such Borrower and other information that will allow such Lender to identify such Borrower in accordance with said Act.

 

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PPG 364 Day Credit Agreement


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

PPG INDUSTRIES, INC.
By:  

/s/ William H. Hernandez

Name:   William H. Hernandez
Title:   Senior Vice President, Finance, Chief Financial Officer and Treasurer
U.S. Federal Tax Identification No. for PPG :
25-0730780
Address for PPG :
One PPG Place
Pittsburgh, Pennsylvania 15272
PPG INDUSTRIES SECURITIES, INC.
By:  

/s/ Mitchell F. Magee

Name:   Mitchell F. Magee
Title:   President
U.S. Federal Tax Identification No. for PPG Industries Securities, Inc. :
25-1314673
Address for PPG Industries Securities, Inc. :
1886 Lynnburg Woods Road
Dover, Delaware 19904

 

PPG 364 Day Credit Agreement


CREDIT SUISSE, CAYMAN ISLANDS BRANCH

    as Administrative Agent

By:  

/s/ Jay Chall

Name:   Jay Chall
Title:   Director
By:  

/s/ Petra Jaek

Name:   Petra Jaek
Title:   Assistant Vice President

 

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PPG 364 Day Credit Agreement


    LENDERS

Commitment

   
€200,000,000     CREDIT SUISSE, CAYMAN ISLANDS BRANCH
    By:  

/s/ Jay Chall

    Name:   Jay Chall
    Title:   Director
    By:  

/s/ Petra Jaek

    Name:   Petra Jaek
    Title:   Assistant Vice President
€200,000,000     DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
    By:  

/s/ Marcus Tarkington

    Name:   Marcus Tarkington
    Title:   Director
    By:  

/s/ Rainer Meier

    Name:   Rainer Meier
    Title:   Vice President
€200,000,000     JPMORGAN CHASE BANK, N.A.
    By:  

/s/ Peter A. Dedousis

    Name:   Peter A. Dedousis
    Title:   Managing Director
€200,000,000     MORGAN STANLEY BANK
    By:  

/s/ Daniel Twenge

    Name:   Daniel Twenge
    Title:   Authorized Signatory

 

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PPG 364 Day Credit Agreement


               
€200,000,000     THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH
    By:  

/s/ Alan Reiter

    Name:   A. Reiter
    Title:   Authorized Signatory

Total Commitments

     
€1,000,000,000      

 

45

PPG 364 Day Credit Agreement

Exhibit 10.22

Execution Version

$500.0 Million

364-DAY CREDIT AGREEMENT

Dated as of December 7, 2007

among

PPG INDUSTRIES, INC.

and

PPG INDUSTRIES SECURITIES, INC.

as Borrowers

and

THE INITIAL LENDERS NAMED HEREIN

as Initial Lenders

and

CREDIT SUISSE, CAYMAN ISLANDS BRANCH

as Administrative Agent

and

CREDIT SUISSE SECURITIES (USA) LLC

as Sole Lead Arranger and Sole Book Manager

 

PPG 364 Day Credit Agreement


TABLE OF CONTENTS

 

          Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01.    Certain Defined Terms    1
SECTION 1.02.    Computation of Time Periods    12
SECTION 1.03.    Accounting Terms    12
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01.    The Advances    12
SECTION 2.02.    Making the Advances    13
SECTION 2.03.    Fees    14
SECTION 2.04.    Repayment    14
SECTION 2.05.    Interest on Advances    14
SECTION 2.06.    Interest Rate Determination    15
SECTION 2.07.    Optional Conversion of Advances    16
SECTION 2.08.    Prepayments of Advances    16
SECTION 2.09.    Increased Costs    17
SECTION 2.10.    Illegality    17
SECTION 2.11.    Payments and Computations    18
SECTION 2.12.    Taxes    19
SECTION 2.13.    Sharing of Payments, Etc.    20
SECTION 2.14.    Evidence of Debt.    20
SECTION 2.15.    Use of Proceeds    21
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01.    Conditions Precedent to Effectiveness    21
SECTION 3.02.    Conditions Precedent to Funding    22

 

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PPG 364 Day Credit Agreement


SECTION 3.03.    Determinations Under Section 3.01 and 3.02    23
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01.    Representations and Warranties of PPG    24
ARTICLE V
COVENANTS OF THE BORROWERS
SECTION 5.01.    Affirmative Covenants    26
SECTION 5.02.    Negative Covenants    27
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01.    Events of Default    30
ARTICLE VII
GUARANTY
SECTION 7.01.    Guaranty    31
SECTION 7.02.    Guaranty Absolute    31
SECTION 7.03.    Waivers and Acknowledgments    32
SECTION 7.04.    Subrogation    33
SECTION 7.05.    Subordination    33
SECTION 7.06.    Continuing Guaranty; Assignments    34
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01.    Authorization and Action    34
SECTION 8.02.    Administrative Agent’s Reliance, Etc.    34
SECTION 8.03.    Credit Suisse and Affiliates    35
SECTION 8.04.    Lender Credit Decision    35
SECTION 8.05.    Indemnification    35
SECTION 8.06.    Successor Administrative Agent    36
SECTION 8.07.    Other Agents    36

 

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PPG 364 Day Credit Agreement


ARTICLE IX
MISCELLANEOUS
SECTION 9.01.    Amendments, Etc.    36
SECTION 9.02.    Notices, Etc.    36
SECTION 9.03.    No Waiver; Remedies    37
SECTION 9.04.    Costs and Expenses    37
SECTION 9.05.    Right of Set-off    38
SECTION 9.06.    Binding Effect    38
SECTION 9.07.    Assignments and Participations    38
SECTION 9.08.    Confidentiality    41
SECTION 9.09.    Governing Law    41
SECTION 9.10.    Execution in Counterparts    41
SECTION 9.11.    Judgment    41
SECTION 9.12.    Jurisdiction, Etc.    41
SECTION 9.13.    Substitution of Currency    42
SECTION 9.14.    Waiver of Jury Trial    42
SECTION 9.15.    USA PATRIOT ACT    42

 

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PPG 364 Day Credit Agreement


Schedules

 

Schedule I       List of Applicable Lending Offices
Schedule 1.01       Mandatory Cost
Schedule 2.15       Existing Target Debt and Surviving Target Debt
Exhibits      
Exhibit A      

Form of Note

Exhibit B-1      

Form of Notice of Borrowing

Exhibit B-2      

Form of Notice of Continuation

Exhibit C      

Form of Assignment and Acceptance

Exhibit D-1      

Form of Opinion of Counsel for PPG

Exhibit D-2      

Form of Opinion of In-House Counsel for PPG

 

iv

PPG 364 Day Credit Agreement


364-DAY CREDIT AGREEMENT

Dated as of December 7, 2007

PPG INDUSTRIES, INC., a Pennsylvania corporation (“ PPG ”), PPG INDUSTRIES SECURITIES, INC., a Delaware corporation (collectively with PPG, the “ Borrowers ”) the banks, financial institutions and other institutional lenders (the “ Initial Lenders ”) listed on the signature pages hereof, CREDIT SUISSE, CAYMAN ISLANDS BRANCH (“ Credit Suisse ”), as administrative agent (the “ Administrative Agent ”) for the Lenders, and CREDIT SUISSE SECURITIES (USA) LLC, as sole lead arranger and sole book manager (the “ Lead Arranger ”), agree as follows:

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

SECTION 1.01. Certain Defined Terms . As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

Acquisition ” means the acquisition by PPG of all of the Equity Interests in the Target pursuant to the Acquisition Agreement.

Acquisition Agreement ” means the Amended and Restated Agreement for the Sale and Purchase of SigmaKalon (BC) Holdco B.V. dated December 4, 2007 between PPG and the Seller, as amended or otherwise modified or as any of the terms or conditions thereof may be waived from time to time with the consent of the Administrative Agent.

Additional Margin ” means, (a) 0.0% during the period from and including the Effective Date up to, but excluding, the two month anniversary of the Effective Date, (b) 0.10% per annum during the period from and including the two month anniversary of the Effective Date up to, but excluding, the four month anniversary of the Effective Date, (c) 0.20% per annum during the period from and including the four month anniversary of the Effective Date up to, but excluding, the sixth month anniversary of the Effective Date, and (d) 0.30% per annum during the period beginning on the sixth month anniversary of the Effective Date and thereafter.

Advance ” means an advance by a Lender to any Borrower as part of a Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate Advance (each of which shall be a “ Type ” of Advance).

Affiliate ” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. For purposes of this definition, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) of a Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by contract or otherwise.

Agent’s Account ” means (a) in the case of Advances denominated in Dollars, the account of the Administrative Agent maintained by the Administrative Agent at Bank of New York, ABA No.: 021000018, Account Name: CS Cayman A/C, Account No.: XXXXXXXXXX, Reference: PPG, (b) in the case of Advances denominated in Euro, the account of the Administrative Agent maintained by the Administrative Agent at Citibank N.A. London, SWIFT: CITIGB2L, F/O: CS NYC, SWIFT Code: CRESUS33, Account No.: XXXXXXXXXX, Reference: PPG, (c) in the case of Advances denominated in Sterling, the account of the Administrative Agent maintained by the Administrative Agent at HSBC plc, SWIFT: MIDLGB22, Sort Code: 400515, F/O: CREDIT SUISSE NYC, SWIFT Code: CRESUS33, Account No. XXXXXXXXXX, and (d) in any such case, such other account of the Administrative Agent as is designated in writing from time to time by the Administrative Agent to the Borrowers and the Lenders for such purpose.

 

1

PPG 364 Day Credit Agreement


Applicable Lending Office ” means, with respect to each Lender, such Lender’s Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurocurrency Lending Office in the case of a Eurocurrency Rate Advance.

Applicable Margin ” means (a) for Base Rate Advances, 0% per annum, and (b) for Eurocurrency Rate Advances, a percentage per annum determined by reference to the Corporate Rating in effect on such date as set forth below:

 

Corporate Rating

S&P/Moody’s

  

Applicable Margin for

Eurocurrency Rate Advances

 

Level 1

AA- or Aa3 or above

   0.25 %

Level 2

Lower than Level 1 but at least A- or A3

   0.30 %

Level 3

Lower than Level 2 but at least BBB- or Baa3

   0.45 %

Level 4

Lower than Level 3

   0.75 %

Assignment and Acceptance ” means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in substantially the form of Exhibit C hereto or any other form approved by the Administrative Agent and PPG, PPG’s consent not to be unreasonably withheld or delayed.

Bankruptcy Law ” means any proceeding of the type referred to in Section 6.01(h) or 6.01(i) or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.

Base Rate ” means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the higher of:

(a) the rate of interest per annum then most recently announced by Credit Suisse in New York, New York, from time to time, as Credit Suisse’s prime rate for Dollars loaned in the United States; and

(b)  1 / 2 of 1% per annum above the Federal Funds Rate.

The Base Rate is an index rate and is not necessarily intended to be the lowest or best rate of interest charged to other customers in connection with extensions of credit or to other banks.”

Base Rate Advance ” means an Advance denominated in Dollars that bears interest as provided in Section 2.05(a)(ii).

Borrowers ” has the meaning specified in the preamble hereto.

Borrowing ” means a borrowing consisting of simultaneous Advances of the same Type and in the same Currency made by each of the Lenders pursuant to Section 2.01.

 

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PPG 364 Day Credit Agreement


Borrowing Minimum ” means, in respect Advances denominated in Dollars, $10,000,000, in respect of Advances denominated in Sterling, £10,000,000 and, in respect of Advances denominated in Euro, €10,000,000.

Borrowing Multiple ” means, in respect of Advances denominated in Dollars, $1,000,000, in respect of Advances denominated in Sterling, £1,000,000 and, in respect of Advances denominated in Euro, €1,000,000.

Business Day ” means a day of the year on which banks are not required or authorized by law to close in New York City and, if the applicable Business Day relates to any Eurocurrency Rate Advances, on which dealings are carried on in the London interbank market and banks are open for business in London and in the country of issue of the currency of such Eurocurrency Rate Advance (or, in the case of an Advance denominated in Euro, on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open).

Commitment ” means as to any Lender (a) the Euro amount set forth opposite such Lender’s name on the signature pages hereof or (b) if such Lender has entered into any Assignment and Acceptance, the Euro amount set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 9.07(d).

Committed Currencies ” means Sterling and Euro.

Completion Date ” means the date on which “Completion” (as defined in the Acquisition Agreement) occurs.

Confidential Information ” means any and all information and data of PPG and any of PPG’s Subsidiaries that is furnished or otherwise becomes known to the Administrative Agent or any Lender by or through PPG and its Subsidiaries, but does not include any such information that is or becomes generally available to the public (other than, in the case of the Administrative Agent or any Lender, as a result of the disclosure thereof by the Administrative Agent or such Lender, as the case may be) or that is or becomes available to the Administrative Agent or such Lender from a source other than PPG that, to the knowledge of the Administrative Agent or such Lender, as the case may be, is under no duty or obligation to keep such information or data confidential.

Consolidated ” refers to the consolidation of accounts in accordance with GAAP.

Consolidated Subsidiaries ” means the subsidiaries of PPG whose accounts are consolidated with the accounts of PPG in PPG’s consolidated financial statements prepared in accordance with GAAP.

Convert ”, “ Conversion ” and “ Converted ” each refers to a conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.06, 2.07 or 2.10.

Corporate Rating ” means, as of any date of determination, the corporate rating or corporate family rating as determined by either S&P or Moody’s, respectively, of the Borrower. For purposes of the foregoing, (a) if only one of S&P and Moody’s shall have in effect a Corporate Rating, the Applicable Margin shall be determined by reference to the available rating; (b) if neither S&P nor Moody’s shall have in effect a Corporate Rating, the Applicable Margin will be set in accordance with Level 4 under the definition of “ Applicable Margin ”; (c) if the ratings established by S&P and Moody’s shall fall within different levels, the Applicable Margin shall be based upon (i) if such different levels differ by only one level, the higher rating and (ii) if such different levels differ by more than one level, the level immediately below the higher rating; (d) if any rating established by S&P or Moody’s shall be changed, such change shall be effective as of the date on which such change is first announced publicly by the rating agency making such change; and (e) if S&P or Moody’s shall change the basis on which ratings are established, each reference to the Corporate Rating announced by S&P or Moody’s, as the case may be, shall refer to the then equivalent rating by S&P or Moody’s, as the case may be.

 

3

PPG 364 Day Credit Agreement


Currency ” means Dollars and any Committed Currency.

Default ” means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.

Disclosed Matters ” means the actions, suits and proceedings disclosed or otherwise described in PPG’s Annual Report on Form 10-K for the fiscal year ended December 31, 2006 or Quarterly Reports on Forms 10-Q for the quarters ended March 31, 2007, June 30, 2007 and September 30, 2007.

Dollars ” and the “ $ ” sign each means lawful currency of the United States of America.

Domestic Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify to the Borrowers and the Administrative Agent.

Effective Date ” has the meaning specified in Section 3.01.

Eligible Assignee ” means any Person approved by the Administrative Agent, each such approval not to be unreasonably withheld or delayed; provided , however , that neither PPG nor an Affiliate of PPG shall qualify as an Eligible Assignee.

EMU Legislation ” means (a) the Treaty on European Union (the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998), and (b) legislative measures of the European Council (including without limitation European Council regulations) for the introduction of, changeover to or operation of the Euro, in each case as amended or supplemented from time to time.

Equity Interests ” means, with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized or otherwise existing on any date of determination.

Equivalent ” in Dollars, Euro or Sterling of any Currency on any date means the equivalent in Dollars, Euro or Sterling of such Currency determined by using the quoted spot rate at which the Administrative Agent’s principal office in London offers to exchange Dollars, Euro or Sterling, as the case may be, for such Currency in London prior to 4:00 P.M. (London time) (unless otherwise indicated by the terms of this Agreement) on such date as is required pursuant to the terms of this Agreement.

ERISA ” means the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time.

ERISA Affiliate ” means any trade or business (whether or not incorporated) that is a member of a group of which PPG is a member and which is treated as a single employer under Section 414 of the Internal Revenue Code.

Escrow Accounts ” means accounts established at the Escrow Bank, in the name of the Escrow Agent, pursuant to the terms of the Escrow Agreement.

Escrow Agent ” means JPMorgan Chase Bank, N.A.

 

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Escrow Agreement ” means that certain Escrow Agreement dated as of December 4, 2007 (as amended or otherwise modified or as any of the terms or conditions thereof may be waived from time to time with the consent of the Administrative Agent), by and among PPG, PPG Europe B.V., the Seller and the Escrow Agent, and acknowledged by the Notary, pursuant to which, subject to the occurrence of the Satisfaction Date before December 27, 2007, the proceeds of the Advances on the Funding Date will be deposited in an Escrow Account.

EURIBO Rate ” means, for any Interest Period for each Eurocurrency Rate Advance comprising part of the same Borrowing consisting of Euro, (a) the rate per annum equal to the Banking Federation of the European Union EURIBOR Rate (“ BFEA EURIBOR ”), as published by Bloomberg (or another commercially available source providing quotations of BFEA EURIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 A.M., Brussels time, two Business Days prior to the commencement of such Interest Period, for deposits in Euro (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, or (b) if for any reason such rate is not available at such time, the rate per annum determined by the Administrative Agent to be the rate per annum at which deposits in Euro are offered by the principal office of Credit Suisse in London, England to prime banks in the London interbank market at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period in an amount substantially equal to Credit Suisse’s Eurocurrency Rate Advance comprising part of such Borrowing to be outstanding during such Interest Period and for a period equal to such Interest Period, or (c) if for any reason neither of such rates is available at such time, the average of the rate per annum at which deposits in Euro are offered by the principal office of each of the Reference Banks in London, England to prime banks in the London interbank market at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period in an amount substantially equal to such Reference Bank’s Eurocurrency Rate Advance comprising part of such Borrowing to be outstanding during such Interest Period and for a period equal to such Interest Period.

Euro ” and the “ ” sign each means the lawful currency of the European Union as constituted by the treaty establishing the European Community being the Treaty of Rome, as amended from time to time and as referred to in the EMU legislation.

Eurocurrency Lending Office ” means, with respect to any Lender, the office of such Lender specified as its “Eurocurrency Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a Lender (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify to the Borrowers and the Administrative Agent.

Eurocurrency Liabilities ” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.

Eurocurrency Rate ” means for any Interest Period for each Eurocurrency Rate Advance comprising part of the same Borrowing (a) in the case of any Borrowing denominated in Dollars, an interest rate per annum equal to the rate per annum obtained by dividing (i) (x) the rate per annum determined by the Administrative Agent at approximately 11:00 A.M., London time, on the date that is two Business Days prior to the commencement of such Interest Period by reference to the British Bankers’ Association Interest Settlement Rates for deposits in Dollars (as set forth by the Bloomberg Information Service or any successor thereto or any other service selected by the Administrative Agent which has been nominated by the British Bankers’ Association as an authorized information vendor for the purpose of displaying such rates) for a period equal to such Interest Period, or (y) if for any reason such rate is not available at such time, the rate per annum determined by the Administrative Agent to be the rate per annum at which deposits in Dollars are offered by the principal office of Credit Suisse in London, England to prime banks in the London interbank market at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period in an amount substantially equal to such Credit Suisse’s Eurocurrency Rate Advance comprising part of such Borrowing to be outstanding during such Interest Period and for a period equal to such Interest Period, or (z) if for any reason neither of such rates is available at such time, the average of the rate per annum at which deposits in Dollars are offered by the principal office of each of the Reference Banks in London, England to prime banks in the London interbank market at 11:00 A.M.

 

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(London time) two Business Days before the first day of such Interest Period in an amount substantially equal to such Reference Bank’s Eurocurrency Rate Advance comprising part of such Borrowing to be outstanding during such Interest Period and for a period equal to such Interest Period, by (ii) a percentage equal to 100% minus the Eurocurrency Rate Reserve Percentage for such Interest Period, or (b) in the case of any Borrowing denominated in Sterling, (i) the rate per annum appearing on the Bloomberg Information Service or any successor thereto as the London interbank offered rate for deposits in Sterling at approximately 11:00 A.M. (London time) on the first day of such Interest Period for a term comparable to such Interest Period or, if for any reason such rate is not available, the rate per annum determined by the Administrative Agent to be the rate at which Credit Suisse’s London Branch would offer in the European interbank market at approximately 11:00 A.M. (London Time) two Business Days prior to the commencement of such Interest Period for deposits in Sterling for delivery on the first day of such Interest Period in same day funds in the approximate amount of such Eurocurrency Rate Advance being made, continued or converted, or (ii) if for any reason such rate is not available at such time, the rate per annum determined by the Administrative Agent to be the rate per annum at which deposits in Sterling are offered by the principal office of Credit Suisse in London, England to prime banks in the London interbank market at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period in an amount substantially equal to such Credit Suisse’s Eurocurrency Rate Advance comprising part of such Borrowing to be outstanding during such Interest Period and for a period equal to such Interest Period, or (iii) if for any reason neither of such rates is available at such time, the average of the rate per annum at which deposits in Sterling are offered by the principal office of each of the Reference Banks in London, England to prime banks in the London interbank market at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period in an amount substantially equal to such Reference Bank’s Eurocurrency Rate Advance comprising part of such Borrowing to be outstanding during such Interest Period and for a period equal to such Interest Period, or (c) in the case of any Borrowing denominated in Euro, the EURIBO Rate.

Eurocurrency Rate Advance ” means an Advance denominated in Dollars or a Committed Currency that bears interest as provided in Section 2.05(a)(i).

Eurocurrency Rate Reserve Percentage ” for any Interest Period for all Eurocurrency Rate Advances denominated in Dollars comprising part of the same Borrowing means the reserve percentage applicable two Business Days before the first day of such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurocurrency Rate Advances is determined) having a term equal to such Interest Period.

Events of Default ” has the meaning specified in Section 6.01.

Existing Target Debt ” means Indebtedness of the Target and its Subsidiaries outstanding immediately before the occurrence of the Effective Date.

Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

Funded Debt ” means all Indebtedness for money borrowed which by its terms matures at or is extendable or renewable at the option of the obligor to a date more than twelve months after the date of the creation of such Indebtedness.

 

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Funding Date ” has the meaning specified in Section 3.02.

GAAP ” has the meaning specified in Section 1.03.

Guarantee ” of or by any Person means any obligation, contingent or otherwise, of such Person guaranteeing any Indebtedness of any other Person, whether directly or indirectly, and including any obligation of such Person, direct or indirect, to purchase or pay such Indebtedness or to purchase any security for the payment of such Indebtedness; provided , however , that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business.

Guaranteed Obligations ” has the meaning specified in Section 7.01.

Guaranty ” means Guarantee by PPG contained in Article VII.

Indebtedness ” of any Person at any time means, without duplication, (a) all obligations for money borrowed or raised, all obligations (other than accounts payable and other similar items arising in the ordinary course of business) for the deferred payment of the purchase price of property, and all capital lease obligations which, in each case in accordance with GAAP, would be included in determining total liabilities as shown on the liability side of the balance sheet of such Person and (b) all Guarantees by such Person.

Interest Period ” means, initially, for each Eurocurrency Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Eurocurrency Rate Advance or the date of the Conversion of any Base Rate Advance into such Eurocurrency Rate Advance and ending on the last day of the period selected by the applicable Borrower pursuant to the provisions below and, thereafter, with respect to Eurocurrency Rate Advances, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by such Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one, two, three or six months, as the applicable Borrower may select upon notice received by the Administrative Agent not later than (i) in the case of Eurocurrency Rate Advances denominated in Dollars, 11:00 A.M. (New York City time) on the fourth Business Day prior to the first day of such Interest Period and (ii) in the case of Eurocurrency Rate Advances denominated in any Committed Currency, 11:00 A.M. (New York City time), provided , however , that:

(a) such Borrower may not select any Interest Period that ends after the Termination Date;

(b) Interest Periods commencing on the same date for Eurocurrency Rate Advances comprising part of the same Borrowing shall be of the same duration;

(c) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided , however , that, if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day;

(e) whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month; and

(f) if the aggregate principal amount of Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than the Borrowing Minimum, or if an Event of Default shall have occurred and shall be continuing under Section 6.01(a), any new Interest Period therefor shall not exceed one month.

 

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Internal Revenue Code ” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.

Lenders ” means the Initial Lenders and each Person that shall become a party hereto pursuant to Section 9.07.

Lien ” means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.

Loan Documents ” means, collectively, this Agreement and the Notes.

Mandatory Cost ” means, with respect to any period, the percentage rate per annum determined in accordance with Schedule 1.01.

Margin Stock ” shall have the meaning given such term under Regulation U of the Board as from time to time in effect, including all official interpretations thereunder or thereof.

Material Adverse Effect ” means a materially adverse effect on the business, assets, operations or financial condition of PPG and its Subsidiaries, taken as a whole, or a material impairment of the ability of PPG to perform any of its obligations under this Agreement or any of the other Loan Documents to which it is or will be a party.

Moody’s ” means Moody’s Investors Service, Inc.

Net Cash Proceeds ” means:

(a) with respect to any Specified Asset Sale, the excess, if any, of (i) the sum of cash and cash equivalents received in connection with such Specified Asset Sale (including any cash or cash equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the applicable asset and that is required to be repaid in connection with such Specified Asset Sale thereof, (B) the reasonable and customary out-of-pocket costs, fees, commissions, premiums and expenses incurred by PPG and its Subsidiaries in connection with such Specified Asset Sale, and (C) federal, state, provincial, foreign and local taxes reasonably estimated (on a consolidated basis) to be actually payable within the current or the immediately succeeding tax year as a result of any gain recognized in connection therewith;

(b) with respect the offering, incurrence or issuance of any Indebtedness by PPG or any of its Subsidiaries (other than (i) issuances of commercial paper by PPG in the ordinary course of business consistent with past practices, including, without limitation, any such issuances the proceeds of which are to be used to satisfy any amounts due under supplier arrangements, legal settlements, regulatory obligations or judgments or to pay all or any portion of the consideration in respect of any strategic acquisitions, (ii) issuances, offerings or placements of debt securities of the Borrower and its subsidiaries to the extent used to prepay the loans pursuant to the €1.0 Billion Credit Agreement, (iii) Indebtedness under the SigmaKalon Securitization in an aggregate amount not to exceed €150,000,000 outstanding at any time, (iv) Indebtedness under the €1.0 Billion Credit Agreement, and (v) other Indebtedness (excluding Indebtedness under any senior bank credit facility, including, without limitation, the €650 Million Credit Facility) in an aggregate amount not to exceed $100,000,000 outstanding at any time), the excess of (A) the sum of the cash and cash equivalents received in connection with such offering, incurrence or issuance over (B)

 

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the underwriting discounts and commissions or other similar payments, and other out-of-pocket costs, fees, commissions, premiums and expenses incurred by PPG and its Subsidiaries in connection with such offering, incurrence or issuance to the extent such amounts were not deducted in determining the amount referred to in clause (A); and

(c) with respect to the offering, sale or issuance of any Equity Interests (including, without limitation, the receipt of any capital contribution) by PPG or any of its Subsidiaries (other than (i) equity interests issued to PPG or any of its Subsidiaries and (ii) issuances, offerings or placements of equity securities of the Borrower and its subsidiaries to the extent used to prepay the loans made pursuant to the €1.0 Billion Credit Agreement), the excess of (i) the sum of the cash and cash equivalents received in connection with such sale or issuance over (ii) the underwriting discounts and commissions or similar payments, and other out-of-pocket costs, fees, commissions, premiums and expenses, incurred by PPG and its Subsidiaries in connection with such offering, sale or issuance to the extent such amounts were not deducted in determining the amount referred to in clause (i); provided , however , that Net Cash Proceeds shall not include any funds received in connection with the exercise of stock options granted to employees or directors of PPG or any of its Subsidiaries or funds received in connection with dividend reinvestment programs.

Notary ” means Robert Jan Jozef Lijdsman of Allen & Overy LLP, Amsterdam.

Notary Letter ” means that certain letter dated as of December 4, 2007 (as amended or otherwise modified or as any of the terms or conditions thereof may be waived from time to time with the consent of the Administrative Agent), by the Notary to the Seller, PPG, PPG Europe B.V. and ING Bank N.V.

Note ” means a promissory note of any Borrower payable to the order of any Lender, delivered pursuant to a request made under Section 2.14 in substantially the form of Exhibit A hereto, evidencing the aggregate indebtedness of such Borrower to such Lender resulting from the Advances made by such Lender to such Borrower.

Notice of Borrowing ” has the meaning specified in Section 2.02(a).

Notice of Continuation ” has the meaning specified in Section 2.02(f).

€1.0 Billion Credit Agreement ” means that certain 364 Day Credit Agreement dated as of December 7, 2007, among PPG Industries, Inc., certain other borrowers party thereto, certain lenders party thereto, Credit Suisse, Cayman Islands Branch, as Administrative Agent for such lenders, The Bank of Tokyo – Mitsubishi UFJ, Ltd. and New York Branch, Deutsche Bank Securities Inc., as co-syndication agents, J.P. Morgan Securities Inc. and Morgan Stanley Bank, as co-documentation agents, and Credit Suisse Securities (USA) LLC, The Bank of Tokyo – Mitsubishi UFJ, Ltd., New York Branch, Deutsche Bank Securities Inc., J.P. Morgan Securities Inc. and Morgan Stanley Bank, as joint lead arrangers and joint book managers.

Overnight Eurocurrency Rate ” means the average of the rates that represent the cost of overnight funds in the applicable Committed Currency to each of the Reference Banks for such day. The Administrative Agent shall determine the Overnight Eurocurrency Rate for a Committed Currency by obtaining appropriate rate quotes from the Reference Banks, and if any such bank fails to timely provide such quote for any day, then the Overnight Eurocurrency Rate for such day shall be determined by the average based on the quotes from the banks that provided such quotes on that day.

Participating Member State ” means each state so described in any EMU Legislation.

Payment Office ” means, for any Committed Currency, such office of Credit Suisse as shall be from time to time selected by the Administrative Agent and notified by the Administrative Agent to the Borrowers and the Lenders.

 

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PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

Person ” means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.

Plan ” means any pension plan subject to the provisions of Title IV of ERISA or Section 412 of the Internal Revenue Code which is maintained for employees of PPG or any ERISA Affiliate.

Post Petition Interest ” has the meaning specified in Section 7.05(b).

Reference Banks ” means Credit Suisse, JPMorgan Chase Bank, N.A. and Deutsche Bank AG New York Branch.

Register ” has the meaning specified in Section 9.07(d).

Reportable Event ” means any reportable event as defined in Section 4043(b) of ERISA or the regulations issued thereunder with respect to a Plan (other than a Plan maintained by an ERISA Affiliate which is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Internal Revenue Code).

Required Lenders ” means at any time Lenders holding more than 50% of the sum of the then aggregate unpaid principal amount (based on the Equivalent in Euro at such time of any Currency other than Euro) of the Advances owing to Lenders, or, if no such principal amount is then outstanding, Lenders having more than 50% of the Commitments.

Restricted Subsidiary ” means:

(a) any Subsidiary of PPG other than

(i) a Subsidiary substantially all of the physical properties of which are located, or substantially all of the business of which is carried on, outside the United States of America (“United States of America” shall not include the territories and possessions thereof), other than the Target, or

(ii) a Subsidiary the primary business of which consists of purchasing accounts receivable and/or making loans secured by accounts receivable or inventories and/or making investments in real estate or providing services directly related thereto, or which is otherwise primarily engaged in the business of a finance or real estate investment company, or

(iii) a Subsidiary the primary business of which consists of leasing equipment, machinery, vehicles, rolling stock and other articles for use in the business of PPG, or

(iv) a Subsidiary the stock of which is held primarily for the purpose of securing the investment of PPG in such Subsidiary, while the management of such Subsidiary is accumulating funds for the purchase of such stock pursuant to written contract, and

(b) any Subsidiary specified in clauses (i) through (iv) of paragraph (a) above which at the time of determination shall be designated a Restricted Subsidiary pursuant to designation by the board of directors of PPG. PPG may, by a resolution adopted by its board of directors, designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that in the opinion

 

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of the board of directors of PPG such Subsidiary does not own a manufacturing or research property, plant or facility which is of material importance to the business of PPG and its Restricted Subsidiaries taken as a whole, and may designate any Unrestricted Subsidiary to be a Restricted Subsidiary. PPG may by a resolution adopted by its board of directors designate a newly acquired or formed Subsidiary other than the Target to be an Unrestricted Subsidiary, provided such designation takes place within 90 days of such acquisition or formation.

S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

Satisfaction Date ” has the meaning set forth in the Acquisition Agreement, without taking into account any waiver unless consented to in writing by the Administrative Agent.

Secured Debt ” means Indebtedness for money borrowed if such Indebtedness is secured by a mortgage, pledge, lien, security interest or encumbrance on any of the manufacturing or research property, plant or facilities of PPG or any Restricted Subsidiary (but not including a property determined not to be a principal property of PPG or a Restricted Subsidiary by the board of directors of PPG in its discretion) or on any shares of stock or indebtedness of any Restricted Subsidiary.

Seller ” means SigmaKalon Luxco 2, S.à.r.l., a société à responsabilité limitée .

Shareholders’ Interest ” means as of any particular time, the aggregate of equity capital and surplus of PPG and its Consolidated Subsidiaries, after deducting the cost of the shares of PPG held in PPG’s treasury (i.e., shares which had been previously issued and outstanding but have been reacquired and are presently held by PPG), as shown on a consolidated balance sheet of PPG and its Consolidated Subsidiaries, prepared in accordance with GAAP, as of the end of the latest fiscal year ended prior to such determination.

SigmaKalon Securitization ” means the €150,000,000 trade receivables securitization program entered into as of April 28, 2006 by and among HSBC France and certain Subsidiaries of the Target.

€650 Million Credit Facility ” means that certain €650 Million Credit Facility dated as of December 3, 2007, among PPG and certain subsidiaries of PPG listed on Schedule 1 thereof as the original borrowers, BNP Paribas Securities Corp. and SG Americas Securities, LLC, as mandated lead arrangers, Société Générale, New York Branch, as swingline agent in relation to the US$ swingline facility, Société Générale, as swingline agent in relation to the Euro swingline facility, Société Générale, as Facility Agent and BNP Paribas Securities Corp., as Syndication Agent.

Sterling ” and the “ £ ” sign each means the lawful currency of the United Kingdom of Great Britain and Northern Ireland.

Specified Asset Sales ” means the sale of the fine chemicals business of PPG and its Subsidiaries to with ZaCh System S.p.A., and the sale of the automotive original equipment manufacture glass and automotive replacement glass and services businesses of PPG and its Subsidiaries to Platinum Equity, LLC.

Subordinated Obligations ” has the meaning specified in Section 7.05.

Subsidiary ” of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such limited liability company, partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries.

 

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Surviving Target Debt ” means Indebtedness of the Target and its Subsidiaries outstanding immediately before and after giving effect to the Advances as described on Part II of Schedule 2.15.

Target ” means SigmaKalon (BC) Holdco B.V.

Termination Date ” means the earlier of (a) December 5, 2008, (b) April 30, 2008, unless on or before such date the Acquisition has been consummated and all conditions specified in Sections 3.01, 3.02 and 3.03 have been satisfied or waived, (c) January 31, 2008, if the Satisfaction Date has occurred prior to December 27, 2007, unless on or before January 31, 2008 the Acquisition has been consummated and all conditions specified in Sections 3.01, 3.02 and 3.03 have been satisfied or waived, and (d) the date of termination in whole of the Commitments pursuant to Section 6.01.

Total Capitalization ” means, as at any date, with respect to PPG and its Consolidated Subsidiaries, the sum (determined on a consolidated basis without duplication in accordance with GAAP) of (a) Total Indebtedness as at such date plus (b) the amount that should be set forth on the consolidated balance sheet of PPG and its Consolidated Subsidiaries prepared as at such date opposite the caption “Total Shareholders’ Equity” (or the equivalent caption), excluding the amount reported in the financial statements as “Accumulated Other Comprehensive Income (Loss)” related to “Pension and Other Postretirement Benefit Adjustments”.

Total Indebtedness ” means, as at any date, the total amount of Indebtedness of PPG and its Consolidated Subsidiaries on such date, determined on a consolidated basis without duplication in accordance with GAAP.

Unrestricted Subsidiary ” means any Subsidiary of PPG which is not a Restricted Subsidiary.

Voting Stock ” means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.

Wholly-owned Restricted Subsidiary ” means a Restricted Subsidiary all of the outstanding capital stock of which, other than directors’ qualifying shares, and all of the Funded Debt of which, shall at the time be owned by PPG or by one or more Wholly-owned Restricted Subsidiaries, or by PPG in conjunction with one or more Wholly-owned Restricted Subsidiaries.

SECTION 1.02. Computation of Time Periods . In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.

SECTION 1.03. Accounting Terms . All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles consistent with those applied in the preparation of the audited financial statements referred to in Section 4.01(c) (“ GAAP ”).

ARTICLE II

AMOUNTS AND TERMS OF THE ADVANCES

SECTION 2.01. The Advances . Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make one or more Advances to the Borrowers on the Funding Date in an aggregate amount not to exceed the amount of such Lender’s Commitment at such time (based on the Equivalent in Euro at such time of any Currency other than Euro). Each Borrowing shall consist of Advances of the same Type and the same Currency made simultaneously by the Lenders to the same Borrower ratably according to their Commitments. Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed. Anything contained

 

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herein to the contrary notwithstanding, (a) no Borrowings shall be made after April 30, 2008 (or, if the Satisfaction Date has occurred prior to December 27, 2007, January 31, 2008), and (b) to the extent that PPG and its Subsidiaries receives any Net Cash Proceeds following the Effective Date, the unfunded Commitments of the Lenders hereunder shall be ratably reduced by the aggregate amount of such Net Cash Proceeds.

SECTION 2.02. Making the Advances . (a) Each Borrowing shall be made on notice, given not later than (x) 5:00 P.M. (New York City time) on the third Business Day prior to the Funding Date in the case of a Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars, (y) 5:00 P.M. (New York City time) on the third Business Day prior to the Funding Date in the case of a Borrowing consisting of Eurocurrency Rate Advances denominated in any Committed Currency, or (z) 11:00 A.M. (New York City time) on the Funding Date in the case of a Borrowing consisting of Base Rate Advances (which Borrowing may only be denominated in Dollars), by the applicable Borrower to the Administrative Agent, which shall give to each Lender prompt notice thereof. Each notice of Borrowing (a “ Notice of Borrowing ”) shall be by telephone, confirmed immediately in writing, or telecopier or telex in substantially the form of Exhibit B-1 hereto, specifying therein the requested (i) date of such Borrowing (which shall be the Funding Date) and identity of the applicable Borrower, (ii) Type and Currency of Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing consisting of Eurocurrency Rate Advances, the initial Interest Period and Currency. Each Lender shall, before (x) 11:00 A.M. (London time) on the Funding Date in the case of a Borrowing denominated in any Committed Currency and (y) 11:00 A.M. (New York City time) on the Funding Date in the case of a Borrowing denominated in Dollars, make available for the account of its Applicable Lending Office to the Administrative Agent at the applicable Agent’s Account, in same day funds, such Lender’s ratable portion of each Borrowing. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower that requested such Advances via wire transfer as directed by such Borrower in the applicable Notice of Borrowing, provided that (A) if the Funding Date occurs before December 27, 2007, the proceeds thereof shall be disbursed to the Escrow Agent pursuant to the terms of the Escrow Agreement, and (B) in all other cases, the proceeds of the applicable Borrowing shall be disbursed to the Notary.

(b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrowers may not select Eurocurrency Rate Advances for any Borrowing if the aggregate amount thereof is less than the Borrowing Minimum or a Borrowing Multiple in excess thereof or if the obligation of the Lenders to make Eurocurrency Rate Advances shall then be suspended pursuant to Section 2.06 or 2.10 and (ii) the Eurocurrency Rate Advances may not be outstanding as part of more than six separate Borrowings.

(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower giving such Notice of Borrowing. If any Notice of Borrowing specifies that any part of such Borrowing is to be comprised of Eurocurrency Rate Advances, the Borrower giving such Notice of Borrowing shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as part of such Borrowing when such Advance, as a result of such failure, is not made on such date.

(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and the applicable Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of a Borrower, the higher of (A) the interest rate applicable at the time to Advances comprising such Borrowing and (B) the cost of funds incurred by the Administrative Agent in respect of such amount and (ii) in the case of such Lender, (A) the Federal Funds Rate in the case of Advances denominated in Dollars or (B) the Overnight Eurocurrency Rate in the case of Advances denominated in Committed Currencies. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Advance as part of such Borrowing for purposes of this Agreement.

 

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(e) The failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of such Borrowing.

(f) Each Borrower shall (or, in the case of any Eurocurrency Rate Advance consisting of Dollars, may) continue all or any portion of any Eurocurrency Rate Advance upon the expiration of the applicable Interest Period, and the succeeding Interest Period of any such continued Eurocurrency Rate Advance shall commence on the last day of the Interest Period of the Eurocurrency Rate Advance to be continued. Any Eurocurrency Rate Advance or group of Eurocurrency Rate Advances having the same proposed Interest Period and denominated in the same Currency to be continued as a Eurocurrency Rate Advance shall be not less than the Borrowing Minimum and, if in excess thereof, in a Borrowing Multiple in excess thereof. Any such continuation must be made by 11:00 A.M. (New York City time) on the fourth Business Day prior to the end of the Interest Period with respect to any Eurocurrency Rate Advance to be continued as such. Each continuation must be made pursuant to a written notice to the Administrative Agent by telephone, confirmed immediately in writing or by telecopier in substantially the form of Exhibit B-2 hereto (a “ Notice of Continuation ”). If no Notice of Continuation is received by the Administrative Agent with respect to a Eurocurrency Rate Advance by 11:00 A.M. (New York City time) on the fourth Business Day prior to the end of the Interest Period with respect thereto, such Eurocurrency Rate Advance shall be continued in accordance with Section 2.06(c).

