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EXHIBIT 4.4
EXECUTION COPY
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OWENS-BROCKWAY GLASS CONTAINER INC.
ISSUER
AND
THE GUARANTORS SET FORTH IN ANNEX A ATTACHED HERETO
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THIRD SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 13, 2002
8 3/4% SENIOR SECURED NOTES DUE 2012
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U.S. BANK NATIONAL ASSOCIATION
TRUSTEE
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Third Supplemental Indenture, dated as of November 13, 2002 (the
"THIRD SUPPLEMENTAL INDENTURE"), to the Indenture, dated as of January 24, 2002
(the "INDENTURE") among Owens-Brockway Glass Container Inc., a Delaware
corporation (the "COMPANY"), the Guarantors (as defined in the Indenture) and
U.S. Bank National Association, a national banking association, as Trustee (the
"TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company duly authorized, executed and delivered to
the Trustee the Indenture to provide for the issuance from time to time of its
Securities (as defined in the Indenture) to be issued in one or more series;
WHEREAS, the Company and the Guarantors desire and have requested
the Trustee to join it in the execution and delivery of this Third Supplemental
Indenture in order to establish and provide for the issuance by the Company of a
series of Securities designated as its 8 3/4 % Senior Secured Notes due 2012 in
an unlimited aggregate principal amount (the "NOTES"), on the terms set forth
herein;
WHEREAS, the Company now wishes to issue $450,000,000 of Notes;
WHEREAS, Section 9.01 of the Indenture provides that a
supplemental indenture may be entered into by the Company, the Guarantors and
the Trustee without the consent of any holder of any Securities to, INTER ALIA,
establish the terms of any Securities permitted by Sections 2.01 and 2.02 of the
Indenture, PROVIDED certain conditions are met;
WHEREAS, the conditions set forth in the Indenture for the
execution and delivery of this Third Supplemental Indenture have been satisfied;
and
WHEREAS, all things necessary to make this Third Supplemental
Indenture a valid agreement of the Company, the Guarantors and the Trustee, in
accordance with its terms, and a valid amendment of, and supplement to, the
Indenture have been done.
NOW THEREFORE:
There is hereby established a series of Securities to be issued
under the Indenture, which series of Securities shall have the terms set forth
herein and in the Notes, and in consideration of the premises and the purchase
and acceptance of the Notes by the Holders thereof, the Company and the
Guarantors mutually covenant and agree with the Trustee, for the equal and
proportionate benefit of all holders of the Notes, that the Indenture is
supplemented and amended, to the extent and for the purposes expressed herein,
as follows:
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ARTICLE 1.
SCOPE OF THIS THIRD SUPPLEMENTAL INDENTURE
SECTION 1.01. CHANGES, ETC. APPLICABLE ONLY TO THE NOTES.
The changes, modifications and supplements to the Indenture
effected by this Third Supplemental Indenture in Sections 2.01 through 2.10
hereof shall only be applicable with respect to, and govern the terms of, the
Notes, which shall not be limited in aggregate principal amount, and shall not
apply to any other Securities which may be issued under the Indenture unless a
supplemental indenture with respect to such other Securities specifically
incorporates such changes, modifications and supplements.
ARTICLE 2.
AMENDMENTS TO THE INDENTURE
SECTION 2.01. AMENDMENTS TO ARTICLE 1.
Section 1.01 of the Indenture is hereby amended by adding the
following definitions in their proper alphabetical order which, in the event of
a conflict with the definition of terms in the Indenture, shall control:
"ACQUIRED DEBT" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person
is merged with or into or became a Restricted Subsidiary of such specified
Person, whether or not such Indebtedness is incurred in connection with, or
in contemplation of, such other Person merging with or into, or becoming a
Restricted Subsidiary of, such specified Person; and (2) Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person.
"ASSET SALE" means: (1) the sale, lease, conveyance or other
disposition of any assets; PROVIDED that the sale, conveyance or other
disposition of all or substantially all of the assets of OI Group and its
Restricted Subsidiaries taken as a whole shall be governed by Article 5 and
not by Section 4.11; and (2) the issuance of Equity Interests by any of OI
Group's Restricted Subsidiaries or the sale of Equity Interests in any of
OI Group's Restricted Subsidiaries. Notwithstanding the preceding, the
following items shall not be deemed to be Asset Sales: (1) any single
transaction or series of related transactions that involves assets or
Equity Interests having a Fair Market Value of less than $10.0 million; (2)
a transfer of assets between or among OI Group and its Restricted
Subsidiaries; (3) an issuance of Equity Interests by a Restricted
Subsidiary of OI Group to OI Group or to another Restricted Subsidiary of
OI Group; (4) the sale or lease of equipment, inventory, accounts
receivable or other assets in the ordinary course of business; (5) the
sale, lease, conveyance or other disposition of any assets securing this
Indenture or the Credit Agreement in connection with the enforcement of the
security interests contained therein pursuant to the terms of the
Intercreditor Agreement; (6) the sale or other disposition of cash or Cash
Equivalents; (7) a Restricted Payment that is permitted
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by Section 4.12; and (8) the exchange of assets held by OI Group or a
Restricted Subsidiary of OI Group for assets held by any Person or entity
(including Equity Interests of such Person or entity), PROVIDED that (i)
the assets received by OI Group or such Restricted Subsidiary of OI Group
in any such exchange shall immediately constitute, be part of, or be used
in a Permitted Business; and (ii) any such assets received are of a
comparable Fair Market Value to the assets exchanged as determined in good
faith by OI Group.
"CASH EQUIVALENTS" means: (1) United States dollars; (2)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof and (a) backed
by the full faith and credit of the United States or (b) having a rating of
at least AAA from S&P or at least Aaa from Moody's, in each case maturing
not more than one year from the date of acquisition; (3) securities issued
by any state of the United States of America or any political subdivision
of any such state or any public instrumentality thereof maturing within one
year of the date of acquisition thereof and, at the time of acquisition,
having the highest rating obtainable from either S&P or Moody's; (4)
certificates of deposit and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers' acceptances with
maturities not exceeding one year and overnight bank deposits, in each
case, with any lender under the Credit Agreement or any domestic commercial
bank having capital and surplus of not less than $250.0 million; (5)
repurchase and reverse repurchase obligations for underlying securities of
the types described in clauses (2) and (4) above entered into with any
financial institution meeting the qualifications specified in clause (4)
above; (6) commercial paper having the highest rating obtainable from
Moody's or S&P and in each case maturing within one year from the date of
creation thereof; and (7) money market funds at least 95% of the assets of
which constitute Cash Equivalents of the kinds described in clauses (1)
through (6) of this definition or that has a rating of at least AAA from
S&P or at least Aaa from Moody's.
"CHANGE OF CONTROL" means the occurrence of any of the
following: (1) OI Inc. or OI Group becomes aware of (by way of a report or
any other filing pursuant to Section 13(d) of the Exchange Act, proxy,
vote, written notice or otherwise) the acquisition by any Person or group
(within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act, or any successor provision), including any group acting for the
purpose of acquiring, holding or disposing of securities (within the
meaning of Rule 13d-5(b)(1) under the Exchange Act), other than the
Principals and their Related Parties, in a single transaction or in a
related series of transactions, by way of merger, consolidation or other
business combination or purchase of beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act, or any successor provision)
of 35% or more of the total voting power of the Voting Stock of OI Inc.; or
(2) the first day on which a majority of the members of the Board of
Directors of OI Inc. are not Continuing Directors; or (3) the Company
consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into the Company, in any such event
pursuant to a transaction in which any of the outstanding Voting Stock of
the Company or such other Person is converted into or exchanged for cash,
securities or other property, other than any such transaction where (A) the
Voting Stock of the Company outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person constituting a
majority of the
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outstanding shares of such Voting Stock of such surviving or transferee
Person (immediately after giving effect to such issuance) and (B)
immediately after such transaction, no "person" or "group" (as such terms
are used in Section 13(d) and 14(d) of the Exchange Act), other than the
Principals and their Related Parties, becomes, directly or indirectly, the
beneficial owner (as defined above) of 35% or more of the voting power of
all classes of Voting Stock of the Company; or (4) the first day on which
OI Inc. fails to own 100% of the issued and outstanding Equity Interests of
OI Group.
"COLLATERAL DOCUMENTS" means, collectively, the
Intercreditor Agreement, the Pledge Agreement and the Security Agreement,
each as in effect on the Issue Date and as amended, amended and restated,
modified, renewed, replaced or restructured from time to time and the
Mortgages each as in effect on the Issue Date and any additional Mortgages
created from time to time, and as amended, amended and restated, modified,
renewed or replaced from time to time.
"CONSOLIDATED CASH FLOW" means, with respect to any
specified Person for any period, the Consolidated Net Income of such Person
for such period PLUS: (1) an amount equal to any extraordinary loss
realized by such Person or any of its Restricted Subsidiaries in connection
with any sale or other disposition of assets, to the extent such losses
were deducted in computing such Consolidated Net Income; PLUS (2) provision
for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes
was deducted in computing such Consolidated Net Income; PLUS (3)
consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including without limitation amortization of debt issuance
costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of
all payments associated with Capital Lease Obligations, commissions,
discounts and other fees and charges incurred in respect of letter of
credit or bankers' acceptance financings, and net of the effect of all
payments made or received pursuant to Hedging Obligations), to the extent
that any such expense was deducted in computing such Consolidated Net
Income; PLUS (4) depreciation, amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid cash
expenses that were paid in a prior period) and other non-cash charges and
expenses (excluding any amortization of a prepaid cash expense that was
paid in a prior period) of such Person and its Restricted Subsidiaries for
such period to the extent that such depreciation, amortization and other
non-cash charges and expenses were deducted in computing such Consolidated
Net Income; MINUS (5) an amount equal to any extraordinary gain realized by
such Person or any of its Restricted Subsidiaries in connection with any
sale or other disposition of assets, to the extent such gains were included
in computing such Consolidated Net Income; MINUS (6) pension expenses,
retiree medical expenses and any other material non-cash items increasing
Consolidated Net Income for such period that are disclosed in such Person's
financial statements, other than accrual of revenue in the ordinary course
of business, in each case without duplication, on a consolidated basis and
determined in accordance with GAAP; MINUS (7) net cash payments to OI Inc.
by OI Group for (i) claims of persons for exposure to asbestos containing
products and expenses related thereto and (ii) dividends on any outstanding
preferred stock of OI Inc., in each case without duplication, on a
consolidated basis and determined in accordance with GAAP.
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Notwithstanding the preceding, the provision for taxes based
on the income or profits of, and the depreciation, amortization and other
non-cash charges and expenses of, a Restricted Subsidiary of OI Group shall
be added to Consolidated Net Income to compute Consolidated Cash Flow of OI
Group only to the extent that a corresponding amount would be permitted at
the date of determination to be dividended to OI Group by such Restricted
Subsidiary without prior governmental approval (that has not been
obtained), and would not be prohibited, directly or indirectly, by the
operation of the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to that Restricted Subsidiary or its stockholders, other than
agreements, instruments, judgments, decrees, orders, statutes, rules and
government regulations existing on January 24, 2002.
"CONSOLIDATED NET INCOME" means, with respect to any
specified Person for any period, the aggregate of the Net Income of such
Person and its Restricted Subsidiaries for such period, on a consolidated
basis, determined in accordance with GAAP; PROVIDED that: (1) the Net
Income (but not loss) of any Person that is not a Restricted Subsidiary or
that is accounted for by the equity method of accounting shall be included
only to the extent of the amount of dividends or distributions paid in cash
to the specified Person or a Wholly Owned Restricted Subsidiary of the
specified Person; (2) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income is
not at the date of determination permitted without any prior governmental
approval (that has not been obtained) or, is prohibited, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders,
other than agreements, instruments, judgments, decrees, orders, statutes,
rules and government regulations existing on January 24, 2002; (3) the Net
Income of any Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded; (4) the
cumulative effect of a change in accounting principles under GAAP shall be
excluded; (5) all extraordinary, unusual or nonrecurring gains and losses
(including without limitation any one-time costs incurred in connection
with acquisitions) (together with any related provision for taxes) shall be
excluded; (6) any gain or loss (together with any related provision for
taxes) realized upon the sale or other disposition of any property, plant
or equipment of the specified Person or its Restricted Subsidiaries
(including pursuant to any sale and leaseback arrangement) which is not
sold or otherwise disposed of in the ordinary course of business and any
gain or loss (together with any related provision for taxes) realized upon
the sale or other disposition by the specified Person or any Restricted
Subsidiary of the specified Person of any Capital Stock of any Person or
any Asset Sale shall be excluded to the extent that any such gain or loss
exceeds $5.0 million with respect to any one occurrence or $15.0 million in
the aggregate with respect to gains or losses during any twelve-month
period; (7) the Net Income of any Unrestricted Subsidiary shall be
excluded, whether or not distributed to the specified Person or one of its
Subsidiaries; and (8) any deduction for minority owners' interest in
earnings of Subsidiaries shall be excluded.
"CONTINUING DIRECTORS" means, as of any date of
determination, any member of the Board of Directors of OI Inc., who: (1)
was a member of such Board of
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Directors on the Issue Date; or (2) was nominated for election or elected
to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"CREDIT AGREEMENT" means that certain Secured Credit
Agreement, dated as of April 23, 2001, by and among the Borrowers named
therein, OI Group and Owens-Illinois General, Inc., as Borrower's Agent,
Deutsche Bank Securities Inc., formerly Deutsche Banc Alex. Brown, and Banc
of America Securities, LLC, as Joint Lead Arrangers and Joint Book
Managers, Deutsche Bank AG, London Branch, as UK Administrative Agent,
Deutsche Bank Trust Company Americas, formerly Bankers Trust Company, as
Administrative Agent, and the other Agents and the other Lenders named
therein, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each
case as amended, amended and restated, modified, renewed, refunded,
replaced, substituted or refinanced or otherwise restructured (including
but not limited to, the inclusion of additional borrowers thereunder) from
time to time.
"CREDIT AGREEMENT DOMESTIC BORROWERS" means the Company, OI
General FTS Inc. and OI Plastic Products FTS Inc., to the extent at the
time of determination such entity is a borrower under the Credit Agreement
and any other Domestic Subsidiary of OI Group that is, at the relevant
time, a borrower under the Credit Agreement.
"CREDIT FACILITIES" means (1) one or more debt facilities
(including, without limitation, the Credit Agreement) or commercial paper
facilities, in each case with banks or other lenders providing for
revolving credit loans, term loans, bankers acceptances, receivables
financing (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated,
modified, renewed, refunded, replaced, refinanced or otherwise restructured
in whole or in part from time to time (collectively, "BANK FACILITIES");
and (2) notes, debentures or other financing instruments or any combination
thereof incurred after the Issue Date ("Non-Bank Refinancing"), including
any refinancing thereof, to the extent such Non-Bank Refinancing replaces,
refinances or otherwise restructures Indebtedness under Credit Facilities.
"DESIGNATED NONCASH CONSIDERATION" means the noncash
consideration received by OI Group or one of its Restricted Subsidiaries in
connection with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate setting forth the basis
of such valuation, executed by an officer of OI Group or the Company, less
the amount of cash or Cash Equivalents received in connection with a
subsequent sale of such Designated Noncash Consideration.
"DISQUALIFIED STOCK" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the Holder
thereof), or upon the happening of any event, matures or is mandatorily
redeemable (other than as a result of a change of control or asset sale),
pursuant to a sinking fund obligation or otherwise, or redeemable at the
option of the Holder thereof (other than as a result of a change of control
or asset sale), in whole or in
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part, on or prior to the date that is 91 days after the date on which the
Notes mature or are no longer outstanding. Notwithstanding the preceding
sentence, any Capital Stock that would constitute Disqualified Stock solely
because the Holders thereof have the right to require OI Group or the
Company to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale shall not constitute Disqualified Stock if the
terms of such Capital Stock provide that OI Group or the Company may not
repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.12.
"EQUITY OFFERING" means any public or private sale of common
stock (other than Disqualified Stock) of OI Inc. (other than public
offerings with respect to common stock registered on Form S-8 or otherwise
relating to equity securities issuable under any employee benefit plan of
OI Inc.).
"EXISTING INDEBTEDNESS" means the aggregate principal or
commitment amount of Indebtedness of OI Group and its Subsidiaries (other
than Indebtedness under the Credit Agreement) in existence on the Issue
Date, until such amounts are repaid or terminated.
"EXISTING IRBs" means the Holmes County Ohio 5.85%
Industrial Revenue Bonds due 2007, the Kansas City, Missouri Industrial
Development Revenue Bonds due 2008 and the City of Mentor, Ohio Industrial
Development Bonds due 2004, and any extensions, renewals or refinancings
thereof to the extent that such extensions, renewals and refinancings
thereof do not result in an increase in the aggregate principal amount of
such Existing IRBs.
