Exhibit
4.1


 


EXECUTION


 


OWENS-ILLINOIS GROUP, INC.


OWENS-BROCKWAY GLASS CONTAINER INC.


OI PLASTIC PRODUCTS FTS INC.


UNITED GLASS LIMITED


OWENS ILLINOIS (AUSTRALIA) PTY
LIMITED


ACI
OPERATIONS PTY LIMITED


AZIENDE
VETRARIE INDUSTRIALI RICCIARDI – AVIR S.P.A.


O-I CANADA CORP.


and from and after the BSN
Acquisition Closing Date,


BSN GLASSPACK, S.A.


 


SECOND AMENDED AND RESTATED

SECURED CREDIT AGREEMENT


 


DATED AS OF MARCH 15, 2004


 


This SECOND AMENDED
AND RESTATED SECURED CREDIT AGREEMENT is dated as of March 15, 2004,
and entered into by and among OWENS-ILLINOIS
GROUP, INC., a Delaware corporation (“Company”), OWENS-BROCKWAY
GLASS CONTAINER INC., a Delaware corporation (“Owens-Brockway”), OI PLASTIC PRODUCTS FTS INC., a Delaware
corporation (“O-I Plastic”), UNITED GLASS
LIMITED, a limited liability company incorporated under the laws of
England and Wales (registered number 526983) (“United Glass”), OWENS ILLINOIS (AUSTRALIA) PTY LIMITED, a
limited liability company organized under the laws of Australia (“O-I Australia”), ACI OPERATIONS PTY LIMITED, a limited liability company
organized under the laws of Australia (“ACI”),
AZIENDE VETRARIE INDUSTRIALI RICCIARDI – AVIR
S.P.A., a joint stock company organized under the laws of Italy (“Avir”), O-I
CANADA CORP., a Nova Scotia corporation (“O-I Canada”), from and after the BSN Acquisition Closing Date,
BSN GLASSPACK, S.A., a French societe anonyme (“BSN”)
and OWENS-ILLINOIS
GENERAL, INC., a Delaware corporation (“O-I General”), as Borrowers’ Agent (in such capacity “Borrowers’ Agent”), THE LENDERS LISTED ON THE SIGNATURE
PAGES HEREOF (each individually a “Lender” and collectively, “Lenders”),  DEUTSCHE
BANK SECURITIES INC. (“DB
Securities”) and BANC OF AMERICA
SECURITIES LLC (“BAS”),
as Joint Lead Arrangers and Joint Book Managers with respect to the Revolving
Loans and the Tranche A1 Term Loans 
(collectively, the “Tranche A1 Joint
Lead Arrangers” and “Tranche A1
Joint Book Managers”), DB Securities and THE BANK OF NOVA SCOTIA (“Scotia
Capital”) as the Joint Lead Arrangers with respect to the Tranche B1
Term Loans (collectively, the “Tranche B1
Joint Lead Arrangers”), DB Securities, CITIGROUP GLOBAL MARKETS INC. (“CGMI”)
and GOLDMAN SACHS CREDIT PARTNERS L.P. (“GS”), as the Joint Book Managers with
respect to the Tranche B1 Term Loans (collectively, the “Tranche B1 Joint Book Managers”), CGMI, DB
Securities and BAS as Joint Lead Arrangers for the Tranche C Term Loans and the
Tranche D Term Loans (collectively, the “Tranche C and D Joint Lead Arrangers”),
CGMI, DB Securities, BAS, GS, Scotia Capital, BNP PARIBAS SECURITIES CORP.
(“BNPPSC”),
as Joint Book Managers for the Tranche C Term Loans and the Tranche D Term
Loans (the “Tranche C and D Joint Book Managers”), Scotia Capital and BAS,
as Co-Syndication Agents with respect to the Revolving Loans, Tranche


 


1

















 


A1 Term Loans and the Tranche B1 Term Loans (collectively, the “Tranche A1
and B1 Co-Syndication Agents”),
CGMI and BANK ONE, as
Co-Documentation Agents with respect to the Revolving Loans, Tranche A1 Term
Loans and the Tranche B1 Term Loans (collectively, the “Co-Documentation Agents”), DB Securities
and Bank of Nova Scotia, as Co-Documentation Agents with respect to the Tranche
C Term Loans and the Tranche D Term Loans (the “Tranche C and D Documentation Agents”),
CGMI and BAS as Co-Syndication Agents with respect to the Tranche C Term Loans
and the Tranche D Term Loans (the “Tranche C and D Syndication Agents”), Fleet, BNPPSC
and Lyonnais, as Senior Managing
Agents with respect to the Revolving Loans, Tranche A1 Term Loans and Tranche
B1 Term Loans (the “Tranche A1 and B1  Senior Managing Agents”), FLEET NATIONAL BANK, 
BNPPSC, CREDIT LYONNAIS, Scotia Capital
and Bank One, NA, as Senior Managing Agents with respect to the Tranche C Term
Loans and the Tranche D Term Loans (the “Tranche C and D Senior Managing Agents”),  DEUTSCHE
BANK AG London, as UK Administrative Agent for the Lenders (“UK Administrative Agent”), and DEUTSCHE BANK TRUST COMPANY AMERICAS (“DB”), as Administrative Agent for Lenders
(“Administrative
Agent”).


 


RECITALS


 


WHEREAS,
the Company, the borrowers under the Original Credit Agreement, the lenders
under the Original Credit Agreement and certain of the Agents entered into the
Original Credit Agreement and on the Original Closing Date all conditions to
closing thereunder set forth therein were satisfied (capitalized terms used
herein shall have the meanings assigned thereto in Section 1 hereof).


 


WHEREAS, pursuant to the Original Credit
Agreement, the arrangers with respect thereto, on behalf of the Australian
Offshore Borrowers offered the “Australian Loans” thereunder to certain
persons, including the lenders thereunder, being persons carrying on a business
of providing finance, or investing or dealing in securities, in the course of
operating in financial markets, by inviting the offerees, through delivery of
an information memorandum and participation in subsequent conferences,
correspondence and negotiations among the arrangers, agents, lenders and
borrowers party to the Original Credit Agreement, to subscribe for such
“Australian Loans” (issued as debentures in inscribed form and evidenced by the
“Australian Loan Notes” issued under the Original Credit Agreement), and the
lenders party to the Original Credit Agreement accepted the invitation of the
Australian Offshore Borrowers and subscribed for and acquired such “Australian
Loans” and such “Australian Loan Notes.”


 


 WHEREAS,
the Company, certain of the Borrowers and certain lenders party thereto entered
into the First Amended and Restated Secured Credit Agreement dated as of June
13, 2003 (the “First Amended and Restated Credit Agreement”), pursuant to which
the Original Credit Agreement was amended and restated in its entirety such
that the Separated Funded Loans and the General Revolving Loans (as defined in
the Original Credit Agreement) outstanding under the Original Credit Agreement
were converted into “Tranche A Term Loans”, “Tranche B Term Loans”, “Revolving
Loans” and “Australian Revolving Loans” thereunder as set forth therein;


 


WHEREAS ̧ in connection with the First Amended and
Restated Secured Credit Agreement, the arrangers with respect thereto, on
behalf of ACI, offered the “Existing Australian


 


2

















 


Loans” (as defined therein) to certain persons, including the lenders
thereunder, being persons carrying on a business of providing finance, or
investing or dealing in securities, in the course of operating in financial
markets, by inviting the offerees, through delivery of an information
memorandum and participation in subsequent conferences, correspondence and
negotiations among the arrangers, agents, lenders and borrowers party thereto,
to purchase and assume such Existing Australian Loans (to be amended and
restated as “Tranche A Term Loans” and “Australian Revolving Loans” under the
First Amended and Restated Credit Agreement) and to make available further
“Australian Revolving Loans” thereunder 
(issued as debentures in inscribed form and evidenced by “Australian
Revolving Loan Notes” thereunder), and the lenders party thereto accepted such
invitation;


 


WHEREAS, pursuant to that certain First Amendment to
First Amended and Restated Secured Credit Agreement dated as of December 4,
2003 (the “First Amendment”), the First Amended and Restated Credit Agreement
was amended such that (i) the outstanding Tranche A Term Loans thereunder were
converted into the Tranche A1 Term Loans and (ii) the outstanding Tranche B
Term Loans thereunder were converted into the Tranche B1 Term Loans;


 


WHEREAS, Holdings and O-I Europe SAS, an indirect
wholly-owned subsidiary of Company have entered into that certain Share
Purchase Agreement dated as of March 15, 2004, with the Sellers (the “BSN Share
Purchase Agreement”), whereby O-I Europe SAS has agreed to purchase from the
Sellers all of the outstanding shares of BSN and the BSN Subordinated
Shareholder Loan (as hereinafter defined) (collectively, the “BSN
Acquisition”), on the terms and conditions set forth therein;


 


WHEREAS, the Lenders with Domestic Tranche C Term
Loan Exposure and Tranche D Term Loan Exposure, at the request of the Company,
have agreed to extend Domestic Tranche C Term Loans and Tranche D Term Loans,
respectively, to Owens-Brockway on the BSN Acquisition Closing Date to finance
the acquisition of the shares of BSN and the acquisition of the BSN
Subordinated Shareholder Loan pursuant to the BSN Share Purchase Agreement and
to pay certain related fees and expenses;


 


WHEREAS, the Lenders with French Tranche C1 Term
Loan Exposure and French Tranche C2 Term Loan Exposure, at the request of the
Company, have agreed to extend French Tranche C1 Term Loans and French Tranche
C2 Term Loans, respectively, to BSN on the BSN Acquisition Closing Date, the
proceeds of which will be used to refinance all outstanding amounts under the
Existing BSN Credit Agreement and certain other indebtedness of BSN and its
Subsidiaries and to pay certain related fees and expenses;


 


WHEREAS, the Lenders with French Tranche C3 Term
Loan Exposure, at the request of the Company, have agreed to extend the French
Tranche C3 Term Loans to BSN on the BSN Change of Control Payment Date, the
proceeds of which will be used to repay the principal of and pay the applicable
premium on the Existing BSN Subordinated Notes to the extent the holders of the
same accept the “change of control offer” made by the issuers thereof with
respect to such notes and to pay certain related fees and expenses on or about
the BSN Acquisition Closing Date;


 


3

















 


WHEREAS,
the Revolving Loan Commitments and the proceeds of the Revolving Loans and
Offshore Revolving Loans made thereunder will continue to be used by Borrowers
to (i) provide working capital for Company and its Subsidiaries (including
Borrowers), (ii) to provide for commercial and standby letter of credit
requirements, (iii) subject to the terms and conditions herein, to provide
funds to redeem, repay or otherwise repurchase certain Existing Holdings Senior
Notes due 2004, 2005 and 2007 and (iv) to provide funds for other general
corporate purposes of Borrowers and their Subsidiaries;


 


WHEREAS,
Domestic Borrowers will continue to secure all of their Obligations hereunder,
including with respect to the Domestic Tranche C Term Loans and the Tranche D
Term Loans, and under the other Loan Documents and in respect of Other Lender
Guarantied Obligations, pursuant to a First Priority Lien granted to Collateral
Agent, on behalf of the Lenders and the holders of Other Lender Guarantied
Obligations, on substantially all of their respective real, personal and mixed
property, including a pledge of all of the Capital Stock of substantially all
of their Domestic Subsidiaries (other than O-I General FTS Inc.);


 


WHEREAS,
Company and
substantially all of the wholly-owned Domestic Subsidiaries of Company will
continue to guarantee the Obligations of the Domestic Borrowers hereunder,
including with respect to the Domestic Tranche C Term Loans and the Tranche D
Term Loans, and under the other Loan Documents and the Other Lender Guarantied
Obligations, and secure their guaranties pursuant to a First Priority Lien
granted to Collateral Agent, on behalf of the Lenders and the holders of Other
Lender Guarantied Obligations, on substantially all of their respective real,
personal and mixed property, including a pledge of all of the Capital Stock of
substantially all of their Domestic Subsidiaries and 65% of the Capital Stock
of the first-tier Foreign Subsidiaries owned by any such Domestic Subsidiary;


 


WHEREAS, Company
and substantially all of the wholly-owned Domestic Subsidiaries of Company will
continue to guarantee the Obligations of the Offshore Borrowers and secure
their guaranties pursuant to a First Priority Lien granted to Collateral Agent,
on behalf of the Lenders, on substantially all of their respective real,
personal and mixed property and 35% of the Capital Stock of the first-tier
Foreign Subsidiaries owned by any such Domestic Subsidiary not pledged to
secure the Obligations of the Domestic Borrowers;


 


WHEREAS, United
Glass will continue to secure its Obligations hereunder and under the other
Loan Documents (and each English Wholly-Owned Subsidiary of United Glass will
continue to guarantee the Obligations of United Glass and secure their respective
guaranties) pursuant to a First Priority Lien granted to Collateral Agent, on
behalf of the Lenders, on substantially all of their real, personal and mixed
property;


 


WHEREAS, the
Australian Offshore Borrowers will continue to secure their Obligations
hereunder and under the other Loan Documents (and each Australian Wholly-Owned
Subsidiary of any Australian Offshore Borrower will continue to guarantee the
Obligations of the Australian Offshore Borrowers and secure their respective
guaranties) pursuant to a First Priority Lien granted to Collateral Agent, on
behalf of the Lenders, on substantially all of their real, personal and mixed
property;


 


4

















 


WHEREAS,
the Australian Offshore Borrowers and each Australian Wholly-Owned Subsidiary
of any Australian Offshore Borrower will guaranty the Obligations of BSN
hereunder and under the Loan Documents and shall secure their respective
guarantees pursuant to a First Priority Lien granted to Collateral Agent, on behalf
of the Lenders, on substantially all of their real, personal and mixed
property;


 


WHEREAS,
BSN will secure its Obligations hereunder and under the other Loan Documents
(and each Subsidiary of BSN that is an Offshore Guarantor will guarantee the
Obligations of BSN and secure their respective guaranties) pursuant to a First
Priority Lien granted to Collateral Agent, on behalf of the Lenders, on certain
of their real, personal and mixed property;


 


WHEREAS, United
Glass will continue to guarantee the Obligations of the other Offshore
Borrowers, and each English Wholly-Owned Subsidiary of United Glass will
continue to guaranty such obligations of United Glass, and United Glass and
such English Wholly-Owned Subsidiaries shall continue to secure their respective
guaranties pursuant to a First Priority Lien granted to Collateral Agent, on
behalf of the Lenders, on substantially all of their real, personal and mixed
property;


 


WHEREAS,
it is the intent of the Loan Parties to confirm that all Obligations of Loan Parties
under the other Loan Documents shall continue in full force and effect and
that, from and after the Second Restatement Date, all references to the “Credit
Agreement” contained therein shall be deemed to refer to this
Agreement.


 


NOW,
THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company, Borrower’s
Agent, Borrowers, Lenders, Arrangers and Agents hereby agree that on the Second
Restatement Date the First Amended and Restated Credit Agreement shall be
amended and restated in its entirety as follows:


 


SECTION
1



DEFINITIONS


 


1.1          Certain
Defined Terms


 


The following terms used in this Agreement shall have
the following meanings:


 


“ACI” has
the meaning assigned to that term in the introduction to this Agreement.


 


“Acquired
Indebtedness” means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of Company
or at the time it merges or consolidates with Company or any of its
Subsidiaries or assumed by Company or any of its Subsidiaries in connection
with the acquisition of assets from such Person, and in each case not incurred
by such Person in connection with, or in anticipation or contemplation of, such
Person becoming a Subsidiary of Company or such acquisition, merger or
consolidation; provided, that Indebtedness of BSN and its Subsidiaries as of
the BSN Acquisition Closing Date shall not constitute Acquired Indebtedness.


 


5

















 


“Acquisition”
has the meaning assigned such term in subsection 6.3.


 


“Acquisition
Collateral Account” has the meaning set forth in subsection
2.4B(ii)(d).


 


“Acquisition
Sublimit” has the meaning set forth in subsection 2.4B(ii)(d).


 


“Additional Mortgage” has the meaning set forth
in subsection 5.10A(i).


 


“Additional Mortgaged Property” has the
meaning set forth in subsection 5.10A


 


 “Additional Offshore Borrower” has the
meaning assigned to that term in subsection 10.22.


 


“Additional Term
Loans” has the meaning assigned to that term in
subsection 2.1A(ix).


 


“Adjusted Eurodollar Rate” means, for any
Interest Rate Determination Date with respect to a Eurodollar Rate Loan, the
rate obtained by dividing (i) the arithmetic average (rounded
upward to the nearest 1/100 of one percent) of the offered quotation, if any,
to first class banks in the interbank Eurodollar market by each of the
Reference Lenders for U.S. dollar deposits of amounts in Same Day Funds
comparable to the principal amount of the Eurodollar Rate Loan of that Reference
Lender for which the Adjusted Eurodollar Rate is then being determined with
maturities comparable to the Interest Period for which such Adjusted Eurodollar
Rate will apply as of approximately 11:00 A.M. (New York time) on such Interest
Rate Determination Date by (ii) a percentage equal to 100% minus
the stated maximum rate of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves)
applicable to any member bank of the Federal Reserve System in respect of
“Eurocurrency liabilities” as defined in Regulation D (or any successor
category of liabilities under Regulation D); provided that if any
Reference Lender fails to provide Administrative Agent with its aforementioned
quotation then the Adjusted Eurodollar Rate shall be determined based on the
quotation(s) provided to Administrative Agent by the other Reference Lender(s);
provided, further, that, to the extent Lenders make UK Revolving
Loans through UK Lending Offices “Adjusted Eurodollar Rate” shall be increased
for such Lenders to include the additional cost (expressed as a percentage per
annum and rounded upwards, if necessary, to the nearest five decimal places) to
such Lenders of complying with the requirements of the Bank of England, the Financial
Services Authority and/or any other relevant monetary or regulatory authority
in respect of monetary control, liquidity or otherwise from time to time (and
any such Lender shall provide Borrower’s Agent with a written statement setting
out in reasonable detail the amount and calculation of such additional cost).


 


“Administrative Agent” has the meaning
assigned to that term in the introduction to this Agreement and also includes
any successor Administrative Agent appointed pursuant to subsection 8.6.


 


“ADollars” and the sign “A$”
mean the lawful currency of Australia.


 


6

















 


“Affected Lender” means any Lender affected
by any of the events described in subsection 2.6B or 2.6C.


 


“Affiliate”, as applied to any Person, means
any other Person directly or indirectly controlling, controlled by, or under
common control with, that Person.  For
the purposes of this definition, “control” (including with correlative
meanings, the terms “controlling”, “controlled by” and “under common control
with”), as applied to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting securities or by contract
or otherwise.


 


“Agents” means the Administrative Agent and
the Tranche C Co-Syndication Agents and, for purposes of Section 8 and
Section 9 and the Collateral Documents only, Collateral Agent.


 


“Agreement” means this Second Amended and
Restated Secured Credit Agreement dated as of March 15, 2004, as it may be
amended, supplemented or otherwise modified from time to time.


 


“Aggregate Amounts Due” has the meaning
assigned to that term in subsection 10.6.


 


“Aggregate Offshore Sublimit” means the
lesser of (i) $533,000,000 and (ii) the Revolving Loan Commitments then in
effect.


 


“Applicable Base
Rate Margin” means, for any Term Loans or Revolving Loans, as at any
date of determination, a rate per annum equal to the percentage set forth below
for such Type of Loan opposite the Applicable Leverage Ratio in effect as of
such date of determination, any change in the Applicable Base Rate Margin to be
effective on the date of any corresponding change in the Applicable Leverage
Ratio:


 




	
  Applicable Leverage Ratio

  (Revolving Loans)

  	
   

  	
  Applicable
  Base Rate

  Margin (Revolving Loans)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less than 3.0:1

  	
   

  	
  1.2500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  3.0:1 or greater
  but less than 3.5:1

  	
   

  	
  1.5000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or
  equal to 3.5:1

  	
   

  	
  1.7500

  	
  %

  






 




	
  Applicable Leverage Ratio

  (Term Loans)

  	
   

  	
  Applicable
  Base Rate

  Margin (Term Loans)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less than 3.75:1

  	
   

  	
  1.5000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or
  equal to 3.75:1

  	
   

  	
  1.7500

  	
  %

  






 


7

















 


provided,
that, from and after the BSN Acquisition Closing Date until the Domestic
Tranche C Term Loans and Tranche D Term Loans are repaid in full, the
Applicable Base Rate Margin for the Term Loans shall be 2.00%; provided,
further, that if at any time any Domestic Tranche C Term Loans and
Tranche D Term Loans are outstanding and a Ratings Downgrade occurs, the
Applicable Base Rate Margin for the Term Loans shall increase to 2.25%
(effective as of the date of such Ratings Downgrade) and shall remain at such
level until a Ratings Restoration occurs (regardless of whether, in the
interim, the Domestic Tranche C Term Loans and Tranche D Term Loans are repaid
in full); provided, yet, further, that if at any time
there are Refinancing Term Loans outstanding and the Refinancing Term Loan
Margin exceeds the Applicable Base Rate Margin otherwise applicable to the Term
Loans, then the Applicable Base Rate Margin for all Term Loans shall be the
Refinancing Term Loan Margin, and shall remain at such level for so long as
such level exceeds the Applicable Base Rate Margin that would otherwise apply
to the Term Loans.


 


“Applicable Currency” means, with respect to
any particular Letter of Credit or Domestic Overdraft Amount or Offshore
Overdraft Amount, Dollars or the applicable Offshore Currency in which such
Letter of Credit or Domestic Overdraft Amount or Offshore Overdraft Amount is
denominated or payable.