SECTION 2.03. Fees . (a) The Borrowers shall pay to the Administrative Agent on the Funding Date, for the ratable account of the Lenders, a takedown fee in an amount equal to 0.05% of the aggregate principal amount of the Advances made hereunder on such date.

(b) If any Advances are outstanding on January 1, 2008, the Borrowers shall pay to the Administrative Agent on such date, for the ratable account of the Lenders, a maintenance fee in an amount equal to 0.05% of the aggregate principal amount of the Advances outstanding on such date.

(c) The Borrowers shall pay to the Administrative Agent for its own account such fees as may from time to time be agreed between PPG and the Administrative Agent.

SECTION 2.04. Repayment . The Borrowers shall repay to the Administrative Agent for the ratable account of the Lenders on the Termination Date the aggregate principal amount of the Advances then outstanding.

SECTION 2.05. Interest on Advances . (a)  Scheduled Interest . The Borrowers shall pay interest on the unpaid principal amount of each Advance owing to each Lender from the date of such Advance until such principal amount shall be paid in full, at the following rates per annum:

(i) Eurocurrency Rate Advances . During such periods as such Advance is a Eurocurrency Rate Advance, a rate per annum equal at all times during each Interest Period for such Advance to the sum of (w) the Eurocurrency Rate for such Interest Period for such Advance plus (x) the Applicable Margin in respect of Eurocurrency Rate Advances in effect from time to time plus (y) the Additional Margin in effect from time to time, plus (z) the Mandatory Cost, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such Eurocurrency Rate Advance shall be Converted or paid in full.

(ii) Base Rate Advances . During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the sum of (x) the Base Rate in effect from time to time plus (y) the Applicable Margin in respect of Base Rate Advances in effect from time to time plus (z) the Additional Margin in effect from time to time, payable in arrears quarterly on the last Business Day of each March, June, September and December during such periods and on the date such Base Rate Advance shall be Converted or paid in full.

 

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(b) Default Interest . Upon the occurrence and during the continuance of an Event of Default under Section 6.01(a), the Administrative Agent may, and upon the request of the Required Lenders shall, require the Borrowers to pay interest (“ Default Interest ”) on (i) the unpaid principal amount of each Advance owing to each Lender, payable in arrears on the dates referred to in clause (a) above, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Advance pursuant to clause (a) above and (ii) to the fullest extent permitted by law, the amount of any interest, fee or other amount payable hereunder that is not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on Base Rate Advances pursuant to clause (a)(ii) above; provided , however , that, following acceleration of the Advances pursuant to Section 6.01, Default Interest shall accrue and be payable hereunder whether or not previously required by the Administrative Agent.

SECTION 2.06. Interest Rate Determination . (a) If it is necessary to determine the Eurocurrency Rate or the Overnight Currency Rate, each Reference Bank agrees to furnish to the Administrative Agent timely information for the purpose of determining each Eurocurrency Rate and each Overnight Eurocurrency Rate. If any one or more of the Reference Banks shall not furnish such timely information to the Administrative Agent for the purpose of determining any such interest rate, the Administrative Agent shall determine such interest rate on the basis of timely information furnished by the remaining Reference Banks. The Administrative Agent shall give prompt notice to the Borrowers and the Lenders of the applicable interest rate determined by the Administrative Agent for purposes of Section 2.05(a), and the rate, if any, furnished by each Reference Bank for the purpose of determining the interest rate under Section 2.05(a)(i) or (ii).

(b) If, with respect to any Eurocurrency Rate Advances, the Required Lenders notify the Administrative Agent that (i) they are unable to obtain matching deposits in the London inter-bank market at or about 11:00 A.M. (London time) on the second Business Day before the making of a Borrowing in sufficient amounts to fund their respective Advances as a part of such Borrowing during its Interest Period or (ii) the Eurocurrency Rate for any Interest Period for such Advances will not adequately reflect the cost to such Required Lenders of making, funding or maintaining their respective Eurocurrency Rate Advances for such Interest Period, the Administrative Agent shall forthwith so notify the Borrowers and the Lenders, whereupon (A) the applicable Borrower will, on the last day of the then existing Interest Period therefor, (1) if such Eurocurrency Rate Advances are denominated in Dollars, either (x) prepay such Advances or (y) Convert such Advances into Base Rate Advances and (2) if such Eurocurrency Rate Advances are denominated in any Committed Currency, either (x) prepay such Advances or (y) exchange such Advances into an Equivalent amount of Dollars and Convert such Advances into Base Rate Advances and (B) the obligation of the Lenders to make, or to Convert Advances into, Eurocurrency Rate Advances shall be suspended until the Administrative Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist; provided that (1) if the circumstances set forth in clause (ii) above are applicable to Eurocurrency Rate Advances for any Committed Currency, the applicable Borrower may elect, by notice to the Administrative Agent and the Lenders, to continue such Advances in such Committed Currency for a period of not longer than 30 days, which Advances shall bear interest at a rate per annum equal to the Applicable Margin in respect of Eurocurrency Rate Advances, plus the Additional Margin, plus, for each Lender, the cost to such Lender (expressed as a rate per annum) of funding its Eurocurrency Rate Advances by whatever means it reasonably determines to be appropriate, plus, without duplication, the Mandatory Cost, and (2) if the circumstances causing such suspension shall cease to exist, any conversion of Advances back to the original Committed Currency shall be on such terms and conditions as the Administrative Agent may reasonably require. Each Lender shall certify its cost of funds for each Interest Period to the Administrative Agent and the applicable Borrower as soon as practicable (but in any event not later than ten Business Days after the first day of such period).

(c) If any Borrower shall fail to select the duration of any Interest Period for any Eurocurrency Rate Advances in accordance with the provisions contained in the definition of “Interest Period” in Section 1.01 and Section 2.02(f), the Administrative Agent will forthwith so notify such Borrower and the Lenders and the Interest Period for such Advances will automatically, on the last day of the then existing Interest Period therefor, become one month.

 

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(d) On the date on which the aggregate unpaid principal amount of Eurocurrency Rate Advances comprising any Borrowing denominated in Dollars shall be reduced, by payment or prepayment or otherwise, to less than the Borrowing Minimum, such Advances shall automatically Convert into Base Rate Advances.

(e) Upon the occurrence and during the continuance of any Event of Default under Section 6.01(a), (i) each Eurocurrency Rate Advance denominated in Dollars will automatically, on the last day of the then existing Interest Period therefor, be Converted into Base Rate Advances, (ii) if and to the extent (and for such period) required by the Administrative Agent, any Borrowing specified by the Administrative Agent consisting of Eurocurrency Rate Advances in any Committed Currency shall bear interest at the Overnight Eurocurrency Rate, and (iii) the obligation of the Lenders to make, or to Convert Advances into, Eurocurrency Rate Advances shall be suspended.

(f) If information necessary for determining any Eurocurrency Rate is unavailable and fewer than two Reference Banks furnish timely information to the Administrative Agent for determining the Eurocurrency Rate for any Eurocurrency Rate Advances,

(i) the Administrative Agent shall forthwith notify the applicable Borrower and the Lenders that the interest rate cannot be determined for such Eurocurrency Rate Advances,

(ii) each Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, (A) if such Eurocurrency Rate Advance is denominated in Dollars, Convert into a Base Rate Advance and (B) if such Eurocurrency Rate Advance is denominated in any Committed Currency, be prepaid by the applicable Borrower or be automatically exchanged for an Equivalent amount of Dollars and be Converted into a Base Rate Advance (or if such Advance thereof is then a Base Rate Advance, will continue as a Base Rate Advance), and

(iii) the obligation of the Lenders to make Eurocurrency Rate Advances or to Convert any Advances into Eurocurrency Rate Advances shall be suspended until the Administrative Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist.

SECTION 2.07. Optional Conversion of Advances . Any Borrower may on any Business Day, upon notice given to the Administrative Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.06 and 2.10, Convert all Advances made to it denominated in Dollars of one Type comprising the same Borrowing into Advances denominated in Dollars of the other Type; provided , however , that any Conversion of Eurocurrency Rate Advances into Base Rate Advances shall be made only on the last day of an Interest Period for such Eurocurrency Rate Advances, any Conversion of Base Rate Advances into Eurocurrency Rate Advances shall be in an amount not less than the Borrowing Minimum or any Borrowing Multiple in excess thereof and no Conversion of any Advances shall result in more separate Borrowings than permitted under Section 2.02(b). Each such notice of a Conversion shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the Dollar denominated Advances to be Converted, and (iii) if such Conversion is into Eurocurrency Rate Advances, the duration of the initial Interest Period for each such Advance. Each notice of Conversion shall be irrevocable and binding on the Borrower giving such notice.

SECTION 2.08. Prepayments of Advances . (a)  Optional . Any Borrower may, upon notice at least three Business Days’ prior to the date of such prepayment, in the case of Eurocurrency Rate Advances, and not later than 11:00 A.M. (New York City time) on the date of such prepayment, in the case of Base Rate Advances, to the Administrative Agent stating the proposed date and aggregate principal amount of the prepayment and Currency thereof, and if such notice is given such Borrower shall, prepay the outstanding principal amount of the Advances comprising part of the same Borrowing in whole or ratably in part, together with, notwithstanding Section 2.05(a), accrued interest to the date of such prepayment on the principal amount prepaid; provided , however , that (x) each partial prepayment shall be in an aggregate principal amount not less than the Borrowing Minimum or Borrowing Multiple in excess thereof and (y) in the event of any such prepayment of a Eurocurrency Rate Advance, the applicable Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section 9.04(c).

 

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(b) Mandatory . (i) On the date of receipt of any Net Cash Proceeds by any Borrower or any of its Subsidiaries (other than any such Net Cash Proceeds the amount of which is applied to reduce the aggregate amount of the unfunded Commitments as provided in Section 2.01), the Borrowers shall prepay an aggregate principal amount of the Advances (as specified by PPG prior to such prepayment or, in the absence of such specification, as determined by the Administrative Agent) in an amount equal to the amount of such Net Cash Proceeds.

(ii) Each prepayment made pursuant to this Section 2.08(b) shall be made together with, notwithstanding Section 2.05(a), any interest accrued to the date of such prepayment on the principal amounts prepaid and, in the case of any prepayment of a Eurocurrency Rate Advance on a date other than the last day of an Interest Period or at its maturity, any additional amounts which the Borrowers shall be obligated to reimburse to the Lenders in respect thereof pursuant to Section 9.04(c).

SECTION 2.09. Increased Costs . (a) If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other governmental authority including, without limitation, any agency of the European Union or similar monetary or multinational authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of agreeing to make or making, funding or maintaining Eurocurrency Rate Advances (excluding for purposes of this Section 2.09 any such increased costs resulting from (1) Taxes or Other Taxes (as to which Section 2.12 shall govern) and (2) changes in the basis of taxation of overall net income or overall gross income by the United States of America or by the foreign jurisdiction or state under the laws of which such Lender is organized or has its Applicable Lending Office or any political subdivision thereof), then the Borrowers shall from time to time, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to the Borrowers and the Administrative Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest error.

(b) If any Lender determines that compliance with any law or regulation or any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Lender or any Person controlling such Lender and that the amount of such capital is increased by or based upon the existence of such Lender’s commitment to lend hereunder and other commitments of this type, then, upon demand by such Lender (with a copy of such demand to the Administrative Agent), the Borrowers shall pay to the Administrative Agent for the account of such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender or such Person in the light of such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender’s commitment to lend hereunder. A certificate as to such amounts submitted to the Borrowers and the Administrative Agent by such Lender shall be conclusive and binding for all purposes, absent manifest error.

SECTION 2.10. Illegality . Notwithstanding any other provision of this Agreement, if any Lender shall notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful, for any Lender or its Eurocurrency Lending Office to perform its obligations hereunder to make Eurocurrency Rate Advances in Dollars or any Committed Currency or to fund or maintain Eurocurrency Rate Advances in Dollars or any Committed Currency hereunder, (a) each Eurocurrency Rate Advance will automatically, upon such demand, (i) if such Eurocurrency Rate Advance is denominated in Dollars, be Converted into a Base Rate Advance or an Advance that bears interest at the rate set forth in Section 2.05(a)(i), as the case may be, and (ii) if such Eurocurrency Rate Advance is denominated in any Committed Currency, be exchanged into an Equivalent amount of Dollars and be Converted into a Base Rate Advance, and (b) the obligation of the Lenders to make Eurocurrency Rate Advances or to Convert Advances into Eurocurrency Rate Advances shall be suspended until the Administrative Agent shall notify the Borrowers and the Lenders that the circumstances causing such suspension no longer exist, provided that if the circumstances causing such suspension shall cease to exist, any conversion of Advances back to the original Committed Currency shall be on such terms and conditions as the Administrative Agent may reasonably require.

 

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SECTION 2.11. Payments and Computations . (a) The Borrowers shall (i) make each payment hereunder, without counterclaim or set-off, with respect to principal of, interest on, and other amounts relating to, Advances denominated in Dollars not later than 11:00 A.M. (New York City time) on the day when due in Dollars to the Administrative Agent at the applicable Agent’s Account in same day funds, and (ii) make each payment hereunder, without counterclaim or set-off, with respect to principal of, interest on, and other amounts relating to, Advances denominated in a Committed Currency, not later than 11:00 A.M. (at the Payment Office for such Committed Currency) on the day when due in such Committed Currency to the Administrative Agent, by deposit of such funds to the applicable Agent’s Account in same day funds, with payments being received by the Administrative Agent on any Business Day after 11:00 A.M. New York City time or at the Payment Office, as the case may be (or on a day that is not a Business Day), being deemed (in the Administrative Agent’s sole discretion) to have been received on the next succeeding Business Day. The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest ratably (other than amounts payable pursuant to Section 2.09, 2.12 or 9.04(c)) to the Lenders for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 9.07(c), from and after the effective date specified in such Assignment and Acceptance, the Administrative Agent shall make all payments hereunder and under the other Loan Documents in respect of the interest assigned thereby to the Lender assignee thereunder for any period after the effective date specified in such Assignment and Acceptance, and to the Lender assignor for periods prior to such effective date.

(b) Each Borrower hereby authorizes each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or under the other Loan Documents, to charge from time to time against any or all of such Borrower’s accounts with such Lender any amount so due.

(c) All computations of interest based on the Base Rate shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, all computations of interest based on the Eurocurrency Rate, Overnight Eurocurrency Rate or the Federal Funds Rate shall be made by the Administrative Agent on the basis of a year of 360 days (or, in each case of Advances denominated in Committed Currencies where market practice differs, in accordance with market practice), in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable. Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.

(d) Except as otherwise provided herein, whenever any payment hereunder or under the other Loan Documents shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest; provided , however , that, if such extension would cause payment of interest on or principal of Eurocurrency Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.

(e) Unless the Administrative Agent shall have received notice from a Borrower prior to the date on which any payment is due to the Lenders hereunder or under the other Loan Documents that such Borrower will not make such payment in full, the Administrative Agent may assume that such Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent such Borrower shall not have so made such payment in full to the Administrative Agent, each Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent, at (i) the Federal Funds Rate in the case of Advances denominated in Dollars or (ii) the cost of funds incurred by the Administrative Agent in respect of such amount in the case of Advances denominated in Committed Currencies.

(f) To the extent that the Administrative Agent receives funds for application to the amounts owing by any Borrower under or in respect of this Agreement or any of the other Loan Documents in currencies other than the currency or currencies required to enable the Administrative Agent to distribute funds to the Lenders

 

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in accordance with the terms of this Section 2.11, the Administrative Agent shall be entitled to convert or exchange such funds into Dollars or into a Committed Currency or from Dollars to a Committed Currency or from a Committed Currency to Dollars, as the case may be, to the extent necessary to enable the Administrative Agent to distribute such funds in accordance with the terms of this Section 2.11; provided that each Borrower and each of the Lenders hereby agrees that the Administrative Agent shall not be liable or responsible for any loss, cost or expense suffered by such Borrower or such Lender as a result of any conversion or exchange of currencies affected pursuant to this Section 2.11(f) or as a result of the failure of the Administrative Agent to effect any such conversion or exchange unless such loss, cost or expense or such failure is the result of fraudulent acts or omissions, gross negligence or willful misconduct of the Administrative Agent; and provided , further , that each Borrower, jointly and severally with each other Borrower, agrees to indemnify the Administrative Agent and each Lender, and hold the Administrative Agent and each Lender harmless, for any and all losses, costs and expenses incurred by the Administrative Agent or any Lender for any conversion or exchange of currencies (or the failure to convert or exchange any currencies) in accordance with this Section 2.11(f) except to the extent such losses, costs or expenses arose as a result of fraudulent acts or omissions, gross negligence or willful misconduct of the Administrative Agent.

SECTION 2.12. Taxes . (a) Any and all payments by the Borrowers to or for the account of any Lender or the Administrative Agent hereunder or under any of the other Loan Documents shall be made, in accordance with Section 2.11 or the applicable provisions of such other documents, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding , in the case of each Lender and the Administrative Agent, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction under the laws of which such Lender or the Administrative Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction of such Lender’s Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder or under any of the other Loan Documents being hereinafter referred to as “ Taxes ”). If the Borrowers shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any of the other Loan Documents or any other documents to be delivered hereunder or thereunder to any Lender or the Administrative Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.12) such Lender or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrowers shall make such deductions and (iii) the Borrowers shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.

(b) In addition, the Borrowers shall be jointly and severally liable for the payment of and shall pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from any payment made hereunder or under any of the other Loan Documents or any other documents to be delivered hereunder or thereunder or from the execution, delivery or registration of, performing under, or otherwise with respect to, this Agreement or any of the other Loan Documents or any other documents to be delivered hereunder or thereunder (hereinafter referred to as “ Other Taxes ”).

(c) The Borrowers shall jointly and severally indemnify each Lender and the Administrative Agent for and hold it harmless against the full amount of Taxes or Other Taxes (including, without limitation, taxes of any kind imposed or asserted by any jurisdiction on amounts payable under this Section 2.12) imposed on or paid by such Lender or the Administrative Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30 days from the date such Lender or the Administrative Agent (as the case may be) makes written demand therefor.

(d) Within 30 days after the date of any payment of Taxes, the Borrowers shall furnish to the Administrative Agent, at its address referred to in Section 9.02, the original or a certified copy of a receipt evidencing such payment to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent. In the case of any payment hereunder or under the Notes or any other documents to be delivered hereunder by or on behalf of any Borrower through an account or branch outside the United States or by or on behalf of any Borrower by a payor that is not a United States person, if the applicable Borrower determines that no Taxes are payable in respect thereof, such Borrower shall furnish, or shall

 

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cause such payor to furnish, to the Administrative Agent, at such address, an opinion of counsel acceptable to the Administrative Agent stating that such payment is exempt from Taxes. For purposes of this subsection (d) and subsection (e) below, the terms “ United States ” and “ United States person ” shall have the meanings specified in Section 7701 of the Internal Revenue Code.

(e) Each Lender organized under the laws of a jurisdiction outside the United States, on or prior to the date of its execution and delivery of this Agreement in the case of each Initial Lender and on the date of the Assignment and Acceptance pursuant to which it becomes a Lender in the case of each other Lender, and from time to time thereafter as reasonably requested in writing by the Borrowers (but only so long as such Lender remains lawfully able to do so), shall provide each of the Administrative Agent and the Borrowers with two original Internal Revenue Service forms W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate of United States withholding tax on payments pursuant to this Agreement or the Notes. If the form provided by a Lender at the time such Lender first becomes a party to this Agreement indicates a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded from Taxes unless and until such Lender provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such form; provided , however , that, if at the date of the Assignment and Acceptance pursuant to which a Lender assignee becomes a party to this Agreement, the Lender assignor was entitled to payments under subsection (a) in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to the Lender assignee on such date. If any form or document referred to in this subsection (e) requires the disclosure of information, other than information necessary to compute the tax payable and information required on the date hereof by Internal Revenue Service form W-8BEN or W-8ECI, that the Lender reasonably considers to be confidential, the Lender shall give notice thereof to the Borrowers and shall not be obligated to include in such form or document such confidential information.

(f) For any period with respect to which a Lender has failed to provide the Borrowers with the appropriate form, certificate or other document described in Section 2.12(e) ( other than if such failure is due to a change in law, or in the interpretation or application thereof, occurring subsequent to the date on which a form, certificate or other document originally was required to be provided, or if such form otherwise is not required under subsection (e) above), such Lender shall not be entitled to indemnification under Section 2.12(a) or (c) with respect to Taxes imposed by the United States of America by reason of such failure; provided , however , that should a Lender become subject to Taxes because of its failure to deliver a form, certificate or other document required hereunder, the Borrowers shall take such steps as the Lender shall reasonably request to assist the Lender to recover such Taxes.

SECTION 2.13. Sharing of Payments, Etc . If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the Advances owing to it (other than pursuant to Section 2.09, 2.12 or 9.04(c)) in excess of its ratable share of payments on account of the Advances obtained by all the Lenders holding such Advances, such Lender shall forthwith purchase from the other Lenders such participations in the Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided , however , that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. Each Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.13 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of such Borrower in the amount of such participation.

SECTION 2.14. Evidence of Debt . (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Advance owing to such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder in respect of Advances. Each Borrower agrees that upon notice by any

 

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Lender to such Borrower (with a copy of such notice to the Administrative Agent) to the effect that one or more Notes is or are required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) any of the Advances owing to, or to be made by, such Lender, such Borrower shall promptly execute and deliver to such Lender one or more Notes payable to the order of such Lender in an aggregate principal amount up to the unfunded Commitment of such Lender or, after the Funding Date, in an aggregate principal amount up to the Advances owing to such Lender.

(b) The Register maintained by the Administrative Agent pursuant to Section 9.07(d) shall include a control account, and a subsidiary account for each Lender, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type and Currency of Advances comprising such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from each Borrower to each Lender hereunder and (iv) the amount of any sum received by the Administrative Agent from any Borrower hereunder and each Lender’s share thereof.

(c) Entries made in good faith by the Administrative Agent in the Register pursuant to subsection (b) above, and by each Lender in its account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due and payable or to become due and payable from the applicable Borrower to, in the case of the Register, each Lender and, in the case of such account or accounts, such Lender, under this Agreement, absent manifest error; provided , however , that the failure of the Administrative Agent or such Lender to make an entry, or any finding that an entry is incorrect, in the Register or such account or accounts shall not limit or otherwise affect the obligations of any Borrower under this Agreement.

SECTION 2.15. Use of Proceeds . The proceeds of the Advances shall be available (and each Borrower agrees that it shall use such proceeds) solely to pay all or a portion of (a) the aggregate cash consideration of €717 million and $617.4 million to the Seller pursuant to the Acquisition Agreement, (b) the amount required to refinance the Existing Target Debt described on Part I of Schedule 2.15, and (c) the fees and expenses incurred in connection with the foregoing and in connection with this Agreement. Each Borrower agrees that it shall apply the proceeds of the Advances in compliance with all applicable laws.

ARTICLE III

CONDITIONS TO EFFECTIVENESS AND LENDING

SECTION 3.01. Conditions Precedent to Effectiveness . This Agreement (other than the several obligations of the Lenders to make Advances hereunder pursuant to section 2.01) shall become effective on and as of the first date (the “ Effective Date ”) occurring on or prior to December 7, 2007 on which the following conditions precedent have been satisfied:

(a) The Lenders shall have been given such access to the management, records, books of account, contracts and properties of PPG and its Subsidiaries as they shall have reasonably requested.

(b) The Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including, without limitation, the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) the “ Patriot Act ”).

(c) PPG shall have notified the Administrative Agent in writing as to the proposed Effective Date.

(d) PPG shall have paid all accrued fees and expenses of the Administrative Agent (including the accrued fees and expenses of counsel to the Administrative Agent).

 

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(e) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of PPG, dated the Effective Date, stating that:

(i) The representations and warranties contained in Section 4.01 are true and correct on and as of the Effective Date, and

(ii) No event has occurred and is continuing that constitutes a Default.

(f) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent and (except for the Notes) in sufficient copies for each Lender:

(i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.14.

(ii) Certified copies of the resolutions of the Board of Directors of PPG and each other Borrower approving this Agreement and the other Loan Documents, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Loan Documents.

(iii) A certificate of the Secretary or an Assistant Secretary of PPG and each other Borrower certifying the names and true signatures of the officers of PPG and each other Borrower authorized to sign this Agreement and the other Loan Documents and the other documents to be delivered hereunder or thereunder.

(iv) Favorable opinions of (A) Kirkpatrick & Lockhart Preston Gates Ellis LLP, counsel for PPG and the other Borrowers, and B) James C. Diggs, counsel for PPG, substantially in the form of Exhibits D-1 and D-2 hereto, respectively, and as to such other matters as any Lender through the Administrative Agent may reasonably request.

(g) The Administrative Agent shall have received such other approvals, opinions or documents as the Administrative Agent or any Lender through the Administrative Agent may reasonably request.

SECTION 3.02. Conditions Precedent to Funding . Section 2.01 of this Agreement (and the several obligations of the Lenders to make Advances hereunder) shall become effective on and as of the first date (the “ Funding Date ”) occurring on or prior to April 30, 2008 (or, if the Satisfaction Date has occurred prior to December 27, 2007, January 31, 2008) on which the following conditions precedent have been satisfied:

(a) Except for the Disclosed Matters, there shall exist no action, suit, investigation, litigation or proceeding affecting PPG or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) if adversely decided would have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any of the other Loan Documents or the consummation of the transactions contemplated hereby or thereby.

(b) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby (other than the Acquisition) shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.

(c) PPG shall have notified the Administrative Agent in writing as to the proposed Funding Date.

 

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(d) PPG shall have paid all accrued fees and expenses of the Administrative Agent (including the accrued fees and expenses of counsel to the Administrative Agent).

(e) If the Satisfaction Date has occurred prior to December 27, 2007, the Escrow Agreement and the Notary Letter shall be in full force and effect without any amendment or other modification thereto except to the extent approved in writing by the Administrative Agent.

(f) On the Funding Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of PPG, dated the Funding Date, stating that:

(i) The representations and warranties contained in Section 4.01 (except the representations and warranties set forth in subsection (u) thereof) are true and correct on and as of the Funding Date, before and after giving effect to the Borrowing or Borrowings to be made on such date, and to the application of the proceeds therefrom, as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date,

(ii) no event has occurred and is continuing, or would result from the Borrowing or Borrowings to be made on such date or from the application of the proceeds therefrom that constitutes a Default, and

(iii) the Satisfaction Date has occurred.

(g) If the Satisfaction Date has not occurred prior to December 27, 2007, the Completion Date shall have occurred.

(h) If the Satisfaction Date has not occurred prior to December 27, 2007, all Existing Target Debt, other than Surviving Target Debt, has been, or is simultaneously being, prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and all commitments relating thereto terminated.

(i) If the Satisfaction Date has not occurred prior to December 27, 2007, at least three Business Days prior to the Funding Date of the date of the Second Borrowing, PPG shall have confirmed in writing to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent, that the conditions precedent set forth in clauses (g) and (h) above will be satisfied simultaneously with the Advances to be made on such date.

(j) The Administrative Agent shall have received such other approvals, opinions or documents as the Administrative Agent or any Lender through the Administrative Agent may reasonably request.

SECTION 3.03. Determinations Under Section 3.01 and 3.02 . For purposes of determining compliance with the conditions specified in Section 3.01 and 3.02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the date that PPG, by notice to the Lenders, designates as the proposed Effective Date or Funding Date, as applicable, specifying such Lender’s objection thereto. The Administrative Agent shall promptly notify the Lenders and PPG in writing of the occurrence of the Effective Date and the Funding Date, as applicable.

 

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ARTICLE IV

REPRESENTATIONS AND WARRANTIES

SECTION 4.01. Representations and Warranties of PPG . PPG represents and warrants as follows:

(a) It is a corporation validly existing and in good standing under the laws of the Commonwealth of Pennsylvania, with all requisite corporate authority to own its properties and to carry on the business in which it is engaged; and it is duly qualified to transact the business in which it is engaged and is in good standing (to the extent such concept is recognized) in those jurisdictions in which the real or personal property owned or leased or the business conducted by it are material to its operations, except where failure to so qualify would not have a Material Adverse Effect. Each other Borrower is a corporation validly existing and in good standing under the laws of the jurisdiction of its incorporation, with all requisite corporate authority to own its properties and to carry on the business in which it is engaged; and is duly qualified to transact the business in which it is engaged and is in good standing (to the extent such concept is recognized) in those jurisdictions in which the real or personal property owned or leased or the business conducted by it are material to its operations, except where failure to so qualify would not have a Material Adverse Effect.

(b) Each Borrower has the corporate power and authority to execute, deliver and perform this Agreement, to make the Borrowings provided for herein, to execute and deliver each of the other Loan Documents to which it is a party and to perform its obligations under each of the other Loan Documents to which it is a party; and all such action has been duly authorized by all necessary corporate proceedings on its part.

(c) The audited consolidated balance sheets and related consolidated statements of income, shareholders’ equity, comprehensive income and cash flows contained in PPG’s Registration Statement on Form S-3, filed with the Securities and Exchange Commission on August 2, 2007, have been prepared in accordance with GAAP and present fairly, in all material respects, the financial position of PPG and its Consolidated Subsidiaries as of December 31, 2006 and 2005 and the results of operations and cash flows of PPG and its Consolidated Subsidiaries for each of the three fiscal years ending on December 31, 2006, 2005 and 2004. The unaudited consolidated balance sheets and related consolidated statements of income contained in PPG’s Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2007, have been prepared in accordance with GAAP applicable to interim unaudited financial statements and, except for the absence of footnotes and other information required to be included in audited financial statements prepared in accordance with GAAP, present fairly, in all material respects, the financial position of PPG and its Consolidated Subsidiaries as of September 30, 2007 and the results of operations of PPG and its Consolidated Subsidiaries for the three and nine months then ended.

(d) Neither the execution and delivery of this Agreement or any of the other Loan Documents to which it or any other Borrower is a party, nor the consummation of the transactions herein contemplated, nor compliance with the terms and provisions hereof or thereof, will violate or result in a breach (i) of any of the terms, conditions or provisions of the Restated Articles of Incorporation or bylaws of PPG or the articles of incorporation or charter or bylaws of any other Borrower; or (ii) of any order, writ, injunction, judgment or decree of any court or any law or regulation of the Federal government, the State of New York or any state or other jurisdiction in which the real or personal property owned or leased or the business conducted by PPG or any of its Subsidiaries is material to their respective operations, or any instrumentality of such government; or (iii) of any agreement or instrument to which PPG or any of its Subsidiaries is a party or by which it or any of its Subsidiaries is bound, the violation or breach of which would have a Material Adverse Effect or would constitute a default thereunder; or (iv) of any agreement or instrument to which PPG or any of its Subsidiaries is a party or by which it or any of its Subsidiaries is bound which would result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property of PPG or any of its Subsidiaries, which lien, charge or encumbrance would have a Material Adverse Effect.

(e) This Agreement and each of the other Loan Documents to which it or any other Borrower is a party have been duly and validly executed and delivered by PPG and each of the other Borrowers and constitute legal, valid and binding obligations of PPG and each such other Borrower enforceable in accordance with their respective terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights.

 

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(f) Each of PPG and its Subsidiaries has fulfilled its obligations under ERISA and the Internal Revenue Code with respect to each Plan and is in compliance with the presently applicable provisions of ERISA and the Internal Revenue Code with respect to each Plan, except for such failures or non-compliance as would not have a Material Adverse Effect. No Reportable Event has occurred and is continuing with respect to any Plan, except for such Reportable Events as would not have a Material Adverse Effect. Neither PPG nor any of its Subsidiaries has incurred any liability to PBGC or under ERISA and the Internal Revenue Code with respect to any Plan, except for premiums not yet due and payable or liabilities as would not have a Material Adverse Effect.

(g) No authorization, consent, approval, license or other action by, and no registration or filing with, any government agency or instrumentality is necessary in connection with the execution and delivery of this Agreement or the Notes, the consummation of the transactions herein contemplated or the performance of or compliance with the terms and conditions hereof and thereof, except for such authorizations, consents, approvals, licenses or other actions by, and such registrations or filings with, such government agencies or instrumentalities as have been or will be timely made or obtained.

(h) There is no threatened or, to the knowledge of PPG, pending proceeding by or before any court, government agency or instrumentality or arbitrator against or affecting PPG or any of its Subsidiaries which (i) except for the Disclosed Matters, if adversely decided would have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.

(i) No part of the Advances will be utilized for the purpose of enabling PPG to buy or carry any Margin Stock and neither PPG nor any Subsidiary is in the business of extending credit to others for such purpose.

(j) (i) PPG and its Subsidiaries have good and marketable title to, or valid leasehold interests in, all of their respective material properties and assets, except for minor defects in title that do not materially interfere with the ability to conduct their respective businesses as currently conducted or to utilize such properties and assets for their intended purposes.

(ii) PPG and its Subsidiaries have complied with all obligations under all material leases to which each of them is a party and all such leases are in full force and effect, except where failure to so comply would not have a Material Adverse Effect. PPG and its Subsidiaries enjoy peaceful and undisturbed possession under all such material leases, except where the lack of such peaceful and undisturbed possession would not have a Material Adverse Effect.

(iii) PPG and its Subsidiaries own or possess all the patents, trademarks, service marks, trade names, copyrights, licenses, franchises, permits and rights with respect to the foregoing necessary to own and operate their respective properties and to carry on their respective business as presently conducted and as presently planned to be conducted without conflict with the rights of others in any manner that would have a Material Adverse Effect.

(k) No statement made by PPG in any certificate, report or document furnished by or on behalf of PPG under or in connection with this Agreement or any of the other Loan Documents is false or misleading in any material respect and no such certificate, report or document omits to state a material fact necessary to make the statements contained therein not misleading.

(l) [Intentionally omitted].

(m) PPG has filed all United States Federal income tax returns and all other material tax returns which are required to be filed by it and has paid all taxes due pursuant to such returns or pursuant to any assessment received by PPG except for any taxes or assessments that PPG is contesting in good faith. The charges, accruals and reserves on the books of PPG in respect of taxes or other governmental charges are, in the opinion of PPG, adequate.

 

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(n) PPG and its Subsidiaries are in compliance in all material respects with all laws and regulations relating to the protection of the environment except where the failure to do so, either singly or in the aggregate, would not have a Material Adverse Effect.

(o) No Borrower is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.

(p) Other than Liens permitted pursuant to Section 5.02(c) and Liens which would not result in a Material Adverse Effect, no Lien exists over all or any of the present or future revenues or assets of PPG or any of its Subsidiaries.

(q) Each Borrower (other than PPG) is a Wholly-owned Restricted Subsidiary of PPG.

(r) No financial statement contained in any filing by PPG with the United States Securities and Exchange Commission when filed is false or misleading in any material respect or omits to state a material fact necessary to make the statements contained therein not misleading.

(s) Immediately after giving effect to the Advances, the Target will not have any Indebtedness other than the Indebtedness described on Part II of Schedule 2.15.

(t) On and as of the Completion Date, the Acquisition will have been consummated in accordance with the Acquisition Agreement and applicable Law.

(u) Since December 31, 2006, there has been no material adverse change in the business, assets, operations or condition, financial or otherwise, of PPG, or of PPG and its Consolidated Subsidiaries taken as a whole.

As used in this Section 4.01, “material” shall mean material in the context of the financial condition of PPG and its Consolidated Subsidiaries taken as a whole.

ARTICLE V

COVENANTS OF THE BORROWERS

SECTION 5.01. Affirmative Covenants . So long as any Advances shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrowers will:

(a) Reports, Financial Statements and Other Information . (i) File or cause to be filed with the United States Securities and Exchange Commission in compliance with the requirements thereof each Current Report on Form 8-K, Quarterly Report on Form 10-Q and Annual Report on Form 10-K required to be filed by PPG and deliver to the Administrative Agent, within 120 days of the end of each fiscal year of PPG, a certificate of the chief financial officer of PPG as to compliance with the terms of this Agreement and setting forth in reasonable detail the calculations necessary to demonstrate compliance with the ratio of Total Indebtedness of PPG and its Consolidated Subsidiaries to Total Capitalization as provided in Section 5.02(b) hereof, provided that, to the extent that any Lender is required pursuant to applicable law to obtain directly from the Borrowers any financial statements included in any such report filed with the United States Securities and Exchange Commission, the Borrowers shall promptly provide such financial statements upon reasonable request of such Lender through the Administrative Agent; (ii) promptly furnish to the Administrative Agent for distribution to the Lenders, subject to reasonable confidentiality requirements if appropriate, such information respecting the financial condition and affairs of PPG as the Administrative Agent or any Lender through the Administrative Agent may reasonably require; and

 

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(iii) promptly after the commencement thereof, furnish to the Administrative Agent for distribution to the Lenders, subject to reasonable confidentiality requirements if appropriate, notice of all actions and proceedings before any court, governmental agency or arbitrator affecting PPG or any of its Subsidiaries of the type described in Section 4.01(h), provided that the Borrowers shall have no obligation to furnish the notice referred to in this clause (iii) with respect to such actions or proceedings referred to in Section 4.01(h)(i) which are not reasonably likely to be adversely decided.

(b) Notice of Default . Within five days after any officer of PPG obtains knowledge of any Default or Event of Default, PPG will provide to each Lender a certificate of PPG setting forth the details thereof and the action which PPG is taking or proposes to take with respect thereto.

(c) Maintenance of Properties . Maintain and keep, and shall cause its Subsidiaries to maintain and keep, their respective properties in such repair, working order and condition, and make or cause to be made all such needful and proper repairs, renewals and replacements thereto, as in the judgment of PPG are necessary and in the interests of PPG or such Subsidiary; provided , however , subject to Section 5.02(d), that nothing in this Section 5.01(c) shall prevent PPG (or any Subsidiary thereof) from selling, abandoning or otherwise disposing of any of its respective businesses from time to time if, in the judgment of PPG or such Subsidiary, such sale, abandonment, disposition or discontinuance is advisable.

(d) Existence; Business and Properties . Do or cause to be done, except in the case of any of its Subsidiaries where the failure to do so would not have a Material Adverse Effect, all things necessary to preserve, renew and keep in full force and effect its legal existence in its jurisdiction of incorporation, and do or cause to be done all things necessary to obtain, preserve, renew, extend and keep in full force and effect the rights, licenses, permits, franchises, authorizations, patents, copyrights, trademarks and trade names material to the conduct of its business as its board of directors shall determine in its judgment.

(e) Compliance with Laws, Etc . Comply, and cause each of its Subsidiaries to comply, in all material respects, with all applicable laws, rules, regulations and orders, such compliance to include, without limitation, compliance with ERISA and environmental laws.

(f) Maintenance of Insurance . Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which PPG or such Subsidiary operates; provided , however , that PPG and its Subsidiaries may self-insure to the extent consistent with prudent business practice as reasonably determined by PPG and such Subsidiary.

SECTION 5.02. Negative Covenants . So long as any Advances shall remain unpaid or any Lender shall have any Commitment hereunder, PPG will not, and will not permit any of its Restricted Subsidiaries (or (i) in the case of clause (b) below, its Consolidated Subsidiaries and (ii) in the case of clauses (f) and (g) below, its Subsidiaries) to:

(a) Sale of Assets, Consolidation, Merger, etc. (i) Sell, transfer or lease all or substantially all of its assets, business or property; or (ii) enter into any merger or consolidation, unless PPG or such Restricted Subsidiary shall be the surviving corporation.

(b) Financial Undertaking . Permit the ratio of Total Indebtedness to Total Capitalization to exceed 60% at any time.

(c) Secured Debt . Issue, assume, guarantee, create or incur any Secured Debt without effectively providing that the Advances (together with, if PPG shall so determine, any other Indebtedness of PPG or such Restricted Subsidiary then existing or thereafter created ranking equally with the Advances, including Guarantees of Indebtedness of others) shall be secured equally and ratably with (or prior to) such Secured Debt so long as such Secured Debt shall be so secured, except that this Section 5.02(c) shall not apply to Secured Debt secured by:

(i) mortgages on property of any corporation existing at the time such corporation becomes a Subsidiary;

 

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(ii) mortgages on property existing at the time of acquisition thereof or to secure the payment of all or any part of the purchase price thereof or to secure any Indebtedness incurred prior to, at the time of or within 90 days after the acquisition of such property for the purpose of financing all or any part of the purchase price thereof;

(iii) mortgages on particular property to secure Indebtedness incurred in financing all or any part of the cost of exploration or development of such property, or to secure all or any part of the cost of improvements to such property which is, in the opinion of the board of directors of PPG, substantially unimproved, or to secure any Indebtedness incurred to provide funds for such purpose;

(iv) mortgages on property in favor of the United States of America or any State thereof, or any other country, or any political subdivision of any of the foregoing, to secure payments pursuant to any contract or statute or to secure any Indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the property subject to such mortgages;

(v) mortgages which secure Indebtedness owing to PPG or a Wholly-owned Restricted Subsidiary by a Subsidiary of PPG; and

(vi) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any mortgage referred to in the foregoing clauses (i) to (v), inclusive, or of any Indebtedness secured thereby; provided that such extension, renewal or replacement mortgage shall be limited to all or any part of the same property that secured the mortgage extended, renewed or replaced (plus improvements on such property).