"EXISTING SENIOR NOTES" means the Company's 8 7/8% Senior
Secured Notes due 2009 issued under the Indenture, as supplemented by the
first supplemental indenture dated as of January 24, 2002 and the second
supplemental indenture dated as of August 5, 2002, among the Company, the
Guarantors and U.S. Bank National Association, as Trustee.
"FIXED CHARGE COVERAGE RATIO" means with respect to any
specified Person and its Restricted Subsidiaries for any period, the ratio
of the Consolidated Cash Flow of such Person and its Restricted
Subsidiaries for such period to the Fixed Charges of such Person and its
Restricted Subsidiaries for such period. In the event that the specified
Person or any of its Restricted Subsidiaries incurs, assumes, guarantees,
repays, repurchases or redeems any Indebtedness or issues, repurchases or
redeems preferred stock subsequent to the commencement of the period for
which the Fixed Charge Coverage Ratio is being calculated and on or prior
to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, Guarantee, repayment, repurchase or redemption of
Indebtedness, or such issuance, repurchase or redemption of preferred
stock, and the use of the proceeds therefrom as if the same had occurred at
the beginning of the applicable four-quarter reference period. In addition,
for purposes of calculating the Fixed Charge Coverage Ratio: (1)
acquisitions and dispositions that have been made by the specified
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Person or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during the
four-quarter reference period or subsequent to such reference period and on
or prior to the Calculation Date shall be given pro forma effect as if they
had occurred on the first day of the four-quarter reference period and
Consolidated Cash Flow for such reference period shall be calculated on a
pro forma basis in accordance with Regulation S-X under the Securities Act;
(2) the Consolidated Cash Flow attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed
of prior to the Calculation Date, shall be excluded; (3) the Fixed Charges
attributable to discontinued operations, as determined in accordance with
GAAP, and operations or businesses disposed of prior to the Calculation
Date, shall be excluded, but only to the extent that the obligations giving
rise to such Fixed Charges will not be obligations of the specified Person
or any of its Subsidiaries following the Calculation Date; (4) the
consolidated interest expense attributable to interest on any Indebtedness
computed on a pro forma basis and (a) bearing a floating interest rate
shall be computed as if the rate in effect on the date of computation had
been the applicable rate for the entire period and (b) that was not
outstanding during the period for which the computation is being made but
which bears, at the option of such Person, a fixed or floating rate of
interest, shall be computed by applying at the option of such Person either
the fixed or floating rate; and (5) the consolidated interest expense
attributable to interest on any working capital borrowings under a
revolving credit facility computed on a pro forma basis shall be computed
based upon the average daily balance of such working capital borrowings
during the applicable period.
"FIXED CHARGES" means, with respect to any specified Person
and its Restricted Subsidiaries for any period, the sum, without
duplication, of: (1) the consolidated interest expense of such Person and
its Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to
attributable debt, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance financings,
and net of the effect of all payments made or received pursuant to Hedging
Obligations; PLUS (2) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period; PLUS (3)
interest actually paid by the Company or any such Restricted Subsidiary
under any Guarantee of Indebtedness or other obligation of any other
Person; PLUS (4) the product of (a) all dividends, whether paid or accrued
and whether or not in cash, on any series of Disqualified Stock or
preferred stock of such Person or any of its Restricted Subsidiaries, other
than dividends on Equity Interests payable solely in Equity Interests of OI
Group (other than Disqualified Stock) or to OI Group or a Restricted
Subsidiary of OI Group, times (b) a fraction, the numerator of which is one
and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with GAAP.
"GLOBAL NOTE" means a Note issued to evidence all or a part
of the Notes that is executed by the Company and authenticated and
delivered by the Trustee to a Depositary or pursuant to such Depositary's
instructions, all in accordance with this
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Indenture and pursuant to Sections 2.01, 2.06(b)(iv), 2.06(d)(ii) or
2.06(f), which shall be registered as to principal and interest in the name
of such Depositary or its nominee.
"GUARANTORS" means: (1) OI Group; (2) each direct or
indirect Domestic Subsidiary of OI Group (other than the Company) that
guarantees the Credit Agreement as of the Issue Date; and (3) each future
direct or indirect Domestic Subsidiary of OI Group that guarantees the
Credit Agreement and executes a Guarantee of the Notes in accordance with
the provisions of this Indenture and the Third Supplemental Indenture; and
their respective successors and assigns.
"INTERCREDITOR AGREEMENT" means the intercreditor agreement,
dated as of April 23, 2001, by and among Deutsche Bank Trust Company
Americas, formerly Bankers Trust Company, as administrative agent for the
lenders party to the Credit Agreement, Deutsche Bank Trust Company
Americas, formerly Bankers Trust Company, as Collateral Agent and any other
parties thereto, as amended, amended and restated or otherwise modified
from time to time.
"INVESTMENT GRADE PERMITTED LIENS" means: (1) Liens arising
under the Collateral Documents other than Liens securing the OI Inc. Senior
Notes on the Issue Date; (2) Liens incurred after the Issue Date on the
assets (including shares of Capital Stock and Indebtedness) of OI Group or
any Domestic Subsidiary of OI Group; PROVIDED, HOWEVER, that the aggregate
amount of Indebtedness and other obligations at any time outstanding
secured by such Liens pursuant to clause (1) above and this clause (2)
shall not exceed the sum of $5.5 billion plus 50% of Tangible Assets
acquired by the Company or any Domestic Subsidiary after January 24, 2002;
(3) Liens in favor of OI Group or any Domestic Subsidiary of OI Group; (4)
Liens on property or shares of capital stock of a Person existing at the
time such Person is merged with or into or consolidated with OI Group or
any Domestic Subsidiary of OI Group; PROVIDED that such Liens were not
incurred in connection with or in contemplation of such merger or
consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with OI Group or the Domestic
Subsidiary; (5) Liens on property or shares of capital stock existing at
the time of acquisition thereof by OI Group or any Domestic Subsidiary of
OI Group, PROVIDED that such Liens were not incurred in connection with or
in contemplation of such acquisition and do not extend to any property
other than the property so acquired by OI Group or the Domestic Subsidiary;
(6) Liens (including extensions and renewals thereof) upon real or personal
(whether tangible or intangible) property acquired after the Issue Date,
PROVIDED that: (a) such Lien is created solely for the purpose of securing
Indebtedness incurred to finance all or any part of the purchase price or
cost of construction or improvement of property, plant or equipment subject
thereto and such Lien is created prior to, at the time of or within 12
months after the later of the acquisition, the completion of construction
or the commencement of full operation of such property, plant or equipment
or to refinance any such Indebtedness previously so secured; (b) the
principal amount of the Indebtedness secured by such Lien does not exceed
100% of such cost; and (c) any such Lien shall not extend to or cover any
property or assets other than such item of property or assets and any
improvements on such item; (7) Liens to secure any Capital Lease Obligation
or operating lease; (8) Liens encumbering customary initial deposits and
margin deposits; (9) Liens securing Indebtedness under Hedging Obligations;
(10) Liens
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arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by OI Group or any of its
Domestic Subsidiaries in the ordinary course of business of OI Group and
its Domestic Subsidiaries; (11) Liens on or sales of receivables and
customary cash reserves established in connection therewith; (12) Liens
securing OI Group's or any of its Domestic Subsidiary's obligations in
respect of bankers' acceptances issued or created to facilitate the
purchase, shipment or storage of inventory or other goods; and (13) Liens
for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded, PROVIDED that any
reserve or other appropriate provision as shall be required in conformity
with GAAP shall have been made therefor.
"INVESTMENT GRADE RATINGS" means a debt rating of the Notes
of BBB- or higher by S&P and Baa3 or higher by Moody's or the equivalent of
such ratings by S&P or Moody's or in the event S&P or Moody's shall cease
rating the Notes and the Company shall select any other Rating Agency, the
equivalent of such ratings by such other Rating Agency.
"INVESTMENTS" means, with respect to any Person, all direct
or indirect investments by such Person in other Persons in the forms of
loans (including Guarantees thereof), advances or capital contributions
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If OI
Group or any Restricted Subsidiary of OI Group sells or otherwise disposes
of any Equity Interests of any direct or indirect Restricted Subsidiary of
OI Group such that, after giving effect to any such sale or disposition,
such Person is no longer a Restricted Subsidiary of OI Group, OI Group
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the Fair Market Value of the Equity Interests of such
Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of Section 4.12. The acquisition by OI
Group or any Restricted Subsidiary of OI Group of a Person that holds an
Investment in a third Person shall be deemed to be an Investment by OI
Group or such Restricted Subsidiary in such third Person in an amount equal
to the Fair Market Value of the Investment held by the acquired Person in
such third Person in an amount determined as provided in the final
paragraph of Section 4.12.
"ISSUE DATE" means the date on which the Notes are
originally issued.
"KKR" means Kohlberg Kravis Roberts & Co., L.P., a Delaware
limited partnership.
"LIQUIDATED DAMAGES" means the payment of liquidated damages
as set forth in the Registration Rights Agreement.
"MOODY'S" means Moody's Investors Service, Inc. or any
successor rating agency.
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"NET INCOME" means, with respect to any specified Person,
the net income (loss) of such Person, determined in accordance with GAAP
and before any reduction in respect of preferred stock dividends.
"NET PROCEEDS" means the aggregate cash proceeds received by
OI Group or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net
of any bona fide direct costs relating to such Asset Sale, including,
without limitation, reasonable legal, accounting and investment banking
fees, reasonable sales commissions, any reasonable relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof, in
each case, after taking into account any available tax credits or
deductions and any tax sharing arrangements, and amounts required to be
applied to the repayment of Indebtedness that is paid with the proceeds of
such Asset Sale and any reasonable reserve for adjustment in respect of the
sale price of such asset or assets established in accordance with GAAP and
for the after-tax cost of any indemnification payments (fixed and
contingent) attributable to sellers' indemnities to the purchaser.
"NOTES" shall have the meaning specified in the second
recital of the Third Supplemental Indenture.
"OFFSHORE COLLATERAL DOCUMENTS" means the Offshore Security
Agreements and mortgages (as defined in the Credit Agreement) securing real
property outside of the United States of America.
"OFFSHORE SECURITY AGREEMENTS" has the meaning assigned to
such term in the Credit Agreement.
"OI INC. ORDINARY COURSE PAYMENTS" means dividends or other
distributions by, or payments of Intercompany Indebtedness from, OI Group
to OI Inc. necessary to permit OI Inc. to pay any of the following items
which are then due and payable: (i) Permitted OI Inc. Debt Obligations;
(ii) claims of persons for exposure to asbestos-containing products and
expenses related thereto; (iii) consolidated tax liabilities of OI Inc. and
its Subsidiaries; and (iv) general administrative costs and other on-going
expenses of OI Inc. in the ordinary course of business consistent with past
practices.
"OI INC. SENIOR NOTES" means the Indebtedness of OI Inc.
outstanding as of any date pursuant to its $300.0 million aggregate
principal amount of 7.85% Senior Notes due 2004, $350.0 million aggregate
principal amount of 7.15% Senior Notes due 2005, $300.0 million aggregate
principal amount of 8.10% Senior Notes due 2007, $250.0 million aggregate
principal amount of 7.35% Senior Notes due 2008, $250.0 million aggregate
principal amount of 7.50% Senior Debentures due 2010, and $250.0 million
aggregate principal amount of 7.80% Senior Debentures due 2018.
"PERMITTED BUSINESS" means any business conducted or
proposed to be conducted (as described in the offering memorandum) by OI
Group and its Restricted
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Subsidiaries on the Issue Date and other businesses reasonably related or
ancillary thereto.
"PERMITTED INVESTMENTS" means: (1) any Investment in the
Company, OI Group or in a Restricted Subsidiary of OI Group; (2) any
Investment in cash or Cash Equivalents and, with respect to Foreign
Subsidiaries, short term Investments similar to Cash Equivalents
customarily used in the countries in which such Foreign Subsidiaries are
located; (3) any Investment by OI Group or any Restricted Subsidiary of OI
Group in a Person, if as a result of such Investment: (a) such Person
becomes a Restricted Subsidiary of OI Group; or (b) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, OI Group or a
Restricted Subsidiary of OI Group; (4) any Investment made as a result of
the receipt of non-cash consideration from an Asset Sale that was made
pursuant to and in compliance with Section 4.11; (5) any acquisition of
assets solely in exchange for the issuance of Equity Interests (other than
Disqualified Stock) of OI Inc., the Company or OI Group; (6) Hedging
Obligations; (7) advances to employees, officers and directors not in
excess of $2.0 million outstanding at any one time, in the aggregate; (8)
obligations of employees, officers and directors, not in excess of $2.0
million outstanding at any one time, in the aggregate, in connection with
such employees', officers' or directors' acquisition of shares of OI Inc.
common stock, so long as no cash is actually advanced to such employees,
officers or directors in connection with the acquisition of any such
shares; (9) any Investment existing on the Issue Date; and (10) other
Investments in any Person having an aggregate Fair Market Value (measured
on the date each such Investment was made and without giving effect to
subsequent changes in value), when taken together with all other such
Investments outstanding at any such time, not to exceed $150.0 million.
"PERMITTED LIENS" means: (1) Liens arising under the
Collateral Documents other than Liens securing the OI Inc. Senior Notes on
the Issue Date; (2) Liens incurred after the Issue Date on the assets
(including shares of Capital Stock and Indebtedness) of OI Group or any
Restricted Subsidiary of OI Group; PROVIDED, HOWEVER, that the aggregate
amount of Indebtedness and other obligations at any time outstanding
secured by such Liens pursuant to clause (1) above and this clause (2)
shall not exceed the sum of $5.5 billion plus 50% of Tangible Assets
acquired by the Company or any Guarantor or that are owned by any
Restricted Subsidiary that becomes a Guarantor after January 24, 2002; (3)
Liens in favor of OI Group or any Restricted Subsidiary of OI Group; (4)
Liens on property or shares of capital stock of a Person existing at the
time such Person is merged with or into or consolidated with OI Group or
any Restricted Subsidiary of OI Group; PROVIDED that such Liens were not
incurred in connection with or in contemplation of such merger or
consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with OI Group or the Restricted
Subsidiary; (5) Liens on property or shares of capital stock existing at
the time of acquisition thereof by OI Group or any Restricted Subsidiary of
OI Group, PROVIDED that such Liens were not incurred in connection with or
in contemplation of such acquisition and do not extend to any property
other than the property so acquired by OI Group or the Restricted
Subsidiary; (6) Liens on property or shares of capital stock of any Foreign
Subsidiary, including shares of capital stock of any Foreign Subsidiary
owned by a Domestic Subsidiary, to secure Indebtedness of a Foreign
Subsidiary permitted to be incurred under this Indenture; (7)
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Liens (including extensions and renewals thereof) upon real or personal
(whether tangible or intangible) property acquired after the Issue Date,
PROVIDED that: (a) such Lien is created solely for the purpose of securing
Indebtedness incurred to finance all or any part of the purchase price or
cost of construction or improvement of property, plant or equipment subject
thereto and such Lien is created prior to, at the time of or within 12
months after the later of the acquisition, the completion of construction
or the commencement of full operation of such property, plant or equipment
or to refinance any such Indebtedness previously so secured; (b) the
principal amount of the Indebtedness secured by such Lien does not exceed
100% of such cost; and (c) any such Lien shall not extend to or cover any
property or assets other than such item of property or assets and any
improvements on such item; (8) Liens to secure any Capital Lease Obligation
or operating lease; (9) Liens encumbering customary initial deposits and
margin deposits; (10) Liens securing Indebtedness under Hedging
Obligations; (11) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
OI Group or any of its Restricted Subsidiaries in the ordinary course of
business of OI Group and its Restricted Subsidiaries; (12) Liens on or
sales of receivables and customary cash reserves established in connection
therewith; (13) Liens securing OI Group's or any of its Restricted
Subsidiaries' obligations in respect of bankers' acceptances issued or
created to facilitate the purchase, shipment or storage of inventory or
other goods; and (14) Liens for taxes, assessments or governmental charges
or claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded, PROVIDED that any reserve or other appropriate provision as
shall be required in conformity with GAAP shall have been made therefor.