 


“Applicable Date” means, prior to the BSN
Acquisition Closing Date, December 4, 2004, and after the BSN Acquisition
Closing Date, means the date that is one year after the BSN Acquisition Closing
Date.


 


“Applicable Euro Margin” means, for any Term
Loans, Revolving Loans or Offshore Revolving Loans, as at any date of
determination, a rate per annum equal to the percentage set forth below for
such Type of Loan opposite the Applicable Leverage Ratio in effect as of such
date of determination, any change in the Applicable Euro Margin to be effective
on the date of any corresponding change in the Applicable Leverage Ratio:


 




	
  Applicable Leverage Ratio

  (Revolving Loans and

  Offshore Revolving Loans)

  	
   

  	
  Applicable
  Euro Margin

  (Revolving Loans and

  Offshore Revolving Loans)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less than 3.0:1

  	
   

  	
  2.2500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  3.0:1 or greater
  but less than 3.5:1

  	
   

  	
  2.5000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or
  equal to 3.5:1

  	
   

  	
  2.7500

  	
  %

  






 


8

















 




	
  Applicable Leverage Ratio

  (Term Loans)

  	
   

  	
  Applicable
  Euro Margin

  (Term Loans)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less than 3.75:1

  	
   

  	
  2.5000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Greater than or
  equal to 3.75:1

  	
   

  	
  2.7500

  	
  %

  






 


provided,
that, from and after the BSN Acquisition Closing Date until the Domestic
Tranche C Term Loans and Tranche D Term Loans are repaid in full, the
Applicable Euro Margin for the Term Loans shall be 3.00%; provided, further,
that if at any time any Domestic Tranche C Term Loans and Tranche D Term Loans
are outstanding and a Ratings Downgrade occurs, the Applicable Euro Margin for
the Term Loans shall increase to 3.25% (effective as of the date of such
Ratings Downgrade) and shall remain at such level until a Ratings Restoration
occurs (regardless of whether, in the interim, the Domestic Tranche C Term
Loans and Tranche D Term Loans are repaid in full); provided, yet,
further, that if at any time there are Refinancing Term Loans
outstanding and the Refinancing Term Loan Margin exceeds the Applicable Euro
Margin otherwise applicable to the Term Loans, then the Applicable Euro Margin
for all Term Loans shall be the Refinancing Term Loan Margin, and shall remain
at such level for so long as such level exceeds the Applicable Euro Margin that
would otherwise apply to the Term Loans.


 


“Applicable Foreign Subsidiary Capital Markets Debt” means
Indebtedness incurred by a Foreign Subsidiary pursuant to subsection 6.1(xi):
(a) in the United States or European bond or institutional loan market or (b)
that is placed or syndicated to investors in multiple jurisdictions.


 


“Applicable Leverage Ratio” means, with
respect to any date of determination, the Consolidated Leverage Ratio set forth
in the Effective Pricing Certificate (as defined below) in respect of the
Pricing Period (as defined below) in which such date of determination occurs;
provided that with respect to the Tranche C Term Loans and the Tranche D Term
Loans for the period beginning from the Second Restatement Date to but
excluding the date of commencement of the first Pricing Period beginning upon
the delivery of an Effective Pricing Certificate for the first Fiscal Quarter
ending more than 90 days after the BSN Acquisition Closing Date, the Applicable
Leverage Ratio shall be deemed to be greater than 3.75:1.  For purposes of this definition, (i) ”Pricing
Certificate” means an Officers’ Certificate of Borrowers’ Agent
delivered (a) in the case of any of the first three Fiscal Quarters (beginning
with the Fiscal Quarter ending September 30, 2004) of any Fiscal Year, within
45 days after the end of such Fiscal Quarter, (b) in the case of the
fourth Fiscal Quarter of any Fiscal Year, within 90 days after the end of such
Fiscal Quarter, (c) following the date of consummation of a sale of equity
Securities of Holdings in an offering, or (d) following any Pro Forma Event, in
each case certifying as to the Consolidated Leverage Ratio, calculated on a Pro
Forma Basis, as of the last day of such Fiscal Quarter or as of the date of
consummation of such sale of equity Securities or Pro Forma Event after giving
effect to the application of the proceeds thereof, as the case may be, and
setting forth the calculation of such Consolidated Leverage Ratio in reasonable
detail, which Officers’ Certificate, in the case of the immediately preceding
clauses (a) and (b), may be delivered to Administrative Agent at any time on or
after the date of delivery by Borrowers’ Agent of the Compliance Certificate
with respect to the period ending on the last day of the


 


9

















 


applicable Fiscal Quarter pursuant to subsection 5.1(iii),
and (ii) ”Pricing Period” means each period
commencing on the second Business Day after the delivery (or deemed delivery as
provided below) to Administrative Agent of a Pricing Certificate (the “Effective
Pricing Certificate” in respect of such Pricing Period) and ending
on the first Business Day after the next Pricing Certificate is delivered (or
deemed to be delivered as provided below) to Administrative Agent; provided
that, in the event Borrowers’ Agent fails to deliver to Administrative Agent a
Pricing Certificate on or before the 45th day after the end of any of the first
three Fiscal Quarters of any Fiscal Year or the 90th day after the end of the
fourth Fiscal Quarter of any Fiscal Year or the 10th Business Day
after the occurrence of any Pro Forma Event (the “Cutoff Date” with respect to
any such Fiscal Quarter), Borrowers’ Agent shall be deemed to have delivered to
Administrative Agent, on the Cutoff Date, a Pricing Certificate which
establishes that the Consolidated Leverage Ratio as of the last day of such
Fiscal Quarter or as of the occurrence of the Pro Forma Event, as applicable,
was greater than 3.5:1 in the case of the Revolving Loans and Offshore
Revolving Loans, or greater than 3.75:1 in the case of the Tranche A1 Term
Loans, Tranche B1 Term Loans, Tranche C Term Loans and Tranche D Term Loans.


 


“Applicable
Percentage” means, (i) at any time when any Tranche D Term Loans are
outstanding, 100%, (ii) in the case of Net Equity Securities Proceeds arising
from the issuance of Permitted Preferred Stock by Holdings, 100%, and (iii)
otherwise means 50%.


 


“Arranger” and “Arrangers” means the Tranche
A1 Joint Lead Arrangers, the Tranche B1 Joint Lead Arrangers, the Tranche A1
Joint Book Managers, the Tranche B1 Joint Book Managers, the Tranche C and D
Joint Lead Arrangers and the Tranche C and D Joint Book Managers (as those
terms are defined in the introduction to this Agreement).


 


“Asbestos Reserve” means the aggregate
reserve of Holdings and its Subsidiaries for claims (including anticipated
claims) of persons against Holdings for exposure to asbestos-containing
products and expenses related thereto.


 


“Asset Sale” means the sale, transfer or
other disposition by Company or any of its Subsidiaries (including Borrowers)
to any Person (other than sales, transfers or other dispositions (1) to
any Loan Party (other than Avir or O-I Canada), (2) by any Loan Party to Avir,
O-I Canada or any Subsidiary of Company that is not a Loan Party of assets the
aggregate value of which for all such sales, transfers or other dispositions
after the Second Restatement Date less the aggregate value of all sales,
transfers or other dispositions from Avir, O-I Canada, or any Subsidiary that
is not a Loan Party to any Loan Party after the Second Restatement Date does
not exceed $200,000,000,  (3) by a
non-Loan Party to Company or any of its Subsidiaries, or (4) made in connection
with the Specified Restructuring) in a single transaction or a related series
of transactions of (i) any of the stock of any of Company’s Subsidiaries
(including any Foreign Subsidiary), (ii) substantially all of the assets
of any geographic or other division or line of business of Company or any of
its Subsidiaries (including any Foreign Subsidiary), or (iii) any other
assets (including, without limitation, any assets which do not constitute
substantially all of the assets of any geographic or other division or line of
business but excluding (a) any assets manufactured, constructed or otherwise
produced or purchased for sale to others in the ordinary course of business
consistent with the past practices of Company and its Subsidiaries (b) any
accounts receivable sold by Company or any of its Subsidiaries in connection
with Receivables


 


10

















 


Sale Indebtedness) and (c) on or after the BSN Acquisition Closing
Date, any inventory sold by BSN or any of its Subsidiaries in connection with
Indebtedness permitted under subsection 6.1(xvii); provided, that,
any asset sale described in clauses (ii) or (iii) shall not be deemed to be an
Asset Sale unless the value of the assets sold exceeds $5,000,000.  Solely for purposes of
subsection 6.7(v), the issuance of Capital Stock by Company or any of its
Domestic Subsidiaries (other than by Domestic Borrowers or with respect to
employee and executive compensation plans and issuances to qualifying directors
and Company or any of its Subsidiaries) shall be deemed an Asset Sale (with the
proceeds of any such issuance being deemed Net Equity Securities Proceeds).


 


“Assignment and Acceptance” means an
Assignment and Acceptance, in substantially the form of Exhibit X
annexed hereto.


 


“Australian Cross Guaranty” means the
guaranty by the Australian Offshore Borrowers and the Australian Wholly-Owned
Subsidiaries of (i) the French Tranche C1 Term Loans and French Tranche C2 Term
Loans to be delivered on the Second Restatement Date and (ii) the French
Tranche C3 Term Loans to be delivered on or before the BSN Change of Control
Payment Date.


 


“Australian Offshore Borrowers” means O-I
Australia, ACI and any Australian Subsidiary that becomes an Additional
Offshore Borrower to which Australian Revolving
Loans will be made under this Agreement.


 


“Australian Overdraft Account” means an
account established by any Australian Offshore Borrower with Australian
Overdraft Account Provider and referenced in an Australian Overdraft Agreement.


 


“Australian Overdraft Account Provider”
means Westpac Banking Corporation or any successor Australian Overdraft Account
Provider pursuant to subsection 10.2E; provided, however,
that no such Lender shall be a successor Australian Overdraft Account Provider
until any Australian Offshore Borrower and such Lender have executed and
delivered an Australian Overdraft Agreement to Administrative Agent.


 


“Australian Overdraft Agreement” means that
certain agreement between ACI and Westpac Banking Corporation, dated as of
September 18, 2003, and any Offshore Overdraft Agreement between an Australian
Offshore Borrower and any successor Australian Overdraft Account Provider, in
substantially the form of Exhibit VIII annexed hereto, with such
modifications thereto as may be approved by Administrative Agent and any
successor Offshore Overdraft Agreement executed and delivered by such
Australian Offshore Borrower and such successor Australian Overdraft Account
Provider pursuant to subsection 10.2E, as any such Offshore Overdraft
Agreement may hereafter be amended, amended and restated, supplemented or
otherwise modified from time to time in accordance with the terms thereof and
hereof.


 


“Australian Overdraft Amount” means, as at
any date of determination, the aggregate principal amount of outstanding
overdrafts charged to all Australian Overdraft Accounts.


 


11

















 


“Australian Revolving Loan Commitment” means the commitment of a Lender to
make Australian Revolving Loans to
Australian Offshore Borrowers pursuant to subsection 2.1C, and “Australian
Revolving Loan Commitments”
means such commitments of all Lenders in the aggregate.


 


“Australian Revolving Loan Exposure”
means, with respect to any Lender as of any date of determination
(i) prior to the termination of the Revolving Loan Commitments, that
Lender’s Australian Revolving
Loan Commitment, and (ii) after the termination of the Revolving Loan
Commitments, the sum of (a) the aggregate outstanding principal amount of the
Australian Revolving Loans of
that Lender plus (b) in the event that Lender is an Issuing Lender in
respect of a Letter of Credit issued for the account of an Australian Offshore
Borrower, the aggregate Letter of Credit Usage in respect of all Letters of
Credit issued by that Lender for the account of an Australian Offshore Borrower
(in each case net of any participation purchased by other Lenders in such
Letters of Credit or any unreimbursed drawings thereunder) plus (c) the
aggregate amount of all participations purchased by that Lender in any
outstanding Letters of Credit issued for the account of an Australian Offshore
Borrower or any unreimbursed drawings under any Letters of Credit issued for
the account of any Australian Offshore Borrower plus (d) in the
case of Australian Overdraft Account Provider, the Dollar Equivalent of the
Australian Overdraft Amount (net of any participations therein purchased by
other Lenders) plus (e) the aggregate amount of all participations
purchased by that Lender in the Australian Overdraft Amount.


 


“Australian Revolving Loan Note” means any
promissory note of an Australian Offshore Borrower, substantially in the form
of Exhibit VI annexed hereto, issued in favor of a Lender pursuant to
subsection 2.1G(iv) to evidence the Australian Revolving Loans of such Lender, as such promissory note may be
amended, supplemented or otherwise modified from time to time.


 


“Australian Revolving Loans” means any
existing Australian Revolving Loans outstanding under the First Amended and
Restated Credit Agreement on the Second Restatement Date and amended and
restated as Australian Revolving Loans hereunder and Loans made from and after the
Second Restatement Date by Lenders to Australian Offshore Borrowers pursuant to
subsection 2.1C.


 


“Australian Subsidiary” means any Subsidiary
of Company organized under the laws of the Commonwealth of Australia or any
state or territory thereof.


 


“Australian Wholly-Owned Subsidiary”  means
any Wholly-Owned Subsidiary of any Australian Offshore Borrower organized under
the laws of the Commonwealth of Australia or any state or territory thereof and
“Australian
Wholly-Owned Subsidiaries”
means, collectively, all Australian Wholly-Owned Subsidiaries.


 


“Avir” means Aziende Vetrarie Industriali Ricciardi – AVIR S.p.A., a corporation organized under the laws of
Italy.


 


“Bankruptcy Code” means Title 11 of the
United States Code entitled “Bankruptcy” as now and hereafter in effect, or any
successor statute.


 


12

















 


“Base Rate” means, at any time, the higher
of (x) the Prime Rate or (y) the rate which is 1/2 of 1% in excess of
the Federal Funds Effective Rate.


 


“Base Rate Loans” means Loans bearing
interest at rates determined by reference to the Base Rate as provided in
subsection 2.2A.


 


“Borrower” means (i) with respect to the
Tranche B1 Term Loans and from and after the BSN Acquisition Closing Date, the
Domestic Tranche C Term Loans and Tranche D Term Loans, Owens-Brockway,
(ii) with respect to Revolving Loans and Letters of Credit issued for the
account of a Domestic Borrower and the Domestic Overdraft Account, either of
the Domestic Borrowers, (iii) with respect to UK Revolving Loans and the
UK Overdraft Account, United Glass, (iv) with respect to Tranche A1 Term
Loans, ACI, (v) with respect to the Australian Revolving Loans, Letters of
Credit issued for the account of an Australian Offshore Borrower and the Australian
Overdraft Account, any of the Australian Offshore Borrowers, as applicable,
(vi) with respect to Canadian Revolving Loans and the Canadian Overdraft
Account, O-I Canada, (vii) with respect to Italian Revolving Loans and the
Italian Overdraft Account, Avir, and (viii) from and after the BSN Acquisition
Closing Date, with respect to the French Tranche C1 Term Loans, French Tranche
C2 Term Loans and the French Tranche C3 Term Loans, BSN, and “Borrowers”
means any combination thereof, collectively.


 


“Borrowers’ Agent”
means Owens-Illinois General, Inc. pursuant to the appointment made by
Borrowers in subsection 2.9E.


 


“Borrowing Subsidiary Agreement” means a
Borrowing Subsidiary Agreement, in substantially the form of Exhibit XVIII
annexed hereto.


 


“BSN” shall mean BSN Glasspack, S.A., a
French societe anonyme.


 


“BSN Acquisition” shall have the meaning set
forth in the recitals hereto.


 


“BSN Acquisition Closing Date” means the
date on which all of the conditions set forth in subsection 3.2 are
satisfied and the Domestic Tranche C Term Loans, the Tranche D Term Loans, the
French Tranche C1 Term Loans and the French Tranche C2 Term Loans are funded.


 


“BSN  Change of Control Payment” is defined in
Section 5.08 of the Existing BSN Senior Subordinated Note Indentures.


 


“BSN  Change of Control Payment Date” means the
date on which the issuers of the Existing BSN Senior Subordinated Notes are
required to make Change of Control Payments to the holders thereof pursuant to
the Existing BSN Senior Subordinated Note Indentures.


 


“BSN Collateral” means the Capital Stock of
BSN and its Subsidiaries that are Offshore Guarantors, substantially all of the
assets of such Subsidiaries organized under the laws of the Netherlands and
Spain, a “going concern” pledge of the assets of such Subsidiaries organized
under the laws of France, certain equipment and intangible assets of such
Subsidiaries organized under the laws of Germany, and such assets of such
Subsidiaries organized under the laws of Luxembourg that secure the Existing
BSN Credit Agreement.


 


13

















 


“BSN Guaranty and Collateral Documents”
means those Offshore Guaranties and Offshore Collateral Documents to be
executed and delivered by O-I Europe SAS, BSN and certain of its Subsidiaries
on the BSN Acquisition Closing Date substantially in the forms agreed upon by
Company and the Agents on or prior to the Second Restatement Date, as the same
may be further documented, supplemented or adjusted as reasonably required by
the Agents prior to the BSN Acquisition Closing Date, in the case of collateral
documents, so as to ensure the proper granting and perfection of Liens on the
BSN Collateral.


 


“BSN Share Purchase Agreement” shall have
the meaning set forth in the recitals hereto.


 


“BSN Subordinated
Shareholder Loan” means the
loan in the aggregate outstanding principal amount of €15,240,000 evidenced by
the Loan Agreement dated August 5, 1999 between BSN and Glasspack
Participations, S.A.


 


“Business Day” means (i) for all
purposes other than as covered by clause (ii) or (iii) below, any day excluding
Saturday, Sunday and any day which is a legal holiday under the laws of the
States of New York or Ohio or is a day on which banking institutions located in
such states are authorized or required by law or other governmental action to
close, (ii) with respect to all notices, determinations, fundings and
payments in connection with the Adjusted Eurodollar Rate, any day which is a
Business Day described in clause (i) and which is also a day for trading by and
between banks in Dollar deposits in the European interbank market,
(iii) with respect to all notices, determinations, fundings and payments
in connection with Euro LIBOR, any day which is a Business Day described in
clause (i) and which is also a day for trading by and between banks in Euro
deposits in the applicable interbank Euro LIBOR market, and (iv) with respect
to all notices, determinations, fundings and payments in connection with any
Offshore Revolving Loans, any Offshore Overdraft Account, or any Letter of
Credit issued for the account of an Offshore Borrower, any day which is a
Business Day described in clause (i) and (ii) above and which is also an
Offshore Banking Day.


 


“Calculation Date” means (i) the last day of
each calendar month (or, if such day is not a Business Day, the next preceding
Business Day), (ii) at any time after and so long as (a) the Total
Utilization of UK Revolving Loan Commitments or of the Total Utilization of
Australian Revolving Loan Commitments or of the Total Utilization of Italian
Revolving Loan Commitments or of the Total Utilization of Canadian Revolving
Loan Commitments exceeds 90% of the Offshore Sublimit for the applicable
Offshore Borrower or (b) the sum of such amounts exceeds 90% of the Aggregate
Offshore Sublimit, the fifteenth and last day of each calendar month (or, if
such day is not a Business Day, the next preceding Business Day), and (iii)
such other dates as Administrative Agent or any Borrower may reasonably require
from time to time, including any date of calculation of Dollar Equivalents
described in the last sentence of subsection 2.4B(iii).


 


“CAM”
means the mechanism for the allocation and exchange of interests in the
Specified Obligations and collections thereunder established under subsection 2.10.


 


“CAM Exchange”
means the exchange of the Lenders’ interests provided for in
subsection 2.10.


 


14

















 


“CAM Exchange Date”
means the date on which (a) any Event of Default referred to in
subsection 7.6 or 7.7 shall occur in respect of the Company, either
Domestic Borrower, any Australian Offshore Borrower or BSN or (b) an
acceleration of the maturity of any of the Loans (other than Tranche D Term
Loans) pursuant to Section 7 shall occur.


 


“CAM Percentage”
means, as to each Lender, a fraction, expressed as a decimal, of which (a) the
numerator shall be the aggregate Dollar Equivalent (determined on the basis of
Exchange Rates or Spot Rates, as applicable, prevailing on the CAM Exchange
Date) of the Specified Obligations owed to such Lender and such Lender’s
participation in the Domestic Overdraft Amount, the Offshore Overdraft Amounts
and undrawn amounts of Letters of Credit immediately prior to the CAM Exchange
Date and (b) the denominator shall be aggregate Dollar Equivalent (as so
determined) of the Specified Obligations owed to all the Lenders, the Domestic
Overdraft Amount, the Offshore Overdraft Amounts and the aggregate undrawn
amount of outstanding Letters of Credit immediately prior to such CAM Exchange
Date.


 


“Canadian Dollars” means the lawful currency of Canada.


 


“Canadian Overdraft Account” means the
account established by O-I Canada with Canadian Overdraft Account Provider and
referenced in the Canadian Overdraft Agreement.


 


“Canadian Overdraft Account Provider” means
the Bank of Nova Scotia or any successor Canadian Overdraft Account Provider
pursuant to subsection 10.2E; provided, however, that no
such Lender shall be a successor Canadian Overdraft Account Provider until O-I
Canada and such Lender have executed and delivered an Canadian Overdraft
Agreement to Administrative Agent.