As used in clauses (i) through (vi) above, the terms “mortgage” or “mortgages” shall include pledges, liens, and security interests.

Notwithstanding the foregoing provisions of this Section 5.02(c), PPG and any one or more Restricted Subsidiaries may, without equally and ratably securing the Advances, issue, assume, guarantee, create or incur Secured Debt which would otherwise be subject to the foregoing restrictions if, after giving effect to the Secured Debt to be issued, assumed, guaranteed, created or incurred, the sum of (a) the aggregate amount of all such Secured Debt of PPG and its Restricted Subsidiaries (not including Secured Debt permitted under clauses (i) through (vi) above) and (b) the aggregate value of the Sale and Leaseback Transactions (as defined in Section 5.02(d)) in existence at such time (except Sale and Leaseback Transactions the proceeds of which have been applied in accordance with Section 5.02(d)(i)(B)) does not exceed 5% of the Shareholders’ Interest.

(d) Limitation on Sales and Leasebacks and Transfers of Assets to Unrestricted Subsidiaries .

(i) Enter into any arrangement with any bank, insurance company or other lender or investor, or to which any such lender or investor is a party, providing for the leasing to PPG or such Restricted Subsidiary of any real property (except a lease for a temporary period not to exceed three years by the end of which it is intended that the use of such real property by the lessee will be discontinued) which has been or is to be sold or transferred by PPG or such Restricted Subsidiary to such lender or investor or to any person to whom funds have been or are to be advanced by such lender or investor on the security of such real property (herein referred to as a “ Sale and Leaseback Transaction ”) unless either:

(A) PPG or such Restricted Subsidiary could create Secured Debt secured by a mortgage, in accordance with Section 5.02(c), on the real property to be leased, in an amount equal to the value (as hereinafter defined) of such Sale and Leaseback Transaction, without equally and ratably securing the Advances, or

 

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(B) PPG applies (and in any case PPG covenants that it will apply) within 120 days after the Sale and Leaseback Transaction, regardless of whether such Sale and Leaseback Transaction may have been made by PPG or by a Restricted Subsidiary, an amount equal to the greater of (i) the net proceeds of the sale of the real property leased pursuant to such Sale and Leaseback Transaction and (ii) the fair value of the real property so leased at the time of entering into such Sale and Leaseback Transaction (as determined by the board of directors of PPG) to the retirement of Funded Debt of PPG; provided that the amount to be applied to the retirement of Funded Debt of PPG shall be reduced by

(1) the principal amount of any Advances outstanding on the date of the Sale and Leaseback Transaction repaid by PPG within 120 days after such Sale and Leaseback Transaction, and

(2) the principal amount of Funded Debt, other than Advances, voluntarily retired by PPG within 120 days after such sale;

provided that no repayment or retirement referred to in this clause (B) may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or any mandatory prepayment provision.

For purposes of this Section 5.02(d) and Section 5.02(c), the term “value” shall mean, with respect to a Sale and Leaseback Transaction, as of any particular time, the amount equal to the greater of (i) the net proceeds of the sale of the real property leased pursuant to such Sale and Leaseback Transaction and (ii) the fair value of the real property so leased at the time of entering into such Sale and Leaseback Transaction (as determined by the board of directors of PPG), divided first by the number of full years in the term of the lease and then multiplied by the number of full years of such term remaining at the time of determination, without regard to any renewal or extension options contained in the lease.

(ii) Transfer any assets which, in the reasonable opinion of the board of directors of PPG, constitute a major manufacturing or research property, plant or facility of PPG and its Restricted Subsidiaries, taken as a whole, to any Unrestricted Subsidiary.

(e) Margin Stock . Purchase or hold any Margin Stock if more than 25% of the value of its assets (as defined in said Regulation U) is or would be represented by Margin Stock.

(f) Accounting Changes . Make or permit any change in accounting policies or reporting practices, except as required or permitted by United States or applicable foreign generally accepted accounting principles or by the United States Securities and Exchange Commission or the Public Company Accounting Oversight Board or any similar foreign governmental agency or instrumentality.

(g) Change in Nature of Business . Make any material change in the nature of its business as carried on at the date hereof.

(h) Amendments, Modifications and Waivers . Amend or otherwise modify, or consent to any waiver of any conditions or other terms or provisions under, the Acquisition Agreement, the Escrow Agreement or the Notary Letter, in each case, without the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld.

 

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ARTICLE VI

EVENTS OF DEFAULT

SECTION 6.01. Events of Default . If any of the following events (“ Events of Default ”) shall occur and be continuing:

(a) (i) PPG or any other Borrower shall default (whether as direct obligor or guarantor) in the payment of principal of any Advance when due; or (ii) PPG shall default (whether as direct obligor or guarantor) in the payment of any interest, fee or any other amount payable under this Agreement or under any other Loan Document and such default shall have continued for a period of five (5) Business Days thereafter;

(b) PPG or any Subsidiary shall default (whether as direct obligor or guarantor) (i) in any payment of principal of or interest on any other obligation for borrowed money in excess of $50,000,000 in unpaid principal amount beyond any period of grace provided with respect thereto, or (ii) in the performance of any other agreement, term or condition contained in any agreement under which any such other obligation for borrowed money in excess of $50,000,000 is created and shall not have cured such default within any period of grace provided by such agreement, if the effect of such default is to cause, or permit the holder or holders of such obligation (or a trustee or agent on behalf of such holder or holders) to cause, such obligation to become due prior to its stated maturity;

(c) Any representation or warranty made herein or pursuant hereto by PPG, or any certificate furnished pursuant to the provisions hereof, shall prove to have been false or misleading in any material respect as of the time made or furnished;

(d) PPG shall default in the performance of any covenant contained in Section 5.01(b) or Section 5.02 hereof;

(e) PPG or any other Borrower shall default in the performance of any other covenant, term, condition or provision of this Agreement or any other Loan Document and such default shall not be remedied for a period of thirty (30) days after written notice thereof to PPG from the Administrative Agent at the request of any Lender;

(f) A final judgment or order for the payment of money in excess of $50,000,000 shall be rendered by a court of record against PPG or any Subsidiary and such judgment or order shall not be appealable and shall continue unsatisfied and unstayed for a period of thirty (30) days;

(g) Any of the following shall have occurred: (i) any person or group of persons shall have acquired beneficial ownership of a majority in interest of the outstanding Voting Stock of PPG (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations thereunder) unless such acquisition of beneficial ownership is approved by a majority of the Incumbent Board (as such term is defined in clause (ii) of this paragraph (g)), or (ii) individuals who, as of the date of this Agreement were directors of PPG, together with any replacement or additional directors whose election was recommended by or who were elected by a majority of directors then in office (such directors together herein called the “ Incumbent Board ”), cease to constitute a majority of the board of directors of PPG or (iii) PPG shall cease to own, directly or indirectly, 100% of the Voting Stock of any other Borrower;

(h) A proceeding shall have been instituted in a court having jurisdiction in the premises seeking a decree or order for relief in respect of any Borrower in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or for the appointment of a receiver, liquidator, assignee, trustee, custodian or sequestrator (or other similar official) for any substantial part of its property, or for the winding-up or liquidation of its affairs, and such proceeding shall remain undismissed or unstayed and in effect for a period of sixty (60) consecutive days or such court shall enter a decree or order granting the relief sought in such proceeding;

 

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(i) Any Borrower shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian or sequestrator (or other similar official) of any Borrower or for any substantial part of its property, or shall make a general assignment for the benefit of creditors, or shall admit in writing its inability generally to pay its debts as they become due, or shall take any corporate action in furtherance of any of the foregoing; or

(j) PPG shall fail to meet its minimum funding requirements under ERISA with respect to any Plan or if any Plan shall be terminated by act of the PBGC or a trustee shall be appointed for any Plan, except when such failure is of an amount which is not material to the financial condition of PPG or such termination or appointment would not result in the imposition on PPG of material liability, or when such failure is the result of contesting such minimum funding requirements in good faith and PPG has established on its books any reserve which is required by GAAP with respect thereto;

then, and in any such event, the Administrative Agent shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrowers, declare the Advances, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Advances, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each Borrower; provided , however , that in the event of an actual or deemed entry of an order for relief with respect to any Borrower under the Federal Bankruptcy Code, the Advances, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by each Borrower.

ARTICLE VII

GUARANTY

SECTION 7.01. Guaranty . PPG hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all obligations of each other Borrower now or hereafter existing under or in respect of this Agreement and each of the other Loan Documents to which such Borrower is a party (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such obligations being the “ Guaranteed Obligations ”), and agrees to pay any and all expenses (including, without limitation, fees and expenses of counsel) incurred by the Administrative Agent or any Lender in enforcing any rights under this Guaranty. Without limiting the generality of the foregoing, PPG’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Borrower to the Administrative Agent or any Lender under or in respect of this Agreement and each of the other Loan Documents to which such other Borrower is a party but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Borrower.

SECTION 7.02. Guaranty Absolute . PPG guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the applicable Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Administrative Agent or any Lender with respect thereto. The obligations of PPG under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other obligations of any other Borrower under or in respect of this Agreement and the applicable Loan Documents, and a separate action or actions may be brought and prosecuted against PPG to enforce this Guaranty, irrespective of whether any action is brought against any other Borrower or whether any other Borrower is joined in any such action or actions. The liability of PPG under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and PPG hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:

(a) any lack of validity or enforceability of this Agreement, any Loan Document or any agreement or instrument relating thereto;

 

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(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other obligations of any other Borrower under or in respect of this Agreement or any of the other Loan Documents, or any other amendment or waiver of or any consent to departure from this Agreement or any of the other Loan Documents, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Borrower or any of its Subsidiaries or otherwise;

(c) any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;

(d) any manner of application of any collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or any other obligations of any Borrower under this Agreement or any of the other Loan Documents or any other assets of any Borrower or any of its Subsidiaries;

(e) any change, restructuring or termination of the corporate structure or existence of any Borrower or any of its Subsidiaries;

(f) any failure of the Administrative Agent or any Lender to disclose to any Borrower any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Borrower now or hereafter known to the Administrative Agent or such Lender (PPG waiving any duty on the part of the Administrative Agent and the Lenders to disclose such information);

(g) the release or reduction of liability of any other guarantor or surety with respect to the Guaranteed Obligations; or

(h) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Administrative Agent or any Lender that might otherwise constitute a defense available to, or a discharge of, any Borrower or any other guarantor or surety.

This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by the Administrative Agent or any Lender or any other Person upon the insolvency, bankruptcy or reorganization of any other Borrower or otherwise, all as though such payment had not been made.

SECTION 7.03. Waivers and Acknowledgments . (a) PPG hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the Administrative Agent or any Lender protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Borrower or any other Person or any collateral.

(b) PPG hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.

 

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(c) PPG hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by the Administrative Agent or any Lender that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of PPG or other rights of PPG to proceed against any of the other Borrowers, any other guarantor or any other Person or any collateral and (ii) any defense based on any right of set-off or counterclaim against or in respect of the obligations of PPG hereunder.

(d) PPG hereby unconditionally and irrevocably waives any duty on the part of the Administrative Agent or any Lender to disclose to PPG any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Borrower or any of its Subsidiaries now or hereafter known by the Administrative Agent or such Lender.

(e) PPG acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by this Agreement and that the waivers set forth in Section 7.02 and this Section 7.03 are knowingly made in contemplation of such benefits.

SECTION 7.04. Subrogation . PPG hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against any other Borrower or any other insider guarantor that arise from the existence, payment, performance or enforcement of PPG’s obligations under or in respect of this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Administrative Agent or any Lender against any Borrower or any other insider guarantor or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Borrower or any other insider guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and the Commitments shall have expired or been terminated. If any amount shall be paid to PPG in violation of the immediately preceding sentence at any time prior to the later of (a) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and (b) the Termination Date, such amount shall be received and held in trust for the benefit of the Administrative Agent and the Lenders, shall be segregated from other property and funds of PPG and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. If (i) PPG shall make payment to the Administrative Agent or any Lender of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash and (iii) the Termination Date shall have occurred, the Administrative Agent and the Lenders will, at PPG’s request and expense, execute and deliver to PPG appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to PPG of an interest in the Guaranteed Obligations resulting from such payment made by PPG pursuant to this Guaranty.

SECTION 7.05. Subordination . PPG hereby subordinates any and all debts, liabilities and other Obligations owed to PPG by each other Borrower (the “ Subordinated Obligations ”) to the Guaranteed Obligations to the extent and in the manner hereinafter set forth in this Section 7.05:

(a) Prohibited Payments, Etc . Except during the continuance of a Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any other Borrower), PPG may receive regularly scheduled payments from any other Borrower on account of the Subordinated Obligations. After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any other Borrower), however, unless the Required Lenders otherwise agree, PPG shall not demand, accept or take any action to collect any payment on account of the Subordinated Obligations.

(b) Prior Payment of Guaranteed Obligations . In any proceeding under any Bankruptcy Law relating to any other Borrower, PPG agrees that the Administrative Agent and the Lenders shall be entitled

 

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to receive payment in full in cash of all Guaranteed Obligations (including all interest and expenses accruing after the commencement of a proceeding under any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding (“ Post Petition Interest ”)) before PPG receives payment of any Subordinated Obligations.

(c) Turn-Over . After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any other Borrower), PPG shall, if the Administrative Agent so requests, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Administrative Agent and the Lenders and deliver such payments to the Administrative Agent on account of the Guaranteed Obligations (including all Post Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of PPG under the other provisions of this Guaranty.

(d) Administrative Agent Authorization . After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to any other Borrower), the Administrative Agent is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name of PPG, to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon to the Guaranteed Obligations (including any and all Post Petition Interest), and (ii) to require PPG (A) to collect and enforce, and to submit claims in respect of, Subordinated Obligations and (B) to pay any amounts received on such obligations to the Administrative Agent for application to the Guaranteed Obligations (including any and all Post Petition Interest).

SECTION 7.06. Continuing Guaranty; Assignments . This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the later of (i) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty and (ii) the Termination Date, (b) be binding upon PPG, its successors and assigns and (c) inure to the benefit of and be enforceable by the Administrative Agent and the Lenders and their respective successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, the Administrative Agent or any Lender may assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments, the Advances owing to it and the Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to the Administrative Agent or such Lender herein or otherwise, in each case as and to the extent provided in Section 9.07.

ARTICLE VIII

THE ADMINISTRATIVE AGENT

SECTION 8.01. Authorization and Action . Each of the Lenders hereby appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and under the other Loan Documents as are delegated to the Administrative Agent by the terms hereof or thereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by this Agreement and in the other Loan Documents (including, without limitation, enforcement or collection of the Notes), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided , however , that the Administrative Agent shall not be required to take any action that exposes the Administrative Agent to personal liability or that is contrary to this Agreement, the other Loan Documents or applicable law. The Administrative Agent agrees to give to each Lender prompt notice of each notice given to it by PPG or any other Borrower pursuant to the terms of this Agreement or the other Loan Documents.

SECTION 8.02. Administrative Agent’s Reliance, Etc. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them

 

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under or in connection with this Agreement or the other Loan Documents, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Administrative Agent: (i) may treat the Lender that made any Advances as the holder of the Indebtedness resulting therefrom until the Administrative Agent receives and accepts an Assignment and Acceptance entered into by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07; (ii) may consult with legal counsel (including counsel for the Borrowers), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement or any of the other Loan Documents; (iv) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of this Agreement or any of the other Loan Documents on the part of any Borrower or the existence at any time of any Default or to inspect the property (including the books and records) of any Borrower; (v) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any of the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; (vi) shall incur no liability under or in respect of this Agreement or any of the other Loan Documents by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopier, telegram or telex) believed by it to be genuine and signed or sent by the proper party or parties; and (vii) shall not be deemed to have knowledge of any Default or the event or events that give or may give rise to any Default unless and until written notice describing such Default and such event or events is given to the Administrative Agent by the Borrower or any Lender.

SECTION 8.03. Credit Suisse and Affiliates . With respect to its Commitment, the Advances made by it and the Note issued to it, Credit Suisse shall have the same rights and powers under this Agreement and the other Loan Documents as any other Lender and may exercise the same as though it were not the Administrative Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include Credit Suisse in its individual capacity. Credit Suisse and its Affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, PPG, any of its Subsidiaries and any Person who may do business with or own securities of PPG or any such Subsidiary, all as if Credit Suisse were not the Administrative Agent and without any duty to account therefor to the Lenders. The Administrative Agent shall have no duty to disclose information obtained or received by it or any of its affiliates relating to PPG or its Subsidiaries to the extent such information was obtained or received in any capacity other than as Administrative Agent.

SECTION 8.04. Lender Credit Decision . Each of the Lenders acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on the financial statements referred to in Section 4.01(c) and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each of the Lenders also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.

SECTION 8.05. Indemnification . The Lenders agree to indemnify the Administrative Agent (to the extent not reimbursed by the Borrowers), ratably according to the respective principal amounts of the Advances then owed to each of them (or if no Advances are at the time outstanding, ratably according to the respective amounts of their Commitments), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Administrative Agent under this Agreement (collectively, the “ Indemnified Costs ”), provided that no Lender shall be liable for any portion of the Indemnified Costs resulting from the Administrative Agent’s gross negligence or willful misconduct, and provided , further , that the obligations of each Lender that shall cease to be a party to this Agreement in accordance with Section 9.07 shall terminate on the date of the applicable assignment except to the extent any claim hereunder relates to an event arising prior to such assignment. Without limitation of the foregoing, each Lender agrees to reimburse the Administrative Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal

 

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advice in respect of rights or responsibilities under, this Agreement, to the extent that the Administrative Agent is not reimbursed for such expenses by the Borrowers. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 8.05 applies whether any such investigation, litigation or proceeding is brought by the Administrative Agent, any Lender or a third party.

SECTION 8.06. Successor Administrative Agent . The Administrative Agent may resign at any time by giving written notice thereof to the Lenders and the Borrowers and may be removed at any time with or without cause by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s giving of notice of resignation or the Required Lenders’ removal of the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents. After any retiring Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this Article VIII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Loan Documents.

SECTION 8.07. Other Agents . Each of the Lenders and each of the Borrowers hereby acknowledges that the sole lead arranger and sole book manager has no liability hereunder other than in its capacity as a Lender.

ARTICLE IX

MISCELLANEOUS

SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision of this Agreement or the Notes, nor consent to any departure by any Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no amendment, waiver or consent shall, unless in writing and signed by all the Lenders, do any of the following: (a) waive any of the conditions specified in Section 3.01 or 3.02, (b) increase the Commitments of the Lenders, (c) reduce the principal of, or interest on, the Advances or any fees or other amounts payable hereunder, (d) postpone any date fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts payable hereunder, (e) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Advances, or the number of Lenders, that shall be required for the Lenders or any of them to take any action hereunder, (f) reduce or limit the obligations of PPG under Section 7.01 or release PPG or otherwise limit PPG’s liability with respect to the obligations owing to the Administrative Agent and the Lenders or (g) amend this Section 9.01; provided , further , that no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above to take such action, affect the rights or duties of the Administrative Agent under this Agreement or any Note.

SECTION 9.02. Notices, Etc . (a) All notices and other communications provided for hereunder shall be in writing (including telecopier, telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed or delivered, if to any Borrower, at the address of PPG at One PPG Place, Pittsburgh, Pennsylvania 15272, telecopy number 412-434-4416, Attention: Treasurer, with a copy to PPG at One PPG Place, Pittsburgh, Pennsylvania 15272, telecopy number 412-434-2490, Attention: Corporate Law Department; if to any Initial Lender, at its Domestic Lending Office specified opposite its name on Schedule I hereto; if to any other Lender, at its Domestic Lending Office specified in the Assignment and Acceptance pursuant to which it became a Lender; and if to the Administrative Agent, at its address at 11 Madison Avenue, New York, New York 10010, telecopy number 212-325-8304, Attention: Agency Group Manager, or, as to the Borrowers or the Administrative Agent, at such

 

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PPG 364 Day Credit Agreement


other address as shall be designated by such party in a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Borrowers and the Administrative Agent. All such notices and communications shall, when mailed, telecopied, telegraphed or telexed, be effective when deposited in the mails, telecopied, delivered to the telegraph company or confirmed by telex answerback, respectively, except that notices and communications to the Administrative Agent pursuant to Article II, III or VIII shall not be effective until received by the Administrative Agent. Delivery by telecopier of an executed counterpart of any amendment or waiver of any provision of this Agreement or the Notes or of any Exhibit hereto to be executed and delivered hereunder shall be effective as delivery of a manually executed counterpart thereof.

(b) Notwithstanding anything to the contrary contained in this Agreement or any Note, (i) any notice to the Borrowers or to any one of them required under this Agreement or any such Note that is delivered to PPG shall constitute effective notice to the Borrowers or to any such Borrower, including PPG and (ii) any Notice of Borrowing or any notice of Conversion delivered pursuant to the terms of this Agreement may be delivered by any Borrower or by PPG, on behalf of any other Borrower. Each Borrower (other than PPG) hereby irrevocably appoints PPG as its authorized agent to receive and deliver notices in accordance with this Section 9.02, and hereby irrevocably agrees that (A) in the case of clause (i) of the immediately preceding sentence, the failure of PPG to give any notice referred to therein to any such Borrower to which such notice applies shall not impair or affect the validity of such notice with respect thereto and (B) in the case of clause (ii) of the immediately preceding sentence, the delivery of any such notice by PPG, on behalf of any other Borrower, shall be binding on such other Borrower to the same extent as if such notice had been executed and delivered directly by such Borrower.

SECTION 9.03. No Waiver; Remedies . No failure on the part of any Borrower, any Lender or the Administrative Agent to exercise, and no delay in exercising, any right hereunder or under any Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

SECTION 9.04. Costs and Expenses . (a) PPG agrees to pay all reasonable and customary out-of-pocket costs and expenses of the Administrative Agent (within 10 days of receipt of a written itemized statement, together with supporting documentation, identifying in reasonable detail the amounts of such costs and expenses) incurred in connection with the preparation, execution and delivery of this Agreement, the other Loan Documents and the other documents to be delivered hereunder or thereunder, including, without limitation, all due diligence, syndication (including printing, distribution and bank meetings), transportation, computer, duplication, appraisal, consultant, and audit expenses and the reasonable fees and expenses of counsel for the Administrative Agent with respect thereto. PPG further agrees to pay all costs and expenses, if any, of the Administrative Agent and the Lenders incurred in connection with the enforcement of this Agreement, any of the other Loan Documents and the other documents to be delivered hereunder or thereunder, including, without limitation, reasonable fees and expenses of counsel for the Administrative Agent and each Lender in connection with the enforcement of rights under this Section 9.04(a).

(b) The Borrowers agree to indemnify and hold harmless the Administrative Agent and each Lender and each of their respective Affiliates and their respective officers, directors, employees, agents and advisors (each, an “ Indemnified Party ”) from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding or preparation of a defense in connection therewith) (i) this Agreement, any of the other Loan Documents, any of the transactions contemplated herein or therein or the actual or proposed use of the proceeds of the Advances or (ii) the actual or alleged presence of hazardous materials on any property of PPG or any of its Subsidiaries or any environmental action relating in any way to PPG or any of its Subsidiaries, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s fraudulent acts or omissions, gross negligence or willful misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 9.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Borrower, its directors, equity holders or creditors or an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and

 

37

PPG 364 Day Credit Agreement


whether or not the transactions contemplated hereby are consummated. Each Borrower also agrees not to assert any claim for special, indirect, consequential or punitive damages against the Administrative Agent, any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, arising out of or otherwise relating to this Agreement, any of the other Loan Documents, any of the transactions contemplated herein or therein or the actual or proposed use of the proceeds of the Advances.

(c) If any payment of principal of, or Conversion of, any Eurocurrency Rate Advance is made by any Borrower to or for the account of a Lender (i) other than on the last day of the Interest Period for such Advances, as a result of a payment or Conversion pursuant to Section 2.06, 2.08 or 2.10, acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason, or by an Eligible Assignee to a Lender other than on the last day of the Interest Period for such Advances upon an assignment of rights and obligations under this Agreement pursuant to Section 9.07 as a result of a demand by PPG pursuant to Section 9.07(a) or (ii) as a result of a payment or Conversion pursuant to Section 2.06, 2.08 or 2.10, such Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advances.

(d) Without prejudice to the survival of any other agreement of the Borrowers hereunder, the agreements and obligations of the Borrowers contained in Sections 2.09, 2.12 and 9.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the Notes.

SECTION 9.05. Right of Set-off . Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of the request or the granting of the consent specified by Section 6.01 to authorize the Administrative Agent to declare the Notes due and payable pursuant to the provisions of Section 6.01, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account of any Borrower against any and all of the obligations of any Borrower now or hereafter existing under this Agreement and the Note held by such Lender, whether or not such Lender shall have made any demand under this Agreement or such Note and although such obligations may be unmatured. Each Lender agrees promptly to notify the applicable Borrower after any such set-off and application, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender and its Affiliates under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) that such Lender and its Affiliates may have.

SECTION 9.06. Binding Effect . This Agreement shall become effective (other than Section 2.01 which shall only become effective upon satisfaction of the conditions precedent set forth in Section 3.02) when it shall have been executed by PPG and the Administrative Agent and when the Administrative Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and when the conditions set forth in Section 3.01 have been satisfied, and thereafter shall be binding upon and inure to the benefit of the Borrowers, the Administrative Agent and each Lender and their respective successors and assigns, except that no Borrower (including PPG as guarantor under Article VII) shall have the right to assign any of its rights or obligations hereunder or any interest herein without the prior written consent of the Administrative Agent and the Lenders, provided that any Borrower other than PPG may assign its rights or obligations to PPG or any other Borrower without such prior written consent.

SECTION 9.07. Assignments and Participations . (a) Each Lender may and, if demanded by PPG (following a demand by such Lender pursuant to Section 2.09 or 2.12) upon at least five Business Days’ notice to such Lender and the Administrative Agent, will assign to one or more Persons all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it); provided , however , that (i) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assignment to a Person that, immediately prior to such assignment, was an Affiliate of a Lender or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of the Commitment of the assigning

 

38

PPG 364 Day Credit Agreement


Lender or the aggregate amount of the Commitments of assigning Lenders that are Affiliates being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than the applicable Borrowing Minimum or an integral multiple of Borrowing Multiple in excess thereof, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by PPG pursuant to this Section 9.07(a) shall be arranged by PPG after consultation with the Administrative Agent and shall be either an assignment of all of the rights and obligations of the assigning Lender under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender under this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a demand by PPG pursuant to this Section 9.07(a) unless and until such Lender shall have received one or more payments from either the Borrowers or one or more Eligible Assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Lender under this Agreement, (vi) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent (or, if previously agreed with the Agent, manually), and shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent), provided , however , that in the case of each assignment made as a result of a demand by PPG, such recordation fee shall be payable by PPG except that no such recordation fee shall be payable in the case of an assignment made at the request of PPG to an Eligible Assignee that is an existing Lender, (vii) the Eligible Assignee, if it is not an existing Lender, shall deliver to the Administrative Agent an administrative questionnaire in such form as may be supplied by the Administrative Agent and any tax forms required hereunder, and (viii) any Lender may, without the approval of PPG, assign all or a portion of its rights to any of its Affiliates. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Section 2.09, 2.12 and 9.04 to the extent any claim thereunder relates to an event arising prior such assignment) and be released from its obligations under this Agreement (other than its obligations under Section 8.05 to the extent any claim thereunder relates to an event arising prior to such assignment) (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto).

(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender.

(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment,

 

39

PPG 364 Day Credit Agreement


the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrowers; provided that the failure of the Administrative Agent to provide such notice to the Borrowers with respect to any Assignment and Acceptance shall not affect the validity of such Assignment and Acceptance.

(d) The Administrative Agent shall maintain at its address referred to in Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the “ Register ”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.

(e) Each Lender may sell participations to one or more banks or other entities (other than PPG or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Advances owing to it and any Note or Notes held by it); provided , however , that (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment to the Borrowers hereunder) and the other Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement and the other Loan Documents, (iv) the Borrowers, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of this Agreement or any of the other Loan Documents, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would increase the commitment of such participant to the extent subject to such participation, reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder or thereunder, in each case to the extent subject to such participation, postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation, or release all or substantially all of the value of the guaranty set forth in Article VII.

(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.07, disclose to the assignee or participant or proposed assignee or participant, any information relating to PPG furnished to such Lender by or on behalf of PPG; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Information relating to PPG received by it from such Lender.

(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, the Advances owing to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.

(h) Notwithstanding anything to the contrary contained herein, any Lender (a “ Granting Lender ”) may grant to a special purpose funding vehicle (an “ SPC ”), upon the identification as such in writing from time to time by such Granting Lender to the Administrative Agent and PPG and upon the prior written consent of PPG in its sole and absolute discretion, the option to provide to any Borrower all or any part of any Advance that such Granting Lender would otherwise be obligated to make to such Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Advance, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent and as if such Advance were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with such Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement)

 

40

PPG 364 Day Credit Agreement


that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 9.07, any SPC may (i) with notice to, but without the prior written consent of, PPG and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Advances to the Granting Lender or to any financial institutions (consented to by PPG and the Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances and (ii) disclose on a confidential basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section 9.07(h) may not be amended without the written consent of the SPC.

SECTION 9.08. Confidentiality . None of the Administrative Agent or any Lender shall disclose any Confidential Information to any other Person without the consent of PPG, other than (a) to the Administrative Agent’s or such Lender’s Affiliates and their officers, directors, employees, agents and advisors and, as contemplated by Section 9.07(f), to actual or prospective assignees and participants, in each case only on a confidential need-to-know basis, (b) as required by any law, rule or regulation or judicial process and (c) as requested or required by any state, federal or foreign authority or examiner regulating banks or banking or financial institutions.

SECTION 9.09. Governing Law . This Agreement and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.

SECTION 9.10. Execution in Counterparts . This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.

SECTION 9.11. Judgment . (a) If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in Dollars into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase Dollars with such other currency at its principal office in London at 11:00 A.M. (London time) on the Business Day preceding that on which final judgment is given.

(b) If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in a Committed Currency into Dollars, the parties agree to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase such Committed Currency with Dollars at its principal office in London at 11:00 A.M. (London time) on the Business Day preceding that on which final judgment is given.

(c) The obligation of the Borrowers in respect of any sum due from it in any currency (the “ Primary Currency ”) to any Lender or the Administrative Agent hereunder shall, notwithstanding any judgment in any other currency, be discharged only to the extent that on the Business Day following receipt by such Lender or the Administrative Agent (as the case may be), of any sum adjudged to be so due in such other currency, such Lender or the Administrative Agent (as the case may be) may in accordance with normal banking procedures purchase the applicable Primary Currency with such other currency; if the amount of the applicable Primary Currency so purchased is less than such sum due to such Lender or the Administrative Agent (as the case may be) in the applicable Primary Currency, each Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Administrative Agent (as the case may be) against such loss, and if the amount of the applicable Primary Currency so purchased exceeds such sum due to any Lender or the Administrative Agent (as the case may be) in the applicable Primary Currency, such Lender or the Administrative Agent (as the case may be) agrees to remit to such Borrower such excess.

SECTION 9.12. Jurisdiction, Etc . (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or

 

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PPG 364 Day Credit Agreement


federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the Notes, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court. The Borrowers hereby consent to the service of process in any action or proceeding in such courts by the mailing thereof by any parties hereto by registered or certified mail, postage prepaid, to such Borrower at its address specified pursuant to Section 9.02. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law. Nothing in this Agreement shall affect any right that any party may otherwise have to serve legal process in any other manner permitted by applicable law or to bring any action or proceeding relating to this Agreement or the Notes in the courts of any jurisdiction.

(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the Notes in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

SECTION 9.13. Substitution of Currency . If a change in any Committed Currency occurs pursuant to any applicable law, rule or regulation of any governmental, monetary or multi-national authority, this Agreement (including, without limitation, the definition of Eurocurrency Rate) will be amended to the extent determined by the Administrative Agent (acting reasonably and in consultation with PPG) to be necessary to reflect the change in currency and to put the Lenders and the Borrowers in the same position, so far as possible, that they would have been in if no change in such Committed Currency had occurred.

SECTION 9.14. Waiver of Jury Trial . EACH OF THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.

SECTION 9.15. USA PATRIOT ACT . Each Lender hereby notifies each Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), it is required to obtain, verify and record information that identifies such Borrower, which information includes the name and address of such Borrower and other information that will allow such Lender to identify such Borrower in accordance with said Act.

 

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PPG 364 Day Credit Agreement


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

PPG INDUSTRIES, INC.
By:  

/s/ William H. Hernandez

Name:   William H. Hernandez
Title:   Senior Vice President, Finance, Chief Financial Officer and Treasurer
U.S. Federal Tax Identification No. for PPG :
25-0730780
Address for PPG :
One PPG Place
Pittsburgh, Pennsylvania 15272
PPG INDUSTRIES SECURITIES, INC.
By:  

/s/ Mitchell F. Magee

Name:   Mitchell F. Magee
Title:   President
U.S. Federal Tax Identification No. for PPG Industries Securities, Inc. :
25-1314673
Address for PPG Industries Securities, Inc. :
1886 Lynnburg Woods Road
Dover, Delaware 19904

 

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PPG 364 Day Credit Agreement


CREDIT SUISSE, CAYMAN ISLANDS BRANCH
    as Administrative Agent
By:  

/s/ Jay Chall

Name:   Jay Chall
Title:   Director
By:  

/s/ Petra Jaek

Name:   Petra Jaek
Title:   Assistant Vice President

 

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PPG 364 Day Credit Agreement


    LENDERS
Commitment    
$500,000,000     CREDIT SUISSE, CAYMAN ISLANDS BRANCH
    By:  

/s/ Jay Chall

    Name:   Jay Chall
    Title:   Director
    By:  

/s/ Petra Jaek

    Name:   Petra Jaek
    Title:   Assistant Vice President
Total Commitments      
$500,000,000      

 

45

PPG 364 Day Credit Agreement

Exhibit 10.23

AGREEMENT

3 DECEMBER 2007

€650,000,000 CREDIT FACILITY

for

PPG INDUSTRIES, INC.

arranged by

BNP PARIBAS SECURITIES CORP.

SG AMERICAS SECURITIES, LLC

with

SOCIÉTÉ GÉNÉRALE

as Facility Agent

and

BNP PARIBAS SECURITIES CORP.

as Syndication Agent

LOGO

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CONTENTS

 

Clause        Page

1.

  Interpretation    1

2.

  Facilities    14

3.

  Purpose    15

4.

  Conditions precedent    16

5.

  Utilisation    16

6.

  Utilisation - Swingline Loans    17

7.

  Swingline Loans    20

8.

  Optional Currencies    23

9.

  Repayment and Extension Option    25

10.

  Prepayment and cancellation    26

11.

  Interest    29

12.

  Terms    30

13.

  Market disruption    31

14.

  Taxes    32

15.

  Increased Costs    36

16.

  Mitigation    36

17.

  Payments    37

18.

  Guarantee and indemnity    40

19.

  Representations and warranties    43

20.

  Information covenants    50

21.

  Financial covenants    51

22.

  General covenants    52

23.

  Default    56

24.

  The Administrative Parties    60

25.

  Evidence and calculations    66

26.

  Fees    66

27.

  Indemnities and Break Costs    67

28.

  Expenses    69

29.

  Amendments and waivers    69

30.

  Changes to the Parties    70

31.

  Disclosure of information    75

32.

  Set-off    76

33.

  Pro Rata Sharing    76

34.

  Severability    77

35.

  Counterparts    78

36.

  Notices    78

37.

  Language    80

38.

  Governing law    81

39.

  Enforcement    81

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Allen & Overy LLP

 

i


Schedule

1.

  Original Parties

2.

  Conditions precedent documents
  Part 1      To be delivered before signing of the Agreement
  Part 2      To be delivered before the first Request
  Part 3      For an Additional Borrower

3.

  Form of Request

4.

  Calculation of the Mandatory Cost

5.

  Form of Transfer Certificate

6.

  Form of Compliance Certificate

7.

  Form of Accession Agreement

8.

  Form of Resignation Request

Signatories

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Allen & Overy LLP

 

ii


THIS AGREEMENT is dated 3 December 2007 and is made BETWEEN :

 

(1) PPG INDUSTRIES, INC. (the Company );

 

(2) THE SUBSIDIARIES OF THE COMPANY listed in Schedule 1 (Original Parties) as original borrowers (in this capacity the Original Borrowers );

 

(3) BNP PARIBAS SECURITIES CORP. AND SG AMERICAS SECURITIES, LLC as mandated lead arrangers (in this capacity the Arranger s);

 

(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Original Parties) as original lenders (the Original Lenders );

 

(5) SOCIÉTÉ GÉNÉRALE, NEW YORK BRANCH as swingline agent in relation to the US$ Swingline Facility (in this capacity the US$ Swingline Facility Agent );

 

(6) SOCIÉTÉ GÉNÉRALE as swingline agent in relation to the EUR Swingline Facility (in this capacity the EUR Swingline Facility Agent );

 

(7) SOCIÉTÉ GÉNÉRALE as facility agent (in this capacity the Facility Agent ); and

 

(8) BNP PARIBAS SECURITIES CORP. as syndication agent (in this capacity the Syndication Agent ).

IT IS AGREED as follows:

 

1. INTERPRETATION

 

1.1 Definitions

In this Agreement:

Accession Agreement means a letter, substantially in the form of Schedule 7 (Form of Accession Agreement), with such amendments as the Facility Agent and the Company may agree.

Accession Date means the date on which a member of the Group becomes an Additional Borrower.

Additional Borrower means a member of the Group which becomes a Borrower after the date of this Agreement.

Administrative Party means an Arranger, the Facility Agent or a Swingline Facility Agent.

Affiliate means a Subsidiary or a Holding Company of a person or any other Subsidiary of that Holding Company.

Availability Period means the period from and including the date of this Agreement to and including the Final Maturity Date.

Board means the Board of Governors of the Federal Reserve System of the United States of America.

Borrower means the Company, an Original Borrower or an Additional Borrower.

 

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Break Costs means the amount (if any) which a Lender is entitled to receive under Clause 27.3 (Break Costs).

Business Day means a day (other than a Saturday or a Sunday) on which banks are open for general business in London, New York and:

 

  (a) if on that day a payment in or a purchase of a currency (other than euro) is to be made, the principal financial centre of the country of that currency; or

 

  (b) if on that day a payment in or a purchase of euro is to be made, which is also a TARGET Day.

Commitment means a Commitment, as so designated, of a Lender under a particular Facility.

Compliance Certificate means a certificate substantially in the form of Schedule 6 (Form of Compliance Certificate) setting out, among other things, calculations of the financial covenant.

Consolidated Subsidiaries means the Subsidiaries of the Company whose accounts are consolidated with the accounts of the Company in the Company’s consolidated financial statements prepared in accordance with GAAP.

Default means:

 

  (a) an Event of Default; or

 

  (b) an event or circumstance which would be (with the expiry of a grace period, the giving of notice or the making of any determination under the Finance Documents or any combination of them) an Event of Default.

Disclosed Matters means:

 

  (a) as at the date of this Agreement, the actions, suits and proceedings disclosed or otherwise described in the Company’s annual report on Form 10-K for the fiscal year ended 31 December 2006 or quarterly reports on Form 10-Q for the quarters ended on 31 March 2007, 30 June 2007 and 30 September 2007; and

 

  (b) following the date of this Agreement, the actions, suits and proceedings disclosed or otherwise described in the Company’s Form 8-K filings or its latest filed annual report on Form 10-K and any subsequently filed quarterly reports on Form 10-Q.

In relation to a proposed Additional Borrower, Disclosed Matters means the actions, suits and proceedings relating to such Additional Borrower disclosed or otherwise described in the Company’s annual report on Form 10-K for the fiscal year ended 31 December 2006 or quarterly reports on Form 10-Q for the quarters ended on 31 March 2007, 30 June 2007 and 30 September 2007.

Disruption Event means:

 

  (a) a material disruption to the payment or communications systems or to the financial markets which are required to operate in order for payments to be made (or other transactions to be carried out) in connection with the transactions contemplated by the Finance Documents, which is not caused by, and is beyond the control of, any of the Parties; or

 

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  (b) the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing it, or any other Party from:

 

  (i) performing its payment obligations under the Finance Documents; or

 

  (ii) communicating with other Parties under the Finance Documents,

and which is not caused by, and is beyond the control of, the Party whose operations are disrupted.

Dormant Subsidiary means a member of the Group which does not trade (for itself or as agent for any person) and does not own, legally or beneficially, assets (including without limitation, indebtedness owed to it) which in aggregate have a value of €100,000 or more or its equivalent.

EONIA means the Euro Overnight Index Average as supplied to the Facility Agent at its request in the European interbank market.

ERISA means the Employee Retirement Income Security Act of 1974, as amended.

ERISA Affiliate means any trade or business (whether or not incorporated) that is a member of a group of which the Company is a member and which is treated as a single employer under section 414 of the Internal Revenue Code.