"PERMITTED OI INC. DEBT OBLIGATIONS" means Obligations with
respect to the OI Inc. Senior Notes and any refinancings of the $300.0
million aggregate principal amount of 7.85% Senior Notes due 2004, the
$350.0 million aggregate principal amount of 7.15% Senior Notes due 2005 of
OI Inc., the $300.0 million aggregate principal amount of 8.10% Senior
Notes due 2007, the $250.0 million aggregate principal amount of 7.35%
Senior Notes due 2008 and the $250.0 million aggregate principal amount of
7.50% Senior Debentures due 2010, and the Existing IRBs and up to an
additional $50.0 million of IRB financing.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness
of OI Group or any of its Restricted Subsidiaries issued in exchange for,
or the net proceeds of which are used to extend, refinance, renew, replace,
defease or refund such other Indebtedness of OI Group or any of its
Restricted Subsidiaries (other than Intercompany Indebtedness); PROVIDED
that: (1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed for more than 60 days
the principal or commitment amount (or accreted value, if applicable) of
the Indebtedness so extended, refinanced, renewed, replaced,
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defeased or refunded (plus all accrued interest thereon and the amount of
any premiums necessary to accomplish such refinancing and such expenses
incurred in connection therewith); (2) such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date
of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (3) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders of Notes as those contained in
the documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"PLEDGE AGREEMENT" means the Pledge Agreement, dated as of
April 23, 2001, by and among OI Group, OI Packaging, and Deutsche Bank
Trust Company Americas, formerly Bankers Trust Company, as Collateral
Agent, as amended, amended and restated or otherwise modified from time to
time.
"PRINCIPALS" means KKR and its Affiliates.
"RATING AGENCY" means any of: (1) S&P; (2) Moody's; or (3)
if S&P or Moody's or both shall not make a rating of the Notes publicly
available, a security rating agency or agencies, as the case may be,
nationally recognized in the United States, selected by the Company, which
shall be substituted for S&P or Moody's or both, as the case may be, and,
in each case, any successors thereto.
"REGISTRATION RIGHTS AGREEMENT" means the Registration
Rights Agreement, dated as of November 13, 2002, between the Company, the
Guarantors named therein and the Initial Purchasers (as defined therein).
"REGULATION S TEMPORARY GLOBAL SECURITY" means a temporary
Global Security in the form of Exhibit D-2 bearing the Global Security
Legend, the Private Placement Legend and the Regulation S Temporary Global
Security Legend and deposited with or on behalf of and registered in the
name of the Depositary or its nominee, issued in a denomination equal to
the outstanding principal amount of the Notes initially sold in reliance on
Rule 903 of Regulation S.
"RELATED PARTY" means: (1) any controlling stockholder,
partner, member, 80% (or more) owned Subsidiary, or immediate family member
(in the case of an individual) of any of the Principals; or (2) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of any one or more Principals and/or such other
Persons referred to in the immediately preceding clause (1).
"RESTRICTED INVESTMENT" means an Investment other than a
Permitted Investment.
"S&P" means Standard & Poor's Ratings Services, a division
of McGraw Hill Inc., a New York corporation, or any successor rating
agency.
"SECURITY AGREEMENT" means the Security Agreement, dated as
of April 23, 2001, entered into by and among OI Group, each of the direct
and indirect subsidiaries of OI Group signatory thereto, each additional
grantor that may become a party thereto, and Deutsche Bank Trust Company
Americas, formerly Bankers Trust
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Company, as Collateral Agent, as amended, amended and restated, or
otherwise modified from time to time.
"SHELF REGISTRATION STATEMENT" means the shelf registration
statement as defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Restricted Subsidiary of
OI Group that would be a "significant subsidiary" as defined in Article I,
Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act, as
such Regulation is in effect as of January 24, 2002.
"TANGIBLE ASSETS" means the total consolidated assets, LESS
goodwill and intangibles, of OI Group and its Restricted Subsidiaries, as
shown on the most recent balance sheet of OI Group.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of OI Group
that is designated by the Board of Directors as an Unrestricted Subsidiary
pursuant to a Board Resolution, but only to the extent that such
Subsidiary: (1) has no Indebtedness other than Non-Recourse Debt; (2) is
not party to any agreement, contract, arrangement or understanding with OI
Group or any Restricted Subsidiary of OI Group unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to
OI Group or such Restricted Subsidiary than those that might be obtained at
the time from Persons who are not Affiliates of OI Group; (3) is a Person
with respect to which neither OI Group nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for
additional Equity Interests or (b) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels
of operating results; (4) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of OI Group or any
of its Restricted Subsidiaries; and (5) has at least one director on its
Board of Directors that is not a director or executive officer of OI Group
or any of its Restricted Subsidiaries and has at least one executive
officer that is not a director or executive officer of OI Group or any of
its Restricted Subsidiaries. Any designation of a Restricted Subsidiary of
OI Group as an Unrestricted Subsidiary shall be evidenced to the Trustee by
filing with the Trustee a certified copy of the Board Resolution giving
effect to such designation and an Officers' Certificate certifying that
such designation complied with the preceding conditions and was permitted
by Section 4.12. If, at any time, any Unrestricted Subsidiary would fail to
meet the preceding requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture and any Indebtedness of such Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary of OI Group as of such date and, if
such Indebtedness is not permitted to be incurred as of such date under
Section 4.13, OI Group shall be in default of such covenant.
"VOTING STOCK" of any Person as of any date means the
Capital Stock of such Person that is at the time entitled to vote in the
election of the Board of Directors of such Person.
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"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to
any Indebtedness at any date, the number of years obtained by dividing: (1)
the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect
thereof, by (b) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment; by (2)
the then outstanding principal amount of such Indebtedness.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any specified Person
means a Restricted Subsidiary of such Person all of the outstanding Capital
Stock or other ownership interests of which (other than directors'
qualifying shares) shall at the time be owned by such Person and/or by one
or more Wholly Owned Restricted Subsidiaries of such Person.
SECTION 2.02. AMENDMENTS TO ARTICLE 2.
(a) Section 2.06 of the Indenture is hereby amended by adding,
immediately following the final paragraph of such Section 2.06:
Notes issued in global form shall be substantially in the form
of Exhibits D-1 or D-2 attached hereto (including the Global Security
Legend thereon and the "Schedule of Exchanges of Interests in the Global
Security" attached thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit D-1 attached hereto (but without the
Global Security Legend thereon and without the "Schedule of Exchanges of
Interests in the Global Note" attached thereto).
(b) Section 2.08 of the Indenture is hereby amended by deleting
such Section 2.08 in its entirety and replacing it with the following Section
2.08:
SECTION 2.08 OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all
the Securities of that series authenticated by the Trustee, except for
those cancelled by it, those delivered to it for cancellation, and those
described in this Section 2.08 as not outstanding. Except as set forth in
the final paragraph of this Section 2.08, a Security does not cease to be
outstanding because the Company or an Affiliate of the Company holds the
Security.
If a Security is replaced pursuant to Section 2.07, it
ceases to be outstanding unless the Trustee receives proof satisfactory to
it that the replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they
cease to be outstanding and interest on them ceases to accrue.
For each series of Original Issue Discount Securities, the
principal amount of such Securities that shall be deemed to be outstanding
and used to determine whether the necessary Holders have given any request,
demand, authorization, direction, notice,
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consent or waiver shall be the principal amount of such Securities that
could be declared to be due and payable upon acceleration upon an Event of
Default as of the date of such determination. When requested by the
Trustee, the Company shall advise the Trustee of such amount, showing its
computations in reasonable detail.
In determining whether the Holders of the required principal
amount of Securities of any series have concurred in any direction, waiver
or consent, Securities owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, shall be considered as though not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only
Securities as to which a Trust Officer of the Trustee has actual knowledge
are so owned shall be so disregarded. Securities owned by the Company, or
by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company shall not be deemed to
be outstanding for purposes of Section 3.07.
SECTION 2.03. AMENDMENTS TO ARTICLE 3.
Article 3 of the Indenture is hereby amended by adding,
immediately following Section 3.06 thereof, the following new Sections 3.07 and
3.08:
SECTION 3.07. OPTIONAL REDEMPTION.
Except as described in this Section 3.07, the Notes shall
not be redeemable at the Company's option prior to November 15, 2007.
(a) On or after November 15, 2007, the Company may redeem
all or a part of the Notes upon not less than 30 nor more than 60 days
notice, at the redemption prices (expressed as percentages of Principal
amount) set forth below plus accrued and unpaid interest and Liquidated
Damages, if any, thereon, to the applicable redemption date, if redeemed
during the twelve-month period beginning on November 15 of the years
indicated below:
<Table>
<Caption>
YEAR PERCENTAGE
---- ----------
2007.................................... 104.375%
2008.................................... 102.917%
2009.................................... 101.458%
2010 and thereafter..................... 100.000%
</Table>
(b) At any time prior to November 15, 2005, the
Company may redeem on any one or more occasions up to 35% of the aggregate
principal amount of Notes (calculated after giving effect to any issuance
of Additional Securities) issued under this Indenture at a redemption price
of 108.750% of the principal amount thereof, plus accrued and unpaid
interest and Liquidated Damages, if any, to the redemption date, with the
net cash proceeds of one or more Equity Offerings by OI Inc. to the extent
the net cash proceeds thereof are contributed to the Company or used to
purchase from the Company Capital Stock (other than Disqualified Stock) of
the Company; PROVIDED that:
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(1) at least 65% of the aggregate principal amount of Notes
(calculated after giving effect to any issuance of
Additional Securities) issued under this Indenture remains
outstanding immediately after the occurrence of such
redemption (excluding Notes held by OI Inc. and its
Subsidiaries); and
(2) the redemption must occur within 60 days of the date of the
closing of such Equity Offering.
(c) At any time prior to November 15, 2007, the Notes may
be redeemed, in whole but not in part, at the option of the Company upon
the occurrence of a Change of Control, upon not less than 30 nor more than
60 days prior notice (but in no event more than 90 days after the
occurrence of such Change of Control) mailed by first-class mail to each
Holder's registered address, at a redemption price equal to 100% of the
principal amount of Notes redeemed plus the Applicable Premium as of, and
accrued and unpaid interest and Liquidated Damages, if any, to, the date of
redemption (subject to the right of Holders of record on the relevant
record date to receive interest due on the Notes on the relevant Interest
Payment Date).
"APPLICABLE PREMIUM" means, with respect to any Note on any
redemption date, the greater of:
(1) 1.0% of the principal amount of such Note; or
(2) the excess of:
(a) the present value at such redemption date of (1)
the redemption price of such Note at November 15,
2007 (such redemption price being set forth in the
table above) plus (2) all required interest
payments due on such Note through November 15,
2007, (including accrued but unpaid interest)
computed using a discount rate equal to the
Treasury Rate on such redemption date plus 50
basis points; over
(b) the principal amount of such Note.
"TREASURY RATE" means, as of any redemption date, the yield
to maturity as of such redemption date of United States Treasury securities
with a constant maturity (as compiled and published in the most recent
Federal Reserve Statistical Release H.15(519) that has become publicly
available at least two Business Days prior to the redemption date (or, if
such statistical release is no longer published, any publicly available
source of similar market data)) most nearly equal to the period from the
redemption date to November 15, 2007; PROVIDED, HOWEVER, that if the period
from the redemption date to November 15, 2007 is less than one year, the
weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year shall be used.
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SECTION 3.08 MANDATORY REDEMPTION.
The Company shall not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.
SECTION 2.04. AMENDMENTS TO ARTICLE 4.
Section 4 of the Indenture is hereby amended by adding,
immediately following Section 4.08 thereof, the following new Sections 4.09
through 4.21 for the benefit of the Notes:
SECTION 4.09. FALL-AWAY EVENT.
If at any time the Notes have achieved the Investment Grade
Ratings, OI Group and the Restricted Subsidiaries of OI Group shall
thereafter no longer be subject to the covenants under Sections 4.10, 4.11,
4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18 and 10.08 (collectively, the
"EXTINGUISHED COVENANTS"), PROVIDED that if upon the receipt by the Notes
of the Investment Grade Ratings, a Default or Event of Default has occurred
and is continuing under this Indenture, the Company shall continue to be
subject to the Extinguished Covenants until such time as no Default or
Event of Default is continuing.
Notwithstanding the foregoing, at the time OI Group and the
Restricted Subsidiaries are no longer subject to the Extinguished
Covenants, the following covenant shall apply to OI Group and its Domestic
Subsidiaries:
Neither OI Group nor any of its Domestic Subsidiaries shall
create, incur, or permit to exist, any Lien on any of their respective
assets, whether now owned or hereafter acquired, in order to secure any
Indebtedness of either of OI Group or any of its Domestic Subsidiaries,
without effectively providing that the Notes shall be equally and ratably
secured until such time as such Indebtedness is no longer secured by such
Lien, except: (i) Liens on cash and Cash Equivalents securing obligations
in respect of letters of credit in accordance with the terms of the Credit
Agreement; (ii) Liens existing on the Issue Date; (iii) Liens granted after
the Issue Date on any assets of OI Group or any of its Domestic
Subsidiaries securing Indebtedness of OI Group or any of its Domestic
Subsidiaries created in favor of the Holders of the Notes; (iv) Liens
securing Indebtedness which is incurred to extend, renew or refinance
Indebtedness which is secured by Liens permitted to be incurred under this
Indenture; PROVIDED that such Liens do not extend to or cover any assets of
OI Group or any of its Domestic Subsidiaries other than the assets securing
the Indebtedness being extended, renewed or refinanced and that the
principal or commitment amount of such Indebtedness does not exceed the
principal or commitment amount of the Indebtedness being extended, renewed
or refinanced at the time of such extension, renewal or refinancing, or at
the time the Lien was issued, created or assumed or otherwise permitted;
(v) Investment Grade Permitted Liens; or (vi) Liens created in substitution
of or as replacement for any Liens permitted by the preceding clauses (i)
through (v) or this clause (vi), PROVIDED that, based on a good faith
determination of an officer of the Company, the assets encumbered under any
such substitute or replacement Lien is substantially similar in value to
the assets encumbered by the otherwise permitted Lien which is being
replaced. Upon the assignment of the
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Company's obligations under this Indenture to OI Inc. as described in
Section 5.03 of this Indenture, the limitations described in this paragraph
shall apply to Liens securing Indebtedness of OI Inc. and its Domestic
Subsidiaries in lieu of Liens securing Indebtedness of OI Group and its
Domestic Subsidiaries and references to OI Group or the Company in the
definition of "Investment Grade Permitted Liens" shall become references to
OI Inc., unless the context otherwise requires.
For purposes of this Indenture, the Notes and the Guarantees
of the Notes, so long as the Credit Agreement is in effect, the Notes shall
be considered equally and ratably secured if they are secured pursuant to
terms and provisions, including any exclusions or exceptions described
therein, no less favorable to the holders of Notes than those set forth in,
or contemplated by, the Credit Agreement.
SECTION 4.10 OFFER TO REPURCHASE UPON A CHANGE OF CONTROL.
If a Change of Control occurs, unless the Company has
exercised its right to redeem the Notes under Section 3.07, each Holder of
Notes shall have the right to require the Company to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of that Holder's
Notes pursuant to a change of control offer on the terms set forth in this
Indenture (a "CHANGE OF CONTROL OFFER"). In the Change of Control Offer,
the Company shall offer a payment in cash equal to 101% of the aggregate
principal amount of Notes repurchased plus accrued and unpaid interest and
Liquidated Damages, if any, thereon, to the date of purchase (the "CHANGE
OF CONTROL PAYMENT"). Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder at its registered address. The
notice shall contain all instructions and materials necessary to enable
such Holder to tender Notes pursuant to the Change of Control Offer. Any
Change of Control Offer shall be made to all Holders. The notice, which
shall govern the terms of the Change of Control Offer, shall state: (1)
that the Change of Control Offer is being made pursuant to this Section
4.10; (2) the Change of Control Payment and the date on which Notes
tendered and accepted for payment shall be purchased, which date shall be
at least 30 days and no later than 60 days from the date such notice is
mailed (the "CHANGE OF CONTROL PAYMENT DATE"); (3) that any Note not
tendered or accepted for payment shall continue to accrete or accrue
interest; (4) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Change of Control Offer shall
cease to accrete or accrue interest after the Change of Control Payment
Date; (5) that Holders electing to have a Note purchased pursuant to any
Change of Control Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, or transfer by book-entry transfer, to the Company, a
depositary, if appointed by the Company, or the Paying Agent at the address
specified in the notice at least three days before the Change of Control
Payment Date; (6) that Holders shall be entitled to withdraw their election
if the Company, the depositary or the Paying Agent, as the case may be,
receives, not later than the Change of Control Payment Date, a notice
setting forth the name of the Holder, the principal amount of the Note the
Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased; (7) that Notes and
portions of Notes purchased shall be in amounts of $1,000 or whole
multiples of $1,000, except that if all of the Notes of a Holder are to be
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purchased, the entire outstanding amount of Notes held by such Holder, even
if not a multiple of $1,000, shall be purchased; and (8) that Holders whose
Notes were purchased only in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer), which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof. The
Company shall comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent
such laws and regulations are applicable in connection with the repurchase
of the Notes as a result of a Change of Control. To the extent that the
provisions of any securities laws or regulations conflict with the Change
of Control provisions of this Indenture, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under the Change of Control provisions of this
Indenture by virtue of such conflict.
On the Change of Control Payment Date, the Company shall, to
the extent lawful:
(1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change
of Control Payment in respect of all Notes or portions
thereof so tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof
being purchased by the Company.