 


“Canadian Overdraft Agreement” means that
certain agreement between O-I Canada and the Bank of Nova Scotia dated as of
July 28, 2003, and/or any Offshore Overdraft Agreement between O-I Canada and
any successor Canadian Overdraft Account Provider, in substantially the form of
Exhibit VIII annexed hereto, with such modifications thereto as may
be approved by Administrative Agent and any successor Offshore Overdraft Agreement
executed and delivered by O-I Canada and such successor Canadian Overdraft
Account Provider pursuant to subsection 10.2E, as any such Offshore
Overdraft Agreement may hereafter be amended, amended and restated,
supplemented or otherwise modified from time to time.


 


“Canadian Overdraft Amount” means, as at any
date of determination, the aggregate principal amount of outstanding overdrafts
charged to the Canadian Overdraft Account.


 


“Canadian Revolving Loan Commitment”
means the commitment of a Lender to make Canadian Revolving Loans to O-I Canada
pursuant to subsection 2.1C, and “Canadian Revolving Loan Commitments” means
such commitments of all Lenders in the aggregate.


 


“Canadian Revolving Loan Exposure”
means, with respect to any Lender as of any date of determination
(i) prior to the termination of the Revolving Loan Commitments, that
Lender’s Canadian Revolving Loan Commitment, and (ii) after the
termination of the Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Canadian


 


15

















 


Revolving Loans of that Lender plus (b) in the case of Canadian
Overdraft Account Provider, the Dollar Equivalent of the Canadian Overdraft
Amount (net of any participations therein purchased by other Lenders) plus
(c) the aggregate amount of all participations purchased by that Lender in the
Canadian Overdraft Amount.


 


“Canadian Revolving Loan Note” means any
promissory note of O-I Canada, substantially in the form of Exhibit VI
annexed hereto, issued in favor of a Lender pursuant to
subsection 2.1G(iv) to evidence the Canadian Revolving Loans of such
Lender, as such promissory note may be amended, supplemented or otherwise
modified from time to time.


 


“Canadian Revolving Loans” means the Loans
made by Lenders to O-I Canada pursuant to subsection 2.1C.


 


“Capital Lease”, as applied to any Person,
means any lease of any property (whether real, personal or mixed) by that
Person as lessee which, in conformity with GAAP (subject to subsection 1.2
hereof), is accounted for as a capital lease on the balance sheet of that
Person.


 


“Capital Stock”
means the capital stock or other equity interests of a Person.


 


“Cash” means money, currency or a credit
balance in a Deposit Account.


 


“Cash Equivalents” means (i) marketable
direct obligations issued or unconditionally guarantied by the United States
Government or issued by any agency thereof and (a) backed by the full
faith and credit of the United States of America or (b) having a rating of at
least AAA from S&P or at least Aaa from Moody’s, in each case maturing
within one year from the date of acquisition thereof; (ii) marketable
direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time
of acquisition, having the highest rating obtainable from either S&P or
Moody’s; (iii) commercial paper maturing no more than one year from the date
of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Moody’s; (iv) certificates of
deposit or bankers’ acceptances maturing within one year from the date of
acquisition thereof issued by any Lender or any commercial bank organized under
the laws of the United States of America or any state thereof or the District
of Columbia having combined capital and surplus of not less than $250,000,000;
(v) Eurodollar time deposits having a maturity of less than one year
purchased directly from any Lender or any Affiliate of any Lender (whether such
deposit is with such Lender or Affiliate or any other Lender);
(vi) repurchase agreements and reverse repurchase agreements with any
Lender or any Affiliate of any Lender relating to marketable direct obligations
issued or unconditionally guarantied by the United States Government or issued
by any agency thereof and backed by the full faith and credit of the United
States of America, in each case maturing within one year from the date of
acquisition thereof; and (vii) shares of any money market mutual fund that has
a rating of at least AAAm from S&P or at least Aaa from Moody’s.


 


“Change of Control” means such time as a
“person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of
the Exchange Act), other than KKR and its Affiliates,


 


16

















 


becomes the “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act) of more than 35% of the total voting power of the then
outstanding Voting Stock or any event constituting a “change of control” under
any indenture governing any Existing Owens-Brockway Senior Secured Notes,
Existing Owens-Brockway Senior Unsecured Notes, New Senior Debt, Refinancing
Senior Debt or New Junior Debt.  For
purposes of this definition of “Change of Control”, the term “Voting Stock”
means Capital Stock of any class or kind ordinarily (without regard to the
occurrence of any contingency) having the power to vote for the election of
directors of Holdings or Company.


 


“Class”,
as applied to the Lenders, means each of the following eight classes of
Lenders:  (i) Lenders having Revolving
Loan Exposure, (ii) Lenders having Tranche A1 Term Loan Exposure, (iii) Lenders
having Tranche B1 Term Loan Exposure, (iv) Lenders having Domestic Tranche C
Term Loan Exposure, (v) Lenders having Tranche D Term Loan Exposure, (vi)
Lenders having French Tranche C1 Term Loan Exposure, (vii) Lenders having
French Tranche C2 Term Loan Exposure and (viii) Lenders having French Tranche
C3 Term Loan Exposure; provided, that the Domestic Tranche C Term Loans
and the Tranche D Term Loans shall be deemed to be a single class except with
respect to any amendment, modification, termination or waiver that would disproportionately
disadvantage either such Type of Loan relative to the other; and provided
further that the French Tranche C1 Term Loans, the French Tranche C2
Term Loans and French Tranche C3 Term Loans shall be deemed to be a single
class except with respect to any amendment, modification, termination or waiver
that would disproportionately disadvantage any such Type of Loans relative to
either of the others.


 


“Collateral”
means, collectively, all of the real, personal and mixed property (including
Capital Stock) in which Liens are purported to be granted pursuant to the
Collateral Documents.


 


“Collateral Agent” means DB acting in the capacity of
collateral agent on behalf of the Lenders, the trustees in respect of any
outstanding Existing Holdings Senior Notes, the trustees in respect of the
Existing Owens-Brockway Senior Secured Notes and the holders of Other Permitted
Credit Exposure and the other persons (other than Company or its Subsidiaries)
who in each case have executed acknowledgements to the Intercreditor Agreement
acknowledged (to the extent necessary) by Borrowers’ Agent or are otherwise
entitled to the benefit thereof, including Lenders and their Affiliates party
to Interest Rate Agreements and Currency Agreements, in each case under the
Collateral Documents.  The Collateral
Agent has designated Deutsche Bank AG, Sydney Branch, as a sub-agent to act on
its behalf in Australia, Deutsche Bank AG, London Branch as a sub-agent to act
on its behalf in UK, France, the Netherlands, Spain, Germany, and Luxembourg,
and may from time to time designate other sub-agents to act on behalf of
Collateral Agent with respect to the Offshore Collateral.  The term “Collateral Agent” shall be deemed
to include such sub-agents where appropriate.


 


“Collateral
Documents” means the Domestic Collateral Documents and the Offshore
Collateral Documents, collectively.


 


“Commercial Letter of Credit” means any
letter of credit or similar instrument issued for the purpose of providing the
primary payment mechanism in connection with the


 


17

















 


purchase of any materials, goods or services by Borrowers or any of
their Subsidiaries in the ordinary course of business of such Borrower or such
Subsidiary.


 


“Commitments” means the
Domestic Tranche C Term Loan Commitments, the Tranche D Term Loan Commitments,
the French Tranche C1 Term Loan Commitments, the French Tranche C2 Term Loan
Commitments, the French Tranche C3 Term Loan Commitments, the Revolving Loan
Commitments, the UK Revolving Loan Commitments, the Australian Revolving Loan
Commitments, the Canadian Revolving Loan Commitments, the Italian Revolving
Loan Commitments or any combination thereof.


 


“Commodities Agreement” means any forward
commodities contract, commodities option contract, commodities futures
contract, commodities futures option, or similar agreement or arrangement.


 


“Common Stock” means the common stock of a
Person.


 


“Company” has the meaning assigned to that
term in the introduction to this Agreement.


 


“Company Guaranty” means the guaranty by
Company contained in Section 9 hereof.


 


“Compliance Certificate” means a certificate
substantially in the form annexed hereto as Exhibit IX delivered to
Lenders by Company pursuant to subsection 5.1(iii).


 


“Consolidated Adjusted EBITDA” means, for
any period, the remainder of Consolidated Net Income adjusted to exclude
(without duplication) the effects of (i) Consolidated Interest Expense,
(ii) provisions for taxes based on income, (iii) depreciation expense, (iv)
amortization expense, (v) extraordinary items, (vi) material non-recurring
gains and non-cash charges (excluding, for all purposes other than the
calculation of Consolidated Excess Cash Flow, any such charges related to
claims of persons against Holdings for exposure to asbestos-containing products
and expenses related thereto), (vii) the establishment of the 2003 Additional
Asbestos Reserve, (viii) material non-recurring cash charges (other than
any cash charge against any accrual or reserve established in a prior period
for which an adjustment was taken under clause (vi) of this definition and
other than any charges related to claims of persons against Holdings for
exposure to asbestos-containing products and expenses related thereto) in an
amount not to exceed $10,000,000 for any such charge individually or
$20,000,000 in the aggregate for all such charges in any four Fiscal Quarter
Period; and (ix) minority share owners’ interests in earnings of
subsidiaries, all of the foregoing as determined on a consolidated basis for
Holdings and its Subsidiaries in conformity with GAAP; provided  that
for purposes of any calculation made from and after the BSN Acquisition Closing
Date (i) Consolidated Adjusted EBITDA for the Fiscal Quarter ended September
30, 2003 shall be deemed to be $410,888,238 and for the Fiscal Quarter ended
December 31, 2003 shall be deemed to be $329,343,922 and (ii) Consolidated Net
Income shall also be adjusted to exclude (x) for the Fiscal Year ending
December 31, 2004, an increase in the Asbestos Reserve in an amount not to
exceed $118,000,000, (xi) in each Fiscal Year thereafter, increase in the
Asbestos Reserve in an amount not to exceed the lesser of 90% of (A) the
maximum amount permitted to be excluded in the


 


18

















 


previous Fiscal Year or (B) the amount by which the Asbestos Reserve
was actually increased in such previous Fiscal Year as confirmed by Holdings’
form 10-K filing for such Fiscal Year and (xii) restructuring charges (other
than any cash charge against any accrual or reserve in a prior period for which
adjustment was taken under this clause (xii)) taken on or prior to December 31,
2006 with respect to the BSN Acquisition in an aggregate amount for all periods
not to exceed €42,200,000.


 


“Consolidated Capital Expenditures” means, for any period, the sum of
the aggregate of all expenditures (whether paid in cash or other consideration
or accrued as a liability and including that portion of Capital Leases which is
capitalized on the consolidated balance sheet of Holdings and its Subsidiaries)
by Holdings and its Subsidiaries during that period that, in conformity with
GAAP, are included in “additions to property, plant or equipment” or comparable
items reflected in the consolidated statement of cash flows of Holdings and its
Subsidiaries.  For purposes of this
definition, the purchase price of equipment that is purchased simultaneously
with the trade-in of existing equipment or with insurance proceeds shall be
included in Consolidated Capital Expenditures only to the extent of the gross
amount of such purchase price less the credit granted by the seller of such
equipment for the equipment being traded in at such time or the amount of such
proceeds, as the case may be.


 


“Consolidated Cash Flow Available for
Fixed Charges” means,
for any period, the result for such period of (i) Consolidated Adjusted EBITDA less
(ii) Consolidated Capital Expenditures and  less (iii) cash taxes
paid based on income (including Restricted Junior Payments permitted by
subsection 6.5 and described in clause (y) of the definition of Holdings
Ordinary Course Payments).


 


“Consolidated Cash Interest Expense” means,
for any period, Consolidated Interest Expense for such period excluding,
however, any interest expense not payable in Cash (including
amortization of discount and amortization of debt issuance costs).


 


“Consolidated Excess Cash Flow” means, for
any period, an amount (if positive) equal to (i) the sum, without
duplication, of the amounts for such period of (a) Consolidated Adjusted
EBITDA and (b) the Consolidated Working Capital Adjustment minus
(ii) the sum, without duplication, of the amounts for such period of (a)
all repayments of Consolidated Total Debt permitted hereunder (excluding (i)
repayments of Revolving Loans except to the extent the Revolving Loan
Commitments are permanently reduced in connection with such repayments,
(ii) repayments of Indebtedness with proceeds of other Indebtedness
(including, without limitation, Revolving Loans or amounts drawn out of any
Existing Holdings Senior Notes Redemption Collateral Account, and (iii) any
other mandatory prepayment of Indebtedness, to the extent proceeds from the
event giving rise to such prepayment are not included in the calculation of Consolidated
Adjusted EBITDA), (b) Consolidated Capital Expenditures (net of any
proceeds of any related financings with respect to such expenditures),
(c) Consolidated Cash Interest Expense, (d) the provision for current
taxes based on income of Company and its Subsidiaries and payable in cash with
respect to such period, (e) the amount of cash charges for such period for
which adjustment was made under clause (viii) of the definition of Consolidated
Adjusted EBITDA, (f) the amount of Holdings Ordinary Course Payments made
pursuant to clause (w) of the definition thereof for such period and
(g) the amount of Holdings Ordinary Course Payments made pursuant to
clause (x) of the definition thereof for such period.


 


19

















 


“Consolidated Fixed Charge Coverage Ratio” means, as at any date of
determination, the ratio of (a) Consolidated Cash Flow Available for Fixed
Charges for the four-Fiscal Quarter period ended on such date to (b)
Consolidated Fixed Charges for such four Fiscal Quarter period.


 


“Consolidated Fixed Charges” means, for any period, the sum
(without duplication) of the amounts for such period of (i) Consolidated
Interest Expense and (ii) Restricted Junior Payments permitted by
subsection 6.5 and described in clauses (t) and (x) of the definition of
Holdings Ordinary Course Payments, all of the foregoing as determined on a
consolidated basis for Holdings and its Subsidiaries in conformity with GAAP.


 


“Consolidated Interest Expense” means, for
any period, interest expense with respect to all outstanding Indebtedness
(including, without limitation, net costs under Interest Rate Agreements and
any such expense attributable to Capital Leases in accordance with GAAP) of
Holdings and its Subsidiaries for such period determined on a consolidated
basis in conformity with GAAP.


 


“Consolidated
Leverage Ratio” means, as at any date of determination, the ratio of
(a) Consolidated Total Debt as of the last day of the Fiscal Quarter ended on
such date to (b) Consolidated Adjusted EBITDA for the four Fiscal Quarter
period ended on such date.


 


“Consolidated Net Income” means, for any
period, the net income (or loss) of Holdings and its Subsidiaries on a
consolidated basis for such period taken as a single accounting period determined
in conformity with GAAP.


 


“Consolidated Senior
Secured Debt” means (A) Consolidated Total Debt plus the
aggregate amount that is or may become available for drawing under any Letters
of Credit minus (B) Existing Holdings Senior Notes, Subordinated Indebtedness
of Holdings and its Subsidiaries (including, for avoidance of doubt, the
Existing BSN Senior Subordinated Notes), Refinancing Senior Debt, New Junior
Debt, the Existing Owens-Brockway Senior Unsecured Notes and any other
unsecured and/or subordinated Indebtedness of Holdings and its Subsidiaries
permitted by this Agreement, determined on a consolidated basis in conformity
with GAAP.


 


“Consolidated Senior
Secured Leverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Senior Secured Debt as of the last day of the
Fiscal Quarter ended on such date to (b) Consolidated Adjusted EBITDA for
the four Fiscal Quarter period ended on such date.


 


“Consolidated Total Debt” means, as at any
date of determination, the aggregate stated balance sheet amount of all
Indebtedness of Holdings and its Subsidiaries, all as determined on a
consolidated basis in conformity with GAAP and Receivables Sale Indebtedness of
Holdings and its Subsidiaries regardless of whether included on the consolidated
balance sheet of Holdings and its Subsidiaries; provided, that, for purposes of
calculating the Consolidated Leverage Ratio, “Consolidated Total Debt” shall
not include Existing Holdings Senior Notes maturing in 2005 or 2007 to the
extent funds are escrowed for the payment thereof in the Existing Holdings
Senior Notes Redemption Collateral Account.


 


20

















 


“Consolidated Working Capital Adjustment” means, for any period on a
consolidated basis, the amount (which may be negative) by which the sum of the
components of working capital as of the beginning of such period exceeds (or is
less than) the sum of the components of working capital as of the end of such
period, as presented on the face of the consolidated cash flow statement
included in Holdings’ Form 10-K filing for such period.


 


“Contingent
Obligation” means, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of that Person (i) with respect to any
Indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof by the Person incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another that such
obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof, (ii)
with respect to any letter of credit issued for the account of that Person or
as to which that Person is otherwise liable for reimbursement of drawings, or
(iii) under Hedge Agreements. 
Contingent Obligations shall include (a) the direct or indirect
guaranty, endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse
by such Person of the obligation of another, (b) the obligation to make
take-or-pay or similar payments if required regardless of non-performance by
any other party or parties to an agreement, and (c) any liability of such
Person for the obligation of another through any agreement (contingent or
otherwise) (1) to purchase, repurchase or otherwise acquire such obligation or
any security therefor, or to provide funds for the payment or discharge of such
obligation (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise) or (2) to maintain the solvency or any balance
sheet item, level of income or financial condition of another if, in the case of
any agreement described under subclauses (1) or (2) of this sentence, the
primary purpose or intent thereof is as described in the preceding
sentence.  The amount of any Contingent
Obligation shall be equal to the principal amount of the obligation so guaranteed
or otherwise supported or, if less, the amount to which such Contingent
Obligation is specifically limited, or, if not stated, the maximum reasonably
anticipated liability in respect thereof as determined by such Person in good
faith.


 


“Contractual Obligation”, as applied to any
Person, means any provision of any Security issued by that Person or of any
material indenture, mortgage, deed of trust, contract, undertaking, agreement
or other instrument to which that Person is a party or by which it or any of
its properties is bound or to which it or any of its properties is subject.


 


“Covered Tax” means any Tax that is not an
Excluded Tax.


 


“Currency Agreement” means any foreign
exchange contract, currency swap agreement or other similar agreement or arrangement.


 


“Currency
Obligations” has the meaning assigned to that term in
subsection 9.1.


 


“Defaulting Participating Lender” means, (A) with respect to any
Letter of Credit, any Lender which (i) has Revolving Loan Exposure at the time
a notice is given to Lenders to fund the purchase of participations in such
Letter of Credit pursuant to subsection 2.8E, and (ii) fails to fully fund
such purchase pursuant to subsection 2.8E; or (B)


 


21

















 


with respect to the Domestic Overdraft Account or any Offshore
Overdraft Account, any Lender which (i) has Revolving Loan Exposure at the time
a notice is given to Lenders to fund the purchase of participations in either
the Domestic Overdraft Account pursuant to subsection 2.1B or an Offshore
Overdraft Account pursuant to subsection 2.1D(ii), and (ii) fails to fully
fund such purchase pursuant to subsection 2.1B or 2.1D(ii).


 


“Deposit Account” means a demand, time,
savings, passbook or similar account maintained with a Person engaged in the
business of banking, including a savings bank, savings and loan association,
credit union or trust company.


 


“Dollar Equivalent” means, at any time as to
any amount denominated in an Offshore Currency, the equivalent amount in
Dollars as determined by the Administrative Agent at such time on the basis of
the Spot Rate for the purchase of Dollars with such Offshore Currency on the
most recent Calculation Date with respect to such Offshore Currency.


 


“Dollars” or the sign “$” means the lawful currency
of the United States of America.


 


“Domestic Borrowers”
means, collectively, Owens-Brockway and O-I Plastic.  “Domestic Borrower”
means either of the Domestic Borrowers.


 


“Domestic Borrowers’
Guaranty” means that certain Amended and Restated Domestic Borrowers
Guaranty dated as of June 13, 2003, as amended by the first amendment thereto
dated as of the Second Restatement Date in the form attached hereto as Exhibit
XIV, pursuant to which (i) each Domestic Borrower shall guaranty all
Tranche B1 Term Loans, Domestic Tranche C Term Loans, Tranche D Term Loans and
Revolving Loans made to, and related Obligations of, the other Domestic
Borrower; (ii) each Domestic Borrower shall guaranty all Tranche A1 Term
Loans, French Tranche C1 Term Loans, French Tranche C2 Term Loans, French
Tranche C3 Term Loans and Offshore Revolving Loans made to, and all other
Obligations of, the Offshore Borrowers; and (iii) each Domestic Borrower shall
guaranty the Other Lender Guarantied Obligations.


 


“Domestic Collateral
Documents” means the Pledge Agreement, the Security Agreement and
the Mortgages securing Mortgaged Property located in the United States of
America.


 


“Domestic Funding and Payment Office” means
the office of Administrative Agent located at 31 West 52nd Street, New
York, New York 10019.


 


“Domestic Funding
Borrower” has the meaning assigned to that term in
subsection 2.9B.


 


“Domestic Overdraft Account” means the
account established by the Domestic Borrowers with Administrative Agent and
referenced in the Domestic Overdraft Agreement.


 


“Domestic Overdraft Agreement” means the
Amended and Restated Overdraft Agreement dated as of June 13, 2003, between the
Domestic Borrowers and Administrative Agent, as amended by the first amendment
thereto dated as of the Second Restatement Date, and


 


22

















 


any successor Overdraft Agreement substantially in the form attached
hereto as Exhibit VII with such modifications as may be approved by
Administrative Agent, executed and delivered by the Domestic Borrowers and any
successor Administrative Agent pursuant to subsection 8.6, as any such
Overdraft Agreement may hereafter be amended, amended and restated,
supplemented or otherwise modified from time to time.