EURIBOR means for a Term of any Loan or overdue amount denominated in euro:

 

  (a) the applicable Screen Rate; or

 

  (b) if no Screen Rate is available for that Term of that Loan or overdue amount, the arithmetic mean (rounded upward to four decimal places) of the rates as supplied to the Facility Agent at its request quoted by the Reference Banks to leading banks in the European interbank market,

as of 11.00 a.m. (Brussels time) on the Rate Fixing Day for the offering of deposits in euro for a period comparable to that Term.

euro or EUR means the single currency of the Participating Member States.

EUR Swingline Commitment means:

 

  (a) in the case of a EUR Swingline Lender on the date of this Agreement, the amount in euros set opposite its name in Schedule 1 (Original Parties) under the heading EUR Swingline Commitments and the amount of any other EUR Swingline Commitment it acquires; or

 

  (b) for any other EUR Swingline Lender, the amount of any EUR Swingline Commitment it acquires,

to the extent not transferred, cancelled or reduced under this Agreement.

EUR Swingline Day means a day which is a TARGET Day and which is also a day (other than a Saturday or a Sunday) on which banks are open for general business in London.

EUR Swingline Facility means the euro swingline facility made available under this Agreement.

 

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EUR Swingline Lender means:

 

  (a) an Original Lender or an Affiliate of an Original Lender listed in Schedule 1 (Original Parties) as a euro swingline lender; or

 

  (b) any other person that becomes a EUR Swingline Lender after the date of this Agreement.

EUR Swingline Loan means a Loan under the EUR Swingline Facility and identified as such in its Request.

Event of Default means an event or circumstance specified as such in Clause 23 (Default).

Existing Facility means the US$1,000,000,000 five year credit agreement dated 28 May 2004 as amended with, among others, the Company as borrower.

Extension Date means each of the date of the Initial Extension Request (as defined in Clause 9.2(a) (Extension Option)), the date of the Second Extension Request (as defined in Clause 9.2(b) (Extension Option)) and the day on which an extension is effective in accordance with Clause 9.2 (Extension Option).

Extension Majority Lenders means, at any time, Lenders:

 

  (a) whose share in the outstanding Loans and whose undrawn Commitments then aggregate more than 50 per cent. of the aggregate of all the outstanding Loans and the undrawn Commitments of all the Lenders; or

 

  (b) if there is no Loan then outstanding, whose undrawn Commitments then aggregate more than 50 per cent. of the Total Commitments.

Facility means a credit facility made available under this Agreement.

Facility Office means the office(s) notified by a Lender to the Facility Agent or an office of a Facility Agent:

 

  (a) on or before the date it becomes a Lender or Facility Agent; or

 

  (b) by not less than five Business Days’ notice,

as the office(s) through which it will perform its obligations under this Agreement.

Fee Letter means any letter entered into by reference to this Agreement between one or more Administrative Parties and the Company setting out the amount of certain fees referred to in this Agreement.

Final Maturity Date means, subject to Clause 9.2 (Extension Option), the third anniversary of the date of this Agreement.

Finance Document means:

 

  (a) this Agreement;

 

  (b) a Fee Letter;

 

  (c) an Accession Agreement;

 

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  (d) a Resignation Request; or

 

  (e) any other document designated as such by the Facility Agent and the Company.

Finance Party means a Lender or an Administrative Party.

Financial Indebtedness of a person at any time means, without duplication:

 

  (a) all obligations for money borrowed or raised, all obligations (other than accounts payable and other similar items arising in the ordinary course of business) for the deferred payment of the purchase price of property, and all capital lease obligations which, in each case in accordance with GAAP, would be included in determining total liabilities as shown on the liability side of the balance sheet of such person; and

 

  (b) any guarantee (excluding endorsements for collection or deposit, in either case, in the ordinary course of business), indemnity or similar assurance granted or issued by such person against financial loss of any person in respect of any item referred to in paragraph (a) above.

Funded Debt means any Financial Indebtedness which by its terms matures at or is extendable or renewable at the option of the debtor to a date more than twelve months after the date of the creation of such Financial Indebtedness.

GAAP means generally accepted accounting principles in the jurisdiction of incorporation of the Company.

Group means the Company and its Consolidated Subsidiaries.

Holding Company of any other person, means a person in respect of which that other person is a Subsidiary.

IBOR means LIBOR, EURIBOR or WIBOR.

ICA means the United States Investment Company Act of 1940, as amended.

Increased Cost means:

 

  (a) an additional or increased cost;

 

  (b) a reduction in the rate of return from a Facility or on a Finance Party’s (or its Affiliate’s) overall capital; or

 

  (c) a reduction of an amount due and payable under any Finance Document,

which is incurred or suffered by a Finance Party or any of its Affiliates but only to the extent attributable to that Finance Party having entered into any Finance Document or funding or performing its obligations under any Finance Document.

Information Memorandum means the information memorandum prepared on behalf of, and approved by, the Company in connection with this Agreement.

Internal Revenue Code means the United States Internal Revenue Code of 1986, as amended, and the regulations promulgated and rulings issued thereunder.

 

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Lender means:

 

  (a) an Original Lender; or

 

  (b) any person which becomes a Party in accordance with Clause 30.2 (Assignments and transfers by Lenders).

LIBOR means for a Term of any Loan or overdue amount denominated in any currency other than euro or zloty:

 

  (a) the applicable Screen Rate; or

 

  (b) if no Screen Rate is available for the relevant currency or Term of that Loan or overdue amount, the arithmetic mean (rounded upward, if necessary, to the nearest 0.0625 per cent.) of the rates, as supplied to the Facility Agent at its request, quoted by the Reference Banks to leading banks in the London interbank market,

as of 11.00 a.m. on the Rate Fixing Day for the offering of deposits in the currency of that Loan or overdue amount for a period comparable to that Term.

Loan means, unless otherwise stated in this Agreement, the principal amount of each borrowing under this Agreement or the principal amount outstanding of that borrowing.

Majority Lenders means, at any time, Lenders:

 

  (a) whose share in the outstanding Loans and whose undrawn Commitments then aggregate 51 per cent. or more of the aggregate of all the outstanding Loans and the undrawn Commitments of all the Lenders;

 

  (b) if there is no Loan then outstanding, whose undrawn Commitments then aggregate 51 per cent. or more of the Total Commitments; or

 

  (c) if there is no Loan then outstanding and the Total Commitments have been reduced to zero, whose Commitments aggregated 51 per cent. or more of the Total Commitments immediately before the reduction.

Mandatory Cost means the percentage rate per annum calculated by the Facility Agent in accordance with Schedule 4 (Calculation of the Mandatory Cost).

Margin means the rate per annum calculated in accordance with:

 

  (a) in relation to a Revolving Credit Loan, Clause 11.3 (Margin adjustments—Revolving Credit Loans); and

 

  (b) in relation to a Swingline Loan, Clause 11.4 (Margin – Swingline Loans).

Margin Regulations means Regulations T, U and X issued by the Board.

Margin Stock means “margin stock” or “margin securities” as defined in the Margin Regulations.

Material Adverse Effect means:

 

  (a) a materially adverse effect on the business, assets, operations or financial condition of the Company and its Subsidiaries, taken as a whole; or

 

6


  (b) a material impairment of the ability of the Company to perform any of its obligations under this Agreement or any of the other Finance Documents to which it is or will be a party.

Maturity Date means the last day of the Term of a Loan.

Moody’s means Moody’s Investors Service Limited or any successor to its ratings business.

Multiemployer Plan means a multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA which is maintained for or contributed to, or which in the past five years was maintained for or contributed to (or to which there is or was an obligation to contribute) on behalf of, employees of any US Obligor or ERISA Affiliate.

Obligor means the Company or a Borrower.

Original Financial Statements means the audited consolidated financial statements of the Company for the year ended 31 December, 2006.

Original Obligor means the Company or an Original Borrower.

Participating Member State means a member state of the European Communities that adopts or has adopted the euro as its lawful currency under the legislation of the European Community for Economic Monetary Union.

Party means a party to this Agreement.

PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

Plan means any pension plan other than a Multiemployer Plan subject to the provisions of Title IV of ERISA or section 412 of the Internal Revenue Code which is maintained for employees of the Company or any ERISA Affiliate.

Polish złoty or złoty or PLN means the lawful currency for the time being of Poland.

Pro Rata Share means:

 

  (a) for the purpose of determining a Lender’s share in a utilisation of a Facility, the proportion which its Commitment under that Facility bears to all the Commitments under that Facility; and

 

  (b) for any other purpose on a particular date:

 

  (i) the proportion which a Lender’s share of the Loans (if any) bears to all the Loans;

 

  (ii) if there is no Loan outstanding on that date, the proportion which its Commitment bears to the Total Commitments on that date;

 

  (iii) if the Total Commitments have been cancelled, the proportion which its Commitments bore to the Total Commitments immediately before being cancelled; or

 

  (iv) when the term is used in relation to a Facility, the above proportions but applied only to the Loans and Commitments for that Facility.

 

7


For the purpose of sub-paragraph (iv) above, the Facility Agent will determine, in the case of a dispute whether the term in any case relates to a particular Facility.

Rate Fixing Day means:

 

  (a) the first day of a Term for a Loan denominated in Sterling;

 

  (b) the second Business Day before the first day of a Term for a Loan denominated in any other currency (other than euro); or

 

  (c) the second TARGET Day before the first day of a Term for a Loan denominated in euro,

or such other day as the Facility Agent determines is generally treated as the rate fixing day by market practice in the relevant interbank market.

Rating Agency means Moody’s or S&P.

Reference Banks means the Facility Agent, BNP Paribas and PNC Bank, National Association and any other bank or financial institution appointed as such by the Facility Agent in consultation with the Company under this Agreement.

Repeating Representations means at any time the representations and warranties which are then made or deemed to be repeated under Clause 19.25 (Times for making representations and warranties) or any other Finance Document.

Reportable Event means any reportable event as set forth in section 4043(c) of ERISA or the regulations issued thereunder with respect to a Plan other than an event in relation to which the requirement to give notice of the event is waived by any regulation.

Request means a request for a Loan, substantially in the form of Schedule 3 (Form of Request).

Resignation Request means a letter in the form of Schedule 9 (Form of Resignation Request), with such amendments as the Facility Agent and the Company may agree.

Restricted Subsidiary means:

 

  (a) any Subsidiary of the Company other than:

 

  (i) a Subsidiary substantially all of the physical properties of which are located, or substantially all of the business of which is carried on, outside the United States of America (“United States of America” shall not include the territories and possessions thereof) and Europe;

 

  (ii) a Subsidiary the primary business of which consists of purchasing accounts receivable and/or making loans secured by accounts receivable or inventories and/or making investments in real estate or providing services directly related thereto, or which is otherwise primarily engaged in the business of a finance or real estate investment company;

 

  (iii) a Subsidiary the primary business of which consists of leasing equipment, machinery, vehicles, rolling stock and other articles for use in the business of the Company; or

 

8


  (iv) a Subsidiary the stock of which is held primarily for the purpose of securing the investment of the Company in such Subsidiary, while the management of such Subsidiary is accumulating funds for the purchase of such stock pursuant to written contract; and

 

  (b) any Subsidiary specified in clauses (i) through (iv) of paragraph (a) above which at the time of determination shall be designated a Restricted Subsidiary pursuant to designation by the board of directors of the Company as follows:

the Company may by a resolution adopted by its board of directors designate any Restricted Subsidiary to be an Unrestricted Subsidiary, provided that in the opinion of the board of directors of the Company it does not own a manufacturing or research property, plant or facility which is of material importance to the business of the Company and its Restricted Subsidiaries taken as a whole, and may designate any Unrestricted Subsidiary to be a Restricted Subsidiary. The Company may by a resolution adopted by its board of directors designate a newly acquired or formed Subsidiary to be an Unrestricted Subsidiary, provided such designation takes place within 90 days of such acquisition or formation.

Revolving Credit Commitment means:

 

  (a) for an Original Lender, the amount set opposite its name in Schedule 1 (Original Parties) under the heading Revolving Credit Commitments and the amount of any other Revolving Credit Commitment it acquires; and

 

  (b) for any other Lender, the amount of any Revolving Credit Commitment it acquires,

to the extent not cancelled, transferred or reduced under this Agreement.

Revolving Credit Facility means the revolving credit facility made available under this Agreement.

Revolving Credit Loan means a Loan under the Revolving Credit Facility and identified as such in its Request.

Rollover Loan means one or more Revolving Credit Loans:

 

  (a) to be made on the same day that a maturing Revolving Credit Loan is due to be repaid;

 

  (b) the aggregate amount of which is equal to or less than the maturing Revolving Credit Loan;

 

  (c) in the same currency as the maturing Revolving Credit Loan (unless it arose as a result of the operation of Clause 8.4 (Revocation of currency); and

 

  (d) to be made to the same Borrower for the purpose of refinancing a maturing Revolving Credit Loan.

S&P means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc. or any successor to its ratings business.

Screen Rate means:

 

  (a) for LIBOR, the British Bankers Association Interest Settlement Rate;

 

  (b) for EURIBOR, the percentage rate per annum determined by the Banking Federation of the European Union; and

 

9


  (c) in relation to WIBOR, the Warsaw interbank rate (published by Reuters) for PLN,

for the relevant currency and Term displayed on the appropriate page of the Reuters screen selected by the Facility Agent. If the relevant page is replaced or the service ceases to be available, the Facility Agent (after consultation with the Company and the Lenders) may specify another page or service displaying the appropriate rate.

Secured Debt means Financial Indebtedness for money borrowed if such Financial Indebtedness is secured by a Security Interest or encumbrance on any of the manufacturing or research property, plant or facilities of the Company or any Restricted Subsidiary (but not including a property determined not to be a principal asset of the Company or a Restricted Subsidiary by the board of directors of the Company in its discretion) or on any shares of stock or indebtedness of any Restricted Subsidiary.

Security Interest means any mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having a similar effect.

Shareholders’ Interest means as of any particular time, the aggregate of equity capital and surplus of the Company and its Consolidated Subsidiaries, after deducting the cost of the shares of the Company held in the Company’s treasury (i.e., shares which had been previously issued and outstanding but have been reacquired and are presently held by the Company), as shown on a consolidated balance sheet of the Company and its Consolidated Subsidiaries, prepared in accordance with GAAP, as of the end of the latest fiscal year ended prior to such determination.

Sterling means the lawful currency for the time being of the United Kingdom.

Subsidiary of any person means any company, corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50 per cent. of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the board of directors or other management board of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such limited liability company, partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such person, by such person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries.

Swingline Commitment means the US$ Swingline Commitment and the EUR Swingline Commitment.

Swingline Facility means the US$ Swingline Facility and the EUR Swingline Facility.

Swingline Facility Agent means the US$ Swingline Facility Agent and the EUR Swingline Facility Agent.

Swingline Lender means a US$ Swingline Lender or a EUR Swingline Lender.

Swingline Limit means €100,000,000 being the maximum global amount of all Swingline Loans on any given date.

Swingline Loan means a Loan under the US$ Swingline Facility or EUR Swingline Facility.

TARGET Day means a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer payment system is open for the settlement of payments in euro.

 

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Tax or Taxes has the meaning given to the term Taxes in Clause 14.1 (Definitions).

Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document.

Tax Payment means the amount by which a payment made by an Obligor to a Finance Party is increased under Clause 14.2 (Tax gross-up and tax indemnity).

Term means each period determined under this Agreement by reference to which interest on a Loan or an overdue amount is calculated.

Total Commitments means the aggregate of the Commitments of all the Lenders being at the signing date of this Agreement €650,000,000.

Total EUR Swingline Commitments means the aggregate of the EUR Swingline Commitments of all the EUR Swingline Lenders, being the total amount specified as such in Schedule 1 (Original Parties) at the date of this Agreement.

Total Revolving Credit Commitments means the aggregate of the Revolving Credit Commitments of all the Lenders, being the total amount specified as such in Schedule 1 (Original Parties) at the date of this Agreement.

Total Swingline Commitments means the aggregate of the Total US$ Swingline Commitments and the Total EUR Swingline Commitments.

Total US$ Swingline Commitments means the aggregate of the US$ Swingline Commitments of all the US$ Swingline Lenders, being the total amount specified as such in Schedule 1 (Original Parties) at the date of this Agreement.

Transfer Certificate means a certificate, substantially in the form of Schedule 5 (Form of Transfer Certificate), with such amendments as the Facility Agent may approve or reasonably require or any other form agreed between the Facility Agent and the Company.

UK means the United Kingdom.

Unrestricted Subsidiary means any Subsidiary of the Company which is not a Restricted Subsidiary.

US Obligors means the Company, PPG Industries Securities, Inc. and any Additional Borrower that is incorporated or organised under the laws of the United States of America or any State of the United States of America (including the District of Columbia) or that has a place of business or property in the United States of America.

US$ Swingline Commitment means:

 

  (a) in the case of a US$ Swingline Lender on the date of this Agreement, the amount in U.S. Dollars set opposite its name in Schedule 1 (Original Parties) under the heading Swingline Commitments and the amount of any other US$ Swingline Commitment it acquires; or

 

  (b) for any other US$ Swingline Lender, the amount of any US$ Swingline Commitment it acquires,

to the extent not transferred, cancelled or reduced under this Agreement.

 

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US$ Swingline Facility means the US$ swingline facility made available under this Agreement.

US$ Swingline Lender means:

 

  (a) an Original Lender or an Affiliate of an Original Lender listed in Schedule 1 (Original Parties) as a US$ swingline lender; or

 

  (b) any other person that becomes a US$ Swingline Lender after the date of this Agreement.

US$ Swingline Loan means a Loan under the US$ Swingline Facility and identified as such in its Request.

Utilisation Date means each date on which a Facility is utilised.

VAT means value added tax (including, but not limited to, any value added tax levied under EU Directive 2006/112/EC) or any other Tax of a similar nature.

Voting Stock means capital stock issued by a company or a corporation, or equivalent interests in any other person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such person, even if the right so to vote has been suspended by the happening of such a contingency.

WIBOR means, for a Term of any Loan or overdue amount denominated in złoty:

 

  (a) the applicable Screen Rate; or

 

  (b) if no Screen Rate is available, the arithmetic mean (rounded upward to four decimal places) or the rates, as supplied to the Facility Agent at its request, quoted by the Reference Banks to leading banks in the Warsaw interbank market,

as of 11.00 a.m. Warsaw time on the applicable Rate Fixing Day for the offering of deposits in złoty for a period comparable to the relevant Term.

 

1.2 Construction

 

(a) In this Agreement, unless the contrary intention appears, a reference to:

 

  (i) an amendment includes a supplement, novation, extension (whether of maturity or otherwise), restatement, re-enactment or replacement (however fundamental and whether or not more onerous) and amended will be construed accordingly;

 

  (ii) assets includes present and future properties, revenues and rights of every description;

 

  (iii) an authorisation includes an authorisation, consent, approval, resolution, permit, licence, exemption, filing, registration or notarisation;

 

  (iv) disposal means a sale, transfer, assignment, grant, lease, licence, declaration of trust or other disposal, whether voluntary or involuntary, and dispose will be construed accordingly;

 

  (v) government agency means any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

 

  (vi) indebtedness includes any obligation (whether incurred as principal or as surety and whether present or future, actual or contingent) for the payment or repayment of money;

 

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  (vii) know your customer requirements are to the identification checks that a Finance Party requests in order to meet its obligations under any applicable law or regulation to identify a person who is (or is to become) its customer;

 

  (viii) a person includes any individual, company, corporation, unincorporated association or body (including a partnership, trust, fund, joint venture or consortium), government, state, agency, organisation or other entity whether or not having separate legal personality;

 

  (ix) a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, being of a type with which any person to which it applies is accustomed to comply) of any government agency;

 

  (x) a currency is a reference to the lawful currency for the time being of the relevant country;

 

  (xi) a Default being outstanding means that it has not been remedied or waived;

 

  (xii) a provision of law is a reference to that provision as extended, applied, amended or re-enacted and includes any subordinate legislation;

 

  (xiii) a Clause, a Subclause or a Schedule is a reference to a clause or subclause of, or a schedule to, this Agreement;

 

  (xiv) a Party or any other person includes its successors in title, permitted assigns and permitted transferees;

 

  (xv) a Finance Document or other document or security includes (without prejudice to any prohibition on amendments) any amendment to that Finance Document or other document or security, including any change in the purpose of, any extension for or any increase in the amount of a facility or any additional facility; and

 

  (xvi) a time of day is a reference to London time.

 

(b) Unless the contrary intention appears, a reference to a month or months is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that:

 

  (i) if the numerically corresponding day is not a Business Day, the period will end on the next Business Day in that month (if there is one) or the preceding Business Day (if there is not);

 

  (ii) if there is no numerically corresponding day in that month, that period will end on the last Business Day in that month; and

 

  (iii) notwithstanding subparagraph (i) above, a period which commences on the last Business Day of a month will end on the last Business Day in the next month or the calendar month in which it is to end, as appropriate.

 

(c) Unless expressly provided to the contrary in a Finance Document, a person who is not a party to a Finance Document may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 and, notwithstanding any term of any Finance Document, no consent of any third party is required for any amendment (including any release or compromise of any liability) or termination of any Finance Document.

 

(d) Unless the contrary intention appears:

 

  (i) a reference to a Party will not include that Party if it has ceased to be a Party under this Agreement;

 

13


  (ii) a word or expression used in any other Finance Document or in any notice given in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement; and

 

  (iii) any obligation of an Obligor under the Finance Documents which is not a payment obligation remains in force for so long as any payment obligation of an Obligor is, may be or is capable of becoming outstanding under the Finance Documents.

 

(e) The headings in this Agreement do not affect its interpretation.

 

1.3 Dutch terms

In this Agreement, where it relates to a Dutch entity, a reference to:

 

  (a) a necessary action to authorise where applicable, includes without limitation:

 

  (i) any action required to comply with the Works Councils Act of the Netherlands ( Wet op de ondernemingsraden ); and

 

  (ii) obtaining an unconditional positive advice ( advies ) from the competent works council(s);

 

  (b) a security interest includes any mortgage ( hypotheek ), pledge ( pandrecht ), retention of title arrangement ( eigendomsvoorbehoud ), privilege ( voorrecht ), right of retention ( recht van retentie ), right to reclaim goods ( recht van reclame ), and, in general, any right in rem ( beperkt recht ), created for the purpose of granting security ( goederenrechtelijk zekerheidsrecht );

 

  (c) a winding-up , administration or dissolution includes a Dutch entity being declared bankrupt ( failliet verklaard ) or dissolved ( ontbonden );

 

  (d) a moratorium includes surseance van betaling and a moratorium is declared or occurs includes surseance verleend ;

 

  (e) any step or procedure taken in connection with insolvency proceedings includes a Dutch entity having filed a notice under Section 36(2) of the Tax Collection Act of the Netherlands ( Invorderingswet 1990 );

 

  (f) a trustee in bankruptcy includes a curator ;

 

  (g) an administrator includes a bewindvoerder ; and

 

  (h) an attachment includes a beslag .

 

2. FACILITIES

 

2.1 Revolving Credit Facility

Subject to the terms of this Agreement, the Lenders make available to the Borrowers a revolving credit facility with an extension option in an aggregate amount equal to the Total Revolving Credit Commitments.

 

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2.2 Swingline Facility

Subject to the terms of this Agreement:

 

  (a) the US$ Swingline Lenders make available to the Borrowers a US Dollar denominated swingline facility in an aggregate amount equal to the Total US$ Swingline Commitments; and

 

  (b) the EUR Swingline Lenders make available to the Borrowers a euro denominated swingline facility in an aggregate amount equal to the Total EUR Swingline Commitments.

 

2.3 Nature of a Finance Party’s rights and obligations

Unless all the Finance Parties agree otherwise:

 

  (a) the obligations of a Finance Party under the Finance Documents are several;

 

  (b) failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other person under the Finance Documents;

 

  (c) no Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents;

 

  (d) the rights of a Finance Party under the Finance Documents are separate and independent rights;

 

  (e) a Finance Party may, except as otherwise stated in the Finance Documents, separately enforce those rights; and

 

  (f) a debt arising under the Finance Documents to a Finance Party is a separate and independent debt.

 

3. PURPOSE

 

3.1 Revolving Credit Loans

Each Revolving Credit Loan may only be used for general corporate purposes, including euro and USD commercial paper backstop and acquisitions.

 

3.2 US$ Swingline Loans

Each US$ Swingline Loan may only be used towards refinancing any note or other instrument maturing under a U.S. Dollar commercial paper programme of the Company or a member of the Group. A US$ Swingline Loan may not be applied in repayment or prepayment of another US$ Swingline Loan.

 

3.3 EUR Swingline Loans

Each EUR Swingline Loan may only be used towards refinancing any note or other instrument maturing under a euro commercial paper programme of the Company or a member of the Group. A EUR Swingline Loan may not be applied in repayment or prepayment of another EUR Swingline Loan.

 

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3.4 No obligation to monitor

No Finance Party is bound to monitor or verify the utilisation of a Facility.

 

4. CONDITIONS PRECEDENT

 

4.1 Conditions precedent documents

 

(a) A Request may not be given until the Facility Agent has notified the Company and the Lenders that it has received all of the documents and evidence set out in Parts 1 and 2 of Schedule 2 (Conditions precedent documents) in form and substance satisfactory to the Facility Agent.

 

(b) The Facility Agent must give this notification to the Company and the Lenders promptly upon being so satisfied.

 

4.2 Further conditions precedent

The obligations of each Lender to participate in any Loan are subject to the further conditions precedent that on both the date of the Request and the Utilisation Date for that Loan:

 

  (a) the Repeating Representations are correct in all material respects; and

 

  (b) no Default or, in the case of a Rollover Loan, no Event of Default is outstanding or would result from the Loan.

 

5. UTILISATION

 

5.1 General

This Clause applies to all Loans other than Swingline Loans.

 

5.2 Giving of Requests

 

(a) A Borrower may borrow a Loan by giving to the Facility Agent a duly completed Request.

 

(b) Unless the Facility Agent otherwise agrees, the latest time for receipt by the Facility Agent of a duly completed Request is:

 

  (i) in relation to the first Request delivered under this Agreement, 5.00 p.m. (New York time) three Business Days before the Utilisation Date for the proposed borrowing; and

 

  (ii) in relation to any other Request delivered under this Agreement, 11.00 a.m. (New York time) three Business Days before the Utilisation Date for the proposed borrowing.

 

(c) Each Request is irrevocable.

 

5.3 Completion of Requests

A Request for a Loan will not be regarded as having been duly completed unless:

 

  (a) it identifies the Borrower;

 

  (b) the Utilisation Date is a Business Day falling within the Availability Period;

 

  (c) the amount of the Loan requested is:

 

  (i) a minimum of €10,000,000 or an amount which complies with Clause 8 (Optional Currencies) and an integral multiple of 1,000,000 units of the requested currency;

 

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  (ii) the maximum undrawn amount available under the Facility on the proposed Utilisation Date; or

 

  (iii) such other amount as the Facility Agent may agree; and

 

  (d) the proposed currency and Term comply with this Agreement.

Only one Loan may be requested in a Request.

 

5.4 Advance of Loan

 

(a) The Facility Agent must promptly notify each Lender of the details of the requested Loan and the amount of its share in that Loan.

 

(b) The amount of each Lender’s share of the requested Loan will be its Pro Rata Share on the proposed Utilisation Date.

 

(c) No Lender is obliged to participate in a Loan if, as a result:

 

  (i) its share in the Loans would exceed its Commitment; or

 

  (ii) the Loans would exceed the Total Commitments.

 

(d) If the conditions set out in this Agreement have been met, each Lender must make its share in the requested Loan available to the Facility Agent for the relevant Borrower through its Facility Office on the Utilisation Date.

 

5.5 Maximum number

Unless the Facility Agent agrees, a Request may not be given if, as a result, there would be more than seven Loans (other than Swingline Loans) outstanding.

 

6. UTILISATION - SWINGLINE LOANS

 

6.1 General

 

(a) In this Clause:

New York Business Day means a day (other than a Saturday or a Sunday) on which banks are open for general business in New York.

 

(b) Unless the context otherwise requires, references in this Agreement to a Lender include a Swingline Lender.

 

6.2 Giving of Requests

 

(a) A Borrower may borrow a Swingline Loan by giving to the relevant Swingline Facility Agent a duly completed Request.

 

(b) Unless the relevant Swingline Facility Agent otherwise agrees, the latest time for receipt by that Swingline Facility Agent of a duly completed Request:

 

  (i) in relation to a US$ Swingline Loan, is 11.00 a.m. (New York time);

 

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  (ii) in relation to a EUR Swingline Loan, is 11.00 a.m. (Brussels time),

in each case, on the proposed Utilisation Date.

 

(c) Each Request for a US$ Swingline Loan must be sent to the US$ Swingline Facility Agent to its address in New York for this purpose as well as to its usual address for receiving Requests

 

(d) Each Request for a EUR Swingline Loan must be sent to the EUR Swingline Facility Agent to its address in Paris for this purpose as well as to its usual address for receiving Requests.

 

(e) Each Request for a Swingline Loan is irrevocable.

 

6.3 Completion of Requests

A Request for a Swingline Loan will not be regarded as having been duly completed unless:

 

  (a) it identifies the Borrower;

 

  (b) it identifies that the Loan is a US$ Swingline Loan or a EUR Swingline Loan;

 

  (c) the Utilisation Date:

 

  (i) in relation to a US$ Swingline Loan, is a New York Business Day; and

 

  (ii) in relation to a EUR Swingline Loan, is a EUR Swingline Day,

in each case, falling within the Availability Period;

 

  (d) the Term selected:

 

  (i) does not overrun the Final Maturity Date;

 

  (ii) is a period of not more than:

 

  (A) in relation to a US$ Swingline Loan, five (5) New York Business Days; and

 

  (B) in relation to a EUR Swingline Loan, five (5) EUR Swingline Days; and

 

  (iii) ends:

 

  (A) in relation to a US$ Swingline Loan, on a New York Business Day; and

 

  (B) in relation to a EUR Swingline Loan, on a EUR Swingline Day;

 

  (e) the amount of the Swingline Loan requested is:

 

  (i) a minimum of:

 

  (A) in relation to a US$ Swingline Loan, US$5,000,000; and

 

  (B) in relation to a EUR Swingline Loan, euro 5,000,000;

 

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  (ii) subject to the Swingline Limit, the maximum undrawn amount available under this Agreement for that relevant Swingline Loan on the proposed Utilisation Date; or

 

  (iii) such other amount as the Facility Agent or the Swingline Lenders may agree; and

 

(f)    

  (i)       a US$ Swingline Loan is denominated in U.S. Dollars; and

 

  (ii) a EUR Swingline Loan is denominated in euro.

Only one Swingline Loan may be requested in a Request.

 

6.4 Advance of Swingline Loan

 

(a)

   (i)    The US$ Swingline Facility Agent must notify each US$ Swingline Lender of the details of the requested US$ Swingline Loan and the amount of its share in that US$ Swingline Loan by 12.00 noon (New York time) on the proposed Utilisation Date.

 

  (ii) The EUR Swingline Facility Agent must notify each EUR Swingline Lender of the details of the requested EUR Swingline Loan and the amount of its share in that EUR Swingline Loan by 12.00 noon (Brussels time) on the proposed Utilisation Date.

 

(b) The amount of each Swingline Lender’s share of the Swingline Loan will be its Pro Rata Share on the proposed Utilisation Date adjusted to take account of any limit applying under this Clause.

 

(c) No Swingline Lender is obliged to participate in a Swingline Loan if as a result:

 

  (i) its share in the Swingline Loans would exceed its Swingline Commitment;

 

  (ii) the Swingline Loans would exceed the Swingline Limit; or

 

  (iii) the Loans would exceed the Total Commitments.

 

(d) If the conditions set out in this Agreement have been met, each Swingline Lender must make its share in the Swingline Loan available to the relevant Swingline Facility Agent for the relevant Borrower on the Utilisation Date.

 

6.5 Maximum number

Unless the Facility Agent agrees:

 

  (a) a Request may not be given in relation to a US$ Swingline Loan if, as a result, there would be more than three US$ Swingline Loans outstanding under the US$ Swingline Facility; and

 

  (b) a Request may not be given in relation to a EUR Swingline Loan if, as a result, there would be more than three EUR Swingline Loans outstanding under the EUR Swingline Facility.

 

6.6 Relationship with Revolving Credit Facility

 

(a) This Subclause applies when a Swingline Loan is outstanding or is to be borrowed.

 

(b) The Swingline Facility is not independent of the Revolving Credit Facility.

 

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(c) Notwithstanding any other term of this Agreement a Lender is only obliged to participate in a Loan to the extent that it would not result in its share in the Loans and that of a Lender which is its Affiliate exceeding its Overall Commitment.

 

(d) For this purpose, Overall Commitment of a Lender means:

 

  (i) its Revolving Credit Commitment; or

 

  (ii) in the case of a Swingline Lender which does not have a Revolving Credit Commitment, the Revolving Credit Commitment of a Lender which is its Affiliate.

 

(e) Where, but for the operation of paragraph (c) above, a Lender’s share in the Loans and that of a Lender which is its Affiliate would have exceeded its Overall Commitment, the excess will be apportioned among the other Lenders participating in the relevant Loan pro rata according to their relevant Commitments. This calculation will be applied as often as necessary until the Loan is apportioned among the relevant Lenders in a manner consistent with paragraph (c) above.

 

(f) The Swingline Commitments must not at any time exceed the Revolving Credit Commitments and, if necessary, the Swingline Commitments will be automatically reduced to achieve this.

 

6.7 Currency

Notwithstanding any other term of this Agreement:

 

  (a) US$ Swingline Loans may only be denominated in U.S. Dollars; and

 

  (b) EUR Swingline Loans may only be denominated in euro.

 

7. SWINGLINE LOANS

 

7.1 General

In this Clause:

The Proportion of a Lender means the proportion borne by:

 

  (i) its Revolving Credit Commitment (or, if the Total Revolving Credit Commitments are then zero, its Revolving Credit Commitment immediately prior to their reduction to zero) minus the euro amount of its participation (or that of a Lender which is its Affiliate) in any outstanding Revolving Credit Loans (but ignoring its (or its Affiliate’s) participation in the relevant unpaid Swingline Loan); to

 

  (ii) the Total Revolving Credit Commitments (or, if the Total Revolving Credit Commitments are then zero, the Total Revolving Credit Commitments immediately prior to their reduction to zero) minus any outstanding Revolving Credit Loans (but ignoring the relevant unpaid Swingline Loan).

The Shortfall of a Swingline Lender is an amount equal to its Unpaid Swingline Participation minus its (or its Affiliate’s) Proportion of the Unpaid Amount.

The Unpaid Amount means, in relation to a Swingline Loan, any principal not repaid and/or any interest accrued but unpaid on that Swingline Loan calculated from the Utilisation Date to the Loss Sharing Date.

 

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The Unpaid Swingline Participation of a Lender means that part of the Unpaid Amount (if any) owed to that Lender (or its Affiliate) (before any re-distribution under Clause 7.2 (Repayment)).

 

7.2 Repayment

 

(a) Each Borrower that has drawn a Swingline Loan shall repay that Swingline Loan on the last day of its Term.

 

(b) If a Swingline Loan is not repaid in full on its due date, the relevant Swingline Facility Agent shall (if requested to do so in writing by any affected Swingline Lender) set a date (the Loss Sharing Date ) on which payments shall be made between the Lenders to re-distribute the unpaid amount between them. The relevant Swingline Facility Agent shall give at least 3 Business Days notice to each affected Lender of the Loss Sharing Date and notify it of the amounts to be paid or received by it.

 

(c) On the Loss Sharing Date each Lender must pay to the relevant Swingline Facility Agent its Proportion of the Unpaid Amount minus its (or its Affiliate’s) Unpaid Swingline Participation (if any). If this produces a negative figure for a Lender no amount need be paid by that Lender.

 

(d) Out of the funds received by the relevant Swingline Facility Agent pursuant to sub-clause (c) that Swingline Facility Agent shall pay to each Swingline Lender (as applicable) an amount equal to the Shortfall (if any) of that Swingline Lender.

 

(e) If the amount actually received by the relevant Swingline Facility Agent from the Lenders is insufficient to pay the full amount of the Shortfall of all Swingline Lenders (as applicable) then the amount actually received will be distributed amongst the Swingline Lenders (as applicable) pro rata to the Shortfall of each of those Swingline Lender.

 

(f)

   (i)    On a payment under this paragraph, the paying Lender will be subrogated to the rights of the Swingline Lenders which have shared in the payment received.

 

  (ii) If and to the extent a paying Lender is not able to rely on its rights under sub-paragraph (i) above, the relevant Borrower shall be liable to the paying Lender for a debt equal to the amount the paying Lender has paid under this paragraph.

 

  (iii) Any payment under this paragraph does not reduce the obligations in aggregate of any Obligor.

 

7.3 Voluntary Prepayment of Swingline Loans

 

(a) The Borrower to which a Swingline Loan has been made may prepay at any time the whole of that Swingline Loan provided that Borrower has given notice to the relevant Swingline Facility Agent prior to:

 

  (i) in relation to a US$ Swingline Loan, 11.00 a.m. (New York time); and

 

  (ii) in relation to a EUR Swingline Loan, 11.00 a.m. (Brussels time)

in each case, on the day on which the proposed prepayment is to be made.

 

(b) Unless a contrary indication appears in this Agreement, any part of a Swingline Facility which is prepaid may be reborrowed in accordance with the terms of this Agreement.

 

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7.4 Interest – US$ Swingline Loans

 

(a) The rate of interest on each US$ Swingline Loan for each day during its Term is the higher of:

 

  (i) the prime commercial lending rate in U.S. Dollars announced by the US$ Swingline Facility Agent and in force on that day; and

 

  (ii) the aggregate of:

 

  (A) the rate per annum determined by the US$ Swingline Facility Agent to be the Federal Funds Rate on or about 1.00 p.m. (New York time) on that day; and

 

  (B) the applicable Margin.

 

(b) For this purpose, Federal Funds Rate means in relation to any day, the rate per annum equal to:

 

  (i) the weighted average of the rates on overnight Federal funds transactions with members of the US Federal Reserve System arranged by Federal funds brokers, as published for that day (or, if that day is not a New York Business Day, for the immediately preceding New York Business Day) by the Federal Reserve Bank of New York; or

 

  (ii) if a rate is not published for that day or the preceding day, the average of the quotations for that day on those transactions received by the Facility Agent from three Federal funds brokers of recognised standing selected by the Facility Agent.

 

(c) If any day during a Term is not a New York Business Day, the rate of interest on a US$ Swingline Loan on that day will be the rate applicable on the immediately preceding Business Day.

 

7.5 Interest – EUR Swingline Loans

 

(a) The rate of interest on each EUR Swingline Loan for each day during its Term is the percentage rate per annum equal to the aggregate of the applicable:

 

  (i) Margin;

 

  (ii) EONIA; and

 

  (iii) Mandatory Cost (if any).

 

(b) If any day during a Term is not a EUR Swingline Day, the rate of interest on a EUR Swingline Loan on that day will be the rate applicable on the immediately preceding EUR Swingline Day.

 

7.6 Interest – General

 

(a) Except where it is provided to the contrary in this Agreement, each Borrower must pay accrued interest on each Swingline Loan made to it on the last day of its Term.

 

(b) Other than Clause 7.4 (Interest – US$ Swingline Loans), Clause 7.5 (Interest – EUR Swingline Loans) and Clause 11.4 (Margin – Swingline Loans), any other term of this Agreement relating to:

 

  (i) calculation of the rate of interest (but not interest on overdue amounts); or

 

  (ii) market disruption,

 

22


does not apply to Swingline Loans.

 

7.7 Term

Notwithstanding any other term of this Agreement,

 

  (a) each Swingline Loan has one Term only; and

 

  (b) the Term for a Swingline Loan must be selected in the relevant Request.

 

7.8 Partial payments – Swingline Loans

 

(a) If a Swingline Facility Agent receives a payment in respect of a Swingline Facility insufficient to discharge all the amounts then due and payable by each Obligor to the relevant Swingline Lenders under this Agreement, the relevant Swingline Facility Agent must apply that payment towards the obligations of that Obligor under the Finance Documents in respect of that Swingline Facility in the following order:

 

  (i) first , in or towards payment pro rata of any unpaid fees, costs and expenses of the relevant Swingline Facility Agent under the Finance Documents incurred by it in respect of that Swingline Facility;

 

  (ii) secondly , in or towards payment pro rata of any accrued interest on a Swingline Loan due but unpaid by it under this Agreement ; and

 

  (iii) thirdly , in or towards payment pro rata of the principal of any Swingline Loan due but unpaid by it under this Agreement.

 

(b) A Swingline Facility Agent must, if so directed by all the relevant Swingline Lenders, vary the order set out in sub-paragraphs (a)(ii) and (iii) above, as appropriate.

 

(c) This Subclause will override any appropriation made by an Obligor.

 

(d) Any other term of this Agreement in relation to partial payments does not apply to the Swingline Facility.

 

7.9 Conditions of assignment or transfer

Notwithstanding any other term of this Agreement, each Lender must ensure that at all times its Overall Commitment is not less than:

 

  (a) its Swingline Commitment; or

 

  (b) if it does not have a Swingline Commitment, the Swingline Commitment of a Lender which is its Affiliate.