The Paying Agent shall promptly mail to each Holder of Notes
so tendered the Change of Control Payment for such Notes, and the Trustee
shall promptly authenticate and mail (or cause to be transferred by book
entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; PROVIDED that each
such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof.
The Company shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
The provisions set forth above that require the Company to
make a Change of Control Offer following a Change of Control shall be
applicable regardless of whether or not any other provisions of this
Indenture are applicable.
Notwithstanding anything to the contrary in this Section
4.10, the Company shall not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer
in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.10 and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.
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SECTION 4.11 ASSET SALES.
OI Group shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) OI Group (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at
least equal to the Fair Market Value of the assets or Equity
Interests issued or sold or otherwise disposed of;
(2) such Fair Market Value is determined in good faith by OI
Group and a certification to that effect is set forth in an
Officers' Certificate delivered to the Trustee; and
(3) at least 75% of the consideration therefor received by OI
Group or such Restricted Subsidiary is in the form of cash.
For purposes of this provision, each of the following shall
be deemed to be cash:
(a) any liabilities (as shown on OI Group's or such
Restricted Subsidiary's most recent balance sheet) of
OI Group or any Restricted Subsidiary of OI Group
(other than liabilities that are by their terms
subordinated to the Notes or any Guarantee of the
Notes) that are assumed by the transferee of any such
assets which assumption releases OI Group or such
Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by
OI Group or any such Restricted Subsidiary from such
transferee that are converted within 180 days by OI
Group or such Restricted Subsidiary into cash (to the
extent of the cash received in that conversion); and
(c) any Designated Noncash Consideration received by OI
Group or any Restricted Subsidiary of OI Group in such
Asset Sale having an aggregate Fair Market Value, taken
together with all other Designated Noncash
Consideration received pursuant to this clause (c) that
is at that time outstanding, not to exceed 5.0% of
Tangible Assets at the time of the receipt of such
Designated Noncash Consideration (with the Fair Market
Value of each item of Designated Noncash Consideration
being measured at the time received and without giving
effect to subsequent changes in value);
PROVIDED, that the 75% limitation referred to in clause (3) above shall not
apply to any Asset Sale in which the cash portion of such consideration
received therefore on an after-tax basis, determined in accordance with
clause (3) above, is equal to or greater than what the after-tax net
proceeds would have been had such transaction complied with such 75%
limitation.
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Within 360 days after the receipt of any Net Proceeds from
an Asset Sale, OI Group or such Restricted Subsidiary may apply such Net
Proceeds at its option:
(1) to repay senior Indebtedness of the Company or any Guarantor
and, if the senior Indebtedness of the Company or any
Guarantor repaid is revolving credit Indebtedness, to
correspondingly reduce commitments with respect thereto, if
the terms of such revolving credit Indebtedness would
require such a commitment reduction; PROVIDED, HOWEVER, that
a non-Guarantor Restricted Subsidiary may use the Net
Proceeds from an Asset Sale to repay senior Indebtedness of
OI Group or any Restricted Subsidiary of OI Group;
(2) to make payments required to be made with respect to the
outstanding OI Inc. Senior Notes;
(3) to acquire all or substantially all of the assets of, or a
majority of the Voting Stock of, a Permitted Business;
(4) to make a capital expenditure in or that is used or useful
in a Permitted Business;
(5) to acquire other long-term assets in or that are used or
useful in a Permitted Business; or
(6) to make an Investment in any one or more businesses
(PROVIDED that such Investment in any business may be in the
form of the acquisition of Capital Stock so long as it
results in OI Group or a Restricted Subsidiary of OI Group,
as the case may be, owning a majority of the Capital Stock
of such business), properties or assets that replace the
businesses, properties and assets that are the subject of
such Asset Sale; PROVIDED, HOWEVER, that any such business,
properties and assets of OI Group or a Guarantor that are
the subject of an Asset Sale are invested in one or more
businesses, properties or assets that constitute or are
owned or shall be owned by a Guarantor or a Restricted
Subsidiary that becomes a Guarantor.
Notwithstanding the foregoing, with respect to any Asset Sale by the
Company or any Guarantor, such Net Proceeds may only be applied pursuant to
items (1) or (6) above and, to the extent such Net Proceeds are applied to,
or with respect to, the Company, a Guarantor or a Person or a Restricted
Subsidiary that becomes a Guarantor, items (3), (4) or (5) above. Pending
the final application of any such Net Proceeds, OI Group or the applicable
Restricted Subsidiary may temporarily reduce revolving credit borrowings or
otherwise invest such Net Proceeds in any manner that is not prohibited by
this Indenture.
Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph shall constitute "EXCESS
PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $25.0
million, the Company shall make an
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offer (an "ASSET SALE OFFER") to all Holders of Notes and all Holders of
other Indebtedness that is PARI PASSU with the Notes containing provisions
similar to those set forth in this Indenture with respect to offers to
purchase or redeem with the proceeds of sales of assets to purchase the
maximum principal amount of Notes and such other PARI PASSU Indebtedness
that may be purchased out of the Excess Proceeds. The offer price in any
Asset Sale Offer shall be equal to 100% of principal amount plus accrued
and unpaid interest and Liquidated Damages, if any, to the date of
purchase, and shall be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use such Excess
Proceeds for any purpose not otherwise prohibited by this Indenture. If the
aggregate principal amount of Notes and such other PARI PASSU Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds,
the Trustee shall select the Notes and such other PARI PASSU Indebtedness
to be purchased on a pro rata basis based on the principal amount of Notes
and such other PARI PASSU Indebtedness tendered. Upon completion of each
Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in
connection with each repurchase of Notes pursuant to an Asset Sale Offer.
To the extent that the provisions of any securities laws or regulations
conflict with the Asset Sales provisions of this Indenture, the Company
shall comply with the applicable securities laws and regulations and shall
not be deemed to have breached its obligations under the Asset Sale
provisions of this Indenture by virtue of such conflict.
SECTION 4.12. RESTRICTED PAYMENTS.
OI Group shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other distribution
on account of OI Group's or any of its Restricted
Subsidiaries' Equity Interests (including, without
limitation, any payment in connection with any merger or
consolidation involving OI Group or any of its Restricted
Subsidiaries) or to the direct or indirect holders of OI
Group's or any of its Restricted Subsidiaries' Equity
Interests in their capacity as such (other than dividends or
distributions payable in Equity Interests (other than
Disqualified Stock) of OI Group or such Restricted
Subsidiaries); PROVIDED that the foregoing shall not limit
or preclude: (a) the declaration or payment of dividends or
distributions to OI Group, the Company or any Guarantor; (b)
the declaration or payment of dividends or distributions to
holders of Equity Interests of a Guarantor (other than OI
Group or a Subsidiary of OI Group) on a pro rata basis with
all other holders; or (c) the declaration or payment of
dividends or distributions by non-Guarantor Restricted
Subsidiaries to the holders of their Equity Interests on a
pro rata basis;
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(2) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any
merger or consolidation involving OI Group or any of its
Restricted Subsidiaries) any Equity Interests of OI Group or
any direct or indirect parent of OI Group;
(3) purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness that is subordinated to the Notes or
the Guarantees of the Notes, except for (a) payments of or
related to Intercompany Indebtedness (other than
Intercompany Indebtedness owing to OI Inc. by OI Group), (b)
a payment of interest or Principal at the Stated Maturity
thereof (other than Intercompany Indebtedness owing to OI
Inc. by OI Group) or (c) the purchase, repurchase,
defeasance, acquisition or retirement for value of
Indebtedness of a Foreign Subsidiary by a Foreign
Subsidiary; or
(4) make any Restricted Investment (all such payments and other
actions set forth in clauses (1) through (4) above being
collectively referred to as "RESTRICTED PAYMENTS"),
unless, at the time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(2) OI Group would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted
Payment had been made at the beginning of the applicable
four-quarter period, have been permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in the first paragraph
of Section 4.13; and
(3) such Restricted Payment, together with the aggregate amount
of all other Restricted Payments made by OI Group and its
Restricted Subsidiaries after January 24, 2002 (excluding
Restricted Payments permitted by clauses (2), (3), (4), (6)
and (7) of the next succeeding paragraph), is less than the
sum, without duplication, of:
(a) 50% of the Consolidated Net Income of OI Group for the
period (taken as one accounting period) from April 1,
2002 to the end of OI Group's most recently ended
fiscal quarter for which internal financial statements
are available at the time of such Restricted Payment
(or, if such Consolidated Net Income for such period is
a deficit, less 100% of such deficit), PLUS
(b) 100% of the aggregate net cash proceeds and the Fair
Market Value of marketable securities received by OI
Group since January 24, 2002 as a contribution to its
common equity capital or from the issue or sale of
Equity Interests of OI Group (other than Disqualified
Stock) or from the issue or sale of convertible or
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exchangeable Disqualified Stock or convertible or
exchangeable debt securities of OI Group that have been
converted into or exchanged for such Equity Interests
(other than Equity Interests (or Disqualified Stock or
debt securities) sold to a Subsidiary of OI Group);
PLUS
(c) to the extent that any Restricted Investment that was
made after January 24, 2002 is sold or otherwise
liquidated, the cash plus the Fair Market Value of any
marketable securities received upon the sale or
liquidation of such Restricted Investment (less the
cost of disposition, if any); PLUS
(d) $15.0 million.
So long as (solely with respect to clauses (2), (3), (5) and
(7) below) no Event of Default has occurred and is continuing or would be
caused thereby, the preceding provisions shall not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such
payment would have complied with the provisions of this
Indenture;
(2) the redemption, repurchase, retirement, defeasance or other
acquisition of any Indebtedness of OI Group or any
Restricted Subsidiary of OI Group or of any Equity Interests
of OI Group in exchange for, or out of the net cash proceeds
of the substantially concurrent sale (other than to a
Subsidiary of OI Group) of, Equity Interests of OI Group
(other than Disqualified Stock); PROVIDED that the amount of
any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement, defeasance or other
acquisition shall be excluded from clause (3)(b) of the
preceding paragraph;
(3) the defeasance, redemption, repurchase or other acquisition
of the OI Inc. Senior Notes;
(4) the defeasance, redemption, repurchase or other acquisition
of subordinated Indebtedness of OI Group (other than the OI
Inc. Senior Notes) or any Restricted Subsidiary of OI Group
with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness;
(5) the repurchase, redemption or other acquisition or
retirement (or dividends or distributions to OI Inc. or
payments of Intercompany Indebtedness, in each case, to
finance such repurchase, retirement or other acquisition)
for value of any Equity Interests of OI Inc., OI Group or
any Restricted Subsidiary of OI Group held by any member of
OI Inc.'s, OI Group's or any Restricted Subsidiary of OI
Group's management; PROVIDED that the aggregate price paid
for all such repurchased, redeemed, acquired or
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retired Equity Interests shall not exceed $5.0 million in
any twelve-month period;
(6) any OI Inc. Ordinary Course Payment; and
(7) dividends or distributions to OI Inc. or payments of
Intercompany Indebtedness to allow OI Inc. to pay cash
dividends on any shares of preferred stock of OI Inc.
outstanding on January 24, 2002, plus dividends on any
subsequently issued shares of preferred stock of OI Inc. in
an amount not to exceed $25.0 million in any twelve-month
period.
The amount of all Restricted Payments (other than cash)
shall be the Fair Market Value on the date of the Restricted Payment of the
asset(s) or securities proposed to be transferred or issued to or by OI
Group or such Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment. The Fair Market Value of any assets or securities that
are required to be valued by this Section 4.12 shall be determined in good
faith by OI Group.
SECTION 4.13. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
OI Group shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt), and OI Group shall not issue any
Disqualified Stock and OI Group shall not permit any of its Restricted
Subsidiaries to issue any Disqualified Stock or preferred stock; PROVIDED,
HOWEVER, that OI Group and any of its Restricted Subsidiaries may incur
Indebtedness (including Acquired Debt) and may issue preferred stock, if
the Fixed Charge Coverage Ratio for OI Group's most recently ended four
full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is
incurred would have been at least 2.00 to 1.00, determined on a pro forma
basis (including a pro forma application of the net proceeds therefrom), as
if the additional Indebtedness had been incurred at the beginning of such
four-quarter period.
The first paragraph of this Section 4.13 shall not prohibit
the incurrence of any of the following items of Indebtedness (collectively,
"PERMITTED DEBT"):
(1) the incurrence by OI Group or its Restricted Subsidiaries of
Indebtedness under Credit Facilities (and the incurrence of
Guarantees thereof) in an aggregate principal amount at any
one time outstanding (with letters of credit being deemed to
have a principal amount equal to the maximum potential
liability of the Company and its Restricted Subsidiaries
thereunder) not to exceed $4.5 billion (of which not more
than $1.41 billion of such Indebtedness shall be incurred by
Restricted Subsidiaries that are not Guarantors);
(2) the incurrence by OI Group and any Restricted Subsidiary of
OI Group of the Existing Indebtedness;
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(3) the incurrence by OI Group, the Company and the Guarantors
of Indebtedness represented by the Notes and the related
Guarantees to be issued on the Issue Date and the Exchange
Notes to be issued pursuant to the Registration Rights
Agreement;
(4) the incurrence by OI Group or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease
Obligations, in an aggregate principal amount at any time
outstanding, including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (4), not to
exceed 3.0% of Tangible Assets;
(5) the incurrence by OI Group or any of its Restricted
Subsidiaries of Indebtedness incurred to finance all or any
part of the purchase price or cost of construction or
improvement of property, plant or equipment used in the
business of OI Group or such Restricted Subsidiary, in an
aggregate principal amount at any time outstanding,
including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any Indebtedness incurred
pursuant to this clause (5), not to exceed 5.0% of Tangible
Assets, as measured after giving effect to such transaction;
(6) PROVIDED that so long as no Default shall have occurred or
be continuing or would be caused thereby, the incurrence by
OI Group or any of its Restricted Subsidiaries of
Indebtedness in exchange for, or the proceeds of which are
or shall be used to refund, refinance or replace the $300.0
million aggregate principal amount of 7.85% Senior Notes due
2004, the $350.0 million aggregate principal amount of 7.15%
Senior Notes due 2005, the $300.0 million aggregate
principal amount of 8.10% Senior Notes due 2007, the $250.0
million aggregate principal amount of 7.35% Senior Notes due
2008 and the $250.0 million aggregate principal amount of
7.50% Senior Debentures due 2010, in each case of OI Inc.;
(7) the incurrence by OI Group or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are or shall be
used to refund, refinance or replace Indebtedness (other
than Intercompany Indebtedness) that was permitted to be
incurred under the first paragraph of this Section 4.13 or
clauses (2), (3), (6) or (7) of this paragraph;
(8) the incurrence by OI Group or any of its Restricted
Subsidiaries of Intercompany Indebtedness between or among
OI Group and any of its Restricted Subsidiaries and with
respect to OI Group only, between OI Group and OI Inc.;
PROVIDED, HOWEVER, that:
(a) if OI Group, the Company or any Guarantor is the
obligor on such Indebtedness, such Indebtedness must be
expressly subordinated to the prior payment
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in full in cash of all Obligations with respect to the
Notes, in the case of the Company, or the Guarantees of
the Notes, in the case of OI Group or a Guarantor;
(b) any incurrence by OI Group of Intercompany Indebtedness
to OI Inc. after the Issue Date shall be in exchange
for cash loans or advances from OI Inc. in the ordinary
course of business consistent with past practices; and
(c) (i) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being
held by a Person other than OI Group or a Restricted
Subsidiary thereof and (ii) any sale or other transfer
of any such Indebtedness to a Person that is not either
OI Group or a Restricted Subsidiary thereof, shall be
deemed, in each case, to constitute an incurrence of
such Indebtedness by OI Group or such Restricted
Subsidiary, as the case may be, that was not permitted
by this clause (8);
(9) the incurrence by OI Group or any of its Restricted
Subsidiaries of Hedging Obligations;
(10) PROVIDED that so long as no Default shall have occurred or
be continuing or would be caused thereby, the incurrence by
any Foreign Subsidiary of OI Group of Indebtedness in an
aggregate principal amount (or accreted value, as
applicable) at any time outstanding, not to exceed $300.0
million, in addition to the $1.41 billion of Indebtedness
that may be incurred under clause (1) of this paragraph;
(11) (i) the Guarantee by the Company or any of the Guarantors of
Indebtedness of OI Group or any Restricted Subsidiary of OI
Group and (ii) the Guarantee by any Foreign Subsidiary of
Indebtedness of OI Group or any Restricted Subsidiary of OI
Group, in each case, that was permitted to be incurred by
another provision of this Section 4.13;
(12) the accrual of interest, the accretion or amortization of
original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the
same terms and the payment of dividends on Disqualified
Stock in the form of additional shares of the same class of
Disqualified Stock shall not be deemed to be an incurrence
of Indebtedness for purposes of this Section 4.13 or an
issuance of Disqualified Stock; PROVIDED, in each such case,
that the amount thereof is included in Fixed Charges of OI
Group as accrued;
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(13) the incurrence by OI Group or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate
principal amount (or accreted value, as applicable) at any
time outstanding, including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (13), not to
exceed $300.0 million;
(14) Indebtedness arising from agreements of OI Group or a
Restricted Subsidiary of OI Group providing for
indemnification, adjustment of purchase price or similar
obligations, in each case, incurred or assumed in connection
with the disposition of any business, assets or a
Subsidiary, other than Guarantees of Indebtedness incurred
by any Person acquiring all or any portion of such business,
assets or a Subsidiary for the purpose of financing such
acquisition; PROVIDED, HOWEVER, that (i) such Indebtedness
is not reflected on the balance sheet of OI Group or any
such Restricted Subsidiary of OI Group (contingent
obligations referred to in a footnote to financial
statements and not otherwise reflected on the balance sheet
shall not be deemed to be reflected on such balance sheet
for purposes of this clause (i)) and (ii) the maximum
assumable liability in respect of all such Indebtedness that
is permitted to be incurred pursuant to this clause (14)
shall at no time exceed the gross proceeds including noncash
proceeds (the Fair Market Value of such noncash proceeds
being measured at the time received and without giving
effect to any subsequent changes in value) actually received
by OI Group and its Restricted Subsidiaries in connection
with such disposition;
(15) the incurrence by OI Group or any of its Restricted
Subsidiaries of Indebtedness incurred or deemed incurred or
cash consideration received from the sale of accounts
receivable by OI Group or any of its Restricted Subsidiaries
or a special purpose vehicle established by any of them to
purchase and sell such receivables;
(15) obligations in respect of performance and surety bonds and
completion guarantees provided by OI Group or any of its
Restricted Subsidiaries in the ordinary course of business;
(16) Indebtedness incurred by OI Group or any of its Restricted
Subsidiaries constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course
of business, including without limitation letters of credit
in respect of workers' compensation claims, or other
Indebtedness with respect to reimbursement type obligations
regarding workers' compensation claims; PROVIDED, HOWEVER,
that upon the drawing of such letters of credit or the
incurrence of such Indebtedness, such obligations are
reimbursed within 30 days following such drawing or
incurrence; and
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(18) the incurrence by OI Group or any of its Restricted
Subsidiaries of Acquired Debt, in an aggregate principal
amount at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause
(18), not to exceed 5.0% of Tangible Assets, as measured
after giving effect to the transaction for which the
Acquired Debt was incurred.