 


“Domestic Overdraft Amount” means, as at any
date of determination, the aggregate principal amount of outstanding overdrafts
charged to the Domestic Overdraft Account.


 


“Domestic Subsidiaries” means (i) all
Subsidiaries of Company other than (A) the Foreign Subsidiaries and (B)
Subsidiaries organized under the laws of a state of the United States of
America but owned, directly or indirectly, in whole or in part as of the date
hereof by a Foreign Subsidiary and (ii) Continental PET Technologies, Inc. and
ACI America Holdings Inc.


 


“Domestic Tranche C Term Loan Lender” means
a Lender that has Domestic Tranche C Term Loan Exposure.


 


“Domestic Tranche C Term Loan Commitment” means the commitment of a Lender to
make Domestic Tranche C Term Loans on the BSN Acquisition Closing Date pursuant
to subsection 2.1A(iii) and “Domestic Tranche C Term Loan
Commitments” means
such commitments of all Lenders in the aggregate.


 


“Domestic Tranche C Term Loan Exposure”
means, with respect to any Lender as of any date of determination, (i) prior to
the funding of the Domestic Tranche C Term Loans, that Lender’s Domestic
Tranche C Term Loan Commitment and (ii) after the funding of the Domestic
Tranche C Term Loans, the outstanding principal amount of the Domestic
Tranche C Term Loans of that Lender.


 


“Domestic Tranche C Term Loan Notes” means
the promissory notes of Owens-Brockway issued pursuant to subsection 2.1G to
evidence the Domestic Tranche C Term Loans of any Lenders, substantially in the
form of Exhibit IV-C annexed hereto, as they may be amended, supplemented
or otherwise modified from time to time.


 


“Domestic Tranche C Term Loans” means the Loans made as Domestic
Tranche C Term Loans on the BSN Acquisition Closing Date by Lenders to
Owens-Brockway pursuant to subsection 2.1A(iii).


 


“Eligible Assignee” means (A)(i) a
commercial bank organized under the laws of the United States of America or any
state thereof; (ii) a savings and loan association or savings bank
organized under the laws of the United States of America or any state thereof;
(iii) a commercial bank organized under the laws of any other country or a
political subdivision thereof; provided that (x) such bank is
acting through a branch or agency located in the United States of America or
(y) such bank is organized under the laws of a country that is a member of
the Organization for Economic Cooperation and Development or a political
subdivision of such country; and (iv) any other entity which is an
“accredited investor” (as defined in Regulation D


 


23

















 


under the Securities Act) which extends credit or buys or invests in
loans as one of its businesses including, but not limited to, insurance
companies, mutual funds and lease financing companies, in each case (under
clauses (i) through (iv) above) that is reasonably acceptable to Administrative
Agent; and (B) any Lender, any Affiliate of any Lender and Related Fund of
any Lender; provided that (1) no Affiliate of Company shall be an
Eligible Assignee and (2) no “associate” (as defined in Section 128F(9) of
the Income Tax Assessment Act 1936 of Australia) of an Australian Offshore
Borrower shall be an Eligible Assignee with respect to an Australian Revolving
Loan Commitment or a Tranche A Term Loan; provided  further that,
in order to be an Eligible Assignee with respect to a Revolving Loan
Commitment, Letters of Credit or a participation therein, a Person must have at
the time of determination unimpaired capital and surplus of not less than
$100,000,000.


 


“Employee Benefit Plan” means any “employee benefit plan” as
defined in Section 3(3) of ERISA which is or was maintained or contributed
to by Holdings, any of its Subsidiaries or any of their respective ERISA
Affiliates.


 


“English Wholly-Owned Subsidiary” means any Wholly-Owned Subsidiary of United
Glass incorporated in England and Wales, excluding, however, U.G. Leasing Ltd.,
and “English Wholly-Owned Subsidiaries” means, collectively, all English Wholly-Owned Subsidiaries.


 


“Environmental Claim” means any investigation, notice,
notice of violation, claim, action, suit, proceeding, demand, abatement order
or other order or directive (conditional or otherwise), by any Government
Authority or any other Person, arising (i) pursuant to or in connection with
any actual or alleged violation of any Environmental Law, (ii) in connection
with any Hazardous Materials or any actual or alleged Hazardous Materials
Activity, or (iii) in connection with any actual or alleged damage, injury,
threat or harm to health, safety, natural resources or the environment.


 


“Environmental Laws” means any and all
present and future laws, statutes, ordinances, rules, regulations,
requirements, restrictions, permits, orders, codes of practice, approvals,
controls and determinations of any governmental authority that have the force
and effect of law, and that pertain to pollution (including hazardous or toxic
substances), natural resources or the environment, whether federal, state, or
local, domestic or foreign, including environmental response laws such as the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended by the Superfund Amendments and Reauthorization Act of 1986 and as
the same may be further amended (collectively, “CERCLA”).


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and any regulations
promulgated thereunder.


 


“ERISA Affiliate” means any trade or
business (whether or not incorporated) under common control with Holdings or
any of its Subsidiaries within the meaning of Section 414(b) or (c) of the
Internal Revenue Code or (for purposes of Section 412 of the Internal
Revenue Code and provisions of the Internal Revenue Code relating to said
Section 412) Section 414(m) or (o) of the Internal Revenue Code.


 


24

















 


“ERISA Event” means any of the following
events or occurrences if such event or occurrence would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect:  (i) the failure by Holdings, any of its
Subsidiaries or any ERISA Affiliate to make a required contribution to a
Pension Plan; (ii) a withdrawal by Holdings, any of its Subsidiaries or any
ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA), or a cessation of operation which is treated
as such a withdrawal under Section 4062(e) of ERISA; (iii) a complete or
partial withdrawal by Holdings, any of its Subsidiaries or any ERISA Affiliate
from a Multiemployer Plan or the receipt by Holdings, any of its Subsidiaries
or any ERISA Affiliate of notification that a Multiemployer Plan is in
reorganization or is insolvent pursuant to Section 4241 or 4245 of ERISA;
(iv) the filing of a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Section 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate, in each case with respect
to a Pension Plan or receipt by Holdings, any of its Subsidiaries or any ERISA
Affiliate of notice of any such event with respect to a Multiemployer Plan; (v)
an event or condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Pension Plan or, to the knowledge of Holdings, any
Multiemployer Plan; (vi) the imposition of any liability upon Company, any of
its Subsidiaries or any ERISA Affiliate under Title IV of ERISA (other than
with respect to PBGC premiums due but not delinquent under Section 4007 of
ERISA) upon Company, any of its Subsidiaries or any ERISA Affiliate; (vii) the
imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan;
(viii) receipt from the Internal Revenue Service of notice of the failure of
any Plan intended to qualify under Section 401(a) of the Internal Revenue
Code to qualify under Section 401(a) of the Internal Revenue Code, or the
failure of any trust forming part of any such Plan to qualify for exemption
from taxation under Section 501(a) of the Internal Revenue Code; or (ix)
the violation of any applicable foreign law, or an event or occurrence that is
comparable to any of the foregoing events or occurrences, in either case with
respect to a Plan that is not subject to regulation under ERISA by reason of
Section 4(b)(4) of ERISA.


 


“Euro” and the sign “€” mean the single currency
unit of Participating Member States.


 


“Euro LIBOR” shall mean, with respect to
French Tranche C2 Term Loans, (i) the rate per annum for deposits in Euros as
determined by the Administrative Agent for a period corresponding to the
duration of the relevant Interest Period which appears on Reuters Page
EURIBOR-01 (or any successor page) at approximately 11:00 A.M. (Brussels time)
on the date which is two Business Days prior to the commencement of such
Interest Period or (ii) if such rate is not shown on Reuters Page EURIBOR-01
(or any successor page), the average offered quotation to prime banks in the
Euro-zone interbank market by the Administrative Agent for Euro deposits of
amounts comparable to the principal amount of the French Tranche C2 Term Loans
to be made by the Administrative Agent as part of such borrowing with
maturities comparable to the Interest Period to be applicable to such Loan
(rounded upward to the next whole multiple of 1/100 of 1%), determined as of
11:00 A.M. (Brussels time) on the date which is two Business Days prior to the
commencement of such Interest Period.


 


25

















 


“Euro LIBOR Loans” means Loans bearing
interest at rates determined by reference to Euro LIBOR as provided in
subsection 2.2A.


 


“Eurodollar Rate Loans” means Loans bearing
interest at rates determined by reference to the Adjusted Eurodollar Rate as
provided in subsection 2.2A.


 


“Euro Rate Loans” means the Eurodollar Rate
Loans and Euro LIBOR Loans, collectively.


 


“Event of Default” means each of the events
set forth in Section 7.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended from time to time, and any successor statute.


 


“Exchange Rate” means, on any date when an
amount expressed in a currency other than Dollars is to be determined with
respect to any Letter of Credit, Offshore Revolving Loan or Offshore Overdraft
Amount, the spot rate of exchange (as provided by the foreign exchange trader
of the Administrative Agent) in the New York foreign exchange market for the
purchase of such currency in exchange for Dollars on such date, expressed as a
number of units of such currency per one Dollar.


 


“Excluded Tax” means any of the following
Taxes and all liabilities (including without limitation all penalties, interest
and other additions to tax) with respect thereto:  (i) Taxes imposed on the net income or capital of a Lender,
Arranger, Agent or Tax Transferee and franchise taxes imposed in lieu thereof
(including without limitation branch profits taxes, minimum taxes and taxes
computed under alternative methods, at least one of which is based on net
income (collectively referred to as “net income taxes”)) by (A) the
jurisdiction under the laws of which such Lender, Arranger, Agent or Tax
Transferee is organized or resident for tax purposes or any political
subdivision thereof or (B) the jurisdiction of such Lender’s, Tax
Transferee’s, Arranger’s or Agent’s applicable lending office or any political
subdivision thereof or (C) any jurisdiction with which the Lender, Arranger,
Agent or Tax Transferee has any present or former connection (other than solely
by virtue of being a Lender under this Agreement), (ii) any Taxes (other than
Taxes imposed, levied, collected, withheld or assessed by or within the United
Kingdom, Australia, Italy, Canada, France or any political subdivision thereof)
to the extent that they are in effect and would apply to a payment to such
Lender, Arranger or Agent, as applicable, as of the Second Restatement Date, or
as of the date such Person becomes a Lender, in the case of any assignee
pursuant to subsection 10.2 or as of the date of a change in the
jurisdiction of the Lender’s applicable lending office, (iii) any Taxes (other
than taxes imposed, levied, collected, withheld or assessed by or within the
United Kingdom, Australia, Italy, Canada, France or any political subdivision
thereof) that are in effect and would apply to a payment to a Tax Transferee as
of the date of acquisition of any Loans by such Tax Transferee or the date of
the change of lending office of such Tax Transferee, as the case may be (provided,
however, that a Person shall not be considered a Tax Transferee for
purposes of this clause (iii) as a result of a change of its lending office or
the taking of any other steps pursuant to subsection 2.6J or as a result
of a CAM Exchange pursuant to subsection 2.10), (iv) with respect to any
Taxes for which any credit or other Tax benefit, in the reasonable good faith
judgment of such Lender, Tax Transferee, Arranger or Agent, as the case may be,
is


 


26

















 


available to such Lender, Tax Transferee, Arranger or Agent, as
applicable, as a result thereof and is allocable to the transactions
contemplated by this Agreement, the amount of such credit or other Tax benefit
or (v) any Taxes that would not have been imposed but for (A) the failure or
unreasonable delay by such Agent, Arranger, Lender or Tax Transferee, as
applicable, to complete, provide, or file and, at the request of a Borrower or
Borrower’s Agent (in the reasonable exercise of its discretion), update or
renew, in each such case at such Borrower’s expense, any application forms,
certificates, documents or other evidence required from time to time, properly completed
and duly executed, to qualify for any applicable exemption from or reduction of
Taxes, including, without limitation, the certificates, documents or other
evidence required under subsection 2.7C(iv) (unless such failure or delay
does not occur on or prior to the Second Restatement Date or the date of the
applicable Assignment and Acceptance, as the case may be, and results from a
change in applicable law after the Second Restatement Date or the date of the
applicable Assignment and Acceptance, as the case may be, which precludes such
Agent, Arranger, Lender or Tax Transferee, as applicable, from qualifying for
such exemption or reduction), (B) the gross negligence or willful misconduct of
such Agent, Arranger, Lender or Tax Transferee, or (C) such Agent, Arranger,
Lender or Tax Transferee being treated as a “conduit entity” within the meaning
of Treasury Regulation Section 1.881-3 or any successor provision thereto.


 


“Existing BSN Credit
Agreement” means that certain Credit Agreement dated as of July 27,
1999, as amended and restated on August 5, 2003, among BSN, BSN Glasspack
Treasury, S.A., Citibank International plc, as facility agent, Citibank
International plc, as security agent, Citibank N.A., as issuing bank, Citigroup
Global Markets Limited, as lead arranger, the Bank of New York, as new
noteholder trustee and certain financial institutions named therein, as
amended, supplemented or otherwise modified.


 


“Existing BSN Intercreditor Agreements”
means (i) the Intercreditor Agreement dated August 5, 1999 by and among BSN
S.A., BSN Financing Co. S.A., certain other subsidiaries of BSN, S.A.,
Glasspack Participations S.A., Groupe Danone S.A., Citibank International plc,
Citibank, N.A., the Bank of New York and certain other financial institutions,
as amended by an Amendment Agreement dated as of June 4, 2003 and as further
amended by an Amendment Agreement dated August 5, 2003, and (ii)  the Intercreditor Agreement dated August 5,
2003 by and among BSN Glasspack S.A., BSN Glasspack Treasury, S.A., BSN Glasspack
Obligation S.A., certain other subsidiaries of BSN Glasspack, S.A., Glasspack
Participations S.A., Citibank International plc, Citibank, N.A., the Bank of
New York and certain other financial institutions and individuals.


 


“Existing BSN Receivables Securitization Facility”
means the receivables securitization facility established pursuant to
agreements among BSN Glasspack Services, Credit Commercial de France (HSBC-CCF)
and Gestion et Titrisation Internationales on or about November 5, 2000.


 


“Existing BSN Senior Subordinated Note Indentures”
means (i) the Indenture dated as of August 5, 1999 between BSN Financing Co.
S.A., as Issuer and The Bank of New York, as Trustee and (ii) the Indenture
dated as of August 5, 2003 between BSN Glasspack Obligation, as Issuer and The
Bank of New York, as Trustee, in each case as such Indenture may


 


27

















 


have been and may hereafter be amended, supplemented or otherwise
modified from time to time, and “Existing BSN Senior Subordinated Note Indenture”
means either such Indenture.


 


“Existing  BSN
Senior Subordinated Notes”
means, collectively (i) the 10 1⁄4% Senior Subordinated Notes Due 2009 issued by
BSN Financing Co. S.A. pursuant to its Existing BSN Senior Subordinated Note
Indenture and (ii) the 9 1⁄4% Senior Subordinated Notes Due 2009, issued by BSN
Glasspack Obligation pursuant to its Existing BSN Senior Subordinated Note
Indenture.


 


“Existing Holdings
Senior Note Collateral” means the pledges of the shares of Capital Stock
and intercompany notes of Domestic Borrowers and the other direct subsidiaries
of Company pursuant to the Pledge Agreement.


 


“Existing Holdings
Senior Note Indentures” means the Indenture dated as of May
15, 1997, between Holdings, as issuer, and The Bank of New York, as trustee,
and the Indenture dated as of May 20, 1998, between Holdings, as issuer, and
The Bank of New York, as trustee, in each case as such Indenture may have been
and may hereafter be amended, supplemented or otherwise modified from time to
time.


 


“Existing Holdings
Senior Note Obligors” means Holdings, and, on a subordinated basis,
Company and Packaging.


 


“Existing Holdings
Senior Notes” means the following issues of Holdings public
Indebtedness:  7.85% Senior Notes Due
2004; 7.15% Senior Notes Due 2005; 8.10% Senior Notes Due 2007; 7.35% Senior
Notes Due 2008; 7.50% Senior Debentures Due 2010; and 7.80% Senior Debentures
Due 2018.


 


“Existing Holdings
Senior Notes Redemption Collateral Account” has the meaning assigned
to that term in subsection 2.4B(ii)(e)(2).


 


“Existing Holdings
Senior Notes Redemption Sublimit” has the meaning assigned to that
term in subsection 2.4B(ii)(e)(3).


 


“Existing IRBs”
means the Holmes County Ohio 5.85% Industrial Development Revenue Bonds with
final maturity in 2007 and an outstanding principal amount of approximately
$685,000, the Kansas City, Missouri Industrial Development Revenue Bonds with
final maturity in 2008 and an outstanding principal amount of approximately
$9,000,000, 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 Letters of Credit” has the meaning
assigned to that term in subsection 2.8A.


 


“Existing Mortgage”
has the meaning set forth in subsection 5.10A.


 


“Existing Mortgaged
Property” has the meaning set forth in subsection 5.10A.


 


28

















 


“Existing Owens-Brockway Senior Secured Notes”
means Owens-Brockway’s 8-7/8% Senior Secured Notes due 2009, Owens-Brockway’s
8-3/4% Senior Secured Notes due 2012 and Owens-Brockway’s 7-3/4% Senior Secured
Notes due 2011 (and, for avoidance of doubt, any notes issued in exchange or
replacement thereof on substantially identical terms).


 


“Existing Owens-Brockway Senior Unsecured Notes”
means Owens-Brockway’s 8-1/4% Senior Notes due 2013 (and, for avoidance of
doubt, any notes issued in exchange or replacement thereof on substantially
identical terms).


 


“Facilities” means any and all real property
(including all buildings, fixtures or other improvements located thereon) now,
hereafter or heretofore owned, leased, operated or used by Company or any of
its Subsidiaries or any of their respective predecessors or Affiliates (other
than Holdings).


 


“Federal Funds Effective Rate” means, for
any period, a fluctuating interest rate equal for each day during such period
to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers,
as published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by Administrative
Agent from three Federal funds brokers of recognized standing selected by
Administrative Agent.


 


“Fee Payment Date” means each March 15,
June 15, September 15 and December 15 of each year, commencing
with (i) March 15, 2004 with respect to the facility fees described in
subsection 2.3B and (ii) otherwise June 15, 2004.


 


“First Amended and Restated Credit Agreement”
has the meaning set forth in the recitals hereto.


 


“First Amendment”
means the First Amendment to the First Amended and Restated Secured Credit
Agreement dated as of December 4, 2003.


 


“First Amendment
Effective Date” means December 4, 2003, the date upon which the
First Amendment became effective.


 


“First Priority” means, with respect to any Lien
purported to be created in any Collateral pursuant to any Collateral Document,
that (i) such Lien is perfected and such Lien (other than floating charges
with respect to certain Collateral (the use of which with respect to such
Collateral has been approved by Administrative Agent), which for UK priority
purposes ranks behind statutorily preferred creditors) has priority over any
other Lien on such Collateral (other than Liens permitted pursuant to
subsection 6.2A) and (ii) such Lien is the only Lien (other than
Liens permitted pursuant to subsection 6.2A) to which such Collateral is
subject.


 


“First Restatement Date” means June 13,
2003, the date upon which the First Amended and Restated Credit Agreement
became effective.


 


“Fiscal Quarter” means a fiscal quarter of
any Fiscal Year.


 


29

















 


“Fiscal Year” means the fiscal year of
Company and its Domestic Subsidiaries ending on December 31 of each calendar
year.


 


“Flood Hazard Property” means an Existing Mortgaged Property
or an Additional Mortgaged Property located in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide
hazards.


 


“Foreign Entity” means any Subsidiary or
Joint Venture of Company more than 80% of the sales, earnings or assets
(determined on a consolidated basis) of which are located or derived from
operations outside of the United States of America.


 


“Foreign Subsidiary” means (i) any Subsidiary
of Company identified as such on Schedule E annexed hereto, (ii) any
Subsidiary of any Subsidiary described in clause (i), except for Continental
PET Technologies, Inc. and ACI America Holdings Inc., and (iii) in addition,
any Subsidiary acquired, incorporated or otherwise established by Company on or
after the Second Restatement Date which is organized under the laws of a
jurisdiction other than the United States of America or any State thereof and
more than 80% of the sales, earnings or assets (determined on a consolidated
basis) of which are located or derived from operations in territories of the
United States of America and jurisdictions outside the United States of
America.


 


“French  Tranche C1 Lender” means a Lender that has
French Tranche C1 Term Loan Exposure.


 


“French Tranche C1 Term Loan Commitment” means the commitment of a Lender to
make French Tranche C1 Term Loans on the BSN Acquisition Closing Date pursuant
to subsection 2.1A(v) and “French
Tranche C1 Term Loan Commitments” means such commitments of all Lenders in the aggregate.


 


“French Tranche C1 Term Loan Exposure”
means, with respect to any Lender as of any date of determination, (i) prior to
the funding of the French Tranche C1 Term Loans, that Lender’s French Tranche
C1 Term Loan Commitment and (ii) after the funding of the French Tranche C1
Term Loans, the outstanding principal amount of the French Tranche C1 Term
Loans of that Lender.


 


“French Tranche C1 Term Loan Notes”
means the promissory notes of BSN issued pursuant to subsection 2.1G to
evidence the French Tranche C1 Term Loans of any Lenders, substantially in the
form of Exhibit IV-C1 annexed hereto, as they may be amended,
supplemented or otherwise modified from time to time.