 

8. OPTIONAL CURRENCIES

 

8.1 General

In this Clause:

Agent’s Spot Rate of Exchange means the Facility Agent’s spot rate of exchange for the purchase of the relevant currency in the London foreign exchange market with euros as of 11.00 a.m. on a particular day.

 

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euro Amount of a Loan or part of a Loan means:

 

  (a) if the Loan is denominated in euros, its amount; or

 

  (b) if the Loan is denominated in an Optional Currency, its equivalent in euros calculated on the basis of the Agent’s Spot Rate of Exchange one Business Day before the Rate Fixing Day for that Term.

Optional Currency means any currency (other than euros) in which a Loan may be denominated under this Agreement.

 

8.2 Selection

 

(a) A Borrower must select the currency of a Loan in its Request and such currency shall be either euros or an Optional Currency.

 

(b) The amount of a Loan requested in an Optional Currency must be a minimum amount of the equivalent of €10,000,000 and, if required by the Facility Agent, an integral multiple of 1,000,000 units of that currency.

 

(c) Unless the Facility Agent otherwise agrees, the Loans may not be denominated at any one time in more than two currencies.

 

8.3 Conditions relating to Optional Currencies

 

(a) A Loan may be denominated in an Optional Currency for a Term if:

 

  (i) that Optional Currency is readily available in the amount required and freely convertible into euros in the relevant interbank market on the Rate Fixing Day and the first day of that Term; and

 

  (ii) that Optional Currency is U.S. Dollars, Sterling or Polish Zloty or has been previously approved by the Facility Agent (acting on the instructions of all the Lenders).

 

(b) If the Facility Agent has received a request from the Company for a currency to be approved as an Optional Currency, the Facility Agent must, within 3 Business Days, confirm to the Company:

 

  (i) whether or not the Lenders have given their approval; and

 

  (ii) if approval has been given, the minimum amount (and, if required, integral multiples) for any Loan in that currency.

 

8.4 Revocation of currency

 

(a) Notwithstanding any other term of this Agreement, if before 9.30 a.m. on any Rate Fixing Day the Facility Agent receives notice from a Lender that:

 

  (i) the Optional Currency requested is not readily available to it in the relevant interbank market in the amount and for the period required; or

 

24


  (ii) participating in a Loan in the proposed Optional Currency might contravene any law or regulation applicable to it,

the Facility Agent must give notice to the Company to that effect promptly and in any event before 11.00 a.m. on that day.

In this paragraph, the reference to an Optional Currency not being readily available includes a situation where a Lender cannot obtain Polish złoty for operational reasons.

 

(b) In this event:

 

  (i) that Lender must participate in the Loan in euros; and

 

  (ii) the share of that Lender in the Loan and any other similarly affected Lender(s) will be treated as a separate Loan denominated in euros during that Term.

 

(c) Any part of a Loan treated as a separate Loan under this Subclause will not be taken into account for the purposes of any limit on the number of Loans or currencies outstanding at any one time.

 

(d) A Loan will still be treated as a Rollover Loan if it is not denominated in the same currency as the maturing Loan by reason only of the operation of this Subclause.

 

8.5 Optional Currency equivalents

The equivalent in euros of a Loan or part of a Loan in an Optional Currency for the purposes of calculating:

 

  (a) whether any limit under this Agreement has been exceeded;

 

  (b) the amount of a Loan;

 

  (c) the share of a Lender in a Loan;

 

  (d) the amount of any repayment or prepayment of a Loan; or

 

  (e) the undrawn amount of a Lender’s Commitment,

is its euro Amount.

 

8.6 Notification

The Facility Agent must notify the Lenders and the Company of the relevant euro Amount (and the applicable Agent’s Spot Rate of Exchange) promptly after they are ascertained.

 

9. REPAYMENT AND EXTENSION OPTION

 

9.1 Repayment

 

(a) Each Borrower must repay each Revolving Credit Loan made to it in full on its Maturity Date.

 

(b) Subject to the other terms of this Agreement, any amounts repaid under paragraph (a) above may be re-borrowed.

 

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9.2 Extension Option

 

(a) The Company may by notice to the Facility Agent (the Initial Extension Request ) not more than 90 days and not less than 60 days before the first anniversary of the date of this Agreement (the First Anniversary ), request that the Final Maturity Date be extended for a further period of 364 days.

 

(b) The Company may by notice to the Facility Agent (the Second Extension Request ) not more than 90 days and not less than 60 days before the second anniversary of the date of this Agreement (the Second Anniversary ), request that the Final Maturity Date be the third anniversary of the date of this Agreement plus 728 days.

 

(c) The Facility Agent must promptly notify the Lenders of any Initial Extension Request or Second Extension Request (an Extension Request ).

 

(d) Each Lender may, in its sole discretion, agree to any Extension Request. Each Lender that agrees to an Extension Request by the date falling 15 days before, the relevant anniversary of the date of this Agreement, will extend its Commitment for a further period of 364 days or 728 days, as applicable, from the then current Final Maturity Date and the Final Maturity Date with respect to the Commitment of that Lender will be, subject to paragraph (e) below, extended accordingly with effect from the then current Final Maturity Date.

 

(e) Notwithstanding paragraph (d) above, the Final Maturity Date will not be extended unless the Extension Majority Lenders have agreed to the Extension Request.

 

(f) If any Lender fails to reply to an Extension Request on or before the date falling 15 days before the relevant anniversary of the date of this Agreement, it will be deemed to have refused that Extension Request and its Commitment will not be extended.

 

(g) Each Extension Request is irrevocable.

 

(h) Subject to Paragraph (e) above, if one or more (but not all) of the Lenders agree to an Extension Request, then the Facility Agent must notify the Company and the Lenders which have agreed to the extension, identifying in that notification which Lenders have not agreed to the Extension Request.

 

(i) Each Borrower must repay each Lender that has not agreed to the Extension Request its share in each Loan made to it on the Final Maturity Date which applies to that Lender.

 

10. PREPAYMENT AND CANCELLATION

 

10.1 Mandatory prepayment – illegality

 

(a) A Lender must notify the Facility Agent and the Company promptly if it becomes aware that it is unlawful in any applicable jurisdiction for that Lender to perform any of its obligations under a Finance Document or to fund or maintain its share in any Loan.

 

(b) After notification under paragraph (a) above the Facility Agent must notify the Company promptly that:

 

  (i) each Borrower must repay or prepay the share of that Lender in each Loan made to it on the date specified in paragraph (c) below; and

 

  (ii) the Commitments of that Lender will be immediately cancelled.

 

(c) The date for repayment or prepayment of a Lender’s share in a Loan will be:

 

  (i) the last day of the current Term of that Loan; or

 

26


  (ii) if earlier, the date specified by the Lender in the notification under paragraph (a) above and which must not be earlier than the last day of any applicable grace period allowed by law.

 

10.2 Mandatory prepayment – change of control

 

(a) For the purposes of this Subclause:

a change of control occurs if:

 

  (i) any person or group of persons acquires beneficial ownership of a majority in interest of the outstanding voting stock of the Company (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, and the applicable rules and regulations thereunder) unless such acquisition of beneficial ownership is approved by a majority of the Incumbent Board (as defined in (ii) below); or

 

  (ii) individuals who, as at the date of this Agreement were directors of the Company, together with any replacement or additional directors whose election was recommended by or who were elected by a majority of directors then in office (the Incumbent Board ), cease to constitute a majority of the board of directors of the Company; or

 

  (iii) the Company ceases to own, directly or indirectly, 100 per cent. of the Voting Stock of any Borrower (other than the Company).

 

(b) The Company must promptly notify the Facility Agent if it becomes aware of any change of control.

 

(c) After a change of control:

 

  (i) subject to (ii) below, a Lender may refuse to fund a Loan (other than a Rollover Loan) pursuant to a duly completed Request; and

 

  (ii) each Lender may, by giving 15 days’ notice to the Facility Agent:

 

  (A) cancel its Commitments; and

 

  (B) declare its share of all outstanding Loans, together with accrued interest and all other amounts accrued under the Finance Documents, to be immediately due and payable.

Any such notice will take effect in accordance with its terms.

 

10.3 Voluntary prepayment

 

(a) The Company may, by giving not less than two Business Days’ prior notice to the Facility Agent, prepay (or ensure that a Borrower prepays) any Revolving Credit Loan at any time in whole or in part.

 

(b) A prepayment of part of a Revolving Credit Loan must be in a minimum amount of €10,000,000 and an integral multiple of €1,000,000.

 

10.4 Automatic cancellation

The Commitments of each Lender will be automatically cancelled at the close of business on the last day of the Availability Period which applies to that Lender.

 

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10.5 Voluntary cancellation

 

(a) The Company may, by giving not less than two Business Days’ prior notice to the Facility Agent, cancel the unutilised amount of the Total Commitments in whole or in part.

 

(b) Partial cancellation of the Total Commitments must be in a minimum amount of €10,000,000 and an integral multiple of €1,000,000.

 

(c) Any cancellation in part will be applied against the relevant Commitment of each Lender pro rata.

 

10.6 Right of repayment and cancellation of a single Lender

 

(a) If an Obligor is, or will be, required to pay to a Lender:

 

  (i) a Tax Payment; or

 

  (ii) an Increased Cost,

the Company may, while the requirement continues, give notice to the Facility Agent requesting prepayment and cancellation in respect of that Lender.

 

(b) After notification under paragraph (a) above:

 

  (i) each Borrower must repay or prepay that Lender’s share in each Loan made to it on the date specified in paragraph (c) below; and

 

  (ii) the Commitments of that Lender will be immediately cancelled.

 

(c) The date for repayment or prepayment of a Lender’s share in a Loan will be:

 

  (i) the last day of the Term for that Loan; or

 

  (ii) if earlier, the date specified by the Company in its notification.

 

10.7 Re-borrowing of Loans

Any voluntary prepayment of a Loan under Clause 10.3 (Voluntary prepayment) may be re-borrowed on the terms of this Agreement. Any other prepayment of a Loan may not be re-borrowed.

 

10.8 Miscellaneous provisions

 

(a) Any notice of prepayment and/or cancellation under this Agreement is irrevocable and must specify the relevant date(s) and the affected Loans and Commitments. The Facility Agent must notify the Lenders promptly of receipt of any such notice.

 

(b) All prepayments under this Agreement must be made with accrued interest on the amount prepaid. No premium or penalty is payable in respect of any prepayment except for Break Costs.

 

(c) The Majority Lenders may agree a shorter notice period for a voluntary prepayment or a voluntary cancellation.

 

(d) No prepayment or cancellation is allowed except in accordance with the express terms of this Agreement.

 

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(e) No amount of the Total Commitments cancelled under this Agreement may subsequently be reinstated.

 

11. INTEREST

 

11.1 Calculation of interest

The rate of interest on each Loan for each Term is the percentage rate per annum equal to the aggregate of the applicable:

 

  (a) Margin;

 

  (b) IBOR; and

 

  (c) Mandatory Cost (if any).

 

11.2 Payment of interest

Except where it is provided to the contrary in this Agreement, each Borrower must pay accrued interest on each Loan made to it on the last day of each Term and also, if the Term is longer than six months, on the dates falling at six-monthly intervals after the first day of that Term.

 

11.3 Margin adjustments - Revolving Credit Loans

 

(a) This Subclause applies to all Loans other than Swingline Loans.

 

(b) Subject to the other provisions of this Subclause, the Margin will be calculated by reference to the table below:

 

Column 1

Long-term credit ratings of the Company

 

Column 2

Margin

(per cent. per annum)

Moody’s

 

S&P

   

A1 or above

  A+ or above   0.15

Lower than A1 but at least A2

  Lower than A+ but at least A   0.2

Lower than A2 but at least A3

  Lower than A but at least A-   0.25

Lower than A3 but at least Baa1

  Lower than A- but at least BBB+   0.35

Baa2 and below

  BBB and below   0.45

 

(c) The Company must notify the Facility Agent of any notification to it by a Rating Agency of a change in its long-term credit rating. If the long-term credit rating(s) given to the Company by any Rating Agency is such that a different Margin is applicable to each long-term credit rating, the applicable Margin will be (if the difference between the two long-term credit ratings is of one level) based on the higher long-term credit rating.

 

(d) In the event that the long-term credit rating(s) given to the Company by any Rating Agency are different by more than one long-term credit rating, the applicable Margin will be the Margin corresponding to the long-term credit rating immediately below the higher of the two ratings.

 

(e) Any change in the Margin will, subject to paragraph (f) below, apply to each Loan made, or (if outstanding) from the next Business Day, after the date of notification by the Company of the change in long-term credit rating.

 

(f) For so long as:

 

  (i) the Company is in default of its obligations under this Agreement to notify the Facility Agent of any change in its long-term credit rating under paragraph (c) above; or

 

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  (ii) an Event of Default is outstanding,

the Margin will be the highest applicable rate, being 0.45 per cent. per annum.

 

11.4 Margin – Swingline Loans

 

(a) This Subclause applies to all Loans other than Revolving Credit Loans.

 

(b) The Margin is 0.5 per cent. per annum.

 

11.5 Interest on overdue amounts

 

(a) If an Obligor fails to pay any amount payable by it under the Finance Documents, it must immediately on demand by the Facility Agent pay interest on the overdue amount from its due date up to the date of actual payment, both before, on and after judgment.

 

(b) Interest on an overdue amount is payable at a rate determined by the Facility Agent to be one per cent. per annum above the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount. For this purpose, the Facility Agent may (acting reasonably):

 

  (i) select successive Terms of any duration of up to three months; and

 

  (ii) determine the appropriate Rate Fixing Day for that Term.

 

(c) Notwithstanding paragraph (b) above, if the overdue amount is a principal amount of a Loan and becomes due and payable before the last day of its current Term, then:

 

  (i) the first Term for that overdue amount will be the unexpired portion of that Term; and

 

  (ii) the rate of interest on the overdue amount for that first Term will be one per cent. per annum above the rate then payable on that Loan.

After the expiry of the first Term for that overdue amount, the rate on the overdue amount will be calculated in accordance with paragraph (b) above.

 

(d) Interest (if unpaid) on an overdue amount will be compounded with that overdue amount at the end of each of its Terms but will remain immediately due and payable.

 

11.6 Notification of rates of interest

The Facility Agent must promptly notify each relevant Party of the determination of a rate of interest under this Agreement.

 

12. TERMS

 

12.1 Selection - Revolving Credit Loans

 

(a) Each Revolving Credit Loan has one Term only.

 

(b) A Borrower must select the Term for a Revolving Credit Loan in the relevant Request.

 

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(c) Subject to the following provisions of this Clause, each Term for a Revolving Credit Loan will be one, two, three or six months or any other period agreed by the Company and all the Lenders which have (or will have) a share in that Revolving Credit Loan.

 

12.2 No overrunning the Final Maturity Date

If a Term would otherwise overrun the Final Maturity Date, it will be shortened so that it ends on the Final Maturity Date.

 

12.3 Notification

The Facility Agent must notify each relevant Party of the duration of each Term promptly after ascertaining its duration.

 

13. MARKET DISRUPTION

 

13.1 Failure of a Reference Bank to supply a rate

If IBOR is to be calculated by reference to the Reference Banks but a Reference Bank does not supply a rate by 12.00 noon (local time) on a Rate Fixing Day, the applicable IBOR will, subject as provided below, be calculated on the basis of the rates of the remaining Reference Banks.

 

13.2 Market disruption

 

(a) In this Clause, each of the following events is a market disruption event :

 

  (i) IBOR is to be calculated by reference to the Reference Banks but no, or (where there is more than one Reference Bank) only one, Reference Bank supplies a rate by 12.00 noon (local time) on the Rate Fixing Day; or

 

  (ii) the Facility Agent receives by close of business on the Rate Fixing Day notification from Lenders whose shares in the relevant Loan exceed 30 per cent. of that Loan that the cost to them of obtaining matching deposits in the relevant interbank market is in excess of IBOR for the relevant currency and Term.

 

(b) The Facility Agent must promptly notify the Company and the Lenders of a market disruption event.

 

(c) After notification under paragraph (b) above, the rate of interest on each Lender’s share in the affected Loan for the relevant Term will be the aggregate of the applicable:

 

  (i) Margin;

 

  (ii) rate notified to the Facility Agent by that Lender as soon as practicable, and in any event before interest is due to be paid in respect of that Term, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its share in that Loan from whatever source it may reasonably select; and

 

  (iii) Mandatory Cost (if any).

 

13.3 Alternative basis of interest or funding

 

(a) If a market disruption event occurs and the Facility Agent or the Company so requires, the Company and the Facility Agent must enter into negotiations for a period of not more than 30 days with a view to agreeing an alternative basis for determining the rate of interest and/or funding for the affected Loan.

 

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(b) Any alternative basis agreed will be, with the prior consent of all the Lenders, binding on all the Parties.

 

14. TAXES

 

14.1 Definitions

In this Clause:

Qualifying Lender means, in relation to a payment of interest under this Agreement, a Lender which is beneficially entitled to that interest and is:

 

  (a) the holder of a licence for the time being in force granted under section 9 of the Irish Central Bank Act 1971 or an authorised credit institution under the terms of EU Council Directive 2000/12/EC of 20 March 2000 which has duly established a branch in Ireland or has made all necessary notifications to its home state competent authorities required thereunder in relation to its intention to carry on banking business in Ireland provided in each case that it is carrying on a bona fide banking business in Ireland with which the interest payment under this Agreement is connected; or

 

(b)

  (i)       a body corporate that is resident for the purposes of tax in a member state of the European Communities (other than Ireland) or in a territory with which Ireland has concluded a Treaty (residence for these purposes to be determined in accordance with the laws of the territory of which the Lender claims to be resident); or

 

  (ii) a body corporate organised or formed under the laws of the United States of America or any state thereof, including the District of Columbia, and subject to federal tax in the U.S. on its worldwide income; or

 

  (iii) a U.S. LLC, provided the ultimate recipients of the interest are resident in and under the laws of a territory with which Ireland has a Treaty (residence for these purposes to be determined in accordance with the laws of the territory of which the Lender claims to be resident) or resident in and under the laws of a member state of the European Communities (other than Ireland) and the business conducted through the LLC is so structured for market reasons and not for tax avoidance purposes,

provided that in each case in paragraphs (i), (ii) or (iii) above, if the Lender is a company, it is not carrying on a trade or business in Ireland through an agency or branch with which the interest payment under this Agreement is connected; or

 

  (c) a Treaty Lender; or

 

  (d) a body corporate which is resident in Ireland for the purposes of Irish tax or which carries on a trade in Ireland through a branch or agency:

 

  (i) which advances money in the ordinary course of a trade which includes the lending of money; and

 

  (ii) in whose hands any interest payable is taken into account in computing the trading income of the company; and

 

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  (iii) which has complied with all of the provisions of section 246(5)(a) of the Taxes Consolidation Act of Ireland 1997, as amended (the Taxes Act ), including making the appropriate notifications there under; or

 

  (e) a qualifying company within the meaning of section 110 of the Taxes Act; or

 

  (f) an investment undertaking within the meaning of section 739B of the Taxes Act.

Taxes means all non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities described in Clause 14.2(a) (Tax gross-up and tax indemnity) in respect of payments under this Agreement or under any of the other Finance Documents.

Treaty Lender means, a Lender which is treated as a resident of a Treaty State for the purposes of a Treaty and does not carry on a business in Ireland through a permanent establishment with which that Lender’s participation in the Agreement is effectively connected that subject to the completion procedural formalities is entitled to relief from Irish tax on interest under that Treaty.

Treaty State means a jurisdiction having a double taxation agreement with Ireland that is in effect (a Treaty ) which makes provision for full exemption from tax imposed by Ireland on interest.

 

14.2 Tax gross-up and tax indemnity

 

(a) Any and all payments by any Obligor to or for the account of any Lender or the Facility Agent under this Agreement or any other Finance Document shall be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and the Facility Agent:

 

  (i) taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction under the laws of which such Lender or the Facility Agent (as the case may be) is organised or in which its principal office is located or any political subdivision thereof;

 

  (ii) taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction of such Lender’s or Facility Agent’s Facility Office or any political subdivision thereof;

 

  (iii) any branch profits taxes imposed by a jurisdiction as a result of a present or former connection between such jurisdiction and the Lenders or Facility Agent; and

 

  (iv) excluded taxes described in paragraph (f) below.

 

(b) If any Obligor is required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any of the other Finance Documents or any other documents to be delivered hereunder or thereunder to any Lender or the Facility Agent:

 

  (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Clause) such Lender or the Facility Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made;

 

  (ii) such Obligor shall make such deductions; and

 

33


  (iii) such Obligor shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.

 

(c) In addition, the Obligors shall be jointly and severally liable for the payment of and shall pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from any payment made pursuant to this Agreement or any other Finance Document or any other documents to be delivered hereunder or thereunder or from the execution, delivery or registration of, performing under, or otherwise with respect to, this Agreement or any other Finance Document or any other documents to be delivered hereunder or thereunder (hereinafter referred to as Other Taxes ).

 

(d) The Obligors shall jointly and severally indemnify each Lender and the Facility Agent for and hold it harmless against the full amount of Taxes or Other Taxes (including, without limitation, taxes of any kind imposed or asserted by any jurisdiction on amounts payable under this Clause) imposed on or paid by such Lender or the Facility Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30 days from the date such Lender or the Facility Agent (as the case may be) makes written demand therefor.

 

(e) Within 30 days of the date of any payment of Taxes, the Obligors shall furnish to the Facility Agent the original or a certified copy of a receipt evidencing such payment to the extent such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Facility Agent.

 

(f)

Each Lender and Facility Agent organised under the laws of a jurisdiction outside the United States, on or prior to the date of its execution and delivery of this Agreement in the case of each Original Lender and original Facility Agent and on the Transfer Date (as defined in Clause 30.6 (Procedure for transfer using a Transfer Certificate)) pursuant to which it becomes a Lender in the case of each other Lender, and with respect to a successor Facility Agent, on the date of appointment of such successor pursuant to Clause 24.15 (Resignation of the Facility Agent), and from time to time thereafter as reasonably requested in writing by the Obligors (but only so long as such Lender remains lawfully able to do so), shall provide each of the Facility Agent and the Obligors with documentation prescribed by applicable law or reasonably requested by any Obligor or Facility Agent as will enable the Obligors and Facility Agent to determine whether the Lender or Facility Agent (as applicable) is subject to tax withholding, back-up tax withholding, or tax information reporting requirements. Without limiting the generality of the foregoing, each Lender and Facility Agent shall provide each of the Facility Agent and any Obligor that is a United States person with two original Internal Revenue Service forms W-9, W-8IMY, W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying whether such Lender is exempt from or entitled to a reduced rate of United States withholding tax on payments pursuant to this Agreement. If the form provided by a Lender at the time such Lender first becomes a party to this Agreement indicates a United States withholding tax rate in excess of zero, withholding tax on payment of interest (but not in respect of any Commitment Fee) at such rate shall be considered excluded from Taxes unless and until such Lender provides the appropriate forms certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from Taxes for periods governed by such form; provided, however, that, if at the Transfer Date pursuant to which a New Lender (as defined in Clause 30.2 (Assignments and transfers by Lenders)) becomes a party to this Agreement, the Existing Lender (as defined in Clause 30.2 (Assignments and transfers by Lenders)) was entitled to payments under paragraphs (a) and (b) above in respect of United States withholding tax with respect to interest paid at such date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may be imposed in the future or other amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with respect to the New Lender on such date. If any form or document referred to in this

 

34


 

paragraph (f) requires the disclosure of information, other than information necessary to compute the tax payable and information required on the date hereof by Internal Revenue Service form W-9, W-8IMY, W-8BEN or W-8ECI, that the Lender reasonably considers to be confidential, the Lender shall give notice thereof to the Obligors and shall not be obligated to include in such form or document such confidential information. For purposes of this paragraph (f), the terms United States and United States person shall have the meanings specified in Section 7701 of the Internal Revenue Code.

 

(g) For any period with respect to which a Lender has failed to provide the Obligors with the appropriate form, certificate or other document described in paragraph (f) above (other than if such failure is due to a change in law, or in the interpretation or application thereof, occurring subsequent to the date on which a form, certificate or other document originally was required to be provided, or if such form otherwise is not required under paragraph (f) above), such Lender shall not be entitled to indemnification under paragraphs (a), (b) or (d) above with respect to Taxes imposed by the United States of America by reason of such failure; provided, however, that should a Lender become subject to Taxes because of its failure to deliver a form, certificate or other document required hereunder, the Obligors shall take such steps as the Lender shall reasonably request to assist the Lender to recover such Taxes.

 

14.3 Qualifying Lender

An Obligor is not required to make an increased payment to a Lender under Clause 14.2 (Tax gross-up and tax indemnity) for any deduction as set out therein in respect of tax imposed in Ireland from a payment of interest under this Agreement, if on the date on which the payment falls due the payment could have been made to the relevant Lender without such deduction if it was a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or treaty, or any published practice or concession of any relevant taxing authority.

 

14.4 Value added taxes

 

(a) Any amount payable under a Finance Document by an Obligor is exclusive of any VAT which might be chargeable in connection with that amount. If any such Tax is chargeable, the Obligor must pay to the Finance Party (in addition to and at the same time as paying that amount) an amount equal to the amount of that Tax.

 

(b) If VAT is chargeable on any supply made by any Finance Party (the Supplier ) to any other Finance Party (the Recipient ) under a Finance Document, and any Party (the Relevant Party ) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient will promptly pay to the Relevant Party an amount equal to any credit or repayment from the relevant tax authority which it reasonably determines relates to the VAT chargeable on that supply.

 

(c) Where a Finance Document requires any Party to reimburse a Finance Party for any costs or expenses, that Party must also at the same time pay and indemnify the Finance Party against all VAT incurred by the Finance Party in respect of those costs or expenses but only to the extent that the Finance Party (acting reasonably) determines that it is not entitled to credit or repayment from the relevant tax authority in respect of the Tax.

 

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15. INCREASED COSTS

 

15.1 Increased Costs

Except as provided below in this Clause, the Company must pay to a Finance Party the amount of any Increased Cost incurred by that Finance Party or any of its Affiliates as a result of:

 

  (a) the introduction of, or any change in, or any change in the interpretation, administration or application of, any law or regulation made after the date of this Agreement; or

 

  (b) compliance with any law or regulation made after the date of this Agreement.

 

15.2 Exceptions

The Company need not make any payment for an Increased Cost to the extent that the Increased Cost is:

 

  (a) compensated for under another Clause or would have been but for an exception to that Clause;

 

  (b) attributable to changes in the basis of taxation of overall net income or overall gross income or franchise taxes imposed in lieu thereof by the United States of America or by the jurisdiction or state under the laws of which such Finance Party is organised or has its Facility Office or where its principal office is located, or results from Taxes or Other Taxes (as to which Clause 14.2 (Tax gross-up and tax indemnity) shall govern);

 

  (c) attributable to a Finance Party or its Affiliate wilfully failing to comply with any law or regulation; or

 

  (d) attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement ( Basel II ) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

 

15.3 Claims

 

(a) A Finance Party intending to make a claim for an Increased Cost must notify the Facility Agent of the circumstances giving rise to and the amount of the claim, following which the Facility Agent will promptly notify the Company.

 

(b) Each Finance Party must, as soon as practicable after a demand by the Facility Agent (on the instructions of the Company), provide a certificate confirming the amount of its Increased Cost.

 

16. MITIGATION

 

16.1 Mitigation

 

(a) Each Finance Party must, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which result or would result in:

 

  (i) any Tax Payment or Increased Cost being payable to that Finance Party;

 

36


  (ii) that Finance Party being able to exercise any right of prepayment and/or cancellation under this Agreement by reason of any illegality; or

 

  (iii) that Finance Party incurring any cost of complying with the minimum reserve requirements of the European Central Bank,

including transferring its rights and obligations under the Finance Documents to an Affiliate or changing its Facility Office.

 

(b) Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

 

(c) The Company must indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of any step taken by it under this Subclause.

 

(d) A Finance Party is not obliged to take any step under this Subclause if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

 

16.2 Conduct of business by a Finance Party

No term of any Finance Document will:

 

  (a) interfere with the right of any Finance Party to arrange its affairs (Tax or otherwise) in whatever manner it thinks fit;

 

  (b) oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it in respect of Tax or the extent, order and manner of any claim; or

 

  (c) oblige any Finance Party to disclose any information relating to its affairs (Tax or otherwise) or any computation in respect of Tax.

 

17. PAYMENTS

 

17.1 Place

Unless a Finance Document specifies that payments under it are to be made in another manner, all payments by a Party (other than the Facility Agent) under the Finance Documents must be made to the Facility Agent to its account at such office or bank:

 

  (a) in the principal financial centre of the country of the relevant currency; or

 

  (b) in the case of euro, in the principal financial centre of a Participating Member State or London,

as it may notify to that Party for this purpose by not less than five Business Days’ prior notice.

 

17.2 Funds

Payments under the Finance Documents to the Facility Agent must be made for value on the due date at such times and in such funds as the Facility Agent may specify to the Party concerned as being customary at the time for the settlement of transactions in the relevant currency in the place for payment.

 

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17.3 Distribution

 

(a) Each payment received by the Facility Agent under the Finance Documents for another Party must, except as provided below, be made available by the Facility Agent to that Party by payment (as soon as practicable after receipt) to its account with such office or bank:

 

  (i) in the principal financial centre of the country of the relevant currency; or

 

  (ii) in the case of euro, in the principal financial centre of a Participating Member State or London,

as it may notify to the Facility Agent for this purpose by not less than five Business Days’ prior notice.

 

(b) The Facility Agent may apply any amount received by it for an Obligor in or towards payment (as soon as practicable after receipt) of any amount due from that Obligor under the Finance Documents or in or towards the purchase of any amount of any currency to be so applied.

 

(c) Where a sum is paid to the Facility Agent under this Agreement for another Party, the Facility Agent is not obliged to pay that sum to that Party until it has established that it has actually received it. However, the Facility Agent may assume that the sum has been paid to it, and, in reliance on that assumption, make available to that Party a corresponding amount. If it transpires that the sum has not been received by the Facility Agent, that Party must immediately on demand by the Facility Agent refund any corresponding amount made available to it together with interest on that amount from the date of payment to the date of receipt by the Facility Agent at a rate calculated by the Facility Agent to reflect its cost of funds.

 

17.4 Currency

 

(a) Unless a Finance Document specifies that payments under it are to be made in a different manner, the currency of each amount payable under the Finance Documents is determined under this Subclause.

 

(b) Interest is payable in the currency in which the relevant amount in respect of which it is payable is denominated.

 

(c) A repayment or prepayment of any principal amount is payable in the currency in which that principal amount is denominated on its due date.

 

(d) Amounts payable in respect of Taxes, fees, costs and expenses are payable in the currency in which they are incurred.

 

(e) Each other amount payable under the Finance Documents is payable in euros.

 

17.5 No set-off or counterclaim

All payments made by an Obligor under the Finance Documents must be calculated and made without (and free and clear of any deduction for) set-off or counterclaim.

 

17.6 Business Days

 

(a) If a payment under the Finance Documents is due on a day which is not a Business Day, the due date for that payment will instead be the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not) or whatever day the Facility Agent determines is market practice.

 

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(b) During any extension of the due date for payment of any principal under this Agreement interest is payable on that principal at the rate payable on the original due date.

 

17.7 Partial payments

 

(a) Subject to Clause 7.2 (Repayment), if the Facility Agent receives a payment insufficient to discharge all the amounts then due and payable by each Obligor under the Finance Documents, the Facility Agent must apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:

 

  (i) first , in or towards payment pro rata of any of its unpaid fees, costs and expenses of the Administrative Parties under the Finance Documents;

 

  (ii) secondly , in or towards payment pro rata of any of its accrued interest or fee due but unpaid under this Agreement;

 

  (iii) thirdly , in or towards payment pro rata of any of its principal amount due but unpaid under this Agreement; and

 

  (iv) fourthly , in or towards payment pro rata of any of its other sum due but unpaid under the Finance Documents.

 

(b) The Facility Agent must, if so directed by all the Lenders, vary the order set out in sub-paragraphs (a)(ii) to (iv) above.

 

(c) This Subclause will override any appropriation made by an Obligor.

 

17.8 Disruption to Payment Systems

 

(a) If the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the Company notifies the Facility Agent that a Disruption Event has occurred, the Facility Agent:

 

  (i) may, and must if requested by the Company, enter into discussions with the Company for a period of not more than 5 days with a view to agreeing any changes to the operation or administration of the Facility ( changes ) as the Facility Agent may decide is necessary;

 

  (ii) is not obliged to enter into discussions with the Company in relation to any changes if, in its opinion, it is not practicable so to do and has no obligation to agree to any changes;

 

  (iii) may consult with the Finance Parties in relation to any changes but is not obliged so to do if, in its opinion, it is not practicable in the circumstances; and

 

  (iv) must notify the Finance Parties of any changes agreed under this Subclause.

 

(b) Any agreement between the Facility Agent and the Company will be, (whether or not it is finally determined that a Disruption Event has occurred), binding on the Parties notwithstanding the provisions of Clause 29 (Amendments and waivers).

 

(c) The Facility Agent accepts the discretions given to it by this Subclause only on the basis that it will not be liable (either in contract or tort) for any damages, costs or losses of any kind which any Party may incur or sustain as a result of the Facility Agent taking or not taking any action under this Subclause.

 

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(d) If the Facility Agent makes any payment to any person in respect of a liability incurred as a result of taking or not taking any action under this Subclause, the amount of that payment is an amount in respect of which each Lender must indemnify the Facility Agent for that Lender’s Pro Rata Share of any loss or liability incurred by the Facility Agent under this Subclause (unless the Facility Agent has been reimbursed by an Obligor under a Finance Document).

 

(e) Paragraph (d) above applies notwithstanding:

 

  (i) any other term of any Finance Document (including any term in Clause 24 (The Administrative Parties)); and

 

  (ii) irrespective of whether the payment was made as a result of actual or alleged negligence or gross negligence or wilful misconduct of the Facility Agent but so that the Facility Agent has no indemnity for claims against it which arise as a result of fraud by the Facility Agent.

 

17.9 Timing of payments

If a Finance Document does not provide for when a particular payment is due, that payment will be due within three Business Days of demand by the relevant Finance Party.

 

18. GUARANTEE AND INDEMNITY

 

18.1 Guarantee and indemnity

The Company irrevocably and unconditionally:

 

  (a) guarantees to each Finance Party punctual performance by each Borrower of all its obligations under the Finance Documents;

 

  (b) undertakes with each Finance Party that, whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, the Company must immediately on demand by the Facility Agent pay that amount as if it were the principal obligor in respect of that amount; and

 

  (c) agrees with each Finance Party that if, for any reason, any amount claimed by a Finance Party under this Clause is not recoverable from the Company on the basis of a guarantee (including, without limitation, any liability and all obligations under the Finance Documents that would be owed by the Company and any other Borrower to an Administrative Party but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, insolvency, reorganisation or similar proceeding involving such a Borrower) then the Company will be liable as a principal debtor and primary obligor to indemnify that Finance Party in respect of any loss it incurs as a result of a Borrower failing to pay any amount expressed to be payable by it under a Finance Document on the date when it ought to have been paid. The amount payable by the Company under this indemnity will not exceed the amount it would have had to pay under this Clause had the amount claimed been recoverable on the basis of a guarantee.

 

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18.2 Continuing guarantee

This guarantee is a continuing guarantee and will extend to the ultimate balance of all sums payable by any Borrower under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.

 

18.3 Reinstatement

 

(a) If any discharge (whether in respect of the obligations of any Borrower or any security for those obligations or otherwise) or arrangement is made in whole or in part on the faith of any payment, security or other disposition which is avoided or must be restored on insolvency, liquidation, administration, examination or to be reinstated or otherwise without limitation, the liability of the Company under this Clause will continue or be reinstated as if the discharge or arrangement had not occurred.

 

(b) Each Finance Party may concede or compromise any claim that any payment, security or other disposition is liable to avoidance or restoration.

 

18.4 Waiver of defences

The obligations of the Company under this Clause will not be affected by any act, omission or thing (whether or not known to it or any Finance Party) which, but for this provision, would reduce, release or prejudice any of its obligations under this Clause. This includes:

 

  (a) any time or waiver granted to, or composition with, any person;

 

  (b) any release of any person under the terms of any composition or arrangement;

 

  (c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any person;

 

  (d) any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

  (e) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any person;

 

  (f) any amendment of a Finance Document or any other document or security;

 

  (g) any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Finance Document or any other document or security; or

 

  (h) any insolvency or similar proceedings.

 

18.5 Immediate recourse

 

(a) The Company waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other right or security or claim payment from any person before claiming from the Company under this Clause.

 

(b) This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

 

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18.6 Appropriations

Until all amounts which may be or become payable by the Borrowers under the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may without affecting the liability of the Company under this Clause:

 

(a)

  (i)       refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) against those amounts; or

 

  (ii) apply and enforce them in such manner and order as it sees fit (whether against those amounts or otherwise); and

 

  (b) hold in an interest-bearing suspense account any moneys received from the Company or on account of the Company’s liability under this Clause.

 

18.7 Non-competition

Unless:

 

  (a) all amounts which may be or become payable by the Borrowers under or in connection with the Finance Documents have been irrevocably paid in full; or

 

  (b) the Facility Agent otherwise directs,

the Company will not, after a claim has been made or by virtue of any payment or performance by it under this Clause:

 

  (i) be subrogated to any rights, security or moneys held, received or receivable by any Finance Party (or any trustee or agent on its behalf);

 

  (ii) be entitled to any right of contribution or indemnity in respect of any payment made or moneys received on account of the Company’s liability under this Clause;

 

  (iii) claim, rank, prove or vote as a creditor of any Borrower or its estate in competition with any Finance Party (or any trustee or agent on its behalf); or

 

  (iv) receive, claim or have the benefit of any payment, distribution or security from or on account of any Borrower, or exercise any right of set-off as against any Borrower.

The Company must hold in trust for and immediately pay or transfer to the Facility Agent for the Finance Parties any payment or distribution or benefit of security received by it contrary to this Clause or in accordance with any directions given by the Facility Agent under this Clause.

 

18.8 Additional security

This guarantee is in addition to and is not in any way prejudiced by any other security now or subsequently held by any Finance Party.

 

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19. REPRESENTATIONS AND WARRANTIES

 

19.1 Representations and warranties

The representations and warranties set out in this Clause are made by each Obligor or (if the relevant provision so states) the Company to each Finance Party.

 

19.2 Status

 

(a) It is a corporation or (as applicable) limited liability company, duly incorporated or (as applicable) organised and validly existing under the laws of its jurisdiction of original incorporation or organisation.

 

(b) It has all requisite corporate authority to own its properties and to carry on the business in which it is engaged.

 

(c) It is duly qualified to transact the business in which it is engaged and is in good standing (to the extent that such concept is recognised under laws of its jurisdiction of original incorporation) in those jurisdictions in which the real or personal property owned or leased or the business conducted by it are material to its operations, except where failure to qualify would not have a Material Adverse Effect.

 

19.3 Powers and authority

It has the corporate power and authority to execute, deliver and perform this Agreement, to utilise the Loans provided for in this Agreement, to execute and deliver each of the Finance Documents to which it is or will be a party and to perform its obligations under each Finance Document to which it is a party or will be a party, and all such actions have been duly authorised by all necessary corporate proceedings on its part.

 

19.4 Financial statements

 

(a) As at the date of this Agreement, in relation to the Company, the audited consolidated balance sheets and related consolidated statements of income, shareholders’ equity, comprehensive income and cash flows contained in its Registration Statement on Form S-3, filed with the Securities and Exchange Commission on 2 August 2007, have been prepared in accordance with GAAP and present fairly, in all material respects, the financial position of the Company and its Consolidated Subsidiaries as of 31 December 2006 and 31 December 2005 and the results of operations and cash flows of the Company and its Consolidated Subsidiaries for each of the three fiscal years ending on 31 December 2006, 31 December 2005 and 31 December 2004. The unaudited consolidated balance sheets and related consolidated statements of income contained in the Company’s quarterly report on Form 10-Q for the fiscal quarter ended 30 September 2007, have been prepared in accordance with GAAP applicable to interim unaudited financial statements and, except for the absence of footnotes and other information required to be included in audited financial statements prepared in accordance with GAAP, present fairly, in all material respects, the financial position of the Company and its Consolidated Subsidiaries as of 30 September 2007 and the results of operations of the Company and its Consolidated Subsidiaries for the three and nine months then ended.

 

(b) In relation to any document filed or provided by the Company in accordance with Clause 20.1 (Financial Statements), such document has been prepared in accordance with GAAP and presents fairly, in all material respects, the financial position of the Company and its Consolidated Subsidiaries as at the date to which the document relates and the results of operations and cash flows of the Company and its Consolidated Subsidiaries.

 

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(c) In relation to each Obligor other than the Company, its audited financial statements (if any) most recently delivered to the Facility Agent:

 

  (i) have been prepared in accordance with GAAP, consistently applied; and

 

  (ii) fairly represent its financial condition (consolidated, if applicable) as at the date to which they were drawn up,

except, in each case, as disclosed to the contrary in those financial statements.

 

(d) No financial statement contained in any filing by a US Obligor with the United States Securities and Exchange Commission when filed is false or misleading in any material respect or omits to state a material fact necessary to make the statements contained therein not misleading.