The Company shall not incur any Indebtedness (including
Permitted Debt) after the Issue Date that is contractually subordinated in
right of payment to any other Indebtedness of the Company unless such
Indebtedness is also contractually subordinated in right of payment to the
Notes on substantially similar terms; PROVIDED, HOWEVER, that no
Indebtedness of the Company shall be deemed to be contractually
subordinated in right of payment to any other Indebtedness of the Company
solely by virtue of being unsecured.
OI Group shall not, and shall not permit any Guarantor to,
incur any Indebtedness (including Permitted Debt) after the date of this
Indenture that is contractually subordinated in right of payment to any
other Indebtedness of OI Group or the Guarantors, as the case may be,
unless such Indebtedness is also contractually subordinated in right of
payment to the obligations under the Notes or Guarantees of the Notes on
substantially similar terms; PROVIDED, HOWEVER, that no Indebtedness of OI
Group or the Guarantors shall be deemed to be contractually subordinated in
right of payment to any other Indebtedness of OI Group or the Guarantors
solely by virtue of being unsecured.
For purposes of determining compliance with this
Section 4.13, in the event that any proposed Indebtedness meets the
criteria of more than one of the categories of Permitted Debt described in
clauses (1) through (18) above, or is entitled to be incurred pursuant to
the first paragraph of this Section 4.13, the Company shall be permitted to
classify such item of Indebtedness on the date of its incurrence in any
manner that complies with this Section 4.13, or later reclassify all or a
portion of such item of Indebtedness. Indebtedness under Credit Facilities
outstanding on the date on which Notes are first issued and authenticated
under this Indenture shall be deemed to have been incurred on such date in
reliance on the exception provided by clauses (1) or (2) of the definition
of Permitted Debt above.
SECTION 4.14. LIENS.
Neither OI Group nor any Restricted Subsidiary of OI Group
shall create, incur, or permit to exist, any Lien on any of their
respective assets, whether now owned or hereafter acquired, in order to
secure any Indebtedness of either of OI Group or any Restricted Subsidiary
of OI Group, without effectively providing that the Notes shall be equally
and ratably secured until such time as such Indebtedness is no longer
secured by such Lien, except:
(1) Liens on cash and Cash Equivalents securing obligations in
respect of letters of credit in accordance with the terms of
the Credit Agreement;
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(2) Liens existing on the Issue Date;
(3) Liens granted after the Issue Date on any assets of OI Group
or any of its Restricted Subsidiaries securing Indebtedness
of OI Group or any of its Restricted Subsidiaries created in
favor of the Holders of the Notes;
(4) Liens securing Indebtedness of OI Group or any Restricted
Subsidiary of OI Group which is incurred to extend, renew or
refinance Indebtedness which is secured by Liens permitted
to be incurred under this Indenture; PROVIDED that such
Liens do not extend to or cover any assets of OI Group or
any Restricted Subsidiary of OI Group other than the assets
securing the Indebtedness being extended, renewed or
refinanced and that the principal or commitment amount of
such Indebtedness does not exceed the principal or
commitment amount of the Indebtedness being extended,
renewed or refinanced at the time of such extension, renewal
or refinancing, or at the time the Lien was issued, created
or assumed or otherwise permitted;
(5) Permitted Liens; and
(6) Liens created in substitution of or as replacements for any
Liens permitted by the preceding clauses (1) through (5) or
this clause (6), PROVIDED that, based on a good faith
determination of an officer of the Company, the assets
encumbered under any such substitute or replacement Lien is
substantially similar in value to the assets encumbered by
the otherwise permitted Lien which is being replaced.
For purposes of this Indenture, the Notes and the Guarantees of the Notes,
so long as the Credit Agreement is in effect, the Notes shall be considered
equally and ratably secured if they are secured pursuant to terms and
provisions, including any exclusions or exceptions described therein, no
less favorable to the holders of Notes than those set forth in, or
contemplated by, the Credit Agreement.
SECTION 4.15. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
OI Group shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or permit to
exist or become effective any consensual encumbrance or restriction on the
ability of any such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital
Stock to OI Group or any of its Restricted Subsidiaries, or
with respect to any other interest or participation in, or
measured by, its profits, or pay any indebtedness owed to OI
Group or any of its Restricted Subsidiaries;
(2) make loans or advances to OI Group or any of its Restricted
Subsidiaries; or
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(3) transfer any of its properties or assets to OI Group or any
of its Restricted Subsidiaries.
However, the preceding restrictions shall not apply to
encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness, Credit
Facilities, charter documents and shareholder agreements as
in effect on the Issue Date, and any amendments,
modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings
thereof, PROVIDED that such amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings are no more restrictive, taken
as a whole, with respect to such dividend and other payment
restrictions than those contained in such Existing
Indebtedness, Credit Facilities, charter documents and
shareholders agreements as in effect on the Issue Date;
(2) this Indenture, the Notes, the Collateral Documents, the
Offshore Collateral Documents and the Guarantees of the
Notes;
(3) applicable law;
(4) any instrument governing Indebtedness or Capital Stock of a
Person acquired by OI Group or any of its Restricted
Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness was incurred in
connection with or in contemplation of such acquisition),
which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other
than the Person, or the property or assets of the Person, so
acquired, PROVIDED that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to
be incurred;
(5) customary non-assignment provisions in leases entered into
in the ordinary course of business and consistent with past
practices;
(6) purchase money obligations, including Capital Lease
Obligations and obligations under mortgages, for property
acquired in the ordinary course of business that impose
restrictions on the property so acquired of the nature
described in clause (3) of the first paragraph of this
Section 4.15;
(7) any agreement for the sale or other disposition of a
Restricted Subsidiary of OI Group that restricts any of the
foregoing by that Restricted Subsidiary pending its sale or
other disposition;
(8) Permitted Refinancing Indebtedness, PROVIDED that the
restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are no more restrictive,
taken as a whole, than those
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contained in the agreements governing the Indebtedness being
refinanced; and
(9) Permitted Liens or Investment Grade Permitted Liens securing
Indebtedness that limit the right of the debtor to dispose
of the assets subject to such Lien.
Nothing contained in this Section 4.15 shall prevent OI
Group or a Restricted Subsidiary of OI Group from entering into any
agreement (x) permitting or providing for the incurrence of Liens otherwise
permitted by Section 4.14 or (y) restricting the sale or other disposition
of property securing Indebtedness.
SECTION 4.16. TRANSACTIONS WITH AFFILIATES.
OI Group shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer
or otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for
the benefit of, any Affiliate (each, an "AFFILIATE TRANSACTION") involving
aggregate payments in consideration in excess of $5.0 million, unless:
(1) such Affiliate Transaction is on terms that are no less
favorable to OI Group or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable
transaction by OI Group or such Restricted Subsidiary with
an unrelated Person; and
(2) OI Group delivers to the Trustee with respect to any
Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of
$5.0 million, a resolution of the Board of Directors set
forth in an Officers' Certificate certifying that such
Affiliate Transaction complies with this Section 4.16 and
that such Affiliate Transaction has been approved by a
majority of the disinterested members of the Board of
Directors.
The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to the provisions of the
prior paragraph:
(1) transactions between or among OI Group and/or its Restricted
Subsidiaries;
(2) transactions between OI Group and/or its Restricted
Subsidiaries on the one hand, and OI Inc. on the other, that
are in the ordinary course of business consistent with past
practices;
(3) payment of reasonable directors' fees;
(4) Restricted Payments that are permitted by Section 4.12;
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(5) the payment of customary annual management, consulting,
monitoring and advisory fees and related expenses to KKR and
its Affiliates;
(6) the payment of reasonable and customary fees paid to, and
indemnity provided on behalf of, officers, directors,
employees or consultants of OI Group, any of its direct or
indirect parent corporations or any Restricted Subsidiary of
OI Group;
(7) payments by OI Group or any of its Restricted Subsidiaries
to KKR and its Affiliates for any financial advisory,
financing, underwriting or placement services or in respect
of other investment banking activities, including, without
limitation, in connection with acquisitions or divestitures
which payments are approved by a majority of the Board of
Directors of OI Group in good faith;
(8) transactions in which OI Group or any of its Restricted
Subsidiaries, as the case may be, delivers to the Trustee a
letter from an investment banking firm of nationally
recognized standing stating that such transaction is fair to
OI Group or such Restricted Subsidiary from a financial
point of view or meets the requirements of clause (1) of the
preceding paragraph;
(9) in addition to any payments referred to in (6) above,
payments or loans to officers, directors and employees of OI
Group, any of its direct or indirect parent corporations or
any Restricted Subsidiary of OI Group for business or
personal purposes and other loans and advances, in
accordance with any policy of OI Group which shall have been
approved by the Board of Directors of OI Group in good faith
from time to time, to such officers, directors and employees
for travel, entertainment, moving and other relocation
expenses made in the ordinary course of business of OI
Group, any of its direct or indirect parent corporations or
any Restricted Subsidiary of OI Group;
(10) any agreement in effect as of the Issue Date or any
amendment thereto (so long as such amendment is not
disadvantageous to the Holders in any material respect) or
any transaction contemplated thereby;
(11) transactions with customers, clients, suppliers or
purchasers or sellers of goods or services, in each case in
the ordinary course of business which are fair to OI Group
or its Restricted Subsidiaries, in the reasonable
determination of the Board of Directors of OI Group or the
senior management thereof;
(12) the issuance of Equity Interests (other than Disqualified
Stock) of OI Group or the Company to any of the Principals;
and
(13) transactions involving the sale of accounts receivables by
OI Group or any of its Restricted Subsidiaries or a special
purpose vehicle established by any of them to purchase and
sell receivables.
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SECTION 4.17. ADDITIONAL PLEDGES.
If on or after the Issue Date, any Domestic Subsidiary of
OI Group pledges any property or assets to secure obligations under the
Credit Agreement (other than pursuant to the Collateral Documents or as
contemplated by the Credit Agreement), then such property or assets shall
also secure the Notes.
SECTION 4.18. PAYMENTS FOR CONSENT.
OI Group shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid
any consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture, the Notes or the Guarantees unless such
consideration is offered to be paid and is paid to all Holders of the Notes
that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.
SECTION 4.19. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
The Board of Directors of OI Group may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if that designation
would not cause a Default; PROVIDED that in no event shall the business
currently operated by the Company be transferred to or held by an
Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an
Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding
Investments owned by OI Group and its Restricted Subsidiaries in the
Subsidiary so designated shall be deemed to be a Restricted Investment made
as of the time of such designation and that designation shall only be
permitted if such Investment would be permitted at that time and if such
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. The Board of Directors of OI Group may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; PROVIDED that
such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of OI Group of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (1)
such Indebtedness is permitted pursuant to Section 4.13, calculated on a
pro forma basis as if such designation had occurred at the beginning of the
four-quarter reference period; and (2) no Default or Event of Default shall
be in existence following such designation.
SECTION 4.20. NEGATIVE PLEDGE.
Except as contemplated by and permitted by the Credit
Agreement and the Collateral Documents, OI Group shall not permit any of
the issued and outstanding shares of any class of Capital Stock of OI
General FTS or any part of the Intercompany Indebtedness owed by OI General
FTS to OI Group to be pledged, in each of the foregoing cases as security
or otherwise unless the Notes and Guarantees of the Notes are secured by
this collateral on a PARI PASSU basis with the applicable Indebtedness.
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SECTION 4.21. LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS.
OI Group shall not permit any of its Domestic Subsidiaries,
directly or indirectly, to guarantee the payment of any other Indebtedness
of the Company or OI Group unless such Domestic Subsidiary simultaneously
executes and delivers a supplemental indenture providing for the guarantee
of the payment of the Notes by such Domestic Subsidiary, which Guarantee
shall be senior to or PARI PASSU with such Subsidiary's Guarantee of such
other Indebtedness.
SECTION 2.05. AMENDMENTS TO ARTICLE 5.
Article 5 of the Indenture is hereby amended by deleting
Section 5.01 and Section 5.02 in their entirety and replacing them with the
following Section 5.01, Section 5.02 and Section 5.03:
SECTION 5.01. WHEN OI GROUP MAY MERGE, ETC.
OI Group shall not, in any transaction or series of
transactions, merge or consolidate with or into, or, directly or
indirectly, sell, assign, convey, transfer, lease or otherwise dispose of
all or substantially all of its properties and assets to, any Person or
Persons, and OI Group shall not permit any of its Restricted Subsidiaries
to enter into any such transaction or series of transactions if such
transaction or series of transactions, in the aggregate, would result in a
sale, assignment, conveyance, transfer, lease or other disposition of all
or substantially all of the properties and assets of OI Group and its
Restricted Subsidiaries, on a consolidated basis, to any other Person or
Persons, unless at the time and after giving effect thereto:
(1) either: (a) OI Group or such Restricted Subsidiary, as the
case may be, is the surviving corporation; or (b) the Person
formed by or surviving any such consolidation or merger (if
other than OI Group or such Restricted Subsidiary) (the
"SUCCESSOR COMPANY") or to which such sale, assignment,
transfer, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws
of the United States, any state thereof or the District of
Columbia;
(2) the Successor Company (if other than OI Group or such
Restricted Subsidiary) or the Person to which such sale,
assignment, transfer, conveyance or other disposition shall
have been made assumes all the obligations of OI Group or
such Restricted Subsidiary (if such Restricted Subsidiary is
a Guarantor), as the case may be, under the Notes, this
Indenture, the Collateral Documents and the Registration
Rights Agreement pursuant to agreements reasonably
satisfactory to the Trustee;
(3) immediately after such transaction no Default or Event of
Default exists; and
(4) OI Group or the Successor Company formed by or surviving any
such consolidation or merger (if other than OI Group), or
the Person to which
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such sale, assignment, transfer, conveyance or other
disposition shall have been made, shall have, immediately
after such transaction, a Fixed Charge Coverage Ratio equal
to or greater than such ratio for OI Group immediately prior
to such transaction.