 


“French Tranche C1 Term Loans” means the Loans made as French
Tranche C1 Term Loans on the BSN Acquisition Closing Date by Lenders to BSN
pursuant to subsection 2.1A(v).


 


“French  Tranche C2 Lender” means a Lender that has
French Tranche C2 Term Loan Exposure.


 


“French Tranche C2 Term Loan Commitment” means the commitment of a Lender to
make French Tranche C2 Term Loans on the BSN Acquisition Closing Date pursuant


 


30

















 


to subsection 2.1A(vi) and “French
Tranche C2 Term Loan Commitments” means such commitments of all Lenders in the aggregate.


 


“French Tranche C2 Term Loan Exposure”
means, with respect to any Lender as of any date of determination, (i) prior to
the funding of the French Tranche C2 Term Loans, that Lender’s French Tranche
C2 Term Loan Commitment and (ii) after the funding of the French Tranche C2
Term Loans, the outstanding principal amount of the French Tranche C2 Term
Loans of that Lender.


 


“French Tranche C2 Term Loan Notes”
means the promissory notes of BSN issued pursuant to subsection 2.1G to evidence
the French Tranche C2 Term Loans of any Lenders, substantially in the form of Exhibit
IV-C2 annexed hereto, as they may be amended, supplemented or otherwise
modified from time to time.


 


“French Tranche C2 Term Loans” means the Loans made as French
Tranche C2 Term Loans on the BSN Acquisition Closing Date by Lenders to BSN
pursuant to subsection 2.1A(vi).


 


“French Tranche C3 Lender” means a Lender
that has French Tranche C3 Term Loan Exposure.


 


“French Tranche C3 Term Loan Commitment” means the commitment of a Lender to
make French Tranche C3 Term Loans on the BSN Change of Control Payment Date
pursuant to subsection 2.1A(vii) and “French
Tranche C3 Term Loan Commitments” means such commitments of all Lenders in the aggregate.


 


“French Tranche C3 Term Loan Exposure”
means, with respect to any Lender as of any date of determination, (i) prior to
the funding of the French Tranche C3 Term Loans, that Lender’s French Tranche
C3 Term Loan Commitment and (ii) after the funding of the French Tranche C3
Term Loans, the outstanding principal amount of the French Tranche C3 Term
Loans of that Lender.


 


“French Tranche C3 Term Loan Notes”
means the promissory notes of BSN issued pursuant to subsection 2.1G to
evidence the French Tranche C3 Term Loans of any Lenders, substantially in the
form of Exhibit IV-C3 annexed hereto, as they may be amended,
supplemented or otherwise modified from time to time.


 


“French Tranche C3 Term Loans” means the Loans made as French
Tranche C3 Term Loans on the BSN Change of Control Payment Date by Lenders to
BSN pursuant to subsection 2.1A(vii).


 


“Fund”
means any Person (other than a natural Person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.


 


“Funding Date” means the date of the funding
of a Loan.


 


31

















 


“FX Trading Office” means such office of
Administrative Agent as it may designate as such from time to time in a written
notice delivered to Borrowers’ Agent.


 


“GAAP” means, subject to the provisions of
subsection 1.2, generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.


 


“General Collateral
Account” is defined in the Security Agreement.


 


“Governing Body” means the board of directors or
other body having the power to direct or cause the direction of the management
and policies of a Person that is a corporation, partnership, trust or limited
liability company.


 


“Government
Authority” means any political subdivision or department thereof,
any other governmental or regulatory body, commission, central bank, board,
bureau, organ or instrumentality or any court, in each case whether federal,
state, local or foreign.


 


“Governmental Authorization” means any
permit, license, authorization, plan, directive, consent order or consent
decree of or from any foreign, federal, state or local governmental authority,
agency or court.


 


“Ground Leasehold
Interest” as applied to any Person, means any lease by which such
Person leases the fee interest in real property and owns the improvements
thereon (until the termination of the lease).


 


“Guarantied
Obligations” has the meaning assigned to that term in
subsection 9.1.


 


“Guaranties”
means, collectively, the Company Guaranty, the Domestic Borrowers’ Guaranty,
the Subsidiary Guaranty and the Offshore Guaranties.


 


“Harbor Capital
Subsidiaries” means, collectively, OI Advisors, Inc. (f/k/a/ Harbor
Capital Advisors, Inc.), OI Securities, Inc. (f/k/a/ HCA Securities, Inc.) and
OI Transfer, Inc. (f/k/a Harbor Transfer, Inc.)


 


“Hazardous Materials” means any substance
that is defined or listed as a hazardous or toxic substance under any present
or future Environmental Law or that is otherwise regulated or prohibited or
subject to investigation or remediation under any present or future
Environmental Law because of its hazardous or toxic properties, including
(i) any substance that is a “hazardous substance” under CERCLA (as defined
in the definition of “Environmental Laws”) and (ii) petroleum wastes or
products.


 


“Hazardous Materials Activity” means any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release,


 


32

















 


placement, generation, transportation, processing, construction,
treatment, abatement, removal, remediation, disposition or handling of any
Hazardous Materials, and any corrective action or response action with respect
to any of the foregoing.


 


“Hedge Agreement”
means an Interest Rate Agreement or a Currency Agreement designed to hedge
against fluctuations in interest rates or currency values, respectively.


 


“Holdings”
means Owens Illinois, Inc., a Delaware corporation.


 


“Holdings Ordinary
Course Payments” means dividends or other distributions by, or
payments of intercompany indebtedness from, Company to Holdings necessary to
permit Holdings to pay any of the following items which are then due and
payable:  (s) payments in respect of
Permitted Holdings Hedging Obligations, (t) cash interest on Permitted Holdings
Debt Obligations, (u) principal of Existing IRBs and new IRBs issued by
Holdings after the Second Restatement Date provided that such new IRB’s mature
after the Tranche C Term Loan Maturity Date and shall not exceed $50,000,000 in
the aggregate, (v) to redeem, repay or otherwise repurchase the Existing
Holdings Senior Notes to the extent not prohibited by subsection 6.12B,
(w) claims of persons for exposure to asbestos-containing products and expenses
related thereto, (x) so long as no Potential Event of Default arising under
subsections 7.1, 7.6, 7.9 or 7.12 or Event of Default shall exist (or
shall be caused by such payment), (i) cash dividends on Holdings’ existing
preferred stock and Holdings Permitted Preferred Stock issued after the Second
Restatement Date and (ii) share repurchases of Holdings’ Capital Stock in
an aggregate amount equal to the lesser of 2,000,000 shares or $25,000,000, (y)
consolidated tax liabilities of Holdings and its Subsidiaries and (z) general
administrative costs and other on-going expenses of Holdings in the ordinary
course of business consistent with past practices.


 


“Indebtedness”, as applied to any Person,
means (i) all indebtedness for borrowed money, (ii) that portion of
obligations with respect to Capital Leases which is properly classified as a
liability on a balance sheet in conformity with GAAP (subject to
subsection 1.2 hereof), (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing obligations for
borrowed money, (iv) the amount of all honored but unreimbursed drawings
under letters of credit, (v) any obligation owed for all or any part of
the deferred purchase price of property or services, which purchase price is
(a) due more than six months from the date of incurrence of the obligation
in respect thereof or (b) evidenced by a note or similar written
instrument, (vi) all indebtedness secured by any Lien on any property or
asset owned or held by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to the
credit of that Person, and (vii) every obligation of such Person under any
Synthetic Lease treated as an operating lease under generally accepted
accounting principles and as a loan or financing for U.S. income tax purposes; provided,
however, that with respect to any indebtedness of the type described in
the foregoing clause (vi) which has not been assumed by that Person or is
otherwise nonrecourse to the credit of that Person, the amount of such
indebtedness shall be deemed to be the lesser of the outstanding principal
amount of such indebtedness and the fair market value of the property or assets
of such Person securing such indebtedness.


 


33

















 


“Intellectual
Property” means all patents, trademarks, tradenames, copyrights,
technology and software, used in or necessary for the conduct of the business
of Company and its Subsidiaries as currently conducted that are material to the
condition (financial or otherwise), business or operations of Company and its
Subsidiaries, taken as a whole.


 


“Intercreditor Agreement” means the Amended
and Restated Intercreditor Agreement dated as of June 13, 2003, among
Collateral Agent, DB, as Administrative Agent hereunder, the trustees in
respect of the Existing Owens-Brockway Senior Secured Notes, the trustees in
respect of the Existing Holdings Senior Notes, such Lenders or Affiliates of
Lenders which are holders of Other Permitted Credit Exposure or party to
Interest Rate Agreements or Currency Agreements, which executed acknowledgments
to the Original Intercreditor Agreement, the First Amended and Restated
Intercreditor Agreement or in the future execute acknowledgments to the
Intercreditor Agreement, and, such other Persons who may become parties to the
Intercreditor Agreement in accordance with the terms thereof, which in the
future execute acknowledgments to the Intercreditor Agreement, as amended by
the first amendment thereto dated as of the Second Restatement Date in the form
attached hereto as Exhibit XVII, and as such Intercreditor Agreement may
hereafter be amended, supplemented or modified from time to time.


 


“Interest Payment Date” means, with respect
to any Euro Rate Loan, the last day of each Interest Period applicable to such
Loan; provided that in the case of each Interest Period of six months or
longer, “Interest Payment Date” shall also include each three-month anniversary
of the commencement of that Interest Period.


 


“Interest Period” means any interest period
applicable to a Euro Rate Loan as determined pursuant to subsection 2.2B.


 


“Interest Rate Agreement” means any interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement or other similar agreement or arrangement.


 


“Interest Rate Determination Date” means
with respect to Euro Rate Loans, the Interest Rate Determination Date shall be
the second Business Day prior to the first day of the related Interest Period.


 


“Interest Rate
Obligations” has the meaning assigned to the term in
subsection 9.1.


 


“Internal Revenue Code” means the Internal
Revenue Code of 1986, as amended to the date hereof and from time to time
hereafter.


 


“Investment”, as applied to any Person,
means any direct or indirect purchase or other acquisition by that Person of,
or of a beneficial interest in, stock or other Securities of any other Person,
or any direct or indirect loan, advance (other than advances to employees for
moving and travel expenses, drawing accounts and similar expenditures in the
ordinary course of business) or capital contribution by that Person to any
other Person, including all indebtedness and accounts receivable from that
other Person which are not current assets or did not arise from sales to that
other Person in the ordinary course of business.  The amount of any Investment shall be the original cost (which
shall not include (i) the amount of any Indebtedness of the Person that


 


34

















 


is the subject of such Investment that is assumed by the Person making
such Investment or (ii) the value of any Common Stock issued as all or a
portion of the consideration payable in connection with such Investment) or, in
the case of an Investment consisting of non-cash consideration received in
connection with an Asset Sale or other sale of assets, the original value of
such Investment plus the cost of all additions thereto and less returns of
capital to the Person making the Investment, without any adjustments for
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.


 


“IP Collateral”
means, collectively, the Intellectual Property that constitutes Collateral
under the Collateral Documents.


 


“IRBs”
means industrial revenue bonds.


 


“Issuing Lender” means, with respect to any
Letter of Credit, the Lender which agrees or is otherwise obligated to issue
such Letter of Credit, determined as provided in subsection 2.8C; provided
that, in the event DB is to be an Issuing Lender, DB may delegate the issuance
of the applicable Letter of Credit to an Affiliate, provided, further,
that in the event of any such delegation by DB, DB shall be deemed to be
the Issuing Lender for purposes relating to the utilization of the Revolving
Loan Commitments under this Agreement, although such Affiliate shall be
entitled to all rights of reimbursement relating to such Letter of Credit or DB
and such Affiliate may apportion all rights and obligations relating to such
Letter of Credit as they may agree and such apportionment shall be binding for
all purposes hereunder.


 


“Italian Overdraft Account” means the
account established by Avir with the Italian Overdraft Account Provider and
referenced in the Italian Overdraft Agreement.


 


“Italian Overdraft Account Provider” means
Deutsche Bank, A.G. (Milan Branch) or any successor Italian Overdraft Account
Provider pursuant to subsection 10.2E; provided, however,
that no such Lender shall be an Italian Overdraft Account Provider until Avir
and such Lender have executed and delivered an Italian Overdraft Agreement to
Administrative Agent.


 


“Italian Overdraft Agreement” means any
Offshore Overdraft Agreement by and between Deutsche Bank, AG (Milan Branch)
and Avir in effect as of the Second Restatement Date, and any successor Offshore
Overdraft Agreement executed and delivered by Avir and any successor Italian
Overdraft Account Provider pursuant to subsection 10.2E, in substantially
the form of Exhibit VIII annexed hereto, with such modifications
thereto as may be approved by Administrative Agent, as any such Offshore
Overdraft Agreement may hereafter be amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with the
terms thereof and hereof.


 


“Italian Overdraft Amount” means, as at any
date of determination, the aggregate principal amount of outstanding overdrafts
charged to the Italian Overdraft Account.


 


“Italian Revolving Loan Commitment”
means the commitment of a Lender to make Italian Revolving Loans to Avir
pursuant to subsection 2.1C, and “Italian Revolving Loan Commitments” means
such commitments of all Lenders in the aggregate.


 


35

















 


“Italian Revolving Loan Exposure”
means, with respect to any Lender as of any date of determination
(i) prior to the termination of the Revolving Loan Commitments, that
Lender’s Italian Revolving Loan Commitment, and (ii) after the termination
of the Revolving Loan Commitments, the sum of (a) the aggregate outstanding
principal amount of the Italian Revolving Loans of that Lender plus (b)
in the case of Italian Overdraft Account Provider, the Dollar Equivalent of the
Italian Overdraft Amount (net of any participations therein purchased by other
Lenders) plus (c) the aggregate amount of all participations purchased
by that Lender in the Italian Overdraft Amount.


 


“Italian Revolving Loan Note” means any
promissory note of Avir, substantially in the form of Exhibit VI annexed
hereto, issued in favor of a Lender pursuant to subsection 2.1G(iv) to
evidence the Italian Revolving Loans of such Lender, as such promissory note
may be amended, supplemented or otherwise modified from time to time.


 


“Italian Revolving Loans” means the Loans
made by Lenders to Avir pursuant to subsection 2.1C.


 


“Joint Venture” means a joint venture,
partnership or other similar arrangement, whether in corporate, partnership or
other legal form; provided that, as to any such arrangement in corporate
form, such corporation shall not, as to any Person of which such corporation is
a Subsidiary, be considered to be a Joint Venture to which such Person is a
party.


 


“KKR” means Kohlberg Kravis Roberts &
Co. L.P., a Delaware limited partnership.


 


“Landlord Consent
and Estoppel” means, with respect to any Ground Leasehold Interest,
a letter, certificate or other instrument in writing from the lessor under the
related lease pursuant to which such lessor agrees for the benefit of
Collateral Agent to such matters relating to such leasehold and the Mortgage to
be recorded thereon as Collateral Agent may reasonably request including the
existence or absence of defaults, consent to the recordation and foreclosure of
the Mortgage, the transfer of the Ground Leasehold Interest following
foreclosure, and a notice and cure period for Collateral Agent with respect to
any default under such leasehold.


 


“L/C Collateral
Account” is defined in the Security Agreement.


 


“LC Disbursement”
means a payment made by an Issuing Lender pursuant to a Letter of Credit.


 


“Lender” and “Lenders” have the meanings
assigned to those terms in the introduction to this Agreement and shall include
each Agent in its individual capacity as a lender hereunder; provided
that “Lender” and “Lenders” shall also include the successors and permitted
assigns of Lenders pursuant to subsection 10.2B; and provided, further
that the term “Lenders” when used in the context of a particular Commitment or
Loan, shall mean Lenders having that Commitment or making that Loan.


 


“Letter of Credit” or “Letters of Credit” means
Commercial Letters of Credit and Standby Letters of Credit issued or to be
issued by Issuing Lenders for the account of


 


36

















 


Borrowers (other than Avir, United Glass and O-I Canada except as
described in subsection 2.8A) pursuant to subsection 2.8.


 


“Letter of Credit Usage” means, as at any
date of determination, the sum of (i) the maximum aggregate amount which
is or at any time thereafter may become available for drawing under all Letters
of Credit then outstanding plus (ii) the aggregate amount of all drawings
under Letters of Credit honored by Issuing Lenders and not theretofore
reimbursed by a Borrower.  For purposes
of this definition, any amount described in clause (i) or (ii) of the preceding
sentence which is denominated in a currency other than Dollars shall be valued
based on the applicable Exchange Rate for such currency as of the applicable
date of determination.


 


“Lien” means any lien, mortgage, pledge,
security interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof, and
any agreement to give any security interest) and any other agreement intended
to create any of the foregoing.


 


“Loan” or “Loans” means one or more of
the Tranche A1 Term Loans, the Tranche B1 Term Loans, the Domestic Tranche C
Term Loans, the Tranche D Term Loans, the French Tranche C1 Term Loans, the
French Tranche C2 Term Loans, the French Tranche C3 Term Loans, the Revolving
Loans, the Offshore Revolving Loans, the Additional Term Loans or the
Refinancing Term Loans or any combination thereof.


 


“Loan Documents” means this Agreement, the
Notes, the Domestic Overdraft Agreement, any Offshore Overdraft Agreements, the
Letters of Credit, any Borrowing Subsidiary Agreements, the Guaranties and the
Collateral Documents.


 


“Loan
Limitation Notice” has the meaning assigned to that term in
subsection 2.1E(v).


 


“Loan Party” means each of Borrowers,
Company and, upon execution of a Loan Document thereby, any of Company’s other
Subsidiaries from time to time executing such Loan Document, and “Loan Parties”
means all such Persons, collectively; provided that BSN and its
Subsidiaries shall only be Loan Parties from and after the BSN Acquisition
Closing Date.


 


“Margin Stock” has the meaning assigned to
that term in Regulation U of the Board of Governors of the Federal Reserve
System as in effect from time to time.


 


“Material Adverse Effect” means (i) a
material adverse effect upon the business, operations, properties, assets or
condition (financial or otherwise) of Company and its Subsidiaries, taken as a
whole, or (ii) a material adverse effect on the ability of Company and its
Subsidiaries, taken as a whole, to perform, or of any Agent, Arranger or Lender
to enforce, the Obligations.


 


“Material Subsidiary”
means each indirect or direct Subsidiary of Holdings now existing or hereafter
acquired or formed indirectly or directly by Holdings which (x) for the most
recent Fiscal Year of Holdings, accounted for more than 5% of the consolidated
revenues of Holdings or (y) as at the end of such Fiscal Year, was the owner of
more than 5% of the consolidated assets of Holdings.


 


37

















 


“Maximum
Consolidated Capital Expenditures Amount” means, (i) prior to the BSN
Acquisition Closing Date, for any Fiscal Year of Company and its Subsidiaries,
an amount not to exceed $550,000,000, (ii) from and after the BSN Acquisition
Closing Date, for any Fiscal Year of Company and its Subsidiaries, an amount
not to exceed $650,000,000 plus, in the case of (i) and (ii), solely in
the case of Fiscal Years 2003, 2004 and 2005, an additional amount not to
exceed $130,000,000 in the aggregate for all such Fiscal Years expended in
connection with the development and construction of a new glass plant located
in the United States of America.


 


“Moody’s” means Moody’s Investors Service,
Inc.


 


“Mortgage”
means (i) a security instrument (whether designated as a deed of trust or
a mortgage or by any similar title) executed and delivered by any Loan Party,
in a form approved by Collateral Agent, a form customarily used to create Liens
on real property interests in Australia, the UK, Spain or the Netherlands, as
appropriate, and approved by Collateral Agent or in such other form as may be
approved by Collateral Agent in its sole discretion, in each case with such
changes thereto as may be recommended by Collateral Agent’s local counsel based
on local laws or customary local mortgage or deed of trust practices, or
(ii) at Collateral Agent’s option, in the case of an Additional Mortgaged
Property, an amendment to an existing Mortgage, in form satisfactory to
Collateral Agent, adding such Additional Mortgaged Property to the Real
Property Assets encumbered by an existing Mortgage, in either case as such
security instrument or amendment may be amended, supplemented or otherwise
modified from time to time.  “Mortgages” means all such instruments,
including the Existing Mortgages and any Additional Mortgages, collectively.


 


“Mortgaged Property”
means either an Existing Mortgaged Property or an Additional Mortgaged
Property.


 


“Multiemployer Plan” means a “multiemployer
plan”, within the meaning of Section 4001(a)(3) of ERISA, with respect to
which Company, any of its Subsidiaries or any ERISA Affiliate may have
liability.