 

19.5 Non-conflict

Neither the execution and delivery of this Agreement or any other Finance Document to which it is a party, nor the performance of the transactions contemplated by the Finance Documents, nor compliance with the terms and provisions hereof or thereof, will conflict with or result in a breach of:

 

  (a) its constitutional documents;

 

  (b) any order, writ, injunction or decree of any court or any law or regulation applicable to it in any jurisdiction in which the real or personal property owned or leased or the business conducted by the Company or any of its Subsidiaries is material to their respective operations, or any government agency in such jurisdiction;

 

  (c) any document to which it or any of its Subsidiaries is a party or by which it is bound, the violation or breach of which would have a Material Adverse Effect or would constitute an Event of Default; or

 

  (d) any document to which it or any of its Subsidiaries is a party or by which it is bound which would result in the creation or imposition of any Security Interest upon any asset of the Company or any of its Subsidiaries, where such Security Interest would have a Material Adverse Effect.

 

19.6 Legal validity

 

(a) Each Finance Document to which it is a party have been duly and validly executed and delivered by it and constitute its legal, valid, binding and enforceable obligations in accordance with their respective terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditor’s rights.

 

(b) Each Finance Document to which it is a party is in the proper form for its enforcement in the jurisdiction of its incorporation.

 

19.7 ERISA

Each US Obligor and each of its Subsidiaries has fulfilled its obligations under ERISA and the Internal Revenue Code with respect to each Plan and is in compliance in all material respects with the applicable provisions of ERISA and the Internal Revenue Code with respect to each Plan except for such failures or non-compliance which would not have a Material Adverse Effect. No Reportable Event has occurred and is continuing with respect to any Plan, except for such

 

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Reportable Events as would not have a Material Adverse Effect. Neither the US Obligors nor any of their respective Subsidiaries have incurred any liability to PBGC or under the Internal Revenue Code with respect to any Plan, except for premiums not yet due and payable or liabilities which would not have a Material Adverse Effect.

 

19.8 Licenses and approvals

No authorisation, consent, approval, license or other action by, and no registration or filing with any government agency is necessary in connection with the execution and delivery of the Finance Documents, the consummation of the transactions contemplated by the Finance Documents or the performance of or compliance with the terms and conditions of the Finance Documents, except for such authorisations, consents, approvals, licenses or other actions by, and such registrations or filings with, such government agencies as have been or will be timely made or obtained.

 

19.9 Proceedings

 

(a) As at the date of this Agreement and, if applicable, on each Extension Date and each Accession Date, there is no threatened or, to its knowledge, pending proceedings by or before any court, government agency or arbitrator against or affecting it or any of its Subsidiaries which except for the Disclosed Matters, if adversely decided would have a Material Adverse Effect.

 

(b) As at each Accession Date, there is no threatened or, to its knowledge, pending proceedings by or before any court, government agency or arbitrator against or affecting the acceding Additional Borrower which, except for the Disclosed Matters, if adversely decided would have a Material Adverse Effect.

 

(c) As at the date of this Agreement and, if applicable, on each Extension Date and each Accession Date, there is no threatened or, to its knowledge, pending proceedings by or before any court, government agency or arbitrator against or affecting it or any of its Subsidiaries which purports to affect the legality, validity or enforceability of the Finance Documents or the consummation of the transactions contemplated by the Finance Documents.

 

19.10 Margin regulations

As at the date of this Agreement and, if applicable, on each Extension Date and each Accession Date, no part of the Loans or proceeds of any extension of credit under this Agreement have been utilised for the purpose of enabling any US Obligor to buy or carry any Margin Stock and no US Obligor nor any of its respective Subsidiaries is in the business of extending credit to others for such purpose.

 

19.11 Title

 

(a) It and each of its Subsidiaries have good and marketable title to, or valid leasehold interests in, all of their respective material properties and assets, except for minor defects in title that do not materially interfere with the ability to conduct their respective businesses as currently conducted or to utilise such properties and assets for their intended purposes.

 

(b) It and each of its Subsidiaries have complied with all obligations under all material leases to which each of them is a party and all such leases are in full force and effect, except where failure to so comply would not have a Material Adverse Effect. It and each of its Subsidiaries enjoy peaceful and undisturbed possession under all such material leases, except where the lack of such peaceful and undisturbed possession would not have a Material Adverse Effect.

 

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(c) It and each of its Subsidiaries own or possess all the patents, trademarks, service marks, trade names, copyrights, licences, franchises, permits and rights with respect to the foregoing necessary to own and operate their respective properties and to carry on their respective business as presently conducted and as presently planned to be conducted without conflict with the rights of others in any manner that would have a Material Adverse Effect.

 

19.12 Information

 

(a) No statement made by the Company in any certificate, report or document furnished by or on behalf of the Company under or in connection with this Agreement or any other Finance Document is false or misleading in any material respect and no such certificate, report, or document omits to state a material fact necessary to make the statements contained therein not misleading.

 

(b) As at the date of this Agreement and in the case of the Company only:

 

  (i) the factual information contained in the Information Memorandum was true and accurate in all material respects as at its date or (if appropriate) as at the date (if any) at which it is stated to be given;

 

  (ii) each expression of opinion, expectation, intention or policy contained in the Information Memorandum was made after careful consideration and enquiry and is believed by the Company to be fair and reasonable as at the date at which it is stated to be given and can be properly supported;

 

  (iii) the Information Memorandum did not omit as at its date any information which, if disclosed, would make the Information Memorandum untrue or misleading in any material respect; and

 

  (iv) as at the date of this Agreement, nothing has occurred since the date of the Information Memorandum which, if disclosed, would make the Information Memorandum untrue or misleading in any material respect.

 

19.13 No material adverse change

 

(a) As at the date of this Agreement, there has been no material adverse change in the business, assets, operations or conditions, financial or otherwise, of the Company or of the Group since 30 September 2007.

 

(b) If applicable, on each Extension Date and each Accession Date, there has been no material adverse change in the business, assets, operations or conditions, financial or otherwise, of the Company or of the Group since the date of the financial statements most recently delivered to the Facility Agent by the Company.

 

19.14 Tax filing

 

(a) Each US Obligor has filed all United States Federal income tax returns and all other material tax returns which are required to be filed by it.

 

(b) Each Obligor (other than the US Obligors) has filed all material income tax returns required to be filed under the laws where it is incorporated, established or organised or where tax laws are applicable to it and all other material tax returns which are required to be filed by it.

 

(c) Each Obligor has paid all Taxes and other government charges due pursuant to such returns or pursuant to any assessment received by that Obligor except for any taxes or assessments that the Obligor is contesting in good faith. The charges, accruals and reserves on the books of each Obligor in respect of Taxes or other government charges are, in the opinion of that Obligor, adequate.

 

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19.15 Environment

It and each of its Subsidiaries are in compliance in all material respects with all laws and regulations relating to the protection of the environment except where the failure to do so, either singly or in the aggregate, would not have a Material Adverse Effect.

 

19.16 Investment company

No Obligor is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the ICA.

 

19.17 Security

Other than any Security Interest permitted under Clause 22.9 (Negative Pledge) or any Security Interest which would not result in a Material Adverse Effect, no Security Interest or other charge or encumbrance exists over all or any of its or any of its Subsidiaries’ present or future revenues or assets.

 

19.18 Subsidiaries

Each Borrower (other than the Company) is a (direct or indirect) wholly-owned Subsidiary of the Company.

 

19.19 Jurisdiction/governing law

 

(a) Its:

 

  (i) irrevocable submission under this Agreement to the jurisdiction of the courts of England and New York;

 

  (ii) agreement that this Agreement is governed by English law; and

 

  (iii) agreement not to claim any immunity to which it or its assets may be entitled,

are legal, valid and binding under the laws of its jurisdiction of incorporation; and

 

(b) any judgment obtained in England or in New York will be recognised and be enforceable by the courts of its jurisdiction of incorporation.

 

19.20 Stamp duties

As at the date of this Agreement and on each Accession Date it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority or that any stamp, registration or similar Tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents.

 

19.21 No default

 

(a) No Event of Default is outstanding or will result from the entry into of, or the performance of any transaction contemplated by, any Finance Document; and

 

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(b) no other event or circumstance is outstanding which constitutes a default or termination event (however described) under any document which is binding on it or any of its Subsidiaries or any of its or its Subsidiaries’ assets to an extent or in a manner which has or is reasonably expected to have a Material Adverse Effect.

 

19.22 Pari passu

Its payment obligations under this Agreement rank at least pari passu with all its other unsecured obligations.

 

19.23 United States laws

 

(a) In this Subclause:

Anti-Terrorism Law means each of:

 

  (i) Executive Order No. 13224 on Terrorist Financing: Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism issued September 23, 2001, as amended by Order 13268 (as so amended, the Executive Order );

 

  (ii) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (commonly known as the USA Patriot Act) (the USA Patriot Act );

 

  (iii) the Money Laundering Control Act of 1986, 18 U.S.C. sect. 1956; and

 

  (iv) any similar law enacted in the United States of America subsequent to the date of this Agreement.

public utility has the meaning given to it in the United States Federal Power Act of 1920.

Restricted Party means any person listed:

 

  (i) in the Annex to the Executive Order;

 

  (ii) on the “Specially Designated Nationals and Blocked Persons” list maintained by the Office of Foreign Assets Control of the United States Department of the Treasury; or

 

  (iii) in any successor list to either of the foregoing.

 

(b) It is not a public utility or subject to regulation under the United States Federal Power Act of 1920.

 

(c) Neither it nor any of its Affiliates:

 

  (i) is, or is controlled by, a Restricted Party;

 

  (ii) to the best of its knowledge, has received funds or other property from a Restricted Party; or

 

  (iii) to the best of its knowledge, is in breach of or is the subject of any action or investigation under any Anti-Terrorism Law.

 

(d) It and each of its Affiliates have taken reasonable measures to ensure compliance with the Anti-Terrorism Laws.

 

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19.24 Insolvency

 

(a) As at the date of this Agreement and, if applicable, on each Extension Date, none of the following apply:

 

  (i) in respect of an Obligor:

 

  (A) it is, or is deemed for the purposes of any applicable law to be, unable to pay its debts as they fall due or insolvent;

 

  (B) it has admitted publicly or in writing its inability to pay its debts as they fall due;

 

  (C) it has suspended making payments on any of its debts or has announced an intention to do so;

 

  (D) by reason of actual or anticipated financial difficulties, it has begun negotiations with any creditor (other than the Lenders in their capacity as such) for the rescheduling or restructuring of any of its indebtedness; or

 

  (E) any of its indebtedness is subject to a moratorium; and

 

  (ii) in respect of the Company only, the value of its assets is less than its liabilities (taking into account contingent and prospective liabilities).

 

(b) As at the date of this Agreement and, if applicable, on each Extension Date, none of the following have occurred in respect of an Obligor:

 

  (i) any step has been taken with a view to a moratorium or a composition, assignment or similar arrangement with any of its creditors;

 

  (ii) a meeting of its shareholders, directors or other officers has been convened for the purpose of considering any resolution for, to petition for or to file documents with a court or any registrar for, its winding-up, administration, examination or dissolution or any such resolution has been passed;

 

  (iii) any person has presented a petition, or files documents with a court or any registrar, for its winding-up, administration, examination, dissolution or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise);

 

  (iv) any Security Interest has been enforced over any of its assets;

 

  (v) an order for its winding-up, administration, examination or dissolution has been made;

 

  (vi) any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator, examiner or similar officer has been appointed in respect of it or any of its assets;

 

  (vii) its shareholders, directors or other officers have requested the appointment of, or have given notice of their intention to appoint, a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator, examiner or similar officer; or

 

  (viii) any other analogous step or procedure has been taken in any jurisdiction.

 

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(c) Paragraph (b) above does not apply to a petition for winding-up presented by a creditor which is being contested in good faith and with due diligence and is discharged or struck out within 60 days.

 

19.25 Times for making representations and warranties

 

(a) The representations and warranties set out in this Clause are made by each Original Obligor on the date of this Agreement.

 

(b) Unless a representation and warranty is expressed to be given at a specific date, each representation and warranty is deemed to be repeated by:

 

  (i) each Additional Borrower and the Company on the Accession Date for that Additional Borrower; and

 

  (ii) each Obligor on the date of each Request, the first day of each Term and, if applicable, on each Extension Date.

 

(c) When a representation and warranty is repeated, it is applied to the circumstances existing at the time of repetition.

 

20. INFORMATION COVENANTS

 

20.1 Financial statements

The Company shall file or cause to be filed with the United States Securities and Exchange Commission in compliance with the requirements thereof each current report on Form 8-K, quarterly report on Form 10-Q and annual report on Form 10-K required to be filed by the Company and its Subsidiaries (as applicable) and deliver to the Facility Agent, within 120 days of the end of each fiscal year of the Company, a Compliance Certificate of the Chief Financial Officer of the Company as to compliance with the terms of this Agreement and setting forth in reasonable detail the calculations necessary to demonstrate compliance with the ratio of Consolidated Total Debt to Total Capitalisation as provided in Clause 21.3 (Gearing) hereof, provided that, to the extent that any Lender is required pursuant to applicable law to obtain directly from the Borrowers any financial statements included in any such report filed with the United States Securities and Exchange Commission, the Borrowers shall promptly provide such financial statements upon reasonable request of such Lender through the Facility Agent.

 

20.2 Compliance Certificate

 

(a) The Company must supply to the Facility Agent a Compliance Certificate within 120 days of the end of each fiscal year and within 90 days of the end of each quarter.

 

(b) A Compliance Certificate must be signed by the Chief Financial Officer of the Company or person performing the function thereof.

 

20.3 Information - miscellaneous

The Company must supply to the Facility Agent, for the benefit of and in sufficient copies for all the Lenders if the Facility Agent so requests:

 

  (a) copies of all documents despatched by the Company to its shareholders (or any class of them) or its creditors generally or any class of them at the same time as they are despatched;

 

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  (b) promptly upon becoming aware of them, subject to reasonable confidentiality requirements, details of any litigation, arbitration or administrative proceedings against any member of the Group which are current, threatened or pending and which have or might, if adversely determined, have a Material Adverse Effect provided that the Company shall have no obligation to furnish the details referred in this paragraph (b) with respect to such actions or proceedings referred to in Clause 19.9 (Proceedings) which are not reasonably likely to be adversely decided; and

 

  (c) promptly on request, subject to reasonable confidentiality requirements, such further information regarding the financial condition and operations of the Group as any Finance Party through the Facility Agent may reasonably request.

 

20.4 Notification of Default

Within five days of an Obligor obtaining knowledge of any Default, the Company will provide to the Facility Agent for the benefit of and in sufficient copies for all the Lenders a certificate of the Company setting out the details of the Default and the action which the Company and the relevant Obligor (if applicable) are taking or proposing to take with respect to such Default.

 

20.5 Know your customer requirements

 

(a) On the introduction of any law, any change in law, a change in the status or the ownership of an Obligor or a proposed assignment or transfer by a Lender, each Obligor must promptly on the request of any Finance Party supply to that Finance Party any documentation or other evidence which is reasonably requested by that Finance Party (whether for itself, on behalf of any Finance Party or any prospective new Lender) to enable a Finance Party or prospective new Lender to carry out and be satisfied with the results of all applicable know your customer requirements or any other check in relation to the transactions contemplated by the Finance Documents.

 

(b) Each Lender must promptly on the request of the Facility Agent supply to the Facility Agent any documentation or other evidence which is reasonably required by the Facility Agent to carry out and be satisfied with the results of all know your customer requirements.

 

21. FINANCIAL COVENANTS

 

21.1 Definitions

In this Clause:

Total Capitalisation means, as at any date, with respect to the Company and its Consolidated Subsidiaries, the sum (determined on a consolidated basis without duplication in accordance with GAAP) of (a) Total Indebtedness as at such date plus (b) the amount that should be set forth on the consolidated balance sheet of the Company and its Consolidated Subsidiaries prepared as at such date opposite the caption “Total Shareholders’ Equity” (or the equivalent caption), excluding the amount reported in the financial statements as “Accumulated Other Comprehensive Income (Loss)” related to “Pension and Other Postretirement Benefit Adjustments”.

Total Indebtedness means, as at any date, the total amount of Financial Indebtedness of the Company and its Consolidated Subsidiaries on such date, determined on a consolidated basis without duplication in accordance with GAAP.

 

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21.2 Interpretation

Except as provided to the contrary in this Agreement, an accounting term used in this Clause is to be construed in accordance with the principles applied in connection with the Original Financial Statements.

 

21.3 Gearing

The Company must ensure that Total Indebtedness does not at any time exceed 60 per cent. of Total Capitalisation at that time.

 

22. GENERAL COVENANTS

 

22.1 General

Each Obligor agrees to be bound by the covenants set out in this Clause relating to it and, where the covenant is expressed to apply to any other member of the Group, each Obligor must ensure that its relevant Subsidiaries perform that covenant.

 

22.2 Maintenance of assets

Each member of the Group shall maintain and keep their respective assets in such repair, working order and condition, and make or cause to be made all such needful and proper repairs, renewals and replacements thereto, as in the judgement of the Company are necessary and in the interests of the Company or such Subsidiary provided, however, subject to Clause 22.10 (Limitation on sales and leasebacks and transfers of assets to Unrestricted Subsidiaries), that nothing in this Clause 22.2 (Maintenance of assets) shall prevent the Company (or any Subsidiary thereof) from selling, abandoning, or otherwise disposing of any of its respective businesses from time to time is, in the judgement of the Company or such Subsidiary, such sale, abandonment, disposition or discontinuance is advisable.

 

22.3 Status

Each member of the Group will do or cause to be done, except in the case of any Subsidiary of the Company (other than an Obligor) where failure to do so would not have a Material Adverse Effect, all things necessary to preserve, renew and keep in full force and effect its legal existence in its jurisdiction of incorporation, and do or cause to be done all things necessary to obtain, preserve, renew, extend and keep in full force and effect the rights, licenses, permits, franchises, authorisations, patents, copyrights, trademarks, and trade names material to the conduct of its business as its board of directors shall determine in its judgement.

 

22.4 Authorisations

Each Obligor must promptly:

 

  (a) obtain, maintain and comply with the terms; and

 

  (b) supply certified copies to the Facility Agent,

of any authorisation required under any law or regulation to enable it to perform its obligations under, or for the validity or enforceability of, any Finance Document.

 

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22.5 Compliance with laws

The Company must comply, and ensure each of its Subsidiaries complies, in all material respects with all applicable laws, rules and regulations and orders, such compliance to include, without limitation, compliance with ERISA and environmental laws.

 

22.6 Insurance

Each member of the Group must maintain insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which the Group operates provided, however, that the Company and its Subsidiaries may self-insure to the extent consistent with prudent business practice as reasonably determined by the Company and such Subsidiary.

 

22.7 Sale of assets, consolidation, merger

Neither an Obligor nor any Restricted Subsidiaries may:

 

  (a) dispose of all or substantially all of its assets, business or property;

 

  (b) enter into any amalgamation, merger or consolidation unless the relevant Obligor or Restricted Subsidiaries shall be the surviving corporation; or

 

  (c) use any part of any Loan to acquire any security in a transaction that is subject to the reporting requirements of section 13 or 14 of the United States Securities Exchange Act 1934.

 

22.8 Financial Indebtedness

Neither the Company nor any of its Consolidated Subsidiaries may incur, create, issue, assume, guarantee, or suffer to exist any Financial Indebtedness unless, after giving effect thereto, the total of such Financial Indebtedness is in accordance with the provisions of Clause 21.3 (Gearing).

 

22.9 Negative pledge

 

(a) No Obligor and no Restricted Subsidiary may issue, assume, guarantee, create, incur or suffer to exist any Secured Debt without effectively providing that the Loans (together with, if the Company shall so determine, any other Financial Indebtedness of the Company or such Restricted Subsidiary then existing or thereafter created ranking equally with the Loans, including guarantees of Financial Indebtedness of others) shall be secured equally and ratably with (or prior to) such Secured Debt so long as such Secured Debt shall be so secured, except that this shall not apply to Secured Debt secured by:

 

  (i) mortgages on property of any corporation existing at the time such corporation becomes a Subsidiary;

 

  (ii) mortgages on property existing at the time of acquisition thereof or to secure the payment of all or any part of the purchase price thereof or to secure any Financial Indebtedness incurred prior to, at the time of or within 90 days after the acquisition of such property for the purpose of financing all or any part of the purchase price thereof;

 

  (iii)

mortgages on particular property to secure Financial Indebtedness incurred in financing all or any part of the cost of exploration or development of such property, or to secure all or any

 

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part of the cost of improvements to such property which is, in the opinion of the board of directors of the Company, substantially unimproved, or to secure any Financial Indebtedness incurred to provide funds for such purpose;

 

  (iv) mortgages on property in favour of the United States of America or any State thereof, or any other country, or any political subdivision of any of the foregoing, to secure payments pursuant to any contract or statute or to secure any Financial Indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the property subject to such mortgages;

 

  (v) mortgages which secure Financial Indebtedness owing to the Company or a wholly-owned Restricted Subsidiary by a Subsidiary of the Company; and

 

  (vi) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any mortgage referred to in the foregoing clauses (i) to (v), inclusive, or of any Financial Indebtedness secured thereby; provided that such extension, renewal or replacement mortgage shall be limited to all or any part of the same property that secured the mortgage extended, renewed or replaced (plus improvements on such property).

The terms mortgage or mortgages used in paragraphs (i) to (vi) above shall include any Security Interests.

 

(b) Notwithstanding the foregoing provisions of this Clause, the Company and any one or more Restricted Subsidiaries may, without equally and rateably securing the Loans, issue, assume, guarantee, create or incur Secured Debt which would otherwise be subject to the foregoing restrictions if, after giving effect to the Secured Debt to be issued, assumed, guaranteed, created or incurred, the sum of:

 

  (i) the aggregate amount of all such Secured Debt of the Company and its Restricted Subsidiaries (not including Secured Debt permitted under paragraphs (i) through (vi) above); and

 

  (ii) the aggregate value of the Sale and Leaseback Transactions (as defined in Clause 22.10 (Limitation on sales and leasebacks and transfers of assets to Unrestricted Subsidiaries) in existence at such time (except Sale and Leaseback Transactions the proceeds of which have been applied in accordance with Clause 22.10(a)(ii)),

does not exceed 5 per cent. of the Shareholders’ Interest.

 

22.10 Limitation on sales and leasebacks and transfers of assets to Unrestricted Subsidiaries

 

(a) The Company shall not enter and ensure no Restricted Subsidiary shall enter into any arrangement with any bank, insurance company or other lender or investor, or to which any such lender or investor is a party, providing for the leasing to the Company or such Restricted Subsidiary of any real property (except a lease for a temporary period not to exceed three years by the end of which it is intended that the use of such real property by the lessee will be discontinued) which has been or it is to be sold or transferred by the Company or such Restricted Subsidiary to such lender or investor on the security of such real property (herein referred to as a Sale and Leaseback Transaction ) unless either:

 

  (i) the Company or such Restricted Subsidiary could create Secured Debt secured by a mortgage on the real property to be leased, in an amount equal to the value (as hereinafter defined) of such Sale and Leaseback Transaction, without equally and ratably securing the Loans, or

 

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  (ii) the Company applies (and in any case covenants that it will apply) within 120 days after the Sale and Leaseback Transaction, regardless of whether such Sale and Leaseback Transaction may have been made by the Company or by a Restricted Subsidiary, an amount equal to the greater of (i) the net proceeds of the sale of the real property leased pursuant to such Sale and Leaseback Transaction and (ii) the fair value of the real property so leased at the time of entering into such Sale and Leaseback Transaction (as determined by the board of directors of the Company) to the repayment of Funded Debt of the Company provided that the amount to be applied to the repayment of Funded Debt of the Company shall be reduced by

 

  (A) the principal amount of any Loans outstanding on the date of the Sale and Leaseback Transaction repaid and corresponding Commitment cancelled by the Company within 120 days after such Sale and Leaseback Transaction (provided that the Company gives notice of the termination of an aggregate amount to the Commitment of the Lenders equal to the Loans so repaid), and

 

  (B) the principal amount of Funded Debt, other than Loans, voluntarily repaid and corresponding Commitment cancelled by the Company within 120 days after such sale;

provided that no repayment or retirement referred to in this paragraph (ii) may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or any mandatory prepayment provision.

For the purposes of this Clause, the term value shall mean, with respect to a Sale and Leaseback Transaction, as of any particular time, the amount equal to the greater of (i) the net proceeds of the sale of the real property leased pursuant to such Sale and Leaseback Transaction and (ii) the fair value of the real property so leased at the time of entering into such Sale and Leaseback Transaction (as determined by the board of directors of the Company), divided first by the number of full years in the term of the lease and then multiplied by the number of full years of such term remaining at the time of determination, without regard to any renewal or extension options contained in the lease.

 

(b) The Company shall not transfer or permit the transfer by any Restricted Subsidiary of any assets which, in the reasonable opinion of the board of directors of the Company, constitute a major manufacturing or research property plant or facility of the Company and its Restricted Subsidiaries, taken as a whole, to any Unrestricted Subsidiary.

 

22.11 Margin stock

Each US Obligor shall not and shall not permit any of its Restricted Subsidiaries to purchase or hold any Margin Stock if more than 25 per cent. of the value of its assets (as defined in Regulation U of the Margin Regulations) is or would be represented by Margin Stock.

 

22.12 Accounting changes

Each Obligor shall not and shall not permit any of its Subsidiaries to make any change in accounting policies or reporting practices, except as required or permitted by United States or applicable foreign generally accepted accounting principles or by the United States Securities and Exchange Commission or the Public Company Accounting Oversight Board or any similar agency.

 

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22.13 Change of business

Each Obligor must and must ensure that its Subsidiaries make no material change to the general nature of the business of each Obligor or such Subsidiaries from that carried on at the date of this Agreement.

 

22.14 Pari passu ranking

Each Obligor must ensure that its payment obligations under the Finance Documents at all times rank at least pari passu with all its other present and future unsecured payment obligations, except for obligations mandatorily preferred by law applying to companies generally.

 

22.15 Tax matters

Each Obligor shall maintain its Tax residence solely in its jurisdiction of incorporation.

 

23. DEFAULT

 

23.1 Events of Default

Each of the events or circumstances set out in this Clause (other than Clause 23.16 (Acceleration)) is an Event of Default.

 

23.2 Non-payment

An Obligor does not pay on the due date:

 

  (a) any amount of principal payable by it under the Finance Documents; or

 

  (b) any interest, fee or any other amount payable by it under the Finance Documents in the manner required under the Finance Documents, unless the non-payment:

 

  (i) is caused by technical or administrative error and is remedied within five Business Days of the due date; or

 

  (ii) is caused by a Disruption Event and is remedied within five Business Days of the due date.

 

23.3 Cross-default

An Obligor:

 

  (a) defaults in any payment of principal or of interest on any other obligation for borrowed money in unpaid principal amount beyond any period of grace provided with respect thereto; or

 

  (b) defaults in the performance of any other agreement, term or condition contained in any agreement under which any such other obligation for borrowed money is created and shall not have cured such default within any period of grace provided by such agreement, if the effect of such default is to cause, or permit the holder or holders of such obligation (or a trustee or agent on behalf of such holder or holders) to cause, such obligation to become due prior to its stated maturity,

unless the amount of borrowed money falling within either of paragraphs (a) or (b) above is less than the lower of €35,000,000 and US$50,000,000 or its equivalent.

 

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23.4 Misrepresentation

A representation or warranty made or deemed to be repeated by an Obligor in any Finance Document or in any document delivered by or on behalf of any Obligor under any Finance Document is incorrect or misleading in any material respect when made or deemed to be repeated.

 

23.5 Breach of other obligations

 

(a) An Obligor does not comply with any term of Clause 22.7 (Sale of assets, consolidation, merger) to Clause 22.13 (Change of business), Clause 21 (Financial covenants) or Clause 20.4 (Notification of Default); or

 

(b) an Obligor does not comply with any term of the Finance Documents (other than any term referred to in Clause 23.2 (Non-payment) or in paragraph (a) above), unless the non-compliance:

 

  (i) is capable of remedy; and

 

  (ii) is remedied within 30 days of the earlier of the Facility Agent giving notice of the breach to the Company and any Obligor becoming aware of the non-compliance.

 

23.6 Litigation

A judgment or order for the payment of money in excess of the lower of €35,000,000 and US$50,000,000 or its equivalent shall be rendered by a court of record against any of the Obligors and such judgment or order shall not be appealable and shall continue unsatisfied and unstayed for a period of 30 days.

 

23.7 Insolvency

Any of the following occurs:

 

  (a) in respect of an Obligor:

 

  (i) it is, or is deemed for the purposes of any applicable law to be, unable to pay its debts as they fall due or insolvent;

 

  (ii) it admits publicly or in writing its inability to pay its debts as they fall due;

 

  (iii) it suspends making payments on any of its debts or announces an intention to do so;

 

  (iv) by reason of actual or anticipated financial difficulties, it begins negotiations with any creditor (other than the Lenders in their capacity as such) for the rescheduling or restructuring of any of its indebtedness; or

 

  (v) any of its indebtedness is subject to a moratorium; and

 

  (b) in respect of the Company only, the value of its assets is less than its liabilities (taking into account contingent and prospective liabilities).

 

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23.8 Insolvency proceedings

 

(a) Except as provided below, any of the following occurs in respect of an Obligor:

 

  (i) any step is taken with a view to a moratorium or a composition, assignment or similar arrangement with any of its creditors;

 

  (ii) any person presents a petition, or files documents with a court or any registrar, for its winding-up, administration, examination, dissolution or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise);

 

  (iii) any Security Interest is enforced over any of its assets;

 

  (iv) an order for its winding-up, administration, examination or dissolution is made;

 

  (v) any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator, examiner or similar officer is appointed in respect of it or any of its assets; or

 

  (vi) any other analogous step or procedure is taken in any jurisdiction.

 

(b) Paragraph (a) above does not apply to a petition for winding-up presented by a creditor which is being contested in good faith and with due diligence and is discharged or struck out within 60 days.

 

23.9 Insolvency – further proceedings

Any of the following occurs in respect of an Obligor:

 

  (i) a meeting of its shareholders, directors or other officers is convened for the purpose of considering any resolution for, to petition for or to file documents with a court or any registrar for, its winding-up, administration, examination or dissolution or any such resolution is passed; or

 

  (ii) its shareholders, directors or other officers request the appointment of, or give notice of their intention to appoint, a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator, examiner or similar officer.

 

23.10 United States Bankruptcy Laws

 

(a) In this Subclause:

US Bankruptcy Law means the United States Bankruptcy Code, as amended, or any other United States Federal or State bankruptcy, insolvency or similar law.

 

(b) Any of the following occurs in respect of a US Obligor:

 

  (i) it makes a general assignment for the benefit of creditors;

 

  (ii) it commences a voluntary case or proceeding under any US Bankruptcy Law; or

 

  (iii) an involuntary case under any US Bankruptcy Law is commenced against it and is not dismissed or stayed within 60 days after commencement of the case; or

an order for relief or other order approving any case or proceeding is entered under any US Bankruptcy Law.

 

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23.11 ERISA

The Company fails to meet its minimum funding requirements under ERISA with respect to any Plan or if any Plan is terminated by act of the PBGC or a trustee is appointed for any Plan, except when such failure is of an amount which is not material to the financial condition of the Company or such termination or appointment would not result in the imposition on the Company of material liability, or when such failure is the result of contesting such minimum funding requirements in good faith and the Company has established on its books any reserve which is required by GAAP with respect thereto.

 

23.12 Effectiveness of Finance Documents

 

  (a) It is or becomes unlawful for any Obligor to perform any of its obligations under the Finance Documents.

 

  (b) Any Finance Document is not effective in accordance with its terms or is alleged by an Obligor to be ineffective in accordance with its terms for any reason.

 

  (c) An Obligor repudiates a Finance Document or evidences an intention to repudiate a Finance Document.

 

23.13 Cessation of business

An Obligor ceases, or threatens to cease, to carry on business except (other than the Company) as a result of any disposal allowed under this Agreement.

 

23.14 Repudiation

The Company repudiates a Finance Document or expressly indicates that it intends to repudiate a Finance Document.

 

23.15 Creditors’ process

Any attachment, sequestration, distress, execution or analogous event affects any asset(s) of an Obligor, having an aggregate value of the lower of €35,000,000 and US$50,000,000 or its equivalent, and is not discharged within 30 days.

 

23.16 Acceleration

 

(a) If an Event of Default described in Clause 23.10 (United States Bankruptcy Laws) occurs, the Total Commitments will, if not already cancelled under this Agreement, be immediately and automatically cancelled and all amounts outstanding under the Finance Documents will immediately and automatically be due and payable, without the requirement of notice or any other formality.

 

(b) Without prejudice to paragraph (a) above, if an Event of Default is outstanding, the Facility Agent may, and must if so instructed by the Majority Lenders, by notice to the Company:

 

  (i) cancel all or any part of the Total Commitments; and/or

 

  (ii) declare that all or part of any amounts outstanding under the Finance Documents are:

 

  (A) immediately due and payable; and/or

 

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  (B) payable on demand by the Facility Agent acting on the instructions of the Majority Lenders.

Any notice given under this Subclause will take effect in accordance with its terms.

 

24. THE ADMINISTRATIVE PARTIES

 

24.1 Appointment and duties of the Facility Agent

 

(a) Each Finance Party (other than the Facility Agent) irrevocably appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.

 

(b) Each Finance Party irrevocably authorises the Facility Agent to:

 

  (i) perform the duties and to exercise the rights, powers and discretions that are specifically given to it under the Finance Documents, together with any other incidental rights, powers and discretions; and

 

  (ii) enter into and deliver each Finance Document expressed to be entered into by the Facility Agent.

 

(c) The Facility Agent has only those duties which are expressly specified in the Finance Documents. Those duties are solely of a mechanical and administrative nature.

 

24.2 Appointment and duties of the US$ Swingline Facility Agent

 

(a) Each Finance Party (other than the US$ Swingline Facility Agent) irrevocably appoints the US$ Swingline Facility Agent to act as its agent under and in connection with the Finance Documents.

 

(b) Each Finance Party irrevocably authorises the US$ Swingline Facility Agent to:

 

  (i) perform the duties and to exercise the rights, powers and discretions that are specifically given to it under the Finance Documents, together with any other incidental rights, powers and discretions; and

 

  (ii) enter into and deliver each Finance Document expressed to be entered into by the US$ Swingline Facility Agent.

 

(c) The US$ Swingline Facility Agent has only those duties which are expressly specified in the Finance Documents. Those duties are solely of a mechanical and administrative nature.

 

24.3 Appointment and duties of the EUR Swingline Facility Agent

 

(a) Each Finance Party (other than the EUR Swingline Facility Agent) irrevocably appoints the EUR Swingline Facility Agent to act as its agent under and in connection with the Finance Documents.

 

(b) Each Finance Party irrevocably authorises the EUR Swingline Facility Agent to:

 

  (i) perform the duties and to exercise the rights, powers and discretions that are specifically given to it under the Finance Documents, together with any other incidental rights, powers and discretions; and

 

  (ii) enter into and deliver each Finance Document expressed to be entered into by the EUR Swingline Facility Agent.

 

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(c) The EUR Swingline Facility Agent has only those duties which are expressly specified in the Finance Documents. Those duties are solely of a mechanical and administrative nature.

 

24.4 Role of the Arrangers

Except as specifically provided in the Finance Documents, no Arranger has any obligations of any kind to any other Party in connection with any Finance Document.

 

24.5 No fiduciary duties

 

(a) Nothing in the Finance Documents makes an Administrative Party a trustee or fiduciary for any other Party or any other person; and

 

(b) no Administrative Party need hold in trust any moneys paid to it or recovered by it for a Party in connection with the Finance Documents or be liable to account for interest on those moneys.

 

24.6 Individual position of an Administrative Party

 

(a) If it is also a Lender, each Administrative Party has the same rights and powers under the Finance Documents as any other Lender and may exercise those rights and powers as though it were not an Administrative Party.

 

(b) Each Administrative Party may:

 

  (i) carry on any business with an Obligor or its related entities (including acting as an agent or a trustee for any other financing); and

 

  (ii) retain any profits or remuneration it receives under the Finance Documents or in relation to any other business it carries on with an Obligor or its related entities.

 

24.7 Reliance

The Facility Agent may:

 

  (a) rely on any notice or document believed by it to be genuine and correct and to have been signed by, or with the authority of, the proper person;

 

  (b) rely on any statement made by any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify;

 

  (c) assume, unless the context otherwise requires, that any communication made by an Obligor is made on behalf of and with the consent and knowledge of each Obligor;

 

  (d) engage, pay for and rely on professional advisers selected by it (including those representing a Party other than the Facility Agent); and

 

  (e) act under the Finance Documents through its personnel and agents.

 

24.8 Majority Lenders’ instructions

 

(a) The Facility Agent is fully protected if it acts on the instructions of the Majority Lenders in the exercise of any right, power or discretion or any matter not expressly provided for in the Finance Documents. Any such instructions given by the Majority Lenders will be binding on all the Lenders. In the absence of instructions, the Facility Agent may act as it considers to be in the best interests of all the Lenders.

 

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(b) The Facility Agent may assume that unless it has received notice to the contrary, any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised.

 

(c) The Facility Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received security satisfactory to it, whether by way of payment in advance or otherwise, against any liability or loss which it may incur in complying with the instructions.

 

(d) The Facility Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings in connection with any Finance Document.

 

24.9 Responsibility

 

(a) No Administrative Party is responsible for the adequacy, accuracy or completeness of any statement or information (whether written or oral) made in or supplied in connection with any Finance Document including the Information Memorandum.

 

(b) No Administrative Party is responsible for the legality, validity, effectiveness, adequacy, completeness or enforceability of any Finance Document or any other document.

 

(c) Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms that it:

 

  (i) has made, and will continue to make, its own independent appraisal of all risks arising under or in connection with the Finance Documents (including the financial condition and affairs of each Obligor and its related entities and the nature and extent of any recourse against any Party or its assets); and

 

  (ii) has not relied exclusively on any information provided to it by any Administrative Party in connection with any Finance Document or agreement entered into in anticipation of or in connection with any Finance Document.

 

24.10 Exclusion of liability

 

(a) The Facility Agent is not liable or responsible to any other Finance Party for any action taken or not taken by it in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.

 

(b) No Party (other than the relevant Administrative Party) may take any proceedings against any officers, employees or agents of an Administrative Party in respect of any claim it might have against that Administrative Party or in respect of any act or omission of any kind by that officer, employee or agent in connection with any Finance Document. Any officer, employee or agent of an Administrative Party may rely on this Subclause and enforce its terms under the Contracts (Rights of Third Parties) Act 1999.

 

(c) The Facility Agent is not liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.

 

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(d)    (i)    Nothing in this Agreement will oblige any Administrative Party to satisfy any know your customer requirement in relation to the identity of any person on behalf of any Finance Party.

 

  (ii) Each Finance Party confirms to each Administrative Party that it is solely responsible for any know your customer requirements it is required to carry out and that it may not rely on any statement in relation to those requirements made by any other person.

 

24.11 Default

 

(a) The Facility Agent is not obliged to monitor or enquire whether a Default has occurred. The Facility Agent is not deemed to have knowledge of the occurrence of a Default.

 

(b) If the Facility Agent:

 

  (i) receives notice from a Party referring to this Agreement, describing a Default and stating that the event is a Default; or

 

  (ii) is aware of the non-payment of any principal, interest or fee payable to a Finance Party (other than the Facility Agent or an Arranger) under this Agreement,

it must promptly notify the other Finance Parties.

 

24.12 Information

 

(a) The Facility Agent must promptly forward to the person concerned the original or a copy of any document which is delivered to the Facility Agent by a Party for that person.

 

(b) Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.

 

(c) Except as provided above, the Facility Agent has no duty:

 

  (i) either initially or on a continuing basis to provide any Lender with any credit or other information concerning the risks arising under or in connection with the Finance Documents (including any information relating to the financial condition or affairs of any Obligor or its related entities or the nature or extent of recourse against any Party or its assets) whether coming into its possession before, on or after the date of this Agreement; or

 

  (ii) unless specifically requested to do so by a Lender in accordance with a Finance Document, to request any certificate or other document from any Obligor.

 

(d) In acting as the Facility Agent, the Facility Agent will be regarded as acting through its agency division which will be treated as a separate entity from its other divisions and departments. Any information acquired by the Facility Agent which, in its opinion, is acquired by another division or department or otherwise than in its capacity as the Facility Agent may be treated as confidential by the Facility Agent and will not be treated as information possessed by the Facility Agent in its capacity as such.

 

(e) The Facility Agent is not obliged to disclose to any person any confidential information supplied to it by or on behalf of a member of the Group solely for the purpose of evaluating whether any waiver or amendment is required in respect of any term of the Finance Documents.

 

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(f) Each Obligor irrevocably authorises the Facility Agent to disclose to the other Finance Parties any information which, in its opinion, is received by it in its capacity as the Facility Agent.

 

24.13 Indemnities

 

(a) Without limiting the liability of any Obligor under the Finance Documents, each Lender must indemnify the Facility Agent for that Lender’s Pro Rata Share of any loss or liability incurred by the Facility Agent in acting as the Facility Agent (unless the Facility Agent has been reimbursed by an Obligor under a Finance Document), except to the extent that the loss or liability is caused by the Facility Agent’s gross negligence or wilful misconduct.