This Section 5.01 shall not apply to (i) a merger or
consolidation of OI Group, the Company or any of the Guarantors with or
into any other of the Company, OI Group or any of the Guarantors or the
sale, assignment, conveyance, transfer, lease or other disposition of
assets between or among the Company, OI Group and any of the Guarantors and
(ii) a merger or consolidation of any Foreign Subsidiary with or into OI
Group or any of its Restricted Subsidiaries or the sale, assignment,
conveyance, transfer, lease or other disposition of assets from any Foreign
Subsidiary to OI Group or any of its Restricted Subsidiaries.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any transfer by OI
Group or its Restricted Subsidiaries (other than by lease) of all or
substantially all of the assets of OI Group in accordance with Section
5.01, the Successor Company or the Person to which such transfer is made
shall succeed to, and be substituted for, and may exercise every right and
power of the Company and OI Group under this Indenture with the same effect
as if such Successor Company or Person had been named as the Company and OI
Group herein. In the event of any such transfer, Company and OI Group shall
be released and discharged from all liabilities and obligations in respect
of the Notes and this Indenture, and Company and OI Group may be dissolved,
wound up or liquidated at any time thereafter.
SECTION 5.03. ASSIGNMENT OF OBLIGATIONS.
On and after July 2, 2003, the Company may assign its
obligations under the Notes and this Indenture to OI Inc., and the Company
and each Guarantor, in its capacity as a Guarantor, will thereafter be
released from its obligations under the Notes, the Guarantees of the Notes
and this Indenture PROVIDED that (1) OI Inc. assumes all of the obligations
under the Notes and this Indenture, and (2) the obligations of each Credit
Agreement Domestic Borrower under the Credit Agreement have been or will be
concurrently assumed by OI Inc. in accordance with the terms of the Credit
Agreement. In the event of any such assignment, OI Inc. shall succeed to,
and be substituted for, and may exercise every right and power of, the
Company under the Indenture with the same effect as if OI Inc. had been
named the Company herein, and restrictions imposed on and obligations of OI
Group in this Indenture shall become restrictions imposed on and
obligations of OI Inc., unless the context otherwise requires.
SECTION 2.06. AMENDMENTS TO ARTICLE 6.
Article 6 of the Indenture is hereby amended by deleting
Section 6.01 in its entirety and replacing it with the following Section 6.01:
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SECTION 6.01 EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs with respect to the Notes if:
(1) the Company defaults in the payment of interest on, or
Liquidated Damages, if any, with respect to, the Notes when
the same becomes due and payable and the default continues
for a period of 30 days;
(2) the Company defaults in the payment of the Principal of the
Notes when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) failure by OI Group or any of its Restricted Subsidiaries
for 60 days after notice to comply with any of the other
agreements in this Indenture, the Notes, the Guarantees of
the Notes (with respect to any Guarantor) and the Collateral
Documents (with respect to any Restricted Subsidiary which
has pledged assets or property to secure its obligations
under this Indenture and the Notes);
(4) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by OI Group
or any Restricted Subsidiary (or the payment of which is
guaranteed by OI Group or any of its Restricted
Subsidiaries) whether such Indebtedness or Guarantee now
exists, or is created after the Issue Date, if that default:
(a) is caused by a failure to pay principal of, or interest
or premium, if any, on such Indebtedness prior to the
expiration of the grace period provided in such
Indebtedness on the date of such default (a "PAYMENT
DEFAULT"); or
(b) results in the acceleration of such Indebtedness prior
to its express maturity; PROVIDED, that an Event of
Default shall not be deemed to occur with respect to
any such accelerated Indebtedness which is repaid or
prepaid within 20 Business Days after such declaration;
and, in any individual case, the principal amount of any
such Indebtedness is equal to or in excess of $50.0 million,
or such Indebtedness together with the principal amount of
any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so
accelerated, aggregates $100.0 million or more;
(5) any final judgment or order for payment of money in excess
of $50.0 million in any individual case and $100.0 million
in the aggregate at any time shall be rendered against OI
Group or any of its Restricted Subsidiaries and such
judgment shall not have been paid, discharged or stayed for
a period of 60 days;
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(6) except as permitted by this Indenture or the Collateral
Documents, any Guarantee of the Notes shall be held in any
judicial proceeding to be unenforceable or invalid or shall
cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor,
shall deny or disaffirm its obligations under its Guarantee
of the Notes;
(7) the Company, OI Group or any Significant Subsidiary of OI
Group pursuant to or within the meaning of any Bankruptcy
Law:
(a) commences a voluntary case;
(b) consents to the entry of an order for relief against it
in an involuntary case;
(c) consents to the appointment of a Custodian of it or for
all or substantially all of its property;
(d) makes a general assignment for the benefit of its
creditors; or
(e) admits in writing its inability generally to pay its
debts as the same become due;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company, OI Group or any
Significant Subsidiary of OI Group in an involuntary
case;
(b) appoints a Custodian of the Company, OI Group or any
Significant Subsidiary of OI Group or for all or
substantially all of such entity's property; or
(c) orders the liquidation of the Company, OI Group or any
Significant Subsidiary of OI Group;
and the order or decree remains unstayed and in effect for 60
days;
(9) except as permitted by the Collateral Documents, any
amendments thereto and the provisions of the Indenture, any
of the Collateral Documents ceases to be in full force and
effect or ceases to be effective, in all material respects,
to create the Lien purported to be created in the Collateral
in favor of the holders of the Notes for 60 days after
notice; and
(10) failure by OI Group or any of its Restricted Subsidiaries to
comply with the provisions of Sections 4.10 or 4.11 or
Article 5.
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The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Pursuant to Section 4.04 of the Indenture, forthwith upon
becoming aware of any Default or Event of Default, the Company shall deliver to
the Trustee an Officers' Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto
SECTION 2.07. AMENDMENTS TO ARTICLE 8.
(a) Section 8.03 of the Indenture is hereby amended by deleting
the words "date of execution of this Indenture" in clause (d)(2)(b) and adding
the words "Issue Date" in replacement thereof.
SECTION 2.08. AMENDMENTS TO ARTICLE 9.
Section 9.02 of the Indenture is hereby amended by deleting the
word "or" at the end of clause (11) and adding, immediately following clause
(12), the following new clauses (13) and (14):
(13) amend, change or modify the obligation of the Company to
make and consummate an Asset Sale Offer with respect to any
Asset Sale in accordance with Section 4.11 or the obligation
of the Company to make and consummate a Change of Control
Offer in the event of a Change of Control in accordance with
Section 4.10, including, in each case, amending, changing or
modifying any definition relating thereto; or
(14) except as otherwise permitted under Article 5 or Section
10.11, consent to the assignment or transfer by OI Group,
the Company or any Guarantor of any of their rights or
obligations under this Indenture.
SECTION 2.09. AMENDMENTS TO ARTICLE 10.
(a) Section 10.10 of the Indenture is hereby amended by deleting
such Section 10.10 in its entirety and replacing it with the following Section
10.10:
SECTION 10.10 RELEASE OF GUARANTOR.
(a) A Guarantor shall be automatically released without any
action on the part of the Trustee of the Holders from its obligations under
this Indenture and Guarantee if:
(1) OI Group properly designates any Restricted Subsidiary that
is a Guarantor as an Unrestricted Subsidiary;
(2) upon any sale or other disposition of all or substantially
all of the assets of that Guarantor (including by way of
merger or
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consolidation) to a Person that is not (either before or
after giving effect to such transaction) a Restricted
Subsidiary of OI Group, if the sale or other disposition of
all or substantially all of the assets of that Guarantor
complies with the Section 4.11 and Section 10.11; or
(3) upon any sale of all of the Capital Stock of a Guarantor to
a Person that is not (either before or after giving effect
to such transaction) a Restricted Subsidiary of OI Group, if
the sale of all such Capital Stock of that Guarantor
complies with Section 4.11 and Section 10.11.
The Trustee shall receive written notice of the release of any Guarantor if
such release is effected other than under Section 10.11.
(b) Upon the release of a Guarantee by a Domestic Subsidiary
under the Credit Agreement, the Guarantee of such Domestic Subsidiary under
this Indenture will be released and discharged at such time and the Trustee
shall execute an appropriate instrument evidencing such release. If any
such Domestic Subsidiary thereafter guarantees obligations under the Credit
Agreement (or any released Guarantee under the Credit Agreement is
reinstated or renewed), then such Domestic Subsidiary will guarantee the
Securities in accordance with this Article 10.
(c) A Guarantor shall be released from its obligations under
this Indenture in accordance with an assignment of obligations to OI Inc.
pursuant to Section 5.03 or in connection with the merger or consolidation
of the Company or any of the Guarantors with or into any other of the
Company, OI Group or any of the Guarantors or the sale, assignment,
conveyance, transfer, lease or other disposition of assets between or among
the Company, OI Group and any of the Guarantors, so long as such
transaction complies with Section 4.11.
(b) Section 10.11 of the Indenture is hereby amended by deleting
such Section 10.11 in its entirety and replacing it with the following Section
10.11:
SECTION 10.11 MERGER, CONSOLIDATION AND SALE OF ASSETS OF A GUARANTOR.
A Guarantor may not sell or otherwise dispose of all or
substantially of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another Person,
other than the Company or another Guarantor, unless:
(1) immediately after giving effect to that transaction, no
Event of Default shall have occurred and be continuing; and
(2) either (a) the Person acquiring the property in any such
sale or disposition or the Person formed by or surviving any
such consolidation or merger is organized or existing under
the laws of the United States, any state thereof or the
District of Columbia and assumes all the obligations of that
Guarantor under this Indenture, its Guarantee, the
Collateral Documents and
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the Registration Rights Agreement pursuant to a supplemental
indenture satisfactory to the Trustee; or (b) such sale or
other disposition complies with Section 4.11, including the
application of the Net Proceeds therefrom; and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that
such consolidation, sale, lease or merger complies with the
foregoing clauses (1) and (2).
Notwithstanding the foregoing, each Guarantor may consolidate with or merge
into or sell its assets to the Company or another Guarantor.
SECTION 2.10. AMENDMENT TO ARTICLE 11.
Section 11.03 of the Indenture is hereby amended by deleting the
first sentence of the final paragraph of such Section 11.03.
SECTION 2.11. OTHER PROVISIONS UNCHANGED.
All provisions of the Indenture, other than as set forth in
Sections 2.01 to 2.10, inclusive, of this Third Supplemental Indenture shall be
unchanged by this Third Supplemental Indenture and shall remain in full force
and effect. The Indenture, as supplemented and amended by this Third
Supplemental Indenture, is in all respects ratified and confirmed, and the
Indenture and this Third Supplemental Indenture shall be read, taken and
construed as one and the same instrument.
ARTICLE 3.
MISCELLANEOUS
SECTION 3.01. DEFINED TERMS.
Unless otherwise provided in this Third Supplemental Indenture,
all defined terms used in this Third Supplemental Indenture shall have the
meanings assigned to them in the Indenture.
SECTION 3.02. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT
OF 1939.
If and to the extent that any provision of this Third
Supplemental Indenture limits, qualifies or conflicts with another provision
included in this Third Supplemental Indenture or in the Indenture which is
required to be included herein or therein by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 3.03. NEW YORK LAW TO GOVERN.
THIS THIRD SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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SECTION 3.04. COUNTERPARTS.
This Third Supplemental Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
SECTION 3.05. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only
and shall not affect the construction hereof.
SECTION 3.06. SEVERABILITY OF PROVISIONS.
In case any provision in this Third Supplemental Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 3.07. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Third Supplemental Indenture
by the parties hereto shall bind their respective successors and assigns and
inure to the benefit of their respective successors and assigns, whether so
expressed or not.
SECTION 3.08. BENEFIT OF SUPPLEMENTAL INDENTURE.
Nothing in this Third Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto, any Registrar, any
Paying Agent and their successors hereunder, and the Holders of the Notes, any
benefit or any legal or equitable right, remedy or claim under this Third
Supplemental Indenture.
44
<Page>
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, all as of the date first above
written.
OWENS-BROCKWAY GLASS CONTAINER INC.
By: /s/ James W. Baehren
-------------------------------------
Name: James W. Baehren
Title: Vice President
On behalf of each entity named on the
attached ANNEX A, in the capacity set
forth for such entity on such ANNEX A
By: /s/ James W. Baehren
-------------------------------------
Name: James W. Baehren
U.S. Bank National Association, as
Trustee
By: /s/ Frank P. Leslie III
-------------------------------------
Name: Frank P. Leslie III
Title: Vice President
<Page>
ANNEX A
<Table>
<Caption>
TITLE OF OFFICER EXECUTING
NAME OF ENTITY ON BEHALF OF SUCH ENTITY
-------------- -----------------------------
ACI America Holdings Inc. Vice President and Secretary
Anamed International, Inc. Vice President and Secretary
BriGam Medical, Inc. Vice President and Secretary
BriGam Ventures, Inc. Vice President and Secretary
BriGam, Inc. Vice President and Secretary
Brockway Realty Corporation Vice President and Secretary
Brockway Research, Inc. Vice President and Secretary
Continental PET Technologies, Inc. Vice President and Secretary
MARC Industries, Inc. Vice President and Secretary
Martell Medical Products, Incorporated Vice President and Secretary
NHW Auburn, LLC Vice President and Secretary
of its sole member
OB Cal South Inc. Vice President and Secretary
OI AID STS Inc. Vice President and Secretary
OI Auburn Inc. Vice President and Secretary
OI Australia Inc. Vice President and Secretary
OI Brazil Closure Inc. Vice President and Secretary
OI California Containers Inc. Vice President and Secretary
OI Castalia STS Inc. Vice President and Secretary
OI Consol STS Inc. Vice President and Secretary
OI Ecuador STS Inc. Vice President and Secretary
OI Europe & Asia Inc. Vice President and Secretary
</Table>
ANNEX A-1
<Page>
<Table>
<Caption>
TITLE OF OFFICER EXECUTING
NAME OF ENTITY ON BEHALF OF SUCH ENTITY
-------------- -----------------------------
OI General Finance Inc. Vice President and Secretary
OI General FTS Inc. Vice President and Secretary
O-I Health Care Holding Corp. Vice President and Secretary
O-I Holding Company, Inc. Vice President and Secretary
OI Hungary Inc. Vice President and Secretary
OI International Holdings Inc. Vice President and Secretary
OI Levis Park STS Inc. Vice President and Secretary
OI Medical Holdings Inc. Vice President and Secretary
OI Medical Inc. Vice President and Secretary
OI Peru STS Inc. Vice President and Secretary
OI Plastic Products FTS Inc. Vice President and Secretary
OI Poland Inc. Vice President and Secretary
OI Puerto Rico STS Inc. Vice President and Secretary
OI Regioplast STS Inc. Vice President and Secretary
OI Venezuela Plastic Products Inc. Vice President and Secretary
OIB Produvisa Inc. Vice President and Secretary
Overseas Finance Company Vice President and Secretary
Owens-BriGam Medical Company Vice President and Secretary
of each general partner
Owens-Brockway Glass Container Trading
Company Vice President and Secretary
Owens-Brockway Packaging, Inc. Vice President and Secretary
Owens-Brockway Plastic Products Inc. Vice President and Secretary
Owens-Illinois Closure Inc. Vice President and Secretary
</Table>
ANNEX A-2
<Page>
<Table>
<Caption>
TITLE OF OFFICER EXECUTING
NAME OF ENTITY ON BEHALF OF SUCH ENTITY
-------------- -----------------------------
Owens-Illinois General Inc. Vice President and Secretary
Owens-Illinois Group, Inc. Vice President, Director of
Finance and Secretary
Owens-Illinois Prescription Products Inc. Vice President and Secretary
Owens-Illinois Specialty Products Puerto Rico, Inc. Vice President and Secretary
Product Design & Engineering, Inc. Vice President and Secretary
Seagate, Inc. Vice President and Secretary
Seagate II, Inc. Vice President and Secretary
Seagate III, Inc. Vice President and Secretary
Specialty Packaging Licensing Company Vice President and Secretary
Universal Materials, Inc. Vice President and Secretary
</Table>
ANNEX A-3
<Page>
EXHIBIT D-1
[FORM OF NOTE]
[INSERT THE GLOBAL SECURITY LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF
THE INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
OWENS-BROCKWAY GLASS CONTAINER INC.
8 3/4% SENIOR SECURED NOTES DUE 2012
Number: CUSIP No. ___________ $________
OWENS-BROCKWAY GLASS CONTAINER INC., a Delaware corporation (the
"Company"), for value received, hereby promises to pay to Cede & Co., as nominee
of The Depository Trust Company, or registered assigns, the principal sum of
___________________________________________________________________ DOLLARS
($_________) on November 15, 2012.
Interest Payment Dates: May 15 and November 15, commencing May
15, 2003.
Record Dates: May 1 and November 1.
Additional provisions of this Note are set forth below following
the signatures of the authorized officers of the Company.
D1-1
<Page>
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
OWENS-BROCKWAY GLASS CONTAINER INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
Dated: November 13, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
U.S. Bank National Association, as Trustee
By:
---------------------------------
Authorized Signatory
D1-2
<Page>
OWENS-BROCKWAY GLASS CONTAINER INC.