 


“Net Asset Sale
Proceeds”, with respect to any Asset Sale, means Cash payments
(including any Cash received by way of deferred payment pursuant to, or by
monetization of, a note receivable or otherwise, but only as and when so
received, including when released from any escrow) received from such Asset
Sale, (A) net of any bona fide direct costs incurred in connection with such
Asset Sale, including (i) taxes reasonably estimated to be payable in
connection with such Asset Sale, (ii) reasonable commissions and other fees and
expenses incurred, and (iii) payment of the outstanding principal amount of,
premium or penalty, if any, and interest on any Indebtedness (other than the
Loans) that is paid (and is not prohibited from being paid under the terms of
this Agreement) with the gross proceeds of such Asset Sale, and (iv) a
reasonable reserve for the after-tax costs of any indemnification payments
(fixed and contingent) attributable to seller’s indemnities to the purchaser
undertaken by Holdings and its Subsidiaries in connection with such Asset Sale,
(B) in the case of an Asset Sale by a Domestic Borrower or Subsidiary Guarantor
that is a Domestic Subsidiary, so long as, as of the date of the applicable
Asset Sale, there are no Domestic Tranche C Term Loans or Tranche D Term Loans
outstanding, net of any amount used within 355 days of the date of such Asset
Sale to make


 


38

















 


Investments in Domestic Subsidiaries or purchase assets or reinvest in
the business of the Company and its Subsidiaries within the United States of
America, (C) in the case of an Asset Sale by an Offshore Borrower or Offshore
Guarantor, so long as, except with respect to sales of Australian assets in a
transaction that has been publicly disclosed as of the Second Restatement Date
resulting in Net Asset Sale Proceeds of $70,000,000 or less, as of the date of
the applicable Asset Sale, there are no Domestic Tranche C Term Loans or
Tranche D Term Loans outstanding, net of any amount used within 355 days of the
date of such Asset Sale to make Investments in a Loan Party (other than Avir or
O-I Canada, except in the case of an Asset Sale by either such entity) or to
purchase assets or reinvest in the business of one or more of the Loan Parties
(other than Avir or O-I Canada) or (D) in the case of an Asset Sale by a
Foreign Subsidiary other than an Offshore Borrower (other than Avir or O-I
Canada) or Offshore Guarantor, net of any amount used within one year of the
date of such Asset Sale to make Investments permitted hereunder or purchase
assets or to reinvest in the business of such Foreign Subsidiary outside the
United States of America.


 


“Net Debt Securities
Proceeds” means the Cash proceeds (net of underwriting discounts and
commissions, premiums on any Indebtedness (other than Loans) to be redeemed
with such proceeds as permitted under this Agreement and other reasonable costs
and expenses associated therewith, including reasonable legal fees and
expenses) from the incurrence of Indebtedness by Holdings, Company or any of
its Subsidiaries (other than Indebtedness permitted by subsection 6.1
(except subsections 6.1(vii), 6.1(viii), 6.1(ix), 6.1(xiv) and, at any
time there are Tranche D Term Loan Commitments or Tranche D Term Loans outstanding,
except for Applicable Foreign Subsidiary Capital Markets Debt)).


 


“Net Equity
Securities Proceeds” means the Cash proceeds (net of underwriting
discounts and commissions and other reasonable costs and expenses associated
therewith, including reasonable legal fees and expenses) from the issuance of
Capital Stock by Holdings, Company or any of its Domestic Subsidiaries (other
than Domestic Borrowers or with respect to employee and executive compensation
plans and issuances to Company or any Subsidiary) only to the extent such cash
proceeds exceed $25,000,000 per issuance or related series of issuances.


 


“Net
Insurance/Condemnation Proceeds” means any Cash payments or proceeds
received by Company or any of its Subsidiaries (i) under any casualty insurance
policy in respect of a covered loss thereunder or (ii) as a result of the
taking of any assets of Company or any of its Subsidiaries by any Person
pursuant to the power of eminent domain, condemnation or otherwise, or pursuant
to a sale of any such assets to a purchaser with such power under threat of
such a taking, in each case net of any actual and reasonable documented costs
incurred by Company or any of its Subsidiaries in connection with the
adjustment or settlement of any claims of Company or such Subsidiary in respect
thereof and, in each case, only to the extent such cash payments or proceeds,
net of the foregoing documented costs, exceed $25,000,000; provided,
that, for the avoidance of doubt, any insurance proceeds received by Holdings
or any Subsidiary for asbestos claims shall not constitute Net
Insurance/Condemnation Proceeds hereunder.


 


“New Junior Debt”
means Indebtedness (including guarantees thereof and Indebtedness and
guarantees issued in exchange or in replacement thereof containing substantially
identical terms) having the following characteristics:  (u) the obligors (whether borrowers,
issuers, guarantors, pledgors or other credit support parties) shall include
only the


 


39

















 


Existing Holdings Senior Note Obligors and no other Persons, (v) such
Indebtedness shall be unsecured or constitute Subordinated Indebtedness or
both, (w) such Indebtedness shall not have any scheduled payment of principal,
prepayment, mandatory redemption or sinking fund payment prior to April 1,
2008, except for provisions requiring any permitted obligor under clause (u)
above to repurchase all or a portion of New Junior Debt from the holders
thereof upon the occurrence of a “change of control” or following an “asset
sale” (such terms to be defined in the indenture(s) governing such New Junior
Debt), (x) the Net Debt Securities Proceeds of such Indebtedness shall be
applied as required by subsection 2.4B(ii)(e), (y) the governing
documentation for such Indebtedness shall not contain any provision prohibiting
the creation or assumption of any Lien on any of the properties or assets of
Company or its Subsidiaries, whether then owned or thereafter acquired, to
secure payment of the Obligations or any agreement renewing, refinancing or
extending the Obligations or this Agreement, and (z) all other terms and
conditions shall be substantially comparable to those prevailing in the market
place for comparable debt issuances as determined by the Administrative Agent
in its reasonable judgment.


 


“New Senior Debt”
means Indebtedness (including guarantees thereof and Indebtedness and
guarantees issued in exchange or in replacement thereof containing
substantially identical terms) having the following characteristics:  (u) the obligors (whether borrowers,
issuers, guarantors, pledgors or other credit support parties) shall include
one or more of the obligors of the Obligations (other than Foreign
Subsidiaries) and no other Persons, (v) no collateral (other than all or any
portion of the Collateral) shall secure such Indebtedness and the Liens on the
Collateral, if any, shall rank subordinate to or pari passu with the Liens
securing the Obligations, (w) such Indebtedness shall not have any scheduled
payment of principal, prepayment, mandatory redemption or sinking fund payment
in excess of 1% of the outstanding principal amount per year prior to
April 1, 2008 except for provisions requiring any permitted obligor under
clause (u) above to repurchase all or a portion of New Senior Debt from the
holders thereof upon the occurrence of a “change of control” or following an
“asset sale” (such terms to be defined in the indenture(s) governing such New
Senior Debt), (x) the Net Debt Securities Proceeds of such Indebtedness shall
be applied as required by subsection 2.4B(ii)(e), (y) the governing
documentation for such Indebtedness shall not contain any provision prohibiting
the creation or assumption of any Lien on any of the properties or assets of
Company or its Subsidiaries, whether then owned or thereafter acquired, to
secure payment of the Obligations or any agreement renewing, refinancing or
extending the Obligations or this Agreement, and (z) all other terms and
conditions shall be substantially comparable to those prevailing in the market
place for comparable debt issuances as determined by the Administrative Agent
in its reasonable judgment.  For the
avoidance of doubt, in any event, Existing Owens-Brockway Senior Secured Notes
and Existing Owens-Brockway Senior Unsecured Notes and related guarantees shall
constitute New Senior Debt.


 


“Notes” means one or more of the Tranche A1
Term Loan Notes, Tranche B1 Term Loan Notes, the Domestic Tranche C Term Loan
Notes, the Tranche D Term Loan Notes, the French Tranche C1 Term Loan Notes,
the French Tranche C2 Term Loan Notes, the French Tranche C3 Term Loan Notes,
the Revolving Notes or the Offshore Revolving Loan Notes or any combination
thereof.


 


40

















 


“Notice of Borrowing” means a notice
substantially in the form of Exhibit I annexed hereto with respect to a
proposed borrowing.


 


“Notice of Conversion/Continuation” means a
notice substantially in the form of Exhibit III annexed hereto with
respect to a proposed conversion or continuation.


 


“Notice of Request for Issuance of Letter of Credit”
means a notice in the form of Exhibit II annexed hereto with respect to
the proposed issuance of a Letter of Credit.


 


“O-I Australia” means Owens
Illinois (Australia) Pty Limited.


 


“O-I Canada” means O-I Canada Corp.


 


“O-I General” means Owens-Illinois General,
Inc.


 


“O-I Plastic” means OI Plastic Products FTS
Inc.


 


“Obligations” means all obligations of every
nature of any Loan Party from time to time owed to Agents or Lenders or any of
them under or in respect of this Agreement whether for principal, interest,
premium, fees, indemnification or otherwise, the Notes, the Letters of Credit,
the Offshore Overdraft Agreements, the Domestic Overdraft Agreement or any of
the other Loan Documents (excluding, for the avoidance of doubt, all
obligations under or in respect of Other Lender Guarantied Obligations and
Other Permitted Credit Exposure).


 


“Officers’ Certificate” means, as applied to
any corporation, limited liability company, partnership or trust, a certificate
executed on behalf of such entity by (i) its Chairman of the Board (if an
officer) or its President or one of its Vice Presidents or, if applicable, its
managing member, general partner or trustee or, in the case of any Offshore
Borrower, any director or any attorney appointed by power of attorney, and (ii)
by its Chief Financial Officer, its Treasurer, any of its Assistant Treasurers,
its Controller or any of its Assistant Controllers or, in the case of any
Offshore Borrower, any other director or attorney appointed by power of
attorney; provided, that any Officers’ Certificate required to be
delivered by Company on the Second Restatement Date may be executed on behalf
of Company by any one of the foregoing officers; provided, further,
that every Officers’ Certificate with respect to the compliance with a
condition precedent to the Second Restatement Date or BSN Acquisition Closing
Date shall include (a) a statement that the officer or officers making or
giving such Officers’ Certificate have read such condition and any definitions
or other provisions contained in this Agreement relating thereto, (b) a
statement that, in the opinion of the signers, they have made or have caused to
be made such examination or investigation as is necessary to enable them to
express an informed opinion as to whether or not such condition has been
complied with, and (c) a statement as to whether, in the opinion of the
signers, such condition has been complied with.


 


“Offshore Banking Day” means with respect to
any borrowings, disbursements, payments, calculations, interest rates and
Interest Periods pertaining to (A) any Tranche A1 Term Loans, any French
Tranche C1 Term Loan, any French Tranche C2 Term Loan, any French Tranche C3
Term Loan, any Offshore Revolving Loan or any Offshore Overdraft Account, any
Business Day which is also a day on which commercial banks are open for
business in, and on which dealings in the Applicable Currency are carried on
in, the location or the Offshore


 


41

















 


Funding and Payment Office of the Offshore Overdraft Account Provider,
as applicable, with respect to such Applicable Currency, and (B) any Letter of
Credit issued for the account of an Offshore Borrower, a day on which the
Issuing Lender is open for business in the location in which such Letter of
Credit is issued.


 


“Offshore Borrower” means (i) with respect
to Tranche A1 Term Loans, ACI, (ii) with respect to Australian Revolving Loans,
the Australian Overdraft Account and any Letter of Credit issued for the
account of an Australian Offshore Borrower, any of the Australian Offshore
Borrowers, as applicable, (iii) with respect to UK Revolving Loans and the UK
Overdraft Account, United Glass, (iv) with respect to Canadian Revolving
Loans and the Canadian Overdraft Account, O-I Canada, (v) with respect to
Italian Revolving Loans and the Italian Overdraft Account, Avir and (vi) from
and after the BSN Acquisition Closing Date with respect to French Tranche C1
Term Loans, French Tranche C2 Term Loans and French Tranche C3 Term Loans, BSN
and “Offshore
Borrowers” means United Glass, O-I Canada, Avir, Australian Offshore
Borrowers and, from and after the BSN Acquisition Closing Date, BSN,
collectively.


 


“Offshore Collateral
Documents” means the Offshore Security Agreements and the Mortgages
securing real property located outside of the United States of America.


 


“Offshore Currency” means Sterling,
ADollars, Euros or Canadian Dollars.


 


“Offshore Currency Equivalent” means, at any
time as to any amount denominated in Dollars, the equivalent amount in the
applicable Offshore Currency as determined by the Administrative Agent at such
time on the basis of the Spot Rate for the purchase of such Offshore Currency
with Dollars on the most recent Calculation Date.


 


“Offshore Funding and Payment Office” means,
with respect to any Offshore Overdraft Account Provider, such office of such
Offshore Overdraft Account Provider as it may designate as such from time to
time in a written notice delivered to Administrative Agent, the Lenders and
each Borrower.


 


“Offshore Funding
Australian Borrower” has the meaning set forth in subsection 2.9D.


 


“Offshore Guaranties” means, collectively, (i) the guaranties by
the English Wholly-Owned Subsidiaries and the Australian Wholly-Owned Subsidiaries
and the UK Offshore Borrower Cross Guaranty, collectively, all as executed and
delivered in connection with the Original Credit Agreement, as amended, amended
and restated or otherwise modified on the First Restatement Date, as the same
may be amended, amended and restated or otherwise modified in a form
satisfactory to Administrative Agent in connection with the Second Restatement
Date and thereafter from time to time in accordance with the terms thereof and
hereof and (ii) from and after the BSN Acquisition Closing Date, (a) the
guaranty of the French Tranche C1 Term Loans, the French Tranche C2 Term Loans
and the French Tranche C3 Term Loans by O-I Europe SAS and each of the
Subsidiaries of BSN that are Offshore Guarantors to be delivered pursuant to
Section 3.2 on the BSN Acquisition Closing Date, and (b) the Australian


 


42

















 


Cross Guaranty, in each case as the same may be amended, restated or
otherwise modified from time to time in accordance with the terms thereof and
hereof.


 


“Offshore Guarantors” means, collectively, the Australian
Wholly-Owned Subsidiaries, the English Wholly-Owned Subsidiaries, and from and
after the BSN Acquisition Closing Date, O-I Europe SAS and certain specified
Subsidiaries of BSN.  As of the Second
Restatement Date, the Offshore Guarantors are set forth on Schedule 1.1A-1.  As of the BSN Acquisition Closing Date, the
Offshore Guarantors are set forth on Schedule 1.1A-2.


 


“Offshore Overdraft Account” means the UK
Overdraft Account, the Australian Overdraft Account, the Canadian Overdraft
Account or the Italian Overdraft Account, and “Offshore Overdraft Accounts”
means the UK Overdraft Account, the Australian Overdraft Account, the Canadian
Overdraft Account and the Italian Overdraft Account, collectively.


 


“Offshore Overdraft Account Provider” means
UK Overdraft Account Provider, Australian Overdraft Account Provider, Canadian
Overdraft Account Provider or Italian Overdraft Account Provider, and “Offshore
Overdraft Account Providers” means UK Overdraft Account Provider,
Australian Overdraft Account Provider, Canadian Overdraft Account Provider and
Italian Overdraft Account Provider, collectively.


 


“Offshore Overdraft Agreement” means the UK
Overdraft Agreement, the Australian Overdraft Agreement, the Canadian Overdraft
Agreement or the Italian Overdraft Agreement, and “Offshore Overdraft Agreements”
means the UK Overdraft Agreement, the Australian Overdraft Agreement, the
Canadian Overdraft Agreement and the Italian Overdraft Agreement, collectively.


 


“Offshore Overdraft Amount” means the UK
Overdraft Amount, the Australian Overdraft Amount, the Canadian Overdraft
Amount or the Italian Overdraft Amount, and “Offshore Overdraft Amounts”
means the UK Overdraft Amount, the Australian Overdraft Amount, the Canadian
Overdraft Amount and the Italian Overdraft Amount, collectively.


 


“Offshore Revolving Loan”
means a UK Revolving Loan, an Australian Revolving Loan, a Canadian Revolving
Loan or an Italian Revolving Loan, and “Offshore Revolving Loans” means such loans
of all Lenders in the aggregate.


 


“Offshore Revolving Loan Commitment”
means a UK Revolving Loan Commitment, an Australian Revolving Loan Commitment,
a Canadian Revolving Loan Commitment or an Italian Revolving Loan Commitment, and
“Offshore
Revolving Loan Commitments” means all such commitments.


 


“Offshore Revolving Loan Note” means any of
an Australian Revolving Loan Note, Canadian Revolving Loan Note or an Italian
Revolving Loan Note.


 


“Offshore Security
Agreements” means, collectively, (i) the security agreements by
United Glass, the Australian Offshore Borrowers, each English Wholly-Owned
Subsidiary and each Australian Wholly-Owned Subsidiary, executed and delivered
in connection with the Original Credit Agreement, as the same were amended,
amended and restated or otherwise modified in connection with the First
Restatement Date (including in accordance with the terms


 


43

















 


of the First Supplemental Deed executed in connection therewith by,
among others, United Glass and the English Wholly-Owned Subsidiaries) and as
the same may be amended, amended and restated or otherwise modified in a form
satisfactory to Administrative Agent in connection with the Second Restatement
Date and thereafter from time to time in accordance with the terms thereof and
hereof and (ii) from and after the BSN Acquisition Closing Date, the security
agreements by O-I Europe SAS, BSN and its Subsidiaries, to be executed and
delivered pursuant to Section 3.2 on the BSN Acquisition Closing Date, as the
same may be amended, restated or otherwise modified from time to time in
accordance with the terms hereof and thereof.


 


“Offshore Sublimit” means, at any time, (i)
as to United Glass, collectively, the lesser of (a) $20,000,000 and (b) the
Revolving Loan Commitments then in effect, (ii) as to the Australian Offshore
Borrowers, collectively, the lesser of (a) $440,000,000 and (b) the Revolving
Loan Commitments then in effect, (iii) as to O-I Canada, the lesser of (a) $10,000,000
and (b) the Revolving Loan Commitments then in effect and (iv) as to Avir,
the lesser of (a) (i) prior to the BSN Acquisition Closing Date,  $10,000,000 and (ii) thereafter, $63,000,000
and (b) the Revolving Loan Commitments then in effect; provided that
such Offshore Sublimits may be decreased from time to time pursuant to
subsection 2.4G.


 


“Operating Lease”,
as applied to any Person, means any lease (including leases that may be
terminated by the lessee at any time) of any property (whether real, personal
or mixed) that is not a Capital Lease other than any such lease under which
that Person is the lessor.


 


“Organizational Documents” means the documents (including
charter and bylaws, if applicable) pursuant to which a Person that is a
corporation, partnership, trust, joint stock company or limited liability
company is organized.


 


“Original Closing
Date” means May 2, 2001.


 


“Original Credit
Agreement” means that certain Secured Credit Agreement dated as of
April 23, 2001 by and among Company, the Domestic Borrowers, the Offshore
Borrowers, certain other Subsidiaries of Company, the financial institutions
party thereto and DB (then known as Bankers Trust Company) as administrative
agent, as amended through the Fourth Amendment thereto dated as of April 16,
2003, which agreement was amended and restated in its entirety by the First
Amended and Restated Credit Agreement and which shall further be amended and
restated in its entirety pursuant to this Agreement.


 


“Original
Intercreditor Agreement” means that certain Intercreditor Agreement
dated as of April 23, 2001, as amended prior to the First Restatement Date, by
and among DB, as administrative agent for the lenders under the Original Credit
Agreement, the other parties that became party thereto in accordance with the
provisions thereof and DB as collateral agent therefor.


 


“Other BSN Indebtedness” means other
existing Indebtedness of BSN and its Subsidiaries outstanding on the BSN
Acquisition Closing Date repaid or refinanced with the proceeds of the French
Tranche C1 Term Loans and the French Tranche C2 Term Loans, as approved by the
Agents.


 


44

















 


“Other Lender
Guarantied Obligations” means the obligations owed to Lenders and
their Affiliates pursuant to Other Permitted Credit Exposure, Interest Rate
Obligations and Currency Obligations which are guaranteed pursuant to one or
more of the Guaranties.


 


“Other Permitted
Credit Exposure” means the obligations of Subsidiaries or Joint
Ventures of Company owed to Lenders or Affiliates of Lenders arising out of
loans, advances, overdrafts, interest rate, currency or hedge products and
other derivative exposures and other extensions of credit to such Subsidiaries
or Joint Ventures.


 


“Owens-Brockway”
means Owens-Brockway Glass Container Inc., a Delaware corporation.


 


“Packaging”
means Owens-Brockway Packaging, Inc., a Delaware corporation and the parent
corporation of Owens-Brockway.


 


“Participating
Member State” means any member state of the European Community that
adopts or has adopted the Euro as its lawful currency in accordance with
legislation of the European Community relating to the European Monetary Union.


 


“PBGC” means the Pension Benefit Guaranty
Corporation (or any successor thereto).


 


“Pension Plan” means a “pension plan”, as
defined in Section 3(2) of ERISA (other than a Multiemployer Plan), with
respect to which Company, any of its Subsidiaries or any ERISA Affiliate may
have any liability.


 


“Permitted
Acquisition” means an Acquisition permitted under
subsection 6.3(v) or 6.3(xi).


 


“Permitted Covenant”
means (i) any periodic reporting covenant, (ii) any covenant
restricting payments by Holdings with respect to any securities of Holdings
which are junior to the Permitted Preferred Stock, (iii) any covenant the
default of which can only result in an increase in the amount of any redemption
price, repayment amount, dividend rate or interest rate, (iv) any covenant
providing board observance rights with respect to Holdings’ board of directors
and (v) any other covenant that does not adversely affect the interests of
the Lenders (as reasonably determined by Administrative Agent).