 

(b) If a Party owes an amount to the Facility Agent under the Finance Documents, the Facility Agent may, after giving notice to that Party:

 

  (i) deduct from any amount received by it for that Party any amount due to the Facility Agent from that Party under a Finance Document but unpaid; and

 

  (ii) apply that amount in or towards satisfaction of the owed amount.

That Party will be regarded as having received the amount so deducted.

 

24.14 Compliance

Each Administrative Party may refrain from doing anything (including disclosing any information) which might, in its opinion, constitute a breach of any law or regulation or be otherwise actionable at the suit of any person, and may do anything which, in its opinion, is necessary or desirable to comply with any law or regulation.

 

24.15 Resignation of an Agent

 

(a) For the purpose of this Clause, Agent means each of the Facility Agent, the US$ Swingline Facility Agent and the EUR Swingline Facility Agent.

 

(b) Each Agent may resign and appoint any of its Affiliates as a successor Agent by giving notice to the other Finance Parties and the Company.

 

(c) Alternatively, each Agent may resign by giving notice to the Finance Parties and the Company, in which case the Majority Lenders may appoint a successor Agent.

 

(d) If no successor Agent has been appointed under paragraph (b) above within 30 days after notice of resignation was given, each Agent may appoint a successor Agent.

 

(e) The person(s) appointing a successor Agent must consult with the Company prior to the appointment.

 

(f) The resignation of an Agent and the appointment of any applicable successor Agent will both become effective only when that successor Agent notifies all the Parties that it accepts its appointment.

On giving the notification that successor Agent will succeed to the position of the applicable Agent and the terms Facility Agent , US$ Swingline Facility Agent and EUR Swingline Facility Agent (as the case may be) will mean the successor Facility Agent, the successor US$ Swingline Facility Agent or the successor EUR Swingline Facility Agent respectively.

 

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(g) Each retiring Agent must, at its own cost:

 

  (i) make available to the successor Agent those documents and records and provide any assistance as the successor Agent may reasonably request for the purposes of performing its functions as the relevant Agent under the Finance Documents; and

 

  (ii) enter into and deliver to the successor Agent those documents and effect any registrations as may be required for the transfer or assignment of all of its rights and benefits under the Finance Documents to the successor Agent.

 

(h) Upon its resignation becoming effective, this Clause will continue to benefit the retiring Agent in respect of any action taken or not taken by it in connection with the Finance Documents while it was the Agent, and, subject to paragraph (f) above, it will have no further obligations under any Finance Document.

 

(i) The Majority Lenders may, by notice to an Agent, require it to resign under paragraph (b) above.

 

24.16 Relationship with Lenders

 

(a) The Facility Agent may treat each Lender as a Lender, entitled to payments under this Agreement and as acting through its Facility Office(s) until it has received not less than five Business Days’ prior notice from that Lender to the contrary.

 

(b) The Facility Agent may at any time, and must if requested to do so by the Majority Lenders, convene a meeting of the Lenders.

 

(c) The Facility Agent must keep a record of all the Parties and supply any other Party with a copy of the record on request. The record will include each Lender’s Facility Office(s) and contact details for the purposes of this Agreement.

 

24.17 Facility Agent’s management time

If there is an Event of Default which is continuing and if the Facility Agent requires, any amount payable to the Facility Agent by any Party under any indemnity or in respect of any costs or expenses incurred by the Facility Agent under the Finance Documents after the date of this Agreement may include the cost of using its management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Facility Agent may notify to the relevant Party. This is in addition to any amount in respect of fees or expenses paid or payable to the Facility Agent under any other term of the Finance Documents.

 

24.18 Swingline Facility

 

(a) Each Swingline Facility Agent may perform its duties in respect of its respective Swingline Facility (as applicable) through an Affiliate.

 

(b) Notwithstanding any other term of this Agreement and without limiting the liability of any Obligor under the Finance Documents, each Swingline Lender must indemnify the relevant Swingline Facility Agent for its Pro Rata Share of any liability or loss incurred by that Swingline Facility Agent or its Affiliate which relates solely to it acting as the Swingline Facility Agent under the relevant Swingline Facility, except to the extent that the liability or loss is caused by the Affiliate’s or the relevant Swingline Facility Agent’s gross negligence or wilful misconduct.

 

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24.19 Notice period

Where this Agreement specifies a minimum period of notice to be given to the Facility Agent, the Facility Agent may, at its discretion, accept a shorter notice period.

 

25. EVIDENCE AND CALCULATIONS

 

25.1 Accounts

Accounts maintained by a Finance Party in connection with this Agreement are prima facie evidence of the matters to which they relate for the purpose of any litigation or arbitration proceedings.

 

25.2 Certificates and determinations

Any certification or determination by a Finance Party of a rate or amount under the Finance Documents will be, in the absence of manifest error, conclusive evidence of the matters to which it relates.

 

25.3 Calculations

Any interest or fee accruing under this Agreement accrues from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 or 365 days or otherwise, depending on what the Facility Agent determines is market practice.

 

26. FEES

 

26.1 Facility Agent’s fee

The Company or the Obligors (other than the Company) must pay to the Facility Agent for its own account an agency fee in the amount and manner agreed in the Fee Letter between the Facility Agent and the Original Obligors.

 

26.2 Arrangement fee / participation fee

 

(a) The Company or the Original Obligors (other than the Company) must pay to the Arrangers for their own account an arrangement fee in the amount and manner agreed in the Fee Letter between the Arrangers and the Original Obligors.

 

(b) The Company or the Original Obligors (other than the Company) must pay to the Facility Agent for each Lender a participation fee in the amount and manner agreed in the Fee Letter between the Arrangers and the Original Obligors.

 

26.3 Commitment fee

 

(a) The Company or Obligors (other than the Company) must pay to the Facility Agent for each Lender a commitment fee calculated by reference to the table below:

 

Column 1

Long-term credit ratings of the Company

 

Column 2

Commitment Fee

(per cent. per annum on the

undrawn, uncancelled amount of

each Lender’s Commitment)

Moody’s

 

S&P

 
A1 and above   A+ and above   0.05
Lower than A1 but at least A2   Lower than A+ but at least A   0.06
Lower than A2 but at least A3   Lower than A but at least A-   0.07
Lower than A3 but at least Baa1   Lower than A- but at least BBB+   0.08
Lower than Baa1 but at least Baa2 and below   Lower than BBB+ but at least BBB and below   0.125

 

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(b) The Company must notify the Facility Agent of any notification to it by a Rating Agency of a change in its long-term credit rating. If the long-term credit rating(s) given to the Company by any Rating Agency is such that a different Commitment Fee is applicable to each long-term credit rating, the applicable Commitment Fee will be (if the difference between the two long-term credit ratings is of one level) based on the higher long-term credit rating.

 

(c) In the event that the long-term credit ratings given to the Company by any Rating Agency are different by more than one long-term credit rating, the applicable Commitment Fee will be the Commitment Fee corresponding to the long-term credit rating immediately below the higher of the two long-term credit ratings.

 

(d) Accrued commitment fee is payable quarterly in arrear and calculated on a 360 day basis. Accrued commitment fee is also payable to the Facility Agent for a Lender on the date its Commitment is cancelled in full.

 

26.4 Utilisation fee

 

(a) There shall be no utilisation fee payable to the Facility Agent for each day on which the aggregate amount of the Loans is equal to or less than 50 per cent. of the Total Commitments.

 

(b) The Company or the Obligors (other than the Company) must pay to the Facility Agent for each Lender a utilisation fee computed at the rate of, for each day on which the aggregate amount of the Loans exceeds 50 per cent. of the Total Commitments, 0.07 per cent. per annum.

 

(c) Utilisation fee is payable on the amount of each Lender’s share in the Loans.

 

(d) Accrued utilisation fee is payable quarterly in arrear and calculated on a 360 day basis on each day on the amount of the Loans outstanding. Accrued utilisation fee is also payable to the Facility Agent for a Lender on the date that its Commitment is cancelled and its share in the Loans prepaid or repaid in full.

 

27. INDEMNITIES AND BREAK COSTS

 

27.1 Currency indemnity

 

(a) The Company must, as an independent obligation, indemnify each Finance Party against any loss or liability which that Finance Party incurs as a consequence of:

 

  (i) that Finance Party receiving an amount in respect of an Obligor’s liability under the Finance Documents; or

 

  (ii) that liability being converted into a claim, proof, judgment or order,

in a currency other than the currency in which the amount is expressed to be payable under the relevant Finance Document.

 

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(b) Unless otherwise required by law, each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency other than that in which it is expressed to be payable.

 

27.2 Other indemnities

 

(a) The Company must indemnify each Finance Party against any loss, penalty or liability which that Finance Party incurs as a consequence of:

 

  (i) the occurrence of any Event of Default;

 

  (ii) any failure by an Obligor to pay any amount due under a Finance Document on its due date, including any resulting from any distribution or redistribution of any amount among the Lenders under this Agreement;

 

  (iii) (other than by reason of negligence or default by that Finance Party) a Loan not being made after a Request has been delivered for that Loan; or

 

  (iv) a Loan (or part of a Loan) not being prepaid in accordance with this Agreement.

The Company’s liability in each case includes any loss or expense on account of funds borrowed, contracted for or utilised to fund any amount payable under any Finance Document or any Loan.

 

(b) The Company must indemnify the Facility Agent against any loss, penalty or liability incurred by the Facility Agent as a result of:

 

  (i) investigating any event which the Facility Agent reasonably believes to be a Default; or

 

  (ii) acting or relying on any notice which the Facility Agent reasonably believes to be genuine, correct and appropriately authorised.

 

27.3 Break Costs

 

(a) Each Borrower must pay to each Lender its Break Costs if a Loan or an overdue amount is repaid or prepaid otherwise than on the last day of any Term applicable to it.

 

(b) Break Costs are the amount (if any) determined by the relevant Lender by which:

 

  (i) the interest (other than any Margin) which that Lender would have received for the period from the date of receipt of any part of its share in a Loan or an overdue amount to the last day of the applicable Term for that Loan or overdue amount if the principal or overdue amount received had been paid on the last day of that Term;

exceeds

 

  (ii) the amount which that Lender would be able to obtain by placing an amount equal to the amount received by it on deposit with a leading bank in the appropriate interbank market for a period starting on the Business Day following receipt and ending on the last day of the applicable Term.

 

(c) Each Lender must supply to the Facility Agent for the relevant Borrower details of the amount of any Break Costs claimed by it under this Subclause.

 

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28. EXPENSES

 

28.1 Initial costs

The Company must pay on demand to each Administrative Party the amount of all reasonable costs and expenses (including legal fees) reasonably incurred by it in connection with the negotiation, preparation, printing, entry into and syndication of the Finance Documents.

 

28.2 Subsequent costs

The Company must pay to the Facility Agent the amount of all reasonable costs and expenses (including legal fees) reasonably incurred by it in connection with:

 

  (a) the negotiation, preparation, printing and entry into of any Finance Document (other than a Transfer Certificate) entered into after the date of this Agreement; and

 

  (b) any amendment, waiver or consent requested by or on behalf of an Obligor or specifically allowed by a Finance Document.

 

28.3 Enforcement costs

The Company must pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by it in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

 

29. AMENDMENTS AND WAIVERS

 

29.1 Procedure

 

(a) Except as provided in this Clause, any term of the Finance Documents may be amended or waived with the agreement of the Company and the Majority Lenders. The Facility Agent may effect, on behalf of any Finance Party, an amendment or waiver allowed under this Clause.

 

(b) The Facility Agent must promptly notify the other Parties of any amendment or waiver effected by it under paragraph (a) above. Any such amendment or waiver is binding on all the Parties.

 

(c) Each Obligor agrees to any amendment or waiver allowed by this Clause which is agreed to by the Company. This includes any amendment or waiver which would, but for this paragraph, require the consent of a guarantor if the guarantee under the Finance Documents is to remain in full force and effect.

 

29.2 Exceptions

 

(a) An amendment or waiver which relates to:

 

  (i) the definition of Majority Lenders in Clause 1.1 (Definitions);

 

  (ii) an extension of the date of payment of any amount to a Lender under the Finance Documents;

 

  (iii) a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fee or other amount payable to a Lender under the Finance Documents;

 

  (iv) an increase in, or an extension of, a Commitment or the Total Commitments;

 

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  (v) a release of an Obligor other than in accordance with the terms of this Agreement;

 

  (vi) a term of a Finance Document which expressly requires the consent of each Lender;

 

  (vii) Clause 2.3 (Nature of a Finance Party’s rights and obligations);

 

  (viii) Clause 17.7 (Partial payments);

 

  (ix) Clause 33.3 (Exceptions);

 

  (x) the reduction or limitation of the obligations of the Company under Clause 18 (Guarantee and indemnity) or the release of the Company or the limitation of the Company’s liability with respect to the obligations owing to any Finance Party;

 

  (xi) the right of a Lender to assign or transfer its rights or obligations under the Finance Documents; or

 

  (xii) this Clause,

may only be made with the consent of all the Lenders.

 

(b) An amendment or waiver which relates to the rights or obligations of an Administrative Party may only be made with the consent of that Administrative Party.

 

(c) A Fee Letter may be amended or waived with the agreement of the Administrative Party that is a party to that Fee Letter and the Company.

 

29.3 Change of currency

If a change in any currency of a country occurs (including where there is more than one currency or currency unit recognised at the same time as the lawful currency of a country), the Finance Documents will be amended to the extent the Facility Agent (acting reasonably and after consultation with the Company) determines is necessary to reflect the change.

 

29.4 Waivers and remedies cumulative

The rights of each Finance Party under the Finance Documents:

 

  (a) may be exercised as often as necessary;

 

  (b) are cumulative and not exclusive of its rights under the general law; and

 

  (c) may be waived only in writing and specifically.

Delay in exercising or non-exercise of any right is not a waiver of that right.

 

30. CHANGES TO THE PARTIES

 

30.1 Assignments and transfers by Obligors

No Obligor may assign or transfer any of its rights and obligations under the Finance Documents without the prior consent of all the Lenders.

 

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30.2 Assignments and transfers by Lenders

Subject to the following provisions of this Clause, a Lender (the Existing Lender ) may at any time:

 

  (a) assign any of its rights; or

 

  (b) transfer by way of novation any of its rights or obligations under this Agreement,

to any other bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the New Lender ), it being understood that no Borrower and no Affiliate of a Borrower may become a New Lender.

 

30.3 Conditions to assignment and transfer – consents

 

(a) The consent of the Company is required for any assignment or transfer unless the New Lender is another Lender or an Affiliate of a Lender or an Event of Default is outstanding. The consent of the Company (if required) must not be unreasonably withheld or delayed. The Company will be deemed to have given its consent five Business Days after the Company is given notice of the request unless it is expressly refused by the Company within that time.

 

(b) The Company may not withhold its consent solely because the assignment or transfer might increase the Mandatory Cost.

 

(c) The parties to each such assignment or transfer must execute and deliver to the Facility Agent, for its acceptance and recording in the Register (as defined in Clause 30.4 (Other conditions to assignment or transfer)), a Transfer Certificate.

 

30.4 Other conditions to assignment or transfer

 

(a) Unless the Company and the Facility Agent otherwise agree, a transfer of part of a Commitment or part of its rights and obligations under this Agreement by the Existing Lender must be in a minimum amount of US$10,000,000 or its equivalent and shall be an integral multiple of US$1,000,000 or its equivalent.

 

(b) The Facility Agent shall maintain a copy of each Transfer Certificate delivered to and accepted by it and a register of the names and addresses of the Lenders and their respective commitments and principal amount of the Loans owing to each Lender from time to time (the Register ). The entries in the Register shall be conclusive and binding for all purposes, absent of any manifest error, and the Obligors, the Facility Agent and the Lenders may treat each person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Obligors or any Lender at any reasonable time and from time to time upon reasonable prior notice.

 

(c) The Facility Agent is not obliged to enter into a Transfer Certificate or otherwise give effect to an assignment or transfer until it has completed all know your customer requirements to its satisfaction. The Facility Agent must promptly notify the Existing Lender and the New Lender if there are any such requirements.

 

(d) If the consent of the Company is required for any assignment or transfer (irrespective of whether it may be unreasonably withheld or not), the Facility Agent is not obliged to enter into a Transfer Certificate if the Company withholds its consent.

 

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(e) Unless the Facility Agent otherwise agrees, the New Lender must pay to the Facility Agent for its own account, on or before the date any assignment or transfer occurs, a fee of €2,000.

 

(f) Any reference in this Agreement to a Lender includes a New Lender but excludes a Lender if no amount is or may be owed to or by it under this Agreement.

 

30.5 Procedure for assignment of rights

An assignment of rights will only be effective on receipt by the Facility Agent of written confirmation from the New Lender (in form and substance satisfactory to the Facility Agent) that the New Lender will, in relation to the assigned rights, assume obligations to the other Finance Parties equivalent to those it would have been under if it had been an Original Lender.

 

30.6 Procedure for transfer using a Transfer Certificate

 

(a) In this Subclause:

Transfer Date means, in relation to a transfer, the later of:

 

  (i) the proposed Transfer Date specified in that Transfer Certificate; and

 

  (ii) the date on which the Facility Agent executes that Transfer Certificate.

 

(b) A transfer of rights or obligations using a Transfer Certificate will be effective if:

 

  (i) the Existing Lender and the New Lender deliver to the Facility Agent a duly completed Transfer Certificate; and

 

  (ii) the Facility Agent enters into it.

 

(c) On the Transfer Date:

 

  (i) the New Lender will assume the rights and obligations of the Existing Lender expressed to be the subject of the novation in the Transfer Certificate in substitution for the Existing Lender;

 

  (ii) the Existing Lender will be released from those obligations and cease to have those rights; and

 

  (iii) the New Lender will become a Lender under this Agreement and be bound by the terms of this Agreement as Lender.

 

(d) The Facility Agent must enter into a Transfer Certificate delivered to it and which appears on its face to be in order as soon as reasonably practicable and, as soon as reasonably practicable after it has entered into a Transfer Certificate, send a copy of that Transfer Certificate to the Company.

 

(e) Each Party (other than the Existing Lender and the New Lender) irrevocably authorises the Facility Agent to enter into and deliver any duly completed Transfer Certificate on its behalf.

 

30.7 Limitation of responsibility of Existing Lender

 

(a) Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:

 

  (i) the financial condition of an Obligor; or

 

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  (ii) the legality, validity, effectiveness, enforceability, adequacy, accuracy, completeness or performance of:

 

  (A) any Finance Document or any other document;

 

  (B) any statement or information (whether written or oral) made in or supplied in connection with any Finance Document; or

 

  (C) any observance by any Obligor of its obligations under any Finance Document or any other document,

and any representations or warranties implied by law are excluded.

 

(b) Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

 

  (i) has made, and will continue to make, its own independent appraisal of all risks arising under or in connection with the Finance Documents (including the financial condition and affairs of each Obligor and its related entities and the nature and extent of any recourse against any Party or its assets) in connection with its participation in this Agreement; and

 

  (ii) has not relied exclusively on any information supplied to it by the Existing Lender in connection with any Finance Document.

 

(c) Nothing in any Finance Document requires an Existing Lender to:

 

  (i) accept a re-transfer from a New Lender of any of the rights and obligations assigned or transferred under this Clause; or

 

  (ii) support any losses incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under any Finance Document or otherwise.

 

30.8 Costs resulting from change of Lender or Facility Office

If:

 

  (a) a Lender assigns or transfers any of its rights and obligations under the Finance Documents or changes its Facility Office; and

 

  (b) as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to pay a Tax Payment or an Increased Cost,

then the Obligor need only pay that Tax Payment or Increased Cost to the same extent that it would have been obliged to if no assignment, transfer or change had occurred.

 

30.9 Additional Borrowers

 

(a) Subject to compliance with any applicable know your customer requirements, the Company may request that any of its wholly owned European Subsidiaries which is not a Dormant Subsidiary and which is not incorporated in France becomes a Borrower. That Subsidiary shall become an Additional Borrower if:

 

  (i) it is incorporated in the same jurisdiction as an existing Borrower or in the Netherlands or otherwise if all the Lenders approve the accession of that Subsidiary as an Additional Borrower;

 

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  (ii) it represents to each Finance Party on each Accession Date that all amounts payable by it under the Finance Documents may be made free and clear of and without any Tax Deduction or, if a Tax Deduction is required to be paid:

 

  (A) it undertakes that such amounts shall be increased as may be necessary so that the amount payable is equal to the amount had no such Tax Deduction been made; and

 

  (B) it agrees that any right of prepayment and cancellation in accordance with Clause 10.6 (Right of repayment and cancellation of a single Lender) resulting from such Tax Deduction shall not be applicable;

 

  (iii) the Company and that Subsidiary deliver to the Facility Agent a duly completed and executed Accession Agreement;

 

  (iv) the Company confirms that no Default is continuing or would occur as a result of that Subsidiary becoming an Additional Borrower; and

 

  (v) the Facility Agent has received all of the documents and other evidence listed in Part 3 of Schedule 2 (Conditions Precedent) in relation to that Additional Borrower, each in form and substance satisfactory to the Facility Agent.

 

(b) The Facility Agent shall notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part 3 of Schedule 2 (Conditions Precedent).

 

(c) Delivery of an Accession Agreement, entered into by the relevant Subsidiary and the Company, to the Facility Agent constitutes confirmation by that Subsidiary and the Company that the Repeating Representations are then correct.

 

30.10 Resignation of a Borrower (other than the Company)

 

(a) The Company may request that a Borrower (other than the Company) ceases to be a Borrower by giving to the Facility Agent a duly completed Resignation Request.

 

(b) The Facility Agent must accept a Resignation Request and notify the Company and the Lenders of its acceptance, unless:

 

  (i) it is aware that a Default is outstanding or would result from the acceptance of the Resignation Request; or

 

  (ii) any amount owed by that Borrower under this Agreement is still outstanding.

 

(c) The Borrower will cease to be a Borrower when the Facility Agent gives the notification referred to in paragraph (b) above.

A Borrower (other than the Company) may also cease to be a Borrower in any other manner approved by the Majority Lenders.

 

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30.11 Changes to the Reference Banks

If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the Facility Agent must (in consultation with the Company) appoint another Lender or an Affiliate of a Lender to replace that Reference Bank.

 

30.12 Affiliates of Lenders

 

(a) Each Lender may fulfil its obligations in respect of any Loan through an Affiliate if:

 

  (i) the relevant Affiliate is specified in this Agreement as a Lender or becomes a Lender by means of a Transfer Certificate in accordance with this Agreement; and

 

  (ii) the Loans in which that Affiliate will participate are specified in this Agreement or in a notice given by that Lender to the Facility Agent and the Company.

In this event, the Lender and the Affiliate will participate in Loans in the manner provided for in sub-paragraph (ii) above.

 

(b) If paragraph (a) above applies, the Lender and its Affiliate will be treated as having a single Commitment and a single vote, but, for all other purposes, will be treated as separate Lenders.

 

30.13 Federal Reserve Bank

Notwithstanding any other provisions in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement in favour of any Federal Reserve Bank in accordance with Regulation A of the Board.

 

31. DISCLOSURE OF INFORMATION

 

(a) Each Finance Party must keep confidential any information supplied to it by or on behalf of any Obligor in connection with the Finance Documents. However, a Finance Party is entitled to disclose information:

 

  (i) which is publicly available, other than as a result of a breach by that Finance Party of this Clause;

 

  (ii) in connection with any legal or arbitration proceedings;

 

  (iii) if required to do so under any law or regulation;

 

  (iv) to a governmental, banking, taxation or other regulatory authority;

 

  (v) to its professional advisers;

 

  (vi) to any rating agency;

 

  (vii) to the extent allowed under paragraph (b) below;

 

  (viii) to another Obligor or any other member of the Group; or

 

  (ix) with the agreement of the relevant Obligor.

 

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(b) A Finance Party may disclose to an Affiliate or any person (a third party ) with (or through) whom that Finance Party enters into (or may enter into) any kind of transfer, participation or hedge agreement in relation to this Agreement or any other transaction under which payments are to be made by reference to this Agreement or any Obligor:

 

  (i) a copy of any Finance Document; and

 

  (ii) any information which that Finance Party has acquired under or in connection with any Finance Document.

However, before a third party may receive any confidential information, it must agree with the relevant Finance Party to keep that information confidential on the terms of paragraph (a) above.

 

(c) The Parties acknowledge that each Obligor may disclose the material terms (except, for the avoidance of doubt, any details relating to the fees payable under Clause 26.1 (Facility Agent’s fee) and Clause 26.2 (Arrangement fee / participation fee) of this Agreement) of this Agreement in any prospectus, offering memorandum, registration statement, or other disclosure document in connection with an Obligor’s long term debt offerings. To the extent required by law or regulation, the Company may file this Agreement as an exhibit to its public filings with the U.S. Securities and Exchange Commission.

 

(d) This Clause supersedes any previous confidentiality undertaking given by a Finance Party in connection with this Agreement prior to it becoming a Party.

 

32. SET-OFF

A Finance Party may set off any matured obligation owed to it by an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any obligation (whether or not matured) owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.

 

33. PRO RATA SHARING

 

33.1 Redistribution

If a Finance Party (the recovering Finance Party ) receives or recovers any amount from an Obligor other than in accordance with this Agreement (a recovery ) and applies that amount to a payment due under a Finance Document, then:

 

  (a) the recovering Finance Party must, within three Business Days, supply details of the recovery to the Facility Agent;

 

  (b) the Facility Agent must calculate whether the recovery is in excess of the amount which the recovering Finance Party would have received if the recovery had been received and distributed by the Facility Agent in accordance with this Agreement without taking account of any Tax which would be imposed on the Facility Agent in relation to a recovery or distribution; and

 

  (c) the recovering Finance Party must pay to the Facility Agent an amount equal to the excess (the redistribution ).

 

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33.2 Effect of redistribution

 

(a) The Facility Agent must treat a redistribution as if it were a payment by the relevant Obligor under this Agreement and distribute it among the Finance Parties, other than the recovering Finance Party, accordingly.

 

(b) When the Facility Agent makes a distribution under paragraph (a) above, the recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared in that redistribution.

 

(c) If and to the extent that the recovering Finance Party is not able to rely on any rights of subrogation under paragraph (b) above, the relevant Obligor will owe the recovering Finance Party a debt which is equal to the redistribution, immediately payable and of the type originally discharged.

 

(d) If:

 

  (i) a recovering Finance Party must subsequently return a recovery, or an amount measured by reference to a recovery, to an Obligor; and

 

  (ii) the recovering Finance Party has paid a redistribution in relation to that recovery,

each Finance Party, on the request of the Facility Agent, must reimburse the recovering Finance Party all or the appropriate portion of the redistribution paid to that Finance Party, together with interest for the period while it held the redistribution. In this event, the subrogation in paragraph (b) above will operate in reverse to the extent of the reimbursement.

 

33.3 Exceptions

Notwithstanding any other term of this Clause, a recovering Finance Party need not pay a redistribution to the extent that:

 

  (a) it would not, after the payment, have a valid claim against the relevant Obligor in the amount of the redistribution; or

 

  (b) it would be sharing with another Finance Party any amount which the recovering Finance Party has received or recovered as a result of legal or arbitration proceedings, where:

 

  (i) the recovering Finance Party notified the Facility Agent of those proceedings; and

 

  (ii) the other Finance Party had an opportunity to participate in those proceedings but did not do so or did not take separate legal or arbitration proceedings as soon as reasonably practicable after receiving notice of them.

 

34. SEVERABILITY

If a term of a Finance Document is or becomes illegal, invalid or unenforceable in any respect under any jurisdiction, that will not affect:

 

  (a) the legality, validity or enforceability in that jurisdiction of any other term of the Finance Documents; or

 

  (b) the legality, validity or enforceability in other jurisdictions of that or any other term of the Finance Documents.

 

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35. COUNTERPARTS

Each Finance Document may be executed in any number of counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.

 

36. NOTICES

 

36.1 In writing

 

(a) Any communication in connection with a Finance Document must be in writing and, unless otherwise stated, may be given in person, by post or fax, or by email or other electronic communication.

 

(b) For the purpose of the Finance Documents, an email or electronic communication will be treated as being in writing.

 

(c) Unless it is agreed to the contrary, any consent or agreement required under a Finance Document must be given in writing.

 

36.2 Contact details

 

(a) Except as provided below, the contact details of each Party for all communications in connection with the Finance Documents are those notified by that Party for this purpose to the Facility Agent on or before the date it becomes a Party.

 

(b) The contact details of the Company for this purpose are:

 

Address:    One PPG Place
   Pittsburgh
   Pennsylvania 15272
Fax number:    00 1 412 434 4416
E-mail:    mcawley@ppg.com / kevardsson@ppg.com
Attention:    Treasurer

 

(c) The contact details of the Facility Agent for this purpose are:

 

Address:    480 Washington Boulevard
   Jersey City
   New Jersey 07310
   United States of America
Fax number:    00 1 201 839 8119
E-mail:    tamiko.mciver@sgcib.com
Attention:    Tamiko McIver

 

(d) The contact details of the US$ Swingline Facility Agent for this purpose are:

 

Address:    480 Washington Boulevard
   Jersey City
   New Jersey 07310
   United States of America
Fax number:    00 1 201 839 8119
E-mail:    tamiko.mciver@sgcib.com
Attention:    Tamiko McIver

 

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(e) The contact details of the EUR Swingline Facility Agent for this purpose are:

 

Address:    Tour Société Générale
   17 Cours Valmy
   92972 Paris
   La Defense Cedex
   France
Fax number:    00 33 1 42 14 09 45
E-mail:    christine.lafon-hemon@sgcib.com / philippe.schmitt@sgcib.com / marcio.pereira@sgcib.com
Attention:    Christine Lafon-Hemon / Philipppe Schmitt / Marcio Péreira

 

(f) Any Party may change its contact details by giving five Business Days’ notice to the Facility Agent or (in the case of the Facility Agent) to the other Parties.

 

(g) Where a Party nominates a particular department or officer to receive a communication, a communication will not be effective if it fails to specify that department or officer.

 

36.3 Effectiveness

 

(a) Except as provided below, any communication in connection with a Finance Document will be deemed to be given as follows:

 

  (i) if delivered in person, at the time of delivery;

 

  (ii) if posted, five days after being deposited in the post, postage prepaid, in a correctly addressed envelope;

 

  (iii) if by fax, when received in legible form; and

 

  (iv) if by e-mail or any other electronic communication, when received in legible form.

 

(b) A communication given under paragraph (a) above but received on a non-working day or after business hours in the place of receipt will only be deemed to be given on the next working day in that place.

 

(c) A communication to the Facility Agent will only be effective on actual receipt by it.

 

36.4 Obligors

 

(a) All communications under the Finance Documents to or from an Obligor must be sent through the Facility Agent.

 

(b) All communications under the Finance Documents to an Obligor (other than the Company) must be sent through the Company.

 

(c) Each Obligor (other than the Company) irrevocably appoints the Company to act as its agent:

 

  (i) to give and receive all communications under the Finance Documents;

 

  (ii) to supply all information concerning itself to any Finance Party; and

 

  (iii) to sign all documents under or in connection with the Finance Documents.

 

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(d) Any communication given to the Company in connection with a Finance Document will be deemed to have been given also to the other Obligors.

 

(e) Each Finance Party may assume that any communication made by the Company is made with the consent of each other Obligor.

 

36.5 Use of websites

 

(a) Except as provided below, the Company may deliver any information under this Agreement to a Lender by posting it on to an electronic website if:

 

  (i) the Facility Agent and the Lender agree;

 

  (ii) the Company and the Facility Agent designate an electronic website for this purpose;

 

  (iii) the Company notifies the Facility Agent of the address of and password for the website; and

 

  (iv) the information posted is in a format agreed between the Company and the Facility Agent.

The Facility Agent must supply each relevant Lender with the address of and password for the website.

 

(b) Notwithstanding the above, the Company must supply to the Facility Agent in paper form a copy of any information posted on the website together with sufficient copies for:

 

  (i) any Lender not agreeing to receive information via the website; and

 

  (ii) within 10 Business Days of request any other Lender, if that Lender so requests.

 

(c) The Company must, promptly upon becoming aware of its occurrence, notify the Facility Agent if:

 

  (i) the website cannot be accessed;

 

  (ii) the website or any information on the website is infected by any electronic virus or similar software;

 

  (iii) the password for the website is changed; or

 

  (iv) any information to be supplied under this Agreement is posted on the website or amended after being posted.

If the circumstances in sub-paragraphs (i) or (ii) above occur, the Company must supply any information required under this Agreement in paper form until the Facility Agent is satisfied that the circumstances giving rise to the notification are no longer continuing.

 

37. LANGUAGE

 

(a) Any notice given in connection with a Finance Document must be in English.

 

(b) Any other document provided in connection with a Finance Document must be:

 

  (i) in English; or

 

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  (ii) (unless the Facility Agent otherwise agrees) accompanied by a certified English translation. In this case, the English translation prevails unless the document is a statutory or other official document.

 

38. GOVERNING LAW

This Agreement is governed by English law.

 

39. ENFORCEMENT

 

39.1 Jurisdiction

 

(a) The English courts have exclusive jurisdiction to settle any dispute in connection with any Finance Document.

 

(b) Notwithstanding paragraph (a) above, any New York State court or Federal court sitting in the City and County of New York also has jurisdiction to settle any dispute in connection with any Finance Document and, for the benefit of the Finance Parties, each Obligor submits to the jurisdiction of those courts.

 

(c) The English and New York courts are the most appropriate and convenient courts to settle any such dispute and each Obligor waives objection to those courts on the grounds of inconvenient forum or otherwise in relation to proceedings in connection with any Finance Document.

 

(d) This Clause is for the benefit of the Finance Parties only. To the extent allowed by law, a Finance Party may take:

 

  (i) proceedings in any other court; and

 

  (ii) concurrent proceedings in any number of jurisdictions.

 

(e) References in this Clause to a dispute in connection with a Finance Document includes any dispute as to the existence, validity or termination of that Finance Document.

 

39.2 Service of process

 

(a) Each Obligor not incorporated in England and Wales irrevocably appoints PPG Industries (UK) Limited, P.O. Box 162, Needham Road, Stowmarket, Suffolk IP14 2ZR, England, as its agent under the Finance Documents for service of process in any proceedings before the English courts in connection with any Finance Document.

 

(b) Each Obligor not incorporated in New York State irrevocably appoints Corporation Service Company, 80 State Street, Albany, New York 12207-2543, United States, as its agent for service of process in any proceedings before any New York State courts in connection with any Finance Document.

 

(c) If any person appointed as process agent under this Clause is unable for any reason to so act, the Company (on behalf of all the Obligors) must immediately (and in any event within 5 days of the event taking place) appoint another agent on terms acceptable to the Facility Agent. Failing this, the Facility Agent may appoint another process agent for this purpose.

 

(d) Each Obligor agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings.

 

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(e) This Clause does not affect any other method of service allowed by law.

 

39.3 Waiver of immunity

Each Obligor irrevocably and unconditionally:

 

  (a) agrees not to claim any immunity from proceedings brought by a Finance Party against it in relation to a Finance Document and to ensure that no such claim is made on its behalf;

 

  (b) consents generally to the giving of any relief or the issue of any process in connection with those proceedings; and

 

  (c) waives all rights of immunity in respect of it or its assets.

 

39.4 Waiver of trial by jury

EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION IN CONNECTION WITH ANY FINANCE DOCUMENT OR ANY TRANSACTION CONTEMPLATED BY ANY FINANCE DOCUMENT. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY COURT.

 

39.5 USA Patriot Act

Each Finance Party that is subject to the requirements of the USA Patriot Act hereby notifies each Obligor that pursuant to the requirements of the USA Patriot Act, it is required to obtain, verify and record information that identifies the Obligors, which information includes the name and address of the Obligors and other information that will allow such Finance Party to identify the Obligors in accordance with the USA Patriot Act. Each Obligor agrees that it will provide each Finance Party with such information as it may request in order for such Finance Party to satisfy the requirements of the USA Patriot Act.

This Agreement has been entered into on the date stated at the beginning of this Agreement.

 

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SIGNATORIES

 

Company    
PPG INDUSTRIES, INC.    

By:

  WILLIAM H. HERNANDEZ    
Original Borrowers    

PPG IRELAND INTERNATIONAL FINANCE COMPANY LIMITED

 

By:

  KIM EDVARDSSON    
PPG INDUSTRIES SECURITIES, INC.  

By:

  MITCHELL F. MAGEE    
Arrangers
BNP PARIBAS SECURITIES CORP.  

By:

  ANDREW SHAPIRO   ANDREW KIRBY  
SG AMERICAS SECURITIES, LLC  

By:

  STEVEN R. FERCHO    
Original Lenders  
BNP PARIBAS    

By:

  MICHAEL KOWALCZUC   MELISSA BALLEY  

SOCIÉTÉ GÉNÉRALE

   

By:

  ERIC E. O. SIEBERT, JR.    


ABN AMRO BANK N.V.

By:

  DAVID CARRINGTON   MARC BRONDYKE  
BANK OF AMERICA, N.A.

By:

  WILLIAM M. BULGER, JR.    
BANCO SANTANDER, S.A., NEW YORK BRANCH

By:

  PAUL J. LAMMEY   FRANK G. ENGLISH, IV  
CALYON NEW YORK BRANCH

By:

  SAMUEL L. HILL   BRIAN MYERS  
ING BANK N.V., DUBLIN BRANCH

By:

  MAURICE KENNY   AIDAN NEILL  
INTESA SANPAOLO SPA

By:

  FRANCESCO DIMARIO   LUCA SACCHI  
PNC BANK, NATIONAL ASSOCIATION

By:

  THOMAS A. MAJESKI    
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH

By:

  ALAN REITER    
CITIBANK, N.A.  

By:

  JAMES N. SIMPSON    


DEUTSCHE BANK AG LONDON

By:

  T. HALLAWAYS   J. U. G. PUDDICK  
HSBC BANK USA, NATIONAL ASSOCIATION

By:

  DAVID MANDELL    
MORGAN STANLEY BANK

By:

  DANIEL TWENGE    
THE BANK OF NEW YORK

By:

  WILLIAM M. FEATHERS    
WACHOVIA BANK NATIONAL ASSOCIATION

By:

  BARBARA VAN MEERTEN    
US$ Swingline Facility Agent

SOCIÉTÉ GÉNÉRALE, NEW YORK BRANCH

By:

  ERIC E. O. SIEBERT, JR.    
EUR Swingline Facility Agent
SOCIÉTÉ GÉNÉRALE

By:

  ERIC E. O. SIEBERT, JR.    

Facility Agent

SOCIÉTÉ GÉNÉRALE

By:

  ERIC E. O. SIEBERT, JR.    


Syndication Agent  
BNP PARIBAS SECURITIES CORP.

By:

  ANDREW SHAPIRO   ANDREW KIRBY  

Exhibit 10.24

CHANGE IN CONTROL

EMPLOYMENT AGREEMENT

AGREEMENT by and between PPG Industries, Inc., a Pennsylvania corporation (the “Company”), and                              (the “Executive”), dated as of                      .

The Board of Directors of the Company (the “Board”), has determined that it is in the best interests of the Company and its shareholders to assure that the Company will have the continued dedication of the Executive, notwithstanding the possibility, threat or occurrence of a Change in Control (as defined below) of the Company. The Board believes it is imperative to diminish the inevitable distraction of the Executive by virtue of the personal uncertainties and risks created by a pending or threatened Change in Control and to encourage the Executive’s full attention and dedication to the Company currently and in the event of any threatened or pending Change in Control, and to provide the Executive with compensation and benefits arrangements upon a Change in Control which ensure that the compensation and benefits expectations of the Executive will be satisfied and which are competitive with those of other corporations. Therefore, in order to accomplish these objectives, the Board has caused the Company to enter into this Agreement.

NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:

1. Certain Definitions . (a) The “Effective Date” shall mean the first date during the Change in Control Period (as defined in Section l(b)) while the Executive is an employee of the Company on which a Change in Control (as defined in Section 2) occurs. Anything in this Agreement to the contrary notwithstanding, if a Change in Control occurs and if the Executive’s employment with the Company is terminated prior to the


date on which the Change in Control occurs, and if it is reasonably demonstrated by the Executive that such termination of employment (i) was at the request of a third party who has taken steps reasonably calculated to effect a Change in Control or (ii) otherwise arose in connection with or anticipation of a Change in Control, then for all purposes of this Agreement the “Effective Date” shall mean the date immediately prior to the date of such termination of employment.

(b) The “Change in Control Period” shall mean the period commencing on the date hereof and ending on the earlier of (i) the Executive’s date of Retirement, or (ii) the third anniversary of the date hereof; provided, however, that commencing on the date one year after the date hereof, and on each annual anniversary of such date (such date and each annual anniversary thereof shall be hereinafter referred to as the “Renewal Date”), unless previously terminated, the Change in Control Period shall be automatically extended so as to terminate the earlier of (i) the Executive’s date of Retirement, or (ii) three years from such Renewal Date, unless at least 60 days prior to the Renewal Date the Company shall give notice to the Executive that the Change in Control Period shall not be so extended.