8 3/4% SENIOR SECURED NOTES DUE 2012
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST
OWENS-BROCKWAY GLASS CONTAINER INC., a Delaware corporation (such
entity, and its successors and assigns under the Indenture hereinafter referred
to, being herein called the "COMPANY"), promises to pay interest on the
principal amount of this Note at the rate per annum shown above and shall pay
the Liquidated Damages payable pursuant to Section 5 of the Registration Rights
Agreement. Interest on this Note shall accrue from November 13, 2002 or from the
most recent interest payment date to which interest has been paid or provided
for, as the case may be; interest and Liquidated Damages on this Note shall be
payable semi-annually on May 15 and November 15 of each year until maturity, or,
if such day is not a Business Day, on the next succeeding Business Day (each, an
"INTEREST PAYMENT DATE"), commencing on May 15, 2003; and interest on this Note
shall be payable to holders of record on the May 1 or November 1 immediately
preceding the applicable Interest Payment Date. Interest will be computed on the
basis of a 360-day year of twelve 30-day months. The Company shall pay defaulted
interest on overdue interest, plus (to the extent lawful) any interest payable
on the defaulted interest, as provided in Section 2.11 of the Indenture.
2. METHOD OF PAYMENT
The Company will pay interest and Liquidated Damages on this Note
(except defaulted interest) to the Persons who are holders ("HOLDERS") of record
in the note register of the Company (the "REGISTER") of this Note at the close
of business on the May 1 or November 1 (each, a "RECORD DATE") next preceding
the Interest Payment Date, in each case even if the Note is cancelled solely by
virtue of registration of transfer or registration of exchange after such Record
Date. The Company will pay Principal, interest and Liquidated Damages in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. Principal of and interest and Liquidated Damages, if
any, on this Note will be payable, and this Note may be exchanged or
transferred, at the office or agency of the Company in the Borough of Manhattan,
the City of New York (which initially will be a Corporate Trust Office of the
Trustee); PROVIDED that, at the option of the Company, payment of interest and
Liquidated Damages, if any, may be made by check mailed to the address of each
Holder as such address appears in the Note Register; PROVIDED further that
payment by wire transfer of immediately available funds will be required with
respect to Principal of and interest, and Liquidated Damages, if any, on, all
Global Notes and all other Notes the Holders of which will have provided wire
transfer instructions to the Company or the Paying Agent. Such payment will be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
D1-3
<Page>
3. PAYING AGENT AND REGISTRAR
Initially, U.S. Bank National Association, a national banking
association (the "TRUSTEE"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-Registrar without
notice to any Holder. The Company or any of its Affiliates may act as Paying
Agent, Registrar or co-Registrar.
4. INDENTURE
The Company issued this Note under an Indenture dated as of
January 24, 2002 among the Company, the Guarantors and the Trustee, the terms of
which have been established in the Third Supplemental Indenture among the
Company, the Guarantors and the Trustee, dated as of November 13, 2002
(collectively, the "INDENTURE"), pursuant to Section 2.01 of the Indenture. This
Note is a series designated as the "8 3/4% Senior Secured Notes due 2012" of the
Company. The Company may issue additional Notes of this series after this Note
has been issued. This Note and any additional Notes of this series subsequently
issued under the Indenture shall be treated as a single series for all purposes
under the Indenture, including without limitation, waivers, amendments,
redemptions and offers to purchase. The terms of this Note include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb), as amended (the "TIA").
This Note is subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of those terms. Any conflict between the
terms of this Note and the Indenture will be governed by the Indenture.
This Note is secured to the extent set forth in the Collateral
Documents and Article 11 of the Indenture.
5. OPTIONAL REDEMPTION
Except as described below, this Note shall not be redeemable at
the Company's option prior to November 15, 2007.
On or after November 15, 2007, the Company may redeem all or a
part of this Note upon not less than 30 nor more than 60 days notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on November 15 of the years indicated below:
<Table>
<Caption>
YEAR PERCENTAGE
---- ----------
2007................................... 104.375%
2008................................... 102.917%
2009................................... 101.458%
2010 and thereafter.................... 100.000%
</Table>
At any time prior to November 15, 2005, the Company may redeem on
any one or more occasions up to 35% of the aggregate principal amount of Notes
(calculated after giving
D1-4
<Page>
effect to any issuance of Additional Securities) issued under the Indenture at a
redemption price of 108.750% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, to the redemption date, with the
net cash proceeds of one or more Equity Offerings by OI Inc. to the extent the
net cash proceeds thereof are contributed to the Company or used to purchase
from the Company Capital Stock (other than Disqualified Stock) of the Company;
PROVIDED that: (1) at least 65% of the aggregate principal amount of Notes
(calculated after giving effect to any issuance of Additional Securities) issued
under the Indenture remains outstanding immediately after the occurrence of such
redemption (excluding Notes held by OI Inc. and its Subsidiaries); and (2) the
redemption must occur within 60 days of the date of the closing of such Equity
Offering.
In addition, at any time prior to November 15, 2007, this Note
may also be redeemed, in whole but not in part, at the option of the Company
upon the occurrence of a Change of Control, upon not less than 30 nor more than
60 days prior notice (but in no event more than 90 days after the occurrence of
such Change of Control) mailed by first-class mail to each Holder's registered
address, at a redemption price equal to 100% of the principal amount of this
Note plus the Applicable Premium as of, and accrued and unpaid interest and
Liquidated Damages, if any, to, the date of redemption (subject to the right of
Holders of record on the relevant Record Date to receive interest due on the
Note on the relevant Interest Payment Date).
6. MANDATORY REDEMPTION
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to this Note.
7. REPURCHASE AT THE OPTION OF HOLDER
If a Change of Control occurs, unless the Company has exercised
its right to redeem the Notes pursuant to the terms of the Indenture, each
Holder of this Note will have the right to require the Company to repurchase all
or any part (equal to $1,000 or an integral multiple thereof) of that Holder's
Notes pursuant to a Change of Control Offer on the terms set forth in the
Indenture. If OI Group or a Restricted Subsidiary consummates any Asset Sales,
when the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company
will be required to make an offer (an "ASSET SALE OFFER") to all Holders of this
Note and all Holders of other Indebtedness that is PARI PASSU with this Note
containing provisions similar to those set forth in the Indenture with respect
to offers to purchase or redeem with the proceeds of sales of assets to purchase
the maximum principal amount of this Note and such other PARI PASSU Indebtedness
that may be purchased out of the Excess Proceeds on the terms, in accordance
with the procedures and subject to the limitations set forth in the Indenture
and such other PARI PASSU Indebtedness.
8. NOTICE OF REDEMPTION
Notice of redemption shall be mailed by first class mail at least
30 days but not more than 60 days before the redemption date to each Holder of
this Note to be redeemed. Notices of redemption shall not be conditional.
Denominations of this Note larger than $1,000 may be redeemed in part. If this
Note is to be redeemed in part only, the notice of redemption that
D1-5
<Page>
relates to that portion to be redeemed shall state the portion of the principal
amount thereof to be redeemed. A new Note in principal amount equal to the
unredeemed portion of the original Note shall be issued in the name of the
Holder thereof upon cancellation of the original Note. On and after the
redemption date, interest ceases to accrue on the Note or portions thereof
called for redemption.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Note is in registered form, without coupons, in denominations
of $1,000 of principal amount and any integral multiple thereof. A Holder may
transfer or exchange the Note in accordance with the Indenture. No service
charge will be made for any registration of transfer or exchange of Notes, but
the Company may require the payment of a sum sufficient to cover any transfer
tax or other similar governmental charge payable in connection therewith,
subject to and as permitted by the Indenture.
10. PERSONS DEEMED OWNERS
The registered Holder of this Note may be treated as the owner of
it for all purposes.
11. REPAYMENT TO COMPANY
The Trustee and the Paying Agent shall pay to the Company upon
the Company's request any money held by them for the payment of Principal or
interest that remains unclaimed for two years after the date upon which such
payment shall have become due. After payment to the Company, Holders entitled to
the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under this Note and the Indenture if
the Company deposits with the Trustee money and/or Government Securities for the
payment of Principal and interest on this Note to Maturity.
13. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include: (1) defaults in
the payment of interest on, or Liquidated Damages, if any, with respect to the
Notes when the same becomes due and payable and the default continues for a
period of 30 days; (2) defaults in the payment of the Principal of the Notes
when the same becomes due and payable at maturity, upon redemption or otherwise;
(3) failure by OI Group or any of its Restricted Subsidiaries for 60 days after
notice to comply with any of the other agreements in the Indenture, the Notes,
the Guarantees of the Notes (with respect to any Guarantor) and the Collateral
Documents (with respect to any Restricted Subsidiary which has pledged assets or
property to secure its obligations under the Indenture and the Notes); (4)
default under any mortgage, indenture or instrument under which there may be
D1-6
<Page>
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by OI Group or any Restricted Subsidiary (or the payment of which is
guaranteed by OI Group or any of its Restricted Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the Issue Date, if
that default: (a) is caused by a failure to pay principal of, or interest or
premium, if any, on such Indebtedness prior to the expiration of the grace
period provided in such Indebtedness on the date of such default (a "PAYMENT
DEFAULT"); or (b) results in the acceleration of such Indebtedness prior to its
express maturity; PROVIDED, that an Event of Default shall not be deemed to
occur with respect to any such accelerated Indebtedness which is repaid or
prepaid within 20 Business Days after such declaration; and, in any individual
case, the principal amount of any such Indebtedness is equal to or in excess of
$50.0 million, or such Indebtedness together with the principal amount of any
other such Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $100.0 million or more;
(5) any final judgment or order for payment of money in excess of $50.0 million
in any individual case and $100.0 million in the aggregate at any time shall be
rendered against OI Group or any of its Restricted Subsidiaries and such
judgment shall not have been paid, discharged or stayed for a period of 60 days;
(6) except as permitted by the Indenture or the Collateral Documents, any
Guarantee of the Notes shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall
deny or disaffirm its obligations under its Guarantee of the Notes; (7) the
Company, OI Group or any Significant Subsidiary of OI Group pursuant to or
within the meaning of any Bankruptcy Law: (a) commences a voluntary case; (b)
consents to the entry of an order for relief against it in an involuntary case;
(c) consents to the appointment of a Custodian of it or for all or substantially
all of its property; (d) makes a general assignment for the benefit of its
creditors; or (e) admits in writing its inability generally to pay its debts as
the same become due; (8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (a) is for relief against the Company, OI
Group or any Significant Subsidiary of OI Group in an involuntary case; (b)
appoints a Custodian of the Company, OI Group or any Significant Subsidiary of
OI Group or for all or substantially all of such entity's property; or (c)
orders the liquidation of the Company, OI Group or any Significant Subsidiary of
OI Group; and, with respect to (a), (b) and (c), the order or decree remains
unstayed and in effect for 60 days; (9) except as permitted by the Collateral
Documents, any amendments thereto and the provisions of the Indenture, any of
the Collateral Documents ceases to be in full force and effect or ceases to be
effective, in all material respects, to create the Lien purported to be created
in the Collateral in favor of the Holders of the Notes for 60 days after notice;
and (10) failure by OI Group or any of its Restricted Subsidiaries to comply
with the provisions of Sections 4.10 or 4.11 or Article 5 of the Indenture.
If an Event of Default other than an Event or Default specified
in clauses (7) and (8) of the preceding paragraph occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25% in principal
amount of the then outstanding Notes by notice to the Company and the Trustee,
as provided in the Indenture, may declare the unpaid Principal of and any
accrued and unpaid interest on the Notes to be due and payable immediately. Upon
such declaration the Principal (or such lesser amount) and interest shall be due
and payable immediately. At any time after a declaration of acceleration with
respect to the Notes has been made, the Holders of a majority in principal
amount of the then outstanding Notes may, under certain circumstances, rescind
such acceleration and its consequences if the rescission would not
D1-7
<Page>
conflict with any judgment or decree and if all existing Events of Default with
respect to the Notes have been cured or waived except nonpayment of Principal or
interest that has become due solely because of the acceleration.
Subject to the duty of the Trustee during an Event of Default to
act with the required standard of care, the Trustee is under no obligation to
exercise any of its rights or powers under the Indenture at the request of any
Holder of this Note, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense. Subject to certain provisions, including those requiring security or
indemnification of the Trustee, the Holders of a majority in principal amount of
the outstanding Note have the right to direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee,
with respect to this Note.
14. SUPPLEMENTS, AMENDMENTS AND WAIVERS
Subject to certain exceptions, the Indenture, the Notes or the
Guarantees of the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes), and any existing default or
compliance with any provision of the Indenture, the Notes or the Guarantees of
the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes). The Company and the Trustee may amend or supplement the
Indenture, the Notes and the Guarantees of the Notes without notice to or the
consent of any holder of Notes in certain circumstances described in the
Indenture. Amendments to the Collateral Documents shall be made in accordance
with their terms.
15. TRUSTEE DEALINGS WITH THE COMPANY
The Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates, with the same rights as if it were not the Trustee; however, if
it acquires any conflicting interest as defined in the TIA it must eliminate
such conflict within 90 days, apply to the Commission for permission to continue
or resign.
16. NO RECOURSE AGAINST OTHERS
A past, present or future director, officer, employee,
incorporator or stockholder, as such, of the Company or any Guarantor, if any,
or any successor corporation shall not have any liability for any obligations of
the Company or any Guarantor under the Notes, the Indenture, the Guarantees of
the Notes, the Registration Rights Agreement, the Collateral Documents or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
17. GUARANTEES
D1-8
<Page>
This Note will be entitled to the benefits of certain Guarantees
made for the benefit of the Holders. Reference is hereby made to the Indenture
for a statement of the respective rights, limitations of rights, duties and
obligations thereunder of the Guarantors, the Trustee and the Holders.
18. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
19. AUTHENTICATION
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication hereon.
20. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
21. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES.
In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes
shall have all the rights set forth in the Registration Rights Agreement.
22. CUSIP NUMBERS
Pursuant to a recommendation promulgated by the Committee on
Uniform Note Identification Procedures, the Company has caused CUSIP numbers to
be printed on the Notes, and the Trustee may use CUSIP numbers in notices as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice and
reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge to the Holder a copy of the Indenture and the Registration Rights
Agreement. Such requests may be addressed to:
Owens-Brockway Glass Container Inc.
One SeaGate
Toledo, Ohio 43666
Attention: Investor Relations
D1-9
<Page>
--------------------------------
D1-10
<Page>
ASSIGNMENT FORM
TO ASSIGN THIS NOTE, FILL IN THE FORM BELOW:
I or we assign and transfer this Note to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[PRINT OR TYPE ASSIGNEE'S NAME, ADDRESS AND ZIP CODE]
- --------------------------------------------------------------------------------
[INSERT ASSIGNEE'S SOC. SEC. OR TAX I.D. NO.]
and irrevocably appoint
- --------------------------------------------------------------------------------
[PRINT OR TYPE AGENT'S NAME]
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
- --------------------------------------------------------------------------------
Date:
-----------------
Your Signature:
---------------------------------------
(SIGN EXACTLY AS YOUR NAME APPEARS ON
THE FACE OF THIS NOTE)
SIGNATURE GUARANTEE
- -----------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
D1-11
<Page>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.11 of the Indenture, check the box below:
/ / Section 4.10 / / Section 4.11
If you want to elect to have only part of the Note purchased by
the Company pursuant to Section 4.10 or Section 4.11 of the Indenture, state the
amount you elect to have purchased: $_______________
Date: Your Signature:
------------------ -----------------------------------
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No:_____________________
SIGNATURE GUARANTEE
- ----------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
D1-12
<Page>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
<Table>
<Caption>
Principal Amount
Amount of decrease Amount of increase of this Signature
in in Global Note of authorized
Principal Principal following such signatory of
Amount of Amount of decrease (or Trustee or
Date of Exchange this Global Note this Global Note increase) Custodian
- ---------------- ------------------ ------------------ ---------------- -------------
</Table>
* THIS SHOULD BE INCLUDED ONLY IF THE NOTE IS ISSUED IN GLOBAL FORM.
D1-13
<Page>
EXHIBIT D-2
[FORM OF REGULATION S TEMPORARY GLOBAL NOTE]
[INSERT THE GLOBAL SECURITY LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF
THE INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
[INSERT THE REGULATION S TEMPORARY GLOBAL SECURITY LEGEND]
OWENS-BROCKWAY GLASS CONTAINER INC.
8 3/4% SENIOR SECURED NOTES DUE 2012
Number: CUSIP No. ___________ $________
OWENS-BROCKWAY GLASS CONTAINER INC., a Delaware corporation (the
"Company"), for value received, hereby promises to pay to Cede & Co., as nominee
of The Depository Trust Company, or registered assigns, the principal sum of
___________________________________________________________________ DOLLARS
($_________) on November 15, 2012.
Interest Payment Dates: May 15 and November 15, commencing
May 15, 2003.