 


“Permitted Encumbrances” means
the following types of Liens:


 


(i)            Liens for taxes, assessments or
governmental charges or claims the payment of which is not at the time required
by subsection 5.3;


 


(ii)           Statutory Liens and rights of set-off
of banks, Liens of landlords and Liens of carriers, warehousemen, suppliers,
mechanics, materialmen and other Liens imposed by law incurred in the ordinary
course of business (including title retention agreements arising in the
ordinary course of business) for sums not yet delinquent or being contested


 


45

















 


in good faith, if such
reserve or other appropriate provision, if any, as shall be required by GAAP
(subject to subsection 1.2) shall have been made therefor;


 


(iii)          Liens (other than any Lien imposed
pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
by ERISA) incurred or deposits made in the ordinary course of business in
connection with workers’ compensation, unemployment insurance and other types
of social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money);


 


(iv)          Any attachment or judgment Lien not
resulting in an Event of Default under subsection 7.8;


 


(v)           Leases, subleases or licenses of
occupancy granted to others not interfering in any material respect with the
business of Company and its Subsidiaries, taken as a whole;


 


(vi)          Easements, rights-of-way,
restrictions, minor defects or irregularities in title and other similar
charges or encumbrances not interfering in any material respect with the
ordinary conduct of the business of Company and its Subsidiaries, taken as a
whole;


 


(vii)         Any (a) interest or title of a lessor
under any lease not prohibited by this Agreement, (b) restriction or
encumbrance that the interest or title of such lessor or sublessor may be
subject to, or (c) subordination of the interest of the lessee or sublessee
under such lease to any restriction or encumbrance referred to in the preceding
clause (b), so long as the holder of such restriction or encumbrance agrees to
recognize the rights of such lessee or sublessee under such lease;


 


(viii)        Liens arising from UCC financing
statements regarding leases or charges not prohibited by this Agreement;


 


(ix)           Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;


 


(x)            Liens incurred in the ordinary
course of business encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual or warranty requirements of Company and its
Subsidiaries (excluding deposits securing the repayment of Indebtedness);


 


(xi)           Liens encumbering customary initial
deposits and margin deposits securing obligations under Interest Rate
Agreements, Currency Agreements and Commodities Agreements, and other Liens
incurred in the ordinary course of business and which are within the general
parameters customary in the industry securing obligations under Commodities
Agreements;


 


46

















 


(xii)          Liens securing reimbursement
obligations under Commercial Letters of Credit or bankers’ acceptance
facilities, which Liens encumber documents and other property to be acquired by
drawings under such Commercial Letters of Credit or drafts accepted under such
bankers’ acceptance facilities;


 


(xiii)         exceptions to title disclosed by a
title policy, preliminary title report or certificate of title delivered
pursuant to subsection 5.10A and approved by Administrative Agent other
than Liens securing Indebtedness prohibited by subsection 6.1 or
Contingent Obligations prohibited by subsection 6.4;


 


(xiv)        Liens in the form of title retention in
connection with the acquisition of goods in the ordinary course of business
provided that there has occurred and is continuing no default in the
obligations related thereto;


 


(xv)         Liens arising in countries other than
the United States of America substantially comparable to the foregoing; and


 


(xvi)        Liens created over credit balances in
Dutch bank accounts of any Subsidiaries in the ordinary course of their banking
arrangements pursuant to the general conditions of such bank.


 


“Permitted Holdings
Debt Obligations” means the Existing Holdings Senior Notes and the
Existing IRBs and up to an additional $50,000,000 of IRB financing and, to the
extent Net Debt Securities Proceeds are applied as required by
subsection 2.4B(ii), New Senior Debt, Refinancing Senior Debt and New
Junior Debt issued by Holdings.


 


“Permitted Holdings Hedging Obligations”
means obligations under Hedging Agreements entered into by Holdings which could
have been entered into by any Domestic Borrower under Section 6.4(iii).


 


“Permitted Preferred
Stock” means any preferred stock of Holdings (or any equity security
of Holdings that is convertible or exchangeable into any preferred stock of
Holdings), so long as the terms of any such preferred stock or equity security
of Holdings (i) do not provide any collateral security, (ii) do not
provide any guaranty or other support by Company or any of its Subsidiaries,
(iii) do not contain any mandatory put, redemption, repayment, sinking
fund or other similar provision occurring before April 1, 2008, (iv)  do
not contain any covenants other than any Permitted Covenant, (v) do not
grant the holders thereof any voting rights except for (w) voting rights
required to be granted to such holders under applicable law, (x) customary
voting rights on fundamental matters such as mergers, consolidations, sales of
substantial assets, or liquidations involving Holdings and matters that could
adversely affect the rights, preferences, qualifications, limitations or
restrictions of such Permitted Preferred Stock and any other voting rights that
are customary in the market at the time of issuance of such Permitted Preferred
Stock, as determined by the Administrative Agent in its reasonable judgment,
(y) other voting rights to the extent not greater than or superior to
those allocated to Holdings Common Stock on a per share basis, and (z) voting
rights with respect to the election of directors arising from dividends in
arrears, (vi) the Net Equity Securities Proceeds arising therefrom are applied
as required by subsection 2.4B(ii)(d) and (vii) are otherwise reasonably
satisfactory to Administrative Agent.


 


47

















 


“Person” means and includes natural persons,
corporations, limited partnerships, general partnerships, limited liability
companies, joint stock companies, joint ventures, associations, companies,
trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof.


 


“Plan” means an employee benefit plan (as
defined in Section 3(3) of ERISA) which Company or any of its Subsidiaries
sponsors or maintains, or to which Company or any of its Subsidiaries makes, is
making or is obligated to make contributions, or to which Company or any of its
Subsidiaries may have any liability, and includes any Pension Plan.


 


“Pledge Agreement” means the Amended and
Restated Pledge Agreement dated as of June 13, 2003, by and between Company and
Packaging, as amended by the first amendment thereto dated as of the Second
Restatement Date in the form attached hereto as Exhibit XV, as such
Pledge Agreement may hereafter be amended, supplemented or otherwise modified
from time to time.


 


“Potential Event of Default” means a
condition or event which, after notice or lapse of time or both, would
constitute an Event of Default if that condition or event were not cured or
removed within any applicable grace or cure period.


 


“Pounds” and the sign “£” mean the lawful currency of the UK; provided,
however, that in the event Pounds are replaced by the Euro, it is hereby
acknowledged and agreed that “Pounds” and “£” shall, on the date on which
Pounds are replaced by the Euro as the sole lawful currency of the UK, include
the Euro; provided that Pounds shall be retained as an Offshore Currency
for so long as legally permissible; provided further that any such
conversion shall be based on the rate of conversion officially fixed on the
date the Euro replaces Pounds for purposes of this Agreement.


 


“Prime Rate” means the rate which DB
announces from time to time as its prime lending rate, as in effect from time
to time.  The Prime Rate is a reference
rate and does not necessarily represent the lowest or best rate actually
charged to any customer.  DB may make
commercial loans or other loans at rates of interest at, above or below the
Prime Rate.


 


“Pro Forma Basis” means, as of any date of
determination, the calculation of the compliance of Borrowers with the
financial covenants set forth in subsection 6.6A and 6.6B as of the last
day of the four Fiscal Quarter period most recently ended on or prior to such
date of determination (the “Compliance Period”), after giving effect on
a pro forma basis to any Acquisition constituting a Pro Forma Event made
during such Compliance Period and any disposition constituting a Pro Forma
Event made during such Compliance Period, other than sales of inventory in the
ordinary course of business and dispositions of obsolete equipment on the
following basis:


 


(i)            any Indebtedness
incurred or assumed by Holdings or any of its Subsidiaries in connection with
such Acquisitions and any Indebtedness repaid in connection with such
Acquisitions or dispositions shall be deemed to have been incurred or repaid,
respectively, as of the first day of the Compliance Period;


 


48

















 


(ii)           if such
Indebtedness incurred or assumed by Holdings or any of its Subsidiaries in
connection with such Acquisitions has a floating or formula rate, then the rate
of interest for such Indebtedness for the applicable period shall be computed
as if the rate in effect for such Indebtedness on the relevant measurement date
had been the applicable rate for the entire applicable period;


 


(iii)          income statement
items (whether positive or negative) attributable to the property or business
acquired or disposed of in such Acquisitions or dispositions shall be included
as if such Acquisitions or dispositions took place on the first day of such
Compliance Period on a pro forma basis; and


 


(iv)          any historical
extraordinary non-recurring costs or expenses or other verifiable costs or
expenses that will not continue after the Acquisition or disposition date may
be eliminated and other expenses and cost reductions may be reflected on a
basis consistent with Regulation S-X promulgated by the Securities and Exchange
Commission.


 


With respect to any such Acquisitions, such pro forma
calculations shall be based on the consolidated balance sheet of such acquired
Person or business and its consolidated Subsidiaries as at the end of its most
recent Fiscal Year or the most recent fiscal period preceding such Acquisition
and the related consolidated statements of income and of cash flows for such
period, which shall have been previously provided to Administrative Agent and
shall either (1) have been reported on without a qualification arising out of
the scope of the audit by independent certified public accountants of
nationally recognized standing or (2) have been found reasonably acceptable by
Administrative Agent.


 


“Pro Forma Event”
means any disposition of assets to third parties the fair market value of which
equals or exceeds $100,000,000 and any Acquisition in which the aggregate
consideration paid or given (including, without limitation, cash paid, Acquired
Indebtedness or assumed Indebtedness and the value of any other consideration
paid or given) to third parties equals or exceeds $100,000,000; provided
that the BSN Acquisition shall not constitute a Pro Forma Event.


 


“Pro Rata Share” means, with respect to any
Lender, (i) with respect to all payments, computations and other matters
relating to the Tranche A1 Term Loan Commitment or the Tranche A1 Term Loan of
any Lender, the percentage obtained by dividing (a) the Tranche A1
Term Loan Exposure of that Lender by (b) the aggregate Tranche A1
Term Loan Exposure of all Lenders, (ii)  with respect to all payments,
computations and other matters relating to the Tranche B1 Term Loan Commitment
or the Tranche B1 Term Loan of any Lender, the percentage obtained by dividing
(a) the Tranche B1 Term Loan Exposure of that Lender by
(b) the aggregate Tranche B1 Term Loan Exposure of all Lenders, (iii) with
respect to all payments, computations and other matters relating to the
Domestic Tranche C Term Loan Commitment or the Domestic Tranche C Term Loan of
any Lender, the percentage obtained by dividing (a) the Domestic
Tranche C Term Loan Exposure of that Lender by (b) the aggregate
Domestic Tranche C Term Loan Exposure of all Lenders, (iv) with respect to all
payments, computations and other matters relating to the Tranche D Term Loan
Commitment or the Tranche D Term Loan of any Lender, the percentage obtained by
dividing (a) the Tranche D


 


49

















 


Term Loan Exposure of that Lender by (b) the aggregate
Tranche D Term Loan Exposure of all Lenders, (v) with respect to all payments,
computations and other matters relating to the French Tranche C1 Term Loan
Commitment or the French Tranche C1 Term Loan of any Lender, the percentage
obtained by dividing (a) the French Tranche C1 Term Loan Exposure
of that Lender by (b) the aggregate French Tranche C1 Term Loan
Exposure of all Lenders, (vi) with respect to all payments, computations and
other matters relating to the French Tranche C2 Term Loan Commitment or the
French Tranche C2 Term Loan of any Lender, the percentage obtained by dividing
(a) the French Tranche C2 Term Loan Exposure of that Lender by
(b) the aggregate French Tranche C2 Term Loan Exposure of all Lenders,
(vii) with respect to all payments, computations and other matters relating to
the French Tranche C3 Term Loan Commitment or the French Tranche C3 Term Loan
of any Lender, the percentage obtained by dividing (a) the French
Tranche C3 Term Loan Exposure of that Lender by (b) the aggregate
French Tranche C3 Term Loan Exposure of all Lenders, (viii) with respect
to all payments, computations and other matters relating to the Revolving Loan
Commitment or the Revolving Loans of any Lender or any Letters of Credit issued
or participations therein purchased by any Lender or any participations in the
Domestic Overdraft Amount or any Offshore Overdraft Amount or any Offshore
Revolving Loans purchased by any Lender, the percentage obtained by dividing
(a) the Revolving Loan Exposure of that Lender by (b) the
aggregate Revolving Loan Exposure of all Lenders, (ix) with respect to all
payments, computations and other matters relating to the UK Revolving Loan
Commitments or the UK Revolving Loans of any Lender or participations therein
or any participations in the UK Overdraft Amount purchased by any Lender, the
percentage obtained by dividing (a) the UK Revolving Loan Exposure of
that Lender by (b) the aggregate UK Revolving Loan Exposure of all
Lenders, (x) with respect to all payments, computations and other matters
relating to the Australian Revolving Loan Commitments or the Australian
Revolving Loans of any Lender or any Letters of Credit issued for the account
of any Australian Offshore Borrower or participations therein or any
participations in the Australian Overdraft Amount purchased by any Lender, the
percentage obtained by dividing (a) the Australian Revolving Loan
Exposure of that Lender by (b) the aggregate Australian Revolving Loan
Exposure of all Lenders, (xi) with respect to all payments, computations
and other matters relating to the Canadian Revolving Loan Commitments or the
Canadian Revolving Loans of any Lender or any participations in the Canadian
Overdraft Amount purchased by any Lender, the percentage obtained by dividing
(a) the Canadian Revolving Loan Exposure of that Lender by
(b) the aggregate Canadian Revolving Loan Exposure of all Lenders,
(xii) with respect to all payments, computations and other matters
relating to the Italian Revolving Loan Commitments or the Italian Revolving
Loans of any Lender or any participations in the Italian Overdraft Amount
purchased by any Lender, the percentage obtained by dividing (a) the
Italian Revolving Loan Exposure of that Lender by (b) the aggregate
Italian Revolving Loan Exposure of all Lenders, and (xiii) for all other
purposes with respect to each Lender, the percentage obtained by dividing
(a) the sum of the Tranche A1 Term Loan Exposure of that Lender plus
Tranche B1 Term Loan Exposure of that Lender plus the Domestic Tranche C
Term Loan Exposure of that Lender plus the Tranche D Term Loan Exposure
of that Lender plus the French Tranche C1 Term Loan Exposure of that
Lender plus the French Tranche C2 Term Loan Exposure plus the
French Tranche C3 Term Loan Exposure of that Lender plus the Revolving
Loan Exposure of that Lender by (b) the sum of the aggregate
Tranche A1 Term Loan Exposure of all Lenders plus the aggregate Tranche B1 Term
Loan Exposure of all Lenders plus the aggregate Domestic Tranche C Term
Loan Exposure of all Lenders plus the aggregate Tranche D Term Loan


 


50

















 


Exposure of all Lenders plus the aggregate French Tranche C1
Term Loan Exposure of all Lenders plus the aggregate French Tranche C2
Term Loan Exposure of all Lenders plus the aggregate French Tranche C3
Term Loan Exposure of all Lenders plus the aggregate Revolving Loan
Exposure of all Lenders, in any such case as the applicable percentage may be
adjusted by assignments permitted pursuant to subsection 10.2.  The initial Pro Rata Share of each Lender
for purposes of each of clauses (iii), (iv), (v), (vi), (vii), (viii), (ix),
(x), (xi) and (xiii) of the preceding sentence is set forth opposite the name
of that Lender in Schedule A annexed hereto.  The initial Pro Rata Share of each Lender for
purposes of clauses (i) and (ii) are set forth in the Register as of the date
hereof.


 


“PTO” means the United States Patent and
Trademark Office or any successor or substitute office in which filings are
necessary or, in the opinion of Collateral Agent, desirable in order to create
or perfect Liens on any IP Collateral.


 


“Purchase Money Indebtedness” means
Indebtedness incurred simultaneously with or within 180 days after the
acquisition, construction or improvement of real property or tangible personal
property to finance such acquisition, construction or improvement of such
property.


 


“Ratings Downgrade” means the assignment of
a “bank facilities rating” to the Loans (other than the Tranche D Term Loans)
of B or lower by S&P or B2 or lower by Moody’s.


 


“Ratings Restoration” means, after the
occurrence of a Ratings Downgrade, the assignment of a “bank facilities rating”
to the Loans (other than the Tranche D Term Loans) of B+ or higher by S&P
and B1 or higher by Moody’s.


 


“Real
Property Asset”
means, at any time of determination, any fee interest then owned or Ground
Leasehold Interest then held (or in the case of United Glass or English
Wholly-Owned Subsidiary, any freehold interest then owned or leasehold interest
then held) by any Loan Party in any real property.


 


“Receivables Sale Indebtedness” means
Indebtedness incurred or deemed incurred or cash consideration received from
the sale of accounts receivable by Company or any of its Subsidiaries or a
special purpose vehicle established by any of them to purchase and sell such
receivables.


 


“Recorded Leasehold Interest” means a lease
or memorandum thereof evidencing a Ground Leasehold Interest duly recorded in
the applicable jurisdiction in which the property underlying such Ground
Leasehold Interest is located.


 


“Reference Lenders” means
Deutsche Bank Trust Company Americas and Bank of America, N.A.


 


“Refinancing Senior Debt” means Indebtedness
(including guarantees thereof and Indebtedness and guarantees issued in
exchange or in replacement thereof containing substantially identical terms)
having the following characteristics (u) the obligors shall include only the
Existing Holdings Senior Note Obligors and no other Persons, (v) any collateral
therefor shall include only the Existing Holdings Senior Note Collateral and no
other collateral and the


 


51

















 


Lien thereon, if any, shall be subordinated to the Lien securing the
Obligations, (w) such Indebtedness shall not have any scheduled payment,
prepayment, mandatory redemption or sinking fund payment prior to April 1,
2008, except for provisions requiring any permitted obligor under clause (u)
above to repurchase all or a portion of Refinancing Senior Debt from the
holders thereof upon the occurrence of a “change of control” or following an
“asset sale” (such terms to be defined in the indenture(s) governing such
Refinancing Senior Debt), (x) the Net Debt Securities Proceeds of such
Indebtedness shall be applied as required by subsection 2.4B(ii)(e), (y)
the governing documentation for such Indebtedness shall not contain any
provision prohibiting the creation or assumption of any Lien on any of the
properties or assets of Company or its Subsidiaries, whether then owned or
thereafter acquired, to secure payment of the Obligations or any agreement
renewing, refinancing or extending the Obligations or this Agreement, and (z)
all other terms and conditions shall be substantially comparable to those
prevailing in the market place for comparable debt issuances as determined by
the Administrative Agent in its reasonable judgment.


 


“Refinancing Term Loans” has the meaning assigned to that term in
subsection 2.1A(x).


 


“Refinancing Term Loan Margin”  means, as of any date of determination, as
used in the definition of “Applicable Base Rate Margin”, the highest margin
then applicable to outstanding Refinancing Term Loans that are base rate loans,
and, as used in the definition of “Applicable Euro Margin”, the highest margin
then applicable to outstanding Refinancing Term Loans that are eurodollar or
euro loans (with such margins applicable to Refinancing Term Loans deemed to
include all upfront or similar fees or original issue discount (in each case
amortized over the life of the applicable loan) paid to all lenders providing
such Refinancing Term Loans, but exclusive of any arrangement, structuring or
similar fees payable in connection therewith that are not shared with all
lenders providing such Refinancing Term Loans).


 


“Register” has the meaning
assigned to that term in subsection 2.1G.


 


“Regulation D” means Regulation D of the
Board of Governors of the Federal Reserve System as in effect from time to
time.


 


“Related Fund”
means any fund that invests in bank loans and is managed by the same investment
advisor of a Lender or by an Affiliate of such investment advisor.


 


“Release” means any release, spill, emission,
leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge,
dispersal, dumping, leaching or migration of Hazardous Materials into the
indoor or outdoor environment (including the abandonment or disposal of any
barrels, containers or other closed receptacles containing any Hazardous
Materials), including the movement of any Hazardous Materials through the air,
soil, surface water or groundwater.


 


“Reporting Unit” means each of the units of
the operations of Company, as set forth on Schedule C annexed hereto, as
such Schedule C may hereafter be amended, supplemented or modified from
time to time by Company.


 


52

















 


“Requisite
Class Lenders” means, at any time of determination (i) for
the Class of Lenders having Revolving Loan Exposure, Lenders having or holding
more than 50% of the aggregate Revolving Loan Exposure of all Lenders,
(ii) for the Class of Lenders having Tranche A1 Term Loan Exposure,
Lenders having or holding more than 50% of the aggregate Tranche A1 Term Loan
Exposure of all Lenders, (iii) for the Class of Lenders having Tranche B1 Term
Loan Exposure, Lenders having or holding more than 50% of the aggregate Tranche
B1 Term Loan Exposure of all Lenders, (iv) for the Class of Lenders having
Domestic Tranche C Term Loan Exposure, Lenders having or holding more than 50%
of the aggregate Domestic Tranche C Term Loan Exposure of all Lenders, (v) for
the Class of Lenders having Tranche D Term Loan Exposure, Lenders having or
holding more than 50% of the aggregate Tranche D Term Loan Exposure of all
Lenders, (vi) for the Class of Lenders having French Tranche C1 Term Loan
Exposure, Lenders having or holding more than 50% of the aggregate French
Tranche C1 Term Loan Exposure of all Lenders (vii) for the Class of Lenders
having French Tranche C2 Term Loan Exposure, Lenders having or holding more
than 50% of the aggregate French Tranche C2 Term Loan Exposure of all Lenders
and (viii) for the Class of Lenders having French Tranche C3 Term Loan
Exposure, Lenders having or holding more than 50% of the aggregate French
Tranche C3 Term Loan Exposure of all Lenders.


 


“Requisite Lenders” means Lenders having or
holding more than 50% of the sum of (a) the aggregate Tranche A1 Term Loan
Exposure of all Lenders plus (b) the aggregate Tranche B1 Term Loan
Exposure of all Lenders plus (c) the aggregate Domestic Tranche C Term
Loan Exposure of all Lenders plus (d) the aggregate Tranche D Term Loan
Exposure of all Lenders plus (e) the aggregate French Tranche C1 Term
Loan Exposure of all Lenders plus (f) the aggregate French Tranche C2
Term Loan Exposure of all Lenders plus (g) the aggregate French Tranche
C3 Term Loan Exposure of all Lenders plus (h) the aggregate Revolving
Loan Exposure of all Lenders.


 


“Reservation
Conditions” means, with respect to any Net Debt Securities Proceeds,
(i) there shall be no Tranche D Term Loan Commitments or Tranche D Term Loans
outstanding, (ii) the sum of (A) the aggregate amount of Net Debt Securities
Proceeds theretofore applied to redeem Existing Holdings Senior Notes Due 2005
and/or 2007 (without prior reservation to either the Existing Holdings Senior
Notes Redemption Collateral Account or the Existing Holdings Senior Notes
Redemption Sublimit) plus (B) the aggregate amount of Net Debt
Securities Proceeds theretofore deposited in the Existing Holdings Senior Notes
Redemption Collateral Account (and not theretofore released to repay Loans) plus
(C) the aggregate amount of Net Debt Securities Proceeds theretofore reserved
in the Existing Holdings Senior Notes Redemption Sublimit (and not theretofore
released to repay Loans), plus (D) the aggregate amount of Net Debt
Securities Proceeds then proposed to be deposited in the Existing Holdings
Senior Notes Redemption Collateral Account and/or reserved within the Existing
Holdings Senior Notes Redemption Sublimit, does not exceed $650,000,000; (iii)
after giving effect to the proposed application of such Net Debt Securities
Proceeds, the Revolving Loan Commitments shall exceed the Total Utilization of
Revolving Loan Commitments by at least $250,000,000; and (iv) in the case of
Net Debt Securities Proceeds arising from the issuance of New Senior Debt, after
giving effect to the issuance of such New Senior Debt and the proposed
application of the Net Debt Securities Proceeds arising therefrom, the
Consolidated Senior Secured Leverage Ratio is less than 2.85:1.00.


 


53

















 


“Responsible Officer” means any of the chief
executive officer, the president, any vice president, the chief financial
officer, the comptroller, the treasurer, any assistant treasurer, the
controller or any assistant controller of a Loan Party.


 


“Restricted Debt
Obligations” means, collectively, Existing Holdings Senior Notes,
New Senior Debt, Refinancing Senior Debt and New Junior Debt and, from and
after the BSN Acquisition Closing Date, the Existing BSN Senior Subordinated
Notes.


 


“Restricted Junior Payment” means
(i) any dividend or other distribution, direct or indirect, on account of
any shares of any class of stock of Company now or hereafter outstanding,
except a dividend payable solely in shares of that class of stock to the
holders of that class, (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect,
of any shares of any class of stock of Company now or hereafter outstanding,
(iii) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of
stock of Company now or hereafter outstanding, and (iv) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption, purchase,
retirement, defeasance (including in-substance or legal defeasance), sinking
fund or similar payment with respect to, any Subordinated Indebtedness,
including, without limitation, Company’s intercompany note to Holdings.


 


“Revolving Lenders”
means the Lenders having a Revolving Loan Commitment.


 


“Revolving Loan Commitment” means the
commitment of a Lender to purchase and assume Commitments under (and as defined
in) the Original Credit Agreement (and its Pro Rata Share of outstanding Loans
thereunder as of the Restatement Date) on the Restatement Date, and thereafter
to make Revolving Loans to each of the Domestic Borrowers pursuant to
subsection 2.1A(viii), and “Revolving Loan Commitments” means such
commitments of all Lenders to all Domestic Borrowers in the aggregate.


 


“Revolving Loan Commitment Termination
Date” means April 1, 2007.


 


“Revolving Loan Exposure” means, with
respect to any Lender as of any date of determination (i) prior to the
termination of the Revolving Loan Commitments, that Lender’s Revolving Loan
Commitment and (ii) after the termination of the Revolving Loan Commitments,
the sum (without duplication) of (a) aggregate outstanding principal amount of
the Revolving Loans of that Lender plus (b) in the event that
Lender is an Issuing Lender, the aggregate Letter of Credit Usage in respect of
all Letters of Credit issued by that Lender (in each case net of any
participations purchased by other Lenders in such Letters of Credit or any
unreimbursed drawings thereunder) plus (c) the aggregate amount of
all participations purchased by that Lender in any outstanding Letters of
Credit or any unreimbursed drawings under any Letters of Credit plus
(d) in the case of Administrative Agent (in its capacity as a Lender), the
Domestic Overdraft Amount (net of any participations therein purchased by other
Lenders) plus (e) the aggregate amount of all participations
purchased by that Lender in the Domestic Overdraft Amount plus (f) the
Dollar Equivalent of all participations purchased by that Lender in the
Offshore Overdraft Amount (net of any participations therein purchased by other
Lenders) plus (g) the aggregate outstanding principal amount of any
Offshore Revolving Loans of such Lender (net of any participations therein
purchased by other Lenders) plus (h) in the case of any


 


54

















 


Offshore Overdraft Account Provider with respect to a particular
Offshore Currency, the Dollar Equivalent of the relevant Offshore Overdraft
Amount (net of any participations therein purchased by other Lenders).


 


“Revolving Loans” means the
Loans made by Lenders to Domestic Borrowers pursuant to
subsection 2.1A(viii).


 


“Revolving Note” means a promissory note of
a Domestic Borrower substantially in the form of Exhibit V annexed
hereto, issued in favor of Lenders pursuant to subsection 2.1G(iv) to
evidence the Revolving Loans made to such Domestic Borrower, as they may be
amended, supplemented or otherwise modified from time to time.  “Revolving
Notes” means all such promissory notes collectively, as they may be
amended, supplemented or otherwise modified from time to time.


 


“S&P” means Standard &
Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc.


 


“Same Day Funds” means immediately available
funds.


 


“Second  Restatement Date” means the
date on which all of the conditions set forth in subsection 3.1 are
satisfied.


 


“Security Agreement” means, the Amended and
Restated Security Agreement dated June 13, 2003, by and among Company, Domestic
Borrowers and the Subsidiary Guarantors, as amended by the First Amendment
thereto dated as of the Second Restatement Date in the form attached hereto as Exhibit
XVI, as such Security Agreement may hereafter be amended, supplemented or
otherwise modified from time to time.


 


“Securities” means any stock, shares, voting
trust certificates, bonds, debentures, options, warrants, notes, or other
evidences of indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as “securities” or any
certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.


 


“Securities Act” means the Securities Act of
1933, as amended from time to time, and any successor statute.


 


“Sellers” means Glasspack Participations,
S.A., Glasspack Partenaires S.â.r.l, and Mssrs. Santiago Ramirez, Jose Miranda,
Jean-Yves Schapiro, Jean-Jacques Lanjaret and Jean-Marc Arrambourg.


 


“Solvent”,
(A) with respect to any Person organized under the laws of a state of the
United States of America, means that as of the date of determination both
(i)(a) the then fair saleable value of the property of such Person is (1)
greater than the total amount of liabilities (including contingent liabilities)
of such Person and (2) not less than the amount that will be required to pay
the probable liabilities on such Person’s then existing debts as they become
absolute and due considering all financing alternatives and potential asset
sales reasonably available to such Person; (b) such Person’s capital is not
unreasonably small in relation to its


 


55

















 


business or any contemplated or undertaken transaction; and (c) such
Person does not intend to incur, or believe (nor should it reasonably believe)
that it will incur, debts beyond its ability to pay such debts as they become
due; and (ii) such Person is “solvent” within the meaning given that term and
similar terms under applicable laws relating to fraudulent transfers and
conveyances; (B) with respect to any Person incorporated in England and
Wales, Scotland, Germany or France means that as of the date of determination
of solvency the value of such Person’s assets is not less than the amount of
its liabilities, taking into account its contingent and prospective
liabilities; and (C) with respect to any Person organized under the laws
of Australia, the Netherlands, Germany, France or Spain means that such Person
is able to pay its debts as such debts become due and payable.  For purposes of this definition, the amount
of any contingent liability at any time shall be computed as the amount that,
in light of all of the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.


 


“Specified
Obligations” means Obligations consisting of the principal of and
interest on the Loans (other than the Tranche D Term Loans), reimbursement
obligations in respect of LC Disbursements and fees payable hereunder to the
Revolving Lenders, the Domestic Tranche C Term Loan Lenders, the French Tranche
C1 Term Loan Lenders, the French Tranche C2 Term Loan Lenders and the French
Tranche C3 Term Loan Lenders.


 


“Specified
Restructuring” means a certain anticipated corporate restructuring
in which OI Peru STS Inc., OI Poland Inc., OI Hungary Inc., OI Ecuador STS
Inc., and OI Venezuela Plastic Products Inc. and/or the assets thereof would be
released from the Subsidiary Guaranty and the Collateral Documents, directly or
indirectly contributed to OI Global C.V. or its direct or indirect
subsidiaries, become direct or indirect subsidiaries thereof or otherwise be
liquidated into a Loan Party, which restructuring may also include certain
other restructuring transactions with respect to Foreign Subsidiaries that are
not Loan Parties and which would otherwise not be prohibited by the terms
hereof as confirmed by the Administrative Agent prior to the consummation
thereof.


 


“Spot Rate” means, with respect to any
foreign exchange computation in respect of any Offshore Currency, the rate
quoted by the Administrative Agent in accordance with its customary procedures
as the spot rate for the purchase by Administrative Agent of Dollars with such
Offshore Currency or the purchase by Administrative Agent of such Offshore
Currency with Dollars, as the case may be, through its FX Trading Office at (i)
10:30 A.M. (London time) with respect to quotations in respect of Sterling,
(ii) 10:30 A.M. (Sydney time) with respect to quotations in respect of
ADollars, (iii) 10:30 A.M. (Milan or London time, as applicable) with respect
to quotations in respect of the Euro and (iv) 10:30 A.M. (Toronto time) with
respect to quotations in respect of Canadian Dollars, in each case on such date
as of which the applicable foreign exchange computation is made for delivery
two Offshore Banking Days later.


 


“Standby Letter of Credit” means any standby
letter of credit or similar instrument issued for the purpose of supporting
(i) Indebtedness incurred by any Foreign Subsidiary or Foreign Entity or
any Joint Venture to which Holdings or any of its Subsidiaries is a party for
working capital and general business purposes, (ii) obligations of
Holdings or any of its Subsidiaries with respect to capital calls or similar
requirements in respect of Joint Ventures to which Holdings or such Subsidiary
is a party, (iii) workers compensation liabilities of


 


56

















 


Holdings or any of its Subsidiaries, (iv) the obligations of third
party insurers of Holdings or any of its Subsidiaries arising by virtue of the
laws of any jurisdiction requiring third party insurers, (v) Indebtedness
of Holdings or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings, (vi) obligations with respect to leases
of Holdings or any of its Subsidiaries, (vii) obligations of Holdings or
any of its Subsidiaries imposed by statute or by a court of competent jurisdiction
to post appeal bonds or other security in connection with litigation appeals,
and other performance, payment, deposit or surety obligations of Holdings or
any of its Subsidiaries, in any such other case if required by law or
governmental rule or regulation or in accordance with custom and practice in
the industry, (viii) obligations of Owens Insurance Limited with respect
to certain self insurance and reinsurance programs, including obligations under
insurance treaties, or (ix) other obligations of Holdings or any of its
Subsidiaries for which letter of credit support would be used in the ordinary
course of Holdings’ or such Subsidiary’s business consistent with its past
practices or otherwise consistent with custom and practice in the industry.


 


“Sterling” means either Pounds or the Euro.


 


“Sterling Equivalent” means, on any Offshore Banking Day
with respect to UK Revolving Loans as to any amount denominated in Pounds or
the Euro, (i) for amounts denominated in Pounds, such amount, and
(ii) for amounts denominated in the Euro, the equivalent amount in Pounds
as determined by the Administrative Agent at such time on the basis of the
Sterling Spot Rate for the purchase of Pounds with the Euro on the most recent
Calculation Date with respect to Sterling; provided, however,
that upon and after replacement of Pounds by the Euro in accordance with the
definition of “Pounds”, it is hereby acknowledged and agreed that “Sterling
Equivalent” shall refer to the applicable amount denominated in the Euro in
accordance with such definition.


 


“Sterling Spot Rate” means, with respect to any foreign
exchange computation in respect of the Euro, the rate quoted by the
Administrative Agent in accordance with its customary procedures as the spot
rate for the purchase by the Administrative Agent of Pounds with the Euro or
the purchase by the Administrative Agent of the Euro with Pounds, as the case
may be, through its FX Trading Office at 10:30 A.M. (London time) on such date
as of which the applicable Sterling Equivalent computation is made for delivery
two Offshore Banking Days later.


 


“Subordinated
Indebtedness” means any Indebtedness of Holdings or its Subsidiaries
incurred from time to time which is subordinated in right of payment to the
Obligations in a manner, and otherwise has terms and conditions (including as
to amortization, covenants and defaults), reasonably acceptable to Agents.


 


“Subsidiary” means any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of stock or other ownership interests entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the other Subsidiaries of that
Person or a combination thereof.  As
used herein, references to “Subsidiaries” of Company shall include the
Borrowers, unless expressly specified otherwise.


 


57

















 


“Subsidiary Guarantor” means any Domestic
Subsidiary of Company that executes and delivers a counterpart of the
Subsidiary Guaranty.  As of the Second
Restatement Date, the Subsidiary Guarantors are set forth on Schedule 1.1B.


 


“Subsidiary Guaranty” means the Amended and
Restated Subsidiary Guaranty dated as of June 13, 2003, by and among all
wholly-owned Domestic Subsidiaries (including Packaging but excluding the
Domestic Borrowers (which have executed and delivered the Domestic Borrower
Guaranty)) and the Harbor Capital Subsidiaries, as amended by the first
amendment thereto dated as of the Second Restatement Date in the form attached
hereto as Exhibit XVI, and as supplemented hereafter under certain
circumstances by certain Subsidiaries of Company in accordance with subsection 5.9,
and as such Subsidiary Guaranty may hereafter be amended, supplemented or
otherwise modified from time to time.


 


“Synthetic Lease”
means any lease of goods or other property, whether real or personal, which is
treated as an operating lease under generally accepted accounting principles
and as a loan or financing for U.S. income tax purposes.


 


“Tax” or “Taxes” means any present or
future tax, substitute tax, levy, impost, duty, charge, fee, deduction or
withholding of any nature and whatever called, on whomsoever and wherever
imposed, levied, collected, withheld or assessed by any foreign, federal, state
or local authority.


 


“Tax Transferee” means any
Person who acquires any interest in the Loans (whether or not by operation of
law) or the office to which a Lender, Arranger or Agent has transferred its
Loans for purposes of determining where the Loans are made, accounted for or
booked.


 


“Term Loan”
means either a Tranche A1 Term Loan or a Tranche B1 Term Loan and, if made, an
Additional Term Loan, a Refinancing Term Loan, a Domestic Tranche C Term Loan,
a Tranche D Term Loan, a French Tranche C1 Term Loan, French Tranche C2 Term
Loan or a French Tranche C3 Term Loan, and “Term Loans” means all such
Loans collectively.


 


“Term Loan
Commitment” means either a Domestic Tranche C Term Loan Commitment,
a Tranche D Term Loan Commitment, a French Tranche C1 Term Loan Commitment, a
French Tranche C2 Term Loan Commitment or a French Tranche C3 Term Loan
Commitment and “Term Loan Commitments”
means the Domestic Tranche C Term Loan Commitments, the Tranche D Term Loan
Commitments, the French Tranche C1 Term Loan Commitments, the French Tranche C2
Term Loan Commitments and the French Tranche C3 Term Loan Commitments,
collectively.


 


“Title Company”
means, collectively, one or more title insurance companies reasonably
satisfactory to Collateral Agent.


 


“Total Utilization of Australian
Revolving Loan Commitments”
means, as at any date of determination, the sum of (i) the aggregate principal
amount of all outstanding Australian Revolving Loans (other than Australian
Revolving Loans made for the purpose of (a) reimbursing the applicable
Issuing Lender for any drawing honored under any Letter of Credit issued for
the account of an Australian Offshore Borrower or (b) repaying the Australian


 


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Overdraft Amount, in each case to the extent not yet so applied) plus
(ii) all Letter of Credit Usage by all Australian Offshore Borrowers, plus
(iii) the Dollar Equivalent of the Australian Overdraft Amount.


 


“Total Utilization of Canadian Revolving
Loan Commitments”
means, as at any date of determination, the sum of (i) the aggregate principal
amount of all outstanding Canadian Revolving Loans (other than Canadian
Revolving Loans made for the purpose of repaying the Canadian Overdraft Amount
to the extent not yet so applied) plus (ii) the Dollar Equivalent
of the Canadian Overdraft Amount.


 


“Total Utilization of Italian Revolving
Loan Commitments”
means, as at any date of determination, the sum of (i) the aggregate principal
amount of all outstanding Italian Revolving Loans (other than Italian Revolving
Loans made for the purpose of repaying the Italian Overdraft Amount to the
extent not yet so applied) plus (ii) the Dollar Equivalent of the
Italian Overdraft Amount.


 


“Total Utilization of Revolving Loan Commitments”
means, as at any date of determination, the sum of (i) the aggregate principal
amount of all outstanding Revolving Loans (other than Revolving Loans made for
the purpose of (a) reimbursing the applicable Issuing Lender for any drawing
honored under any Letter of Credit issued for the account of a Domestic
Borrower or (b) repaying the Domestic Overdraft Amount, in each case to the
extent not yet so applied), plus (ii) the Letter of Credit Usage by
the Domestic Borrowers plus (iii) the Domestic Overdraft Amount plus
(iv) the aggregate principal amount of all outstanding Offshore Revolving Loans
(other than Offshore Revolving Loans made for the purpose of (a) reimbursing
the applicable Issuing Lender for any drawing honored under any Letter of
Credit issued for the account of an Offshore Borrower or (b) repaying any
Offshore Overdraft Amount in each case to the extent not yet so applied) plus
(v) the Letter of Credit Usage by the Offshore Borrowers plus (vi) the
Dollar Equivalent of the Offshore Overdraft Amounts plus (vii) amounts
available under the Existing Holdings Senior Notes Redemption Sublimit plus
(viii) amounts available under any Acquisition Sublimit.


 


 “Total Utilization of UK Revolving Loan Commitments” means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
UK Revolving Loans (other than UK Revolving Loans made for the purpose of
repaying the UK Overdraft Amount to the extent not yet so applied) plus
(ii) the Dollar Equivalent of the UK Overdraft Amount.


 


“Tranche A
Term Loans” means the Tranche A Term Loans made by Lenders to
ACI pursuant to subsection 2.1A(i) of the First Amended and Restated
Credit Agreement.


 


“Tranche A1 and B1  Co-Syndication Agent” has the meaning assigned
to that term in the introduction to this Agreement.


 


“Tranche A1
Lender” means a Lender that has Tranche A1 Term Loan
Exposure.


 


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“Tranche A1
Term Loan Exposure” means, with respect to any Lender as of
any date of determination, the outstanding principal amount of the
Tranche A1 Term Loan of that Lender.


 


“Tranche A1 Term Loan Maturity Date” means
April 1, 2007.


 


“Tranche A1 Term Loan Notes”
means the promissory notes of ACI issued pursuant to subsection 2.1G to
evidence the Tranche A1 Term Loans of any Lenders, substantially in the
form of Exhibit IV-A annexed hereto, as they may be amended,
supplemented or otherwise modified from time to time.


 


“Tranche A1 Term Loans” means the Loans converted from
Tranche A Term Loans into Tranche A1 Term Loans to ACI on the First Amendment
Effective Date pursuant to subsection 2.1A(i) of the First Amended and Restated
Credit Agreement, as amended by the First Amendment, as amended and restated as
Tranche A1 Term Loans hereunder on the Second Restatement Date.


 


“Tranche B
Term Loans” means the Tranche B Term Loans made by Lenders to
Owens-Brockway pursuant to subsection 2.1A(ii) of the First Amended and
Restated Credit Agreement..


 


“Tranche B1
Lender” means a Lender that has Tranche B1 Term Loan
Exposure.


 


“Tranche B1
Term Loan Exposure” means, with respect to any Lender as of
any date of determination, the outstanding principal amount of the
Tranche B1 Term Loan of that Lender.


 


“Tranche B1  Term Loan Maturity Date”
means April 1, 2008.


 


“Tranche B1
Term Loan Notes” means any promissory notes of Owens-Brockway
issued pursuant to subsection 2.1G to evidence the Tranche B1 Term Loans
of any Lenders, substantially in the form of Exhibit IV-B annexed
hereto, as they may be amended, supplemented or otherwise modified from time to
time.


 


“Tranche B1 Term Loans” means the Loans converted from
Tranche B Term Loans into Tranche B1 Term Loans to Owens-Brockway on the First
Amendment Effective Date pursuant to subsection 2.1A(ii) of the First Amended
and Restated Credit Agreement, as amended by the First Amendment, as amended
and restated as Tranche B1 Term Loans hereunder on the Second Restatement Date.


 


 “Tranche C Term Loan Lender”
means the Domestic Tranche C Term Loan Lenders, French Tranche C1 Term Loans
Lenders, French Tranche C2 Term Loan Lenders and the French C3 Term Loan
Lenders, collectively.


 


“Tranche C Term Loans” means the Domestic Tranche C Term Loans,
the French Tranche C1 Term Loans, the French Tranche C2 Term Loans and the
French Tranche C3 Term Loans, collectively.


 


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“Tranche C Term Loan Maturity Date” means
April 1, 2008.


 


“Tranche D Term Loan Lender” means a Lender
that has Tranche D Term Loan