(c) “Retirement” shall mean termination of employment on or after (i) an Executive’s “normal retirement date” as defined in the PPG Industries, Inc. Retirement Income Plan, provided such termination is voluntary, or (ii) with respect to any Executive that the Company may subject to compulsory retirement under the Age Discrimination in Employment Act (29 U.S.C. § 621 et. seq.) (ADEA) as a “bona fide executive or a high policy maker”, such Executive’s “normal retirement date”.

(d) “Code” shall mean the Internal Revenue Code of 1986, as amended.

 

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(e) The “Compensation Multiplier” shall mean: (i) if the Executive is subject to compulsory retirement, then the number of years and fractions of years remaining (such fractions to be expressed as the number of whole months and any partial month, divided by 12) from the Executive’s Date of Termination (as defined in Section 5(e)) to his normal retirement date, not to exceed three, or, (ii) if the Executive is not subject to compulsory retirement, then the multiplier shall be three.

(f) “Specified Employee” shall mean a key employee (as defined in Section 416(i) of the Code without regard to Section 416(i)(5) of the Code) of the Company, determined in accordance with Section 409A of the Code and any regulations or other guidance thereunder.

2. Change in Control . For the purpose of this Agreement, a “Change in Control” shall mean:

(a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (i) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that for purposes of this subsection (a), the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly from the Company, (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company or (iv) any acquisition by any corporation pursuant to a transaction which complies with clauses (i), (ii) and (iii) of subsection (c) of this Section 2; or

 

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(b) Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

(c) Consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), in each case, unless, following such Business Combination, (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 60% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Common Stock and Outstanding Company

 

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Voting Securities, as the case may be, (ii) no Person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination;

(d) Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company; or

(e) A majority of the Board otherwise determines that a Change in Control shall have occurred.

3. Employment Period . The Company hereby agrees to continue the Executive in its employ, and the Executive hereby agrees to remain in the employ of the Company subject to the terms and conditions of this Agreement, for the period commencing on the Effective Date and ending on the earlier of (i) the Executive’s date of Retirement and (ii) the third anniversary of the Effective Date, (the “Employment Period”).

4. Terms of Employment . (a)  Position and Duties . (i) During the Employment Period, (A) the Executive’s position (including status, offices, titles and reporting requirements), authority, duties and responsibilities shall be at least commensurate in all material respects with the most significant of those held, exercised

 

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and assigned at any time during the 120-day period immediately preceding the Effective Date and (B) the Executive’s services shall be performed at the location where the Executive was employed immediately preceding the Effective Date or any office or location less than 35 miles from such location.

(ii) During the Employment Period, and excluding any periods of vacation and sick leave to which the Executive is entitled, the Executive agrees to devote reasonable attention and time during normal business hours to the business and affairs of the Company and, to the extent necessary to discharge the responsibilities assigned to the Executive hereunder, to use the Executive’s reasonable best efforts to perform faithfully and efficiently such responsibilities. During the Employment Period it shall not be a violation of this Agreement for the Executive to (A) serve on corporate, civic or charitable boards or committees, (B) deliver lectures, fulfill speaking engagements or teach at educational institutions and (C) manage personal investments, so long as such activities do not significantly interfere with the performance of the Executive’s responsibilities as an employee of the Company in accordance with this Agreement. It is expressly understood and agreed that to the extent that any such activities have been conducted by the Executive prior to the Effective Date, the continued conduct of such activities (or the conduct of activities similar in nature and scope thereto) subsequent to the Effective Date shall not thereafter be deemed to interfere with the performance of the Executive’s responsibilities to the Company.

(b) Compensation . (i)  Base Salary . During the Employment Period, the Executive shall receive an annual base salary (“Annual Base Salary”), which shall be paid at a monthly rate, at least equal to twelve times the highest monthly base salary paid or payable, including any base salary which has been earned but deferred, to the Executive by the Company and its affiliated companies in respect of the twelve-month period immediately preceding the month in which the Effective Date occurs. During the

 

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Employment Period, the Annual Base Salary shall be reviewed no more than 12 months after the last salary increase awarded to the Executive prior to the Effective Date and thereafter at least annually. Any increase in Annual Base Salary shall not serve to limit or reduce any other obligation to the Executive under this Agreement. Annual Base Salary shall not be reduced after any such increase and the term Annual Base Salary as utilized in this Agreement shall refer to Annual Base Salary as so increased. As used in this Agreement, the term “affiliated companies” shall include any company controlled by, controlling or under common control with the Company.

(ii) Annual Bonus . In addition to Annual Base Salary during the Employment Period, the Executive shall be awarded, for each fiscal year ending during the Employment Period, an annual bonus (the “Annual Bonus”) in cash at least equal to the Executive’s target bonus under the Company’s Incentive Compensation and Deferred Income Plan for Key Employees, or any comparable bonus under any predecessor or successor plan, for the fiscal year in which the Effective Date occurs. Each such Annual Bonus shall be paid no later than the fifteenth day of the third month of the fiscal year next following the fiscal year for which the Annual Bonus is awarded, unless the Executive shall elect to defer the receipt of such Annual Bonus.

(iii) Incentive, Savings and Retirement Plans . During the Employment Period, the Executive shall be entitled to participate in all incentive, savings and retirement plans, practices, policies and programs applicable generally to other peer executives of the Company and its affiliated companies, but in no event shall such plans, practices, policies and programs provide the Executive with incentive opportunities (measured with respect to both regular and special incentive opportunities, to the extent, if any, that such distinction is applicable), savings opportunities and retirement benefit opportunities, in each case, less favorable, in the aggregate, than the most favorable of those provided by the Company and its affiliated companies for the Executive under such

 

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plans, practices, policies and programs as in effect at any time during the 120-day period immediately preceding the Effective Date or if more favorable to the Executive, those provided generally at any time after the Effective Date to other peer executives of the Company and its affiliated companies.

(iv) Welfare Benefit Plans . During the Employment Period, the Executive and/or the Executive’s family, as the case may be, shall be eligible for participation in and shall receive all benefits under welfare benefit plans, practices, policies and programs provided by the Company and its affiliated companies (including, without limitation, medical, prescription, dental, disability, salary continuance, employee life, group life, accidental death and travel accident insurance plans and programs) to the extent applicable generally to other peer executives of the Company and its affiliated companies, but in no event shall such plans, practices, policies and programs provide the Executive with benefits which are less favorable, in the aggregate, than the most favorable of such plans, practices, policies and programs in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, those provided generally at any time after the Effective Date to other peer executives of the Company and its affiliated companies.

(v) Expenses . During the Employment Period, the Executive shall be entitled to receive prompt reimbursement for all reasonable expenses incurred by the Executive in accordance with the most favorable policies, practices and procedures of the Company and its affiliated companies in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies.

 

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(vi) Fringe Benefits . During the Employment Period, the Executive shall be entitled to fringe benefits, including, without limitation, tax and financial planning services, payment of club dues, and, if applicable, use of an automobile and payment of related expenses, in accordance with the most favorable plans, practices, programs and policies of the Company and its affiliated companies in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies.

(vii) Office and Support Staff . During the Employment Period, the Executive shall be entitled to an office or offices of a size and with furnishings and other appointments, and to exclusive personal secretarial and other assistance, at least equal to the most favorable of the foregoing provided to the Executive by the Company and its affiliated companies at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as provided generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies.

(viii) Vacation . During the Employment Period, the Executive shall be entitled to paid vacation in accordance with the most favorable plans, policies, programs and practices of the Company and its affiliated companies as in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies.

5. Termination of Employment . (a)  Death or Disability . The Executive’s employment shall terminate automatically upon the Executive’s death during the Employment Period. If the Company determines in good faith that the Disability of the

 

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Executive has occurred during the Employment Period (pursuant to the definition of Disability set forth below), it may give to the Executive written notice in accordance with Section 12(b) of this Agreement of its intention to terminate the Executive’s employment. In such event, the Executive’s employment with the Company shall terminate effective on the 90th day after receipt of such notice by the Executive (the “Disability Effective Date”), provided that, within the 90 days after such receipt, the Executive shall not have returned to full-time performance of the Executive’s duties. For purposes of this Agreement, “Disability” shall mean disability which, after the expiration of more than 52 weeks after its commencement, is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to the Executive or the Executive’s legal representative (such agreement to acceptability not to be withheld unreasonably).

(b) Cause . The Company may terminate the Executive’s employment during the Employment Period for Cause. For purposes of this Agreement, “Cause” shall mean:

(i) the willful and continued failure of the Executive to perform substantially the Executive’s duties with the Company or one of its affiliates (other than any such failure resulting from incapacity due to physical or mental illness), including a failure to follow any applicable Company policies or directives, after a written demand for substantial performance is delivered to the Executive by the Board or the Chief Executive Officer of the Company which specifically identifies the manner in which the Board or Chief Executive Officer believes that the Executive has not substantially performed the Executive’s duties, or

(ii) the engaging by the Executive in illegal conduct or gross misconduct which is materially and demonstrably injurious to the Company.

 

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For purposes of (i) of this Section 5(b), no act or failure to act, on the part of the Executive, shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interests of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or upon the instructions of the Chief Executive Officer or a senior officer of the Company or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company. The cessation of employment of the Executive shall not be deemed to be for Cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the entire membership of the Board at a meeting of the Board called and held for such purpose (after reasonable notice is provided to the Executive and the Executive is given an opportunity, together with counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive is guilty of the conduct described in subparagraph (i) or (ii) above, and specifying the particulars thereof in detail.

(c) Good Reason . The Executive’s employment may be terminated by the Executive for Good Reason. For purposes of this Agreement, “Good Reason” shall mean:

(i) the assignment to the Executive of any duties inconsistent in any respect with the Executive’s position (including status, offices, titles and reporting requirements), authority, duties or responsibilities as contemplated by Section 4(a) of this Agreement, or any other action by the Company which results in a diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive;

 

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(ii) any failure by the Company to comply with any of the provisions of Section 4(b) of this Agreement, other than an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive;

(iii) the Company’s requiring the Executive to be based at any office or location other than as provided in Section 4(a)(i)(B) hereof;

(iv) any purported termination by the Company of the Executive’s employment otherwise than as expressly permitted by this Agreement; or

(v) any failure by the Company to comply with and satisfy Section 12(c) of this Agreement.

In order to qualify as a termination for “Good Reason” all of the following conditions must occur: (1) the Executive must terminate employment with the Company within a period of two (2) years following the initial existence of circumstances constituting “Good Reason” under (i) through (v) above, (2) the Executive must give notice of the circumstances constituting “Good Reason” under (i) through (v) above within ninety (90) days of the initial existence of such circumstances, and (3) the Company must have a period of thirty (30) days following receipt of the Executive’s notice to remedy such circumstances.

(d) Notice of Termination . Any termination by the Company for Cause, or by the Executive for Good Reason, shall be communicated by Notice of Termination to the other party hereto given in accordance with Section 12(b) of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice which (i)

 

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indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date (which date shall be not more than thirty days after the giving of such notice). The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company, respectively, hereunder or preclude the Executive or the Company, respectively, from asserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.

(e) Date of Termination . “Date of Termination” means (i) if the Executive’s employment is terminated by the Company for Cause, or by the Executive for Good Reason, the date of receipt of the Notice of Termination or any later date specified therein, as the case may be, (ii) if the Executive’s employment is terminated by the Company other than for Cause or Disability, the Date of Termination shall be the date on which the Company notifies the Executive of such termination and (iii) if the Executive’s employment is terminated by reason of death or Disability, the Date of Termination shall be the date of death of the Executive or the Disability Effective Date, as the case may be.

6. Obligations of the Company upon Termination . (a)  Good Reason; Other Than for Cause; Disability . If, during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause or Disability or the Executive shall terminate employment for Good Reason:

(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:

 

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A. the sum of (1) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the higher of (I) the Executive’s Annual Bonus and (II) the Executive’s target bonus under the Company’s Incentive Compensation and Deferred Income Plan for Key Employees, or any comparable bonus under any predecessor or successor plan, for the fiscal year in which the Date of Termination occurs (such higher amount being referred to as the “Highest Target Bonus”) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) shall be hereinafter referred to as the “Accrued Obligations”); and

B. the amount equal to the product of (1) the Executive’s Compensation Multiplier and (2) the sum of (x) the Executive’s Annual Base Salary and (y) the Highest Target Bonus. And

C. an amount equal to the difference between (a) the actuarial equivalent of the benefit under the Company’s qualified defined benefit retirement plan (the “Retirement Plan”) (utilizing actuarial assumptions no less favorable to the Executive than those in effect immediately prior to the Effective Date) and under any excess or supplemental retirement plan or plans in which the Executive participates (together, the “SERP”) which the Executive would receive if the Executive’s employment continued for a number of years (including fractional parts, if any) equal to the Executive’s Compensation Multiplier after the Date of Termination assuming for this purpose that all accrued benefits are fully vested, but not taking into

 

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account any amount of deemed compensation in such years, and (b) the actuarial equivalent of the Executive’s actual benefit (paid or payable), if any, under the Retirement Plan and the SERP as of the Date of Termination;

(ii) for a number of years (including fractional parts, if any) equal to the Executive’s Compensation Multiplier after the Executive’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive’s family at least equal to those which would have been provided to them in accordance with the Company’s life insurance, medical and dental plans if the Executive’s employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, and the Executive shall pay any portion of such cost as is required to be borne by peer executives of the Company generally with respect to such benefits, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive life insurance, medical or dental benefits under another employer provided plan, the life insurance, medical and dental benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed for the number of years (including fractional parts, if any) after the Date of Termination equal to the Executive’s Compensation Multiplier and to have retired on the last day of such period; and

(iii) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or

 

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practice or contract or agreement of the Company and its affiliated companies in accordance with the terms and conditions of such applicable plan, program, policy or practice or contract or agreement (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).

(b) Death . If the Executive’s employment is terminated by reason of the Executive’s death during the Employment Period, this Agreement shall terminate without further obligations to the Executive’s legal representatives under this Agreement, other than for payment of Accrued Obligations and the timely payment or provision of Other Benefits. Accrued Obligations shall be paid to the Executive’s estate or beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of Termination. With respect to the provision of Other Benefits, the term Other Benefits as utilized in this Section 6(b) shall include, without limitation, and the Executive’s estate and/or beneficiaries shall be entitled to receive, benefits at least equal to the most favorable benefits provided by the Company and affiliated companies to the estates and beneficiaries of peer executives of the Company and such affiliated companies under such plans, programs, practices and policies relating to death benefits, if any, as in effect with respect to other peer executives and their beneficiaries at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive’s estate and/or the Executive’s beneficiaries, as in effect on the date of the Executive’s death with respect to other peer executives of the Company and its affiliated companies and their beneficiaries.

(c) Disability . If the Executive’s employment is terminated by reason of the Executive’s Disability during the Employment Period, this Agreement shall terminate without further obligations to the Executive, other than for payment of Accrued Obligations and the timely payment or provision of Other Benefits. Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days of the Date of

 

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Termination. With respect to the provision of Other Benefits, the term Other Benefits as utilized in this Section 6(c) shall include, and the Executive shall be entitled after the Disability Effective Date to receive, disability and other benefits at least equal to the most favorable of those generally provided by the Company and its affiliated companies to disabled executives and/or their families in accordance with such plans, programs, practices and policies relating to disability, if any, as in effect generally with respect to other peer executives and their families at any time during the 120-day period immediately preceding the Effective Date or, if more favorable to the Executive and/or the Executive’s family, as in effect at any time thereafter generally with respect to other peer executives of the Company and its affiliated companies and their families.

(d) Cause; Other than for Good Reason . If the Executive’s employment shall be terminated for Cause during the Employment Period, this Agreement shall terminate without further obligations to the Executive other than the obligation to pay to the Executive (x) his Annual Base Salary through the Date of Termination, (y) the amount of any compensation previously deferred by the Executive, and (z) Other Benefits, in each case to the extent theretofore unpaid. If the Executive voluntarily terminates employment during the Employment Period, excluding a termination for Good Reason, this Agreement shall terminate without further obligations to the Executive, other than for Accrued Obligations and the timely payment or provision of Other Benefits. In such case, all Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days of the Date of Termination.

(e) Compliance with Section 409A . Notwithstanding the foregoing, and solely to the extent required by Section 409A of the Code and not otherwise eligible for exclusion from the requirements of Section 409A, if the Executive is deemed to be a Specified Employee as of the date of the Executive’s “separation from service” (within the meaning of Section 409A of the Code and the regulations ) from the Company, no

 

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payment or other distribution required to be made to the Executive hereunder (including any payment of cash, any transfer of property and any provision of taxable benefits) as a result of the Executive’s separation from service shall be made earlier than the date that is six (6) months and one day following the date on which the Employee separates from service with the Company.

7. Non-exclusivity of Rights . Nothing in this Agreement shall prevent or limit the Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company or any of its affiliated companies and for which the Executive may qualify, nor, subject to Section 12(f), shall anything herein limit or otherwise affect such rights as the Executive may have under any contract or agreement with the Company or any of its affiliated companies. Amounts which are vested benefits or which the Executive is otherwise entitled to receive under any plan, policy, practice or program of or any contract or agreement with the Company or any of its affiliated companies at or subsequent to the Date of Termination shall be payable in accordance with such plan, policy, practice or program or contract or agreement except as explicitly modified by this agreement.

8. Full Settlement . The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against the Executive or others.

9. Certain Additional Payments by the Company .

(a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the

 

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terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 9) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments; provided, that to the extent the aggregate present value of all Payments that would be subject to Section 4999 of the Code does not exceed three (3) times the Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), by more than fifteen percent (15%), then the cash payments the Executive is entitled to receive under this Agreement will be reduced to the extent necessary (but not below zero) to reduce the aggregate present value of all Payments to the Executive that would be subject to Section 4999 to an amount that does not exceed the Safe Harbor Amount.

(b) Subject to the provisions of Section 9(c), all determinations required to be made under this Section 9, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment, whether Payments should be reduced and the amount of the reduction pursuant to the proviso in Section 9(a), and the assumptions to be utilized in arriving at such determinations, shall be made by Deloitte & Touche LLP or such other certified public accounting firm as may be designated by the Executive with the approval of the Company (which approval shall not be unreasonably withheld) (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the

 

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Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive.

(c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would, pursuant to this Section 9, require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall:

(i) give the Company any information reasonably requested by the Company relating to such claim,

 

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(ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company,

(iii) cooperate with the Company in good faith in order effectively to contest such claim, and

(iv) permit the Company to participate in any proceedings relating to such claim;

provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 9(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any

 

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administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

(d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Section 9(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

 

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(e) For purposes of Section 409A of the Code and not by way of limitation of any of the foregoing provisions, in no event shall the Gross-Up Payment be made later than the last day of the calendar year next following the calendar year in which the Executive pays any related taxes.

10. Other Employment . (a) The Executive shall have no obligation to seek or accept other employment after termination of employment with the Company in mitigation of the amount of payment received from the Company pursuant to this Agreement. However, in the event that the Executive does accept other employment, he shall be required to return to the Company such part (if any) of the payment received from the Company pursuant to this Agreement as may be required by the provisions of Section 10(b).

(b) If the Executive obtains employment with another employer within the period of time after his Termination Date that is equal in years (and fractions thereof, if any) to such Executive’s Compensation Multiplier (the “Mitigation Period”), then the Executive shall remit to the Company such portion of the Executive’s lump sum payment from the Company (without interest) which is equal to the cash value of any salary and bonus payments received (or earned but deferred) from his new employer during the Mitigation Period.

11. Confidential Information . The Executive shall hold in a fiduciary capacity for the benefit of the Company all secret or confidential information, knowledge or data relating to the Company or any of its affiliated companies, and their respective businesses, which shall have been obtained by the Executive during the Executive’s

 

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employment by the Company or any of its affiliated companies and which shall not be or become public knowledge (other than by acts by the Executive or representatives of the Executive in violation of this Agreement). After termination of the Executive’s employment with the Company, the Executive shall not, without the prior written consent of the Company or as may otherwise be required by law or legal process, communicate or divulge any such information, knowledge or data to anyone other than the Company and those designated by it. In no event shall an asserted violation of the provisions of this Section 10 constitute a basis for deferring or withholding any amounts otherwise payable to the Executive under this Agreement.

12. Successors . (a) This Agreement is personal to the Executive and without the prior written consent of the Company shall not be assignable by the Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’s legal representatives.

(b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.

(c) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by operation of law, or otherwise.

13. Miscellaneous . (a) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without reference to principles of conflict of laws. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement may not be amended or modified otherwise than by a written agreement executed by the parties hereto or their respective successors and legal representatives.

 

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(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:

If to the Executive:

If to the Company:

PPG Industries, Inc.

One PPG Place

Pittsburgh, Pennsylvania 15272

Attention: General Counsel

or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective when actually received by the addressee.

(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.

(d) The Company may withhold from any amounts payable under this Agreement such Federal, state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation.

 

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(e) The Executive’s or the Company’s failure to insist upon strict compliance with any provision hereof or any other provision of this Agreement or the failure to assert any right the Executive or the Company may have hereunder, including, without limitation, the right of the Executive to terminate employment for Good Reason pursuant to Section 5(c)(i)-(v) of this Agreement, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement.

(f) The Executive and the Company acknowledge that, except as may otherwise be provided under any other written agreement between the Executive and the Company, the employment of the Executive by the Company is “at will” and, prior to the Effective Date, the Executive’s employment may be terminated by either the Executive or the Company at any time prior to the Effective Date, in which case the Executive shall have no further rights under this Agreement. From and after the Effective Date this Agreement shall supersede any other agreement between the parties with respect to the subject matter hereof and any such other agreement shall be null and void in its entirety and of no effect.

 

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IN WITNESS WHEREOF and intending to be legally bound hereby, the Executive has hereunto set the Executive’s hand and, pursuant to the authorization from its Board of Directors, the Company has caused this Agreement to be executed in its name on its behalf, all as of the date first written above.

 

 

PPG INDUSTRIES, INC.
By:  

 

Name:   Charles W. Wise
Title:   Vice President, Human Resources

 

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Exhibit 12

PPG INDUSTRIES, INC. AND CONSOLIDATED SUBSIDIARIES

Computation of Ratio of Earnings to Fixed Charges

(Dollars in millions)

 

     Year Ended December 31
     2007    2006    2005    2004    2003

Earnings:

              

Earnings (loss) before income taxes and net earnings in equity affiliates

   $ 1,212    $ 928    $ 860    $ 918    $ 714

Plus:

              

Fixed charges exclusive of capitalized interest

     149      130      122      125      145

Amortization of capitalized interest

     7      8      9      10      10

Adjustments for equity affiliates

     20      16      19      5      2
                                  

Total

   $ 1,388    $ 1,082    $ 1,010    $ 1,058    $ 871
                                  

Fixed Charges:

              

Interest expense including amortization of debt discount/premium and debt expense

   $ 93    $ 83    $ 81    $ 90    $ 107

Rentals - portion representative of interest

     56      47      41      35      38
                                  

Fixed charges exclusive of capitalized interest

     149      130      122      125      145

Capitalized interest

     11      7      5      3      3
                                  

Total

   $ 160    $ 137    $ 127    $ 128    $ 148
                                  

Ratio of earnings to fixed charges

     8.7      7.9      8.0      8.3      5.9
                                  

Deficiency of earnings to fixed charges

   $ —      $ —      $ —      $ —      $ —  
                                  

The financial information of all prior periods has been reclassified to reflect discontinued operations.

Exhibit 13.1

PPG INDUSTRIES, INC. AND CONSOLIDATED SUBSIDIARIES

Market Information, Dividends and Holders of Common Stock

For the Year Ended December 31, 2007

Market Information

Stock Exchange Listings

PPG common stock is traded on the New York and Philadelphia stock exchanges (symbol: PPG).

Quarterly Stock Market Price

 

     2007    2006

Quarter Ended

   High    Low    High    Low

March 31

   $ 72.40    $ 64.01    $ 64.32    $ 56.53

June 30

     78.80      69.94      68.88      61.54

September 30

     82.42      67.81      68.22      60.42

December 31

     79.95      64.93      69.80      63.02

Dividends

           
       2007    2006

Month of Payment

   Amount
(Millions)
   Per
Share
   Amount
(Millions)
   Per
Share

March

   $ 82    $ 0.50    $ 78    $ 0.47

June

     83      0.50      79      0.48

September

     85      0.52      80      0.48

December

     85      0.52      79      0.48
                           

Total

   $ 335    $ 2.04    $ 316    $ 1.91
                           

PPG has paid uninterrupted dividends since 1899. The latest quarterly dividend of 52 cents per share was approved by the board of directors on January 17, 2008, payable March 12, 2008 to shareholders of record February 22, 2008.

Holders of Common Stock

The number of holders of record of PPG common stock as of January 31, 2008, was 21,644, as shown on the records of the Company’s transfer agent.

Exhibit 13.2

PPG INDUSTRIES, INC. AND CONSOLIDATED SUBSIDIARIES

Selected Financial Data

(Millions, except per share amounts)

 

     Year Ended December 31  
     2007    2006(1)    2005(1)    2004(1)    2003(1)  

Net sales

   $ 11,206    $ 9,861    $ 9,028    $ 8,325    $ 7,514  

Income from continuing operations

     815      653      558      604      415  

Income from discontinued operations, net of tax

     19      58      38      79      85  

Cumulative effect of accounting change (2)

     —        —        —        —        (6 )

Net income

     834      711      596      683      494  

Earnings per common share:

              

Income from continuing operations

     4.95      3.94      3.29      3.52      2.44  

Income from discontinued operations

     0.12      0.35      0.22      0.46      0.50  

Cumulative effect of accounting change (2)

     —        —        —        —        (0.03 )

Net income

     5.07      4.29      3.51      3.98      2.91  

Earnings per common share - assuming dilution:

              

Income from continuing operations

     4.91      3.92      3.27      3.49      2.42  

Income from discontinued operations

     0.12      0.35      0.22      0.46      0.50  

Cumulative effect of accounting change (2)

     —        —        —        —        (0.03 )

Net income

     5.03      4.27      3.49      3.95      2.89  

Dividends per share

     2.04      1.91      1.86      1.79      1.73  

Total assets

     12,629      10,067      8,681      8,932      8,424  

Long-term debt

     1,201      1,155      1,169      1,184      1,339  

 

(1) The financial information for all prior periods presented has been reclassified to reflect the automotive glass businesses and fine chemicals business as discontinued operations.

 

(2) The 2003 change in the method of accounting relates to the adoption of SFAS No. 143, “Accounting for Asset Retirement Obligations.”

Exhibit 21

PPG Industries, Inc.

And Consolidated Subsidiaries

Subsidiaries of the Registrant

December 31, 2007

Significant subsidiaries included in the 2007 consolidated financial statements of the Company are:

 

     Percentage of
Voting Power
 

United States:

  

LYNX Services, L.L.C. Kansas

   100 %

Pinetree Stockholding Corporation – Delaware

   100  

PPG Architectural Finishes, Inc. – Delaware

   100  

PPG Auto Glass, LLC – Delaware

   66  

PPG Capital LLC – Delaware

   100  

PPG Industries Fiber Glass Products, Inc. – Delaware

   100  

PPG Industries International, Inc. – Delaware

   100  

PPG Industries Ohio, Inc. – Delaware

   100  

PPG Industries Securities, Inc. – Delaware

   100  

PPG Kansai Automotive Finishes U.S., LLC – Delaware

   60  

PRC-DeSoto International, Inc. – California

   100  

Sierracin Corporation – Delaware

   100  

Sierracin/Sylmar Corporation – California

   100  

Stan-Mark, Inc. – Delaware

   100  

The CEI Group, Inc. – Pennsylvania

   75  

Transitions Optical, Inc. – Delaware

   51  

Canada:

  

PPG Canada Inc. – Canada

   100  

Europe:

  

Bellaria S.p.A. – Italy

   100  

Group 26 Diversified Holdings Ireland – Ireland

   100  

HOBA Lacke und Farben GmbH – Germany

   100  

Intercast Europe S.R.L. – Italy

   100  

PPG Coatings B.V. – The Netherlands

   100  

PPG Coatings SA – France

   99.85  

PPG Europe B.V. – The Netherlands

   100  

PPG Holding SAS – France

   100  

PPG Holdings B.V. – The Netherlands

   100  

PPG Holdings (U.K.) Limited – United Kingdom

   100  

PPG Iberica, S.A. – Spain

   100  

PPG Iberica Sales & Services, S.L. – Spain

   100  

PPG Industries Belgium BVBA – Belgium

   100  

PPG Industries Chemicals B.V. – The Netherlands

   100  

PPG Industries Europe (EEIG) – France

   100  

PPG Industries Europe Sàrl – Switzerland

   100  

PPG Industries Fiber Glass B.V. – The Netherlands

   100  

PPG Industries France SAS – France

   100  

PPG Industries Italia S.p.A. – Italy

   100  

PPG Industries Kimya Sanayi ve Ticaret Anonim Sirketi – Turkey

   100  

PPG Industries Lacke GmbH – Germany

   100  

PPG Industries Lackfabrik GmbH – Germany

   100  

PPG Industries Netherlands B.V. – The Netherlands

   100  

PPG Industries Poland Sp. Zo.o. – Poland

   100  

PPG Industries (UK) Limited – England

   100  

PPG Ireland International Financial Company Limited – Ireland

   100  

PPG Italia Sales & Services S.r.L. – Italy

   100  

PPG Kansai Automotive Finishes U.K. LLP – England

   60  

PPG Luxembourg Finance S.àR.L. – Luxembourg

   100  

PPG Luxembourg Holdings S.àR.L. – Luxembourg

   100  

 


PPG Industries, Inc.

And Consolidated Subsidiaries

Subsidiaries of the Registrant

December 31, 2007

 

Europe (continued):

  

PPG Revestimentos para Automoveis AEIE – Portugal

   100

PPG Service Sud S.r.l. – Italy

   100

Transitions Optical Holdings B.V. – The Netherlands

   51

Transitions Optical Limited – Ireland

   51

Asia/Pacific:

  

PPG Coatings (Hong Kong) Co., Limited – Hong Kong

   100

PPG Coatings (Malaysia) Sdn. Bhd. – Malaysia

   100

PPG Coatings (Suzhou) Company Ltd. – China

   100

PPG Coatings (Thailand) Co., Ltd. – Thailand

   100

PPG Coatings (Tianjin) Co., Ltd. – China

   100

PPG Industries Australia PTY Limited A.C.N. 055 500 939 – Australia

   100

PPG Industries (Korea) Inc. – Korea

   100

PPG Industries New Zealand Limited – New Zealand

   100

PPG Industries (Singapore) Pte., Ltd. – Singapore

   100

PPG Japan Ltd.- Japan

   100

PPG Packaging Coatings (Suzhou) Co., Ltd. – China

   90.4

PPG Paints Trading (Shanghai) Co., Ltd. – China

   100

PRC-DeSoto Australia Pty Ltd. – Australia

   100

Protec Pty Ltd (A.C.N. 007 857 392)– Australia

   100

Solarlens Co., Ltd. – Thailand

   100

Taiwan Chlorine Industries Ltd. – Taiwan

   60

Transitions Optical Philippines, Inc. – Philippines

   51

Transitions Optical (Thailand) Ltd. – Thailand

   51

South America:

  

Pinturas Renner Chile S.A. – Chile

   100

PPG Industrial do Brasil – Tintas E Vernizes – Ltda. – Brazil

   100

PPG Industries Argentina S.A. – Argentina

   100

Tintas Ideal S.A. – Uruguay

   100

Transitions Optical do Brasil Limitada – Brazil

   51

Mexico:

  

PPG ALESCO Automotive Finishes Mexico, S. de R.L. de C.V.

   60

PPG Industries de Mexico, S.A. de C.V.

   100

Other:

  

EPIC Insurance Co. Ltd. – Bermuda

   100

Exhibit 23

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in Registration Statement No. 333-145063 on Form S-3 and in Registration Statement Nos. 33-58909, 33-53235, 33-64077, 333-13605, 333-120670, 333-118207, 333-124537, 333-140559, 333-140561, and 333-140562 on Form S-8 of our reports dated February 21, 2008, relating to the financial statements and financial statement schedule of PPG Industries, Inc., (which report expresses an unqualified opinion and includes an explanatory paragraph relating to the Company’s adoption as of January 1, 2007 of FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes, an interpretation of FASB Statement No.109” and, as of December 31, 2006 Statement of Financial Accounting Standards No. 158, “Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans, an amendment of FASB Statements No. 87, 88, 106, and 132(R)”) and the effectiveness of PPG Industries Inc.’s internal control over financial reporting, appearing in this Annual Report on Form 10-K of PPG Industries, Inc. for the year ended December 31, 2007.

 

/s/ Deloitte & Touche LLP

Pittsburgh, Pennsylvania

February 21, 2008

Exhibit 24

PPG INDUSTRIES, INC.

POWER OF ATTORNEY

(10-K)

I, James G. Berges, a Director of PPG Industries, Inc. (the “Corporation”), a Pennsylvania corporation, hereby constitute and appoint C. E. Bunch, W. H. Hernandez and J. C. Diggs, or any of them, my true and lawful attorneys or attorneys-in-fact, with full power of substitution and revocation, to sign, in my name and on my behalf as a Director of the Corporation, the Corporation’s Form 10-K for the fiscal year ended December 31, 2007, to be filed with the Securities and Exchange Commission, Washington, DC.

WITNESS my hand this 21st day of February 2008.

 

/s/ James G. Berges

James G. Berges


PPG INDUSTRIES, INC.

POWER OF ATTORNEY

(10-K)

I, Hugh Grant, a Director of PPG Industries, Inc. (the “Corporation”), a Pennsylvania corporation, hereby constitute and appoint C. E. Bunch, W. H. Hernandez and J. C. Diggs, or any of them, my true and lawful attorneys or attorneys-in-fact, with full power of substitution and revocation, to sign, in my name and on my behalf as a Director of the Corporation, the Corporation’s Form 10-K for the fiscal year ended December 31, 2007, to be filed with the Securities and Exchange Commission, Washington, DC.

WITNESS my hand this 21st day of February 2008.

 

/s/ Hugh Grant

Hugh Grant


PPG INDUSTRIES, INC.

POWER OF ATTORNEY

(10-K)

I, Victoria F. Haynes, a Director of PPG Industries, Inc. (the “Corporation”), a Pennsylvania corporation, hereby constitute and appoint C. E. Bunch, W. H. Hernandez and J. C. Diggs, or any of them, my true and lawful attorneys or attorneys-in-fact, with full power of substitution and revocation, to sign, in my name and on my behalf as a Director of the Corporation, the Corporation’s Form 10-K for the fiscal year ended December 31, 2007, to be filed with the Securities and Exchange Commission, Washington, DC.

WITNESS my hand this 21st day of February 2008.

 

/s/ Victoria F. Haynes
Victoria F. Haynes


PPG INDUSTRIES, INC.

POWER OF ATTORNEY

(10-K)

I, Michele J. Hooper, a Director of PPG Industries, Inc. (the “Corporation”), a Pennsylvania corporation, hereby constitute and appoint C. E. Bunch, W. H. Hernandez and J. C. Diggs, or any of them, my true and lawful attorneys or attorneys-in-fact, with full power of substitution and revocation, to sign, in my name and on my behalf as a Director of the Corporation, the Corporation’s Form 10-K for the fiscal year ended December 31, 2007, to be filed with the Securities and Exchange Commission, Washington, DC.

WITNESS my hand this 21st day of February 2008.

 

/s/ Michele J. Hooper
Michele J. Hooper


PPG INDUSTRIES, INC.

POWER OF ATTORNEY

(10-K)

I, Robert Mehrabian, a Director of PPG Industries, Inc. (the “Corporation”), a Pennsylvania corporation, hereby constitute and appoint C. E. Bunch, W. H. Hernandez and J. C. Diggs, or any of them, my true and lawful attorneys or attorneys-in-fact, with full power of substitution and revocation, to sign, in my name and on my behalf as a Director of the Corporation, the Corporation’s Form 10-K for the fiscal year ended December 31, 2007, to be filed with the Securities and Exchange Commission, Washington, DC.

WITNESS my hand this 21st day of February 2008.

 

/s/ Robert Mehrabian
Robert Mehrabian


PPG INDUSTRIES, INC.

POWER OF ATTORNEY

(10-K)

I, Martin H. Richenhagen, a Director of PPG Industries, Inc. (the “Corporation”), a Pennsylvania corporation, hereby constitute and appoint C. E. Bunch, W. H. Hernandez and J. C. Diggs, or any of them, my true and lawful attorneys or attorneys-in-fact, with full power of substitution and revocation, to sign, in my name and on my behalf as a Director of the Corporation, the Corporation’s Form 10-K for the fiscal year ended December 31, 2007, to be filed with the Securities and Exchange Commission, Washington, DC.

WITNESS my hand this 21st day of February 2008.

 

/s/ Martin H. Richenhagen

Martin H. Richenhagen


PPG INDUSTRIES, INC.

POWER OF ATTORNEY

(10-K)

I, Robert Ripp, a Director of PPG Industries, Inc. (the “Corporation”), a Pennsylvania corporation, hereby constitute and appoint C. E. Bunch, W. H. Hernandez and J. C. Diggs, or any of them, my true and lawful attorneys or attorneys-in-fact, with full power of substitution and revocation, to sign, in my name and on my behalf as a Director of the Corporation, the Corporation’s Form 10-K for the fiscal year ended December 31, 2007, to be filed with the Securities and Exchange Commission, Washington, DC.

WITNESS my hand this 21st day of February 2008.

 

/s/ Robert Ripp

Robert Ripp


PPG INDUSTRIES, INC.

POWER OF ATTORNEY

(10-K)

I, Thomas J. Usher, a Director of PPG Industries, Inc. (the “Corporation”), a Pennsylvania corporation, hereby constitute and appoint C. E. Bunch, W. H. Hernandez and J. C. Diggs, or any of them, my true and lawful attorneys or attorneys-in-fact, with full power of substitution and revocation, to sign, in my name and on my behalf as a Director of the Corporation, the Corporation’s Form 10-K for the fiscal year ended December 31, 2007, to be filed with the Securities and Exchange Commission, Washington, DC.

WITNESS my hand this 21st day of February 2008.

 

/s/ Thomas J. Usher

Thomas J. Usher

Exhibit 31.1

PRINCIPAL EXECUTIVE OFFICER CERTIFICATION

I, Charles E. Bunch, certify that:

 

1. I have reviewed this annual report on Form 10-K of PPG Industries, Inc. (“PPG”);

 

2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of PPG as of, and for, the periods presented in this annual report;

 

4. PPG’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for PPG and have:

 

  a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to PPG, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared;

 

  b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) evaluated the effectiveness of PPG’s disclosure controls and procedures and presented in this annual report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this annual report based on such evaluation; and

 

  d) disclosed in this annual report any change in PPG’s internal control over financial reporting that occurred during PPG’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, PPG’s internal control over financial reporting; and

 

5. PPG’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to PPG’s auditors and the audit committee of PPG’s Board of Directors:

 

  a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect PPG’s ability to record, process, summarize and report financial information; and

 

  b) any fraud, whether or not material, that involves management or other employees who have a significant role in PPG’s internal control over financial reporting.

 

/s/ Charles E. Bunch

Charles E. Bunch

Chairman of the Board and

Chief Executive Officer

February 21, 2008

Exhibit 31.2

PRINCIPAL FINANCIAL OFFICER CERTIFICATION

I, William H. Hernandez, certify that:

 

1. I have reviewed this annual report on Form 10-K of PPG Industries, Inc. (“PPG”);

 

2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of PPG as of, and for, the periods presented in this annual report;

 

4. PPG’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for PPG and have:

 

  a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to PPG, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared;

 

  b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) evaluated the effectiveness of PPG’s disclosure controls and procedures and presented in this annual report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this annual report based on such evaluation; and

 

  d) disclosed in this annual report any change in PPG’s internal control over financial reporting that occurred during PPG’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, PPG’s internal control over financial reporting; and

 

5. PPG’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to PPG’s auditors and the audit committee of PPG’s Board of Directors:

 

  a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect PPG’s ability to record, process, summarize and report financial information; and

 

  b) any fraud, whether or not material, that involves management or other employees who have a significant role in PPG’s internal control over financial reporting.

 

/s/ William H. Hernandez

William H. Hernandez

Senior Vice President, Finance and Chief Financial Officer

(Principal Financial and Accounting Officer)

February 21, 2008

Exhibit 32.1

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the annual report on Form 10-K of PPG Industries, Inc. for the period ended December 31, 2007 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Charles E. Bunch, Chief Executive Officer of PPG Industries, Inc., certify to the best of my knowledge, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that:

 

(1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of PPG Industries, Inc.

 

/s/ Charles E. Bunch

Charles E. Bunch

Chairman of the Board and Chief Executive Officer

February 21, 2008

A signed original of this written statement required by Section 906 has been provided to PPG Industries, Inc. and will be retained by PPG Industries, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.

Exhibit 32.2

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the annual report on Form 10-K of PPG Industries, Inc. for the period ended December 31, 2007 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, William H. Hernandez, Chief Financial Officer of PPG Industries, Inc., certify to the best of my knowledge, pursuant to 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that:

 

(1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of PPG Industries, Inc.

 

/s/ William H. Hernandez

William H. Hernandez

Senior Vice President, Finance and Chief Financial Officer

(Principal Financial and Accounting Officer)

February 21, 2008

A signed original of this written statement required by Section 906 has been provided to PPG Industries, Inc. and will be retained by PPG Industries, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.