Record Dates: May 1 and November 1.
Additional provisions of this Note are set forth below following
the signatures of the authorized officers of the Company.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
OWENS-BROCKWAY GLASS CONTAINER INC.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
Dated: November 13, 2002
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
U.S. Bank National Association, as Trustee
By:
--------------------------------
Authorized Signatory
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OWENS-BROCKWAY GLASS CONTAINER INC.
8 3/4% SENIOR SECURED NOTES DUE 2012
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST
OWENS-BROCKWAY GLASS CONTAINER INC., a Delaware corporation (such
entity, and its successors and assigns under the Indenture hereinafter referred
to, being herein called the "COMPANY"), promises to pay interest on the
principal amount of this Note at the rate per annum shown above and shall pay
the Liquidated Damages payable pursuant to Section 5 of the Registration Rights
Agreement. Interest on this Note shall accrue from November 13, 2002 or from the
most recent interest payment date to which interest has been paid or provided
for, as the case may be; interest and Liquidated Damages on this Note shall be
payable semi-annually on May 15 and November 15 of each year until maturity, or,
if such day is not a Business Day, on the next succeeding Business Day (each, an
"INTEREST PAYMENT DATE"), commencing on May 15, 2003; and interest on this Note
shall be payable to holders of record on the May 1 or November 1 immediately
preceding the applicable Interest Payment Date. Interest will be computed on the
basis of a 360-day year of twelve 30-day months. The Company shall pay defaulted
interest on overdue interest, plus (to the extent lawful) any interest payable
on the defaulted interest, as provided in Section 2.11 of the Indenture.
Until this Regulation S Temporary Global Note is exchanged for
one or more Regulation S Permanent Global Notes, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Note shall in all other respects be entitled
to the same benefits as other Notes under the Indenture.
2. METHOD OF PAYMENT
The Company will pay interest and Liquidated Damages on this Note
(except defaulted interest) to the Persons who are holders ("HOLDERS") of record
in the note register of the Company (the "REGISTER") of this Note at the close
of business on the May 1 or November 1 (each, a "RECORD DATE") next preceding
the Interest Payment Date, in each case even if the Note is cancelled solely by
virtue of registration of transfer or registration of exchange after such Record
Date. The Company will pay Principal, interest and Liquidated Damages in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. Principal of and interest and Liquidated Damages, if
any, on this Note will be payable, and this Note may be exchanged or
transferred, at the office or agency of the Company in the Borough of Manhattan,
the City of New York (which initially will be a Corporate Trust Office of the
Trustee); PROVIDED that, at the option of the Company, payment of interest and
Liquidated Damages, if any, may be made by check mailed to the address of each
Holder as such address
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appears in the Note Register; PROVIDED further that payment by wire transfer of
immediately available funds will be required with respect to Principal of and
interest, and Liquidated Damages, if any, on, all Global Notes and all other
Notes the Holders of which will have provided wire transfer instructions to the
Company or the Paying Agent. Such payment will be in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts.
3. PAYING AGENT AND REGISTRAR
Initially, U.S. Bank National Association, a national banking
association (the "TRUSTEE"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-Registrar without
notice to any Holder. The Company or any of its Affiliates may act as Paying
Agent, Registrar or co-Registrar.
4. INDENTURE
The Company issued this Note under an Indenture dated as of
January 24, 2002 among the Company, the Guarantors and the Trustee, the terms of
which have been established in the Third Supplemental Indenture among the
Company, the Guarantors and the Trustee, dated as of November 13, 2002
(collectively, the "INDENTURE"), pursuant to Section 2.01 of the Indenture. This
Note is a series designated as the "8 3/4% Senior Secured Notes due 2012" of the
Company. The Company may issue additional Notes of this series after this Note
has been issued. This Note and any additional Notes of this series subsequently
issued under the Indenture shall be treated as a single series for all purposes
under the Indenture, including without limitation, waivers, amendments,
redemptions and offers to purchase. The terms of this Note include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb), as amended (the "TIA").
This Note is subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of those terms. Any conflict between the
terms of this Note and the Indenture will be governed by the Indenture.
This Note is secured to the extent set forth in the Collateral
Documents and Article 11 of the Indenture.
5. OPTIONAL REDEMPTION
Except as described below, this Note shall not be redeemable at
the Company's option prior to November 15, 2007.
On or after November 15, 2007, the Company may redeem all or a
part of this Note upon not less than 30 nor more than 60 days notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on November 15 of the years indicated below:
<Table>
<Caption>
YEAR PERCENTAGE
---- ----------
2007.......................................... 104.375%
2008.......................................... 102.917%
2009.......................................... 101.458%
2010 and thereafter........................... 100.000%
</Table>
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At any time prior to November 15, 2005, the Company may redeem on
any one or more occasions up to 35% of the aggregate principal amount of Notes
(calculated after giving effect to any issuance of Additional Securities) issued
under the Indenture at a redemption price of 108.875% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to the
redemption date, with the net cash proceeds of one or more Equity Offerings by
OI Inc. to the extent the net cash proceeds thereof are contributed to the
Company or used to purchase from the Company Capital Stock (other than
Disqualified Stock) of the Company; PROVIDED that: (1) at least 65% of the
aggregate principal amount of Notes (calculated after giving effect to any
issuance of Additional Securities) issued under the Indenture remains
outstanding immediately after the occurrence of such redemption (excluding Notes
held by OI Inc. and its Subsidiaries); and (2) the redemption must occur within
60 days of the date of the closing of such Equity Offering.
In addition, at any time prior to November 15, 2007, this Note
may also be redeemed, in whole but not in part, at the option of the Company
upon the occurrence of a Change of Control, upon not less than 30 nor more than
60 days prior notice (but in no event more than 90 days after the occurrence of
such Change of Control) mailed by first-class mail to each Holder's registered
address, at a redemption price equal to 100% of the principal amount of this
Note plus the Applicable Premium as of, and accrued and unpaid interest and
Liquidated Damages, if any, to, the date of redemption (subject to the right of
Holders of record on the relevant Record Date to receive interest due on the
Note on the relevant Interest Payment Date).
6. MANDATORY REDEMPTION
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to this Note.
7. REPURCHASE AT THE OPTION OF HOLDER
If a Change of Control occurs, unless the Company has exercised
its right to redeem the Notes pursuant to the terms of the Indenture, each
Holder of this Note will have the right to require the Company to repurchase all
or any part (equal to $1,000 or an integral multiple thereof) of that Holder's
Notes pursuant to a Change of Control Offer on the terms set forth in the
Indenture. If OI Group or a Restricted Subsidiary consummates any Asset Sales,
when the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company
will be required to make an offer (an "ASSET SALE OFFER") to all Holders of this
Note and all Holders of other Indebtedness that is PARI PASSU with this Note
containing provisions similar to those set forth in the Indenture with respect
to offers to purchase or redeem with the proceeds of sales of assets to purchase
the maximum principal amount of this Note and such other PARI PASSU Indebtedness
that may be purchased out of the Excess Proceeds on the terms, in accordance
with the procedures and subject to the limitations set forth in the Indenture
and such other PARI PASSU Indebtedness.
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8. NOTICE OF REDEMPTION
Notice of redemption shall be mailed by first class mail at least
30 days but not more than 60 days before the redemption date to each Holder of
this Note to be redeemed. Notices of redemption shall not be conditional.
Denominations of this Note larger than $1,000 may be redeemed in part. If this
Note is to be redeemed in part only, the notice of redemption that relates to
that portion to be redeemed shall state the portion of the principal amount
thereof to be redeemed. A new Note in principal amount equal to the unredeemed
portion of the original Note shall be issued in the name of the Holder thereof
upon cancellation of the original Note. On and after the redemption date,
interest ceases to accrue on the Note or portions thereof called for redemption.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Note is in registered form, without coupons, in denominations
of $1,000 of principal amount and any integral multiple thereof. A Holder may
transfer or exchange the Note in accordance with the Indenture. No service
charge will be made for any registration of transfer or exchange of Notes, but
the Company may require the payment of a sum sufficient to cover any transfer
tax or other similar governmental charge payable in connection therewith,
subject to and as permitted by the Indenture.
This Regulation S Temporary Global Note is exchangeable in whole
or in part for one or more Global Notes only (i) on or after the termination of
the 40-day restricted period (as defined in Regulation S) and (ii) upon
presentation of certificates (accompanied by an Opinion of Counsel, if
applicable) required by Article 2 of the Indenture. Upon exchange of this
Regulation S Temporary Global Note for one or more Global Notes, the Trustee
shall cancel this Regulation S Temporary Global Note.
10. PERSONS DEEMED OWNERS
The registered Holder of this Note may be treated as the owner of
it for all purposes.
11. REPAYMENT TO COMPANY
The Trustee and the Paying Agent shall pay to the Company upon
the Company's request any money held by them for the payment of Principal or
interest that remains unclaimed for two years after the date upon which such
payment shall have become due. After payment to the Company, Holders entitled to
the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under this Note and the Indenture if
the Company deposits with the Trustee
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money and/or Government Securities for the payment of Principal and interest on
this Note to Maturity.
13. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include: (1) defaults in
the payment of interest on, or Liquidated Damages, if any, with respect to the
Notes when the same becomes due and payable and the default continues for a
period of 30 days; (2) defaults in the payment of the Principal of the Notes
when the same becomes due and payable at maturity, upon redemption or otherwise;
(3) failure by OI Group or any of its Restricted Subsidiaries for 60 days after
notice to comply with any of the other agreements in the Indenture, the Notes,
the Guarantees of the Notes (with respect to any Guarantor) and the Collateral
Documents (with respect to any Restricted Subsidiary which has pledged assets or
property to secure its obligations under the Indenture and the Notes); (4)
default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by OI Group or any Restricted Subsidiary (or the payment of which is
guaranteed by OI Group or any of its Restricted Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the Issue Date, if
that default: (a) is caused by a failure to pay principal of, or interest or
premium, if any, on such Indebtedness prior to the expiration of the grace
period provided in such Indebtedness on the date of such default (a "PAYMENT
DEFAULT"); or (b) results in the acceleration of such Indebtedness prior to its
express maturity; PROVIDED, that an Event of Default shall not be deemed to
occur with respect to any such accelerated Indebtedness which is repaid or
prepaid within 20 Business Days after such declaration; and, in any individual
case, the principal amount of any such Indebtedness is equal to or in excess of
$50.0 million, or such Indebtedness together with the principal amount of any
other such Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $100.0 million or more;
(5) any final judgment or order for payment of money in excess of $50.0 million
in any individual case and $100.0 million in the aggregate at any time shall be
rendered against OI Group or any of its Restricted Subsidiaries and such
judgment shall not have been paid, discharged or stayed for a period of 60 days;
(6) except as permitted by the Indenture or the Collateral Documents, any
Guarantee of the Notes shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full force and
effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall
deny or disaffirm its obligations under its Guarantee of the Notes; (7) the
Company, OI Group or any Significant Subsidiary of OI Group pursuant to or
within the meaning of any Bankruptcy Law: (a) commences a voluntary case; (b)
consents to the entry of an order for relief against it in an involuntary case;
(c) consents to the appointment of a Custodian of it or for all or substantially
all of its property; (d) makes a general assignment for the benefit of its
creditors; or (e) admits in writing its inability generally to pay its debts as
the same become due; (8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (a) is for relief against the Company, OI
Group or any Significant Subsidiary of OI Group in an involuntary case; (b)
appoints a Custodian of the Company, OI Group or any Significant Subsidiary of
OI Group or for all or substantially all of such entity's property; or (c)
orders the liquidation of the Company, OI Group or any Significant Subsidiary of
OI Group; and, with respect to (a), (b) and (c), the order or decree remains
unstayed and in effect for 60 days; (9) except as permitted by the Collateral
Documents, any amendments thereto and the provisions of the Indenture, any of
the
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Collateral Documents ceases to be in full force and effect or ceases to be
effective, in all material respects, to create the Lien purported to be created
in the Collateral in favor of the Holders of the Notes for 60 days after notice;
and (10) failure by OI Group or any of its Restricted Subsidiaries to comply
with the provisions of Sections 4.10 or 4.11 or Article 5 of the Indenture.
If an Event of Default other than an Event or Default specified
in clauses (7) and (8) of the preceding paragraph occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25% in principal
amount of the then outstanding Notes by notice to the Company and the Trustee,
as provided in the Indenture, may declare the unpaid Principal of and any
accrued and unpaid interest on the Notes to be due and payable immediately. Upon
such declaration the Principal (or such lesser amount) and interest shall be due
and payable immediately. At any time after a declaration of acceleration with
respect to the Notes has been made, the Holders of a majority in principal
amount of the then outstanding Notes may, under certain circumstances, rescind
such acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default with respect to the
Notes have been cured or waived except nonpayment of Principal or interest that
has become due solely because of the acceleration.
Subject to the duty of the Trustee during an Event of Default to
act with the required standard of care, the Trustee is under no obligation to
exercise any of its rights or powers under the Indenture at the request of any
Holder of this Note, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense. Subject to certain provisions, including those requiring security or
indemnification of the Trustee, the Holders of a majority in principal amount of
the outstanding Note have the right to direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee,
with respect to this Note.
14. SUPPLEMENTS, AMENDMENTS AND WAIVERS
Subject to certain exceptions, the Indenture, the Notes or the
Guarantees of the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes), and any existing default or
compliance with any provision of the Indenture, the Notes or the Guarantees of
the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes). The Company and the Trustee may amend or supplement the
Indenture, the Notes and the Guarantees of the Notes without notice to or the
consent of any holder of Notes in certain circumstances described in the
Indenture. Amendments to the Collateral Documents shall be made in accordance
with their terms.
15. TRUSTEE DEALINGS WITH THE COMPANY
The Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates, with the same rights as if it were not the Trustee; however, if
it acquires any conflicting interest as defined in the
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TIA it must eliminate such conflict within 90 days, apply to the Commission for
permission to continue or resign.
16. NO RECOURSE AGAINST OTHERS
A past, present or future director, officer, employee,
incorporator or stockholder, as such, of the Company or any Guarantor, if any,
or any successor corporation shall not have any liability for any obligations of
the Company or any Guarantor under the Notes, the Indenture, the Guarantees of
the Notes, the Registration Rights Agreement, the Collateral Documents or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
17. GUARANTEES
This Note will be entitled to the benefits of certain Guarantees
made for the benefit of the Holders. Reference is hereby made to the Indenture
for a statement of the respective rights, limitations of rights, duties and
obligations thereunder of the Guarantors, the Trustee and the Holders.
18. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
19. AUTHENTICATION
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication hereon.
20. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
21. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED
DEFINITIVE NOTES.
In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Restricted Global Notes and Restricted Definitive
Notes shall have all the rights set forth in the Registration Rights Agreement.
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22. CUSIP NUMBERS
Pursuant to a recommendation promulgated by the Committee on
Uniform Note Identification Procedures, the Company has caused CUSIP numbers to
be printed on the Notes, and the Trustee may use CUSIP numbers in notices as a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice and
reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge to the Holder a copy of the Indenture and the Registration Rights
Agreement. Such requests may be addressed to:
Owens-Brockway Glass Container Inc.
One SeaGate
Toledo, Ohio 43666
Attention: Investor Relations
---------------------------------
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ASSIGNMENT FORM
TO ASSIGN THIS NOTE, FILL IN THE FORM BELOW:
I or we assign and transfer this Note to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[PRINT OR TYPE ASSIGNEE'S NAME, ADDRESS AND ZIP CODE]
- --------------------------------------------------------------------------------
[INSERT ASSIGNEE'S SOC. SEC. OR TAX I.D. NO.]
and irrevocably appoint
- --------------------------------------------------------------------------------
[PRINT OR TYPE AGENT'S NAME]
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
- --------------------------------------------------------------------------------
Date:
----------------
Your Signature:
---------------------------------------
(SIGN EXACTLY AS YOUR NAME APPEARS
ON THE FACE OF THIS NOTE)
SIGNATURE GUARANTEE
- ---------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.11 of the Indenture, check the box below:
/ / Section 4.10 / / Section 4.11
If you want to elect to have only part of the Note purchased by
the Company pursuant to Section 4.10 or Section 4.11 of the Indenture, state the
amount you elect to have purchased: $_______________
Date: _____________ Your Signature:
---------------------------------------
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No:_________________________________
SIGNATURE GUARANTEE
- ----------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
<Table>
<Caption>
Principal Amount
Amount of decrease Amount of increase of this Signature
in in Global Note of authorized
Principal Principal following such signatory of
Amount of Amount of decrease (or Trustee or
Date of Exchange this Global Note this Global Note increase) Custodian
- ---------------- ------------------ ------------------ ---------------- -------------
</Table>
* THIS SHOULD BE INCLUDED ONLY IF THE NOTE IS ISSUED IN GLOBAL FORM.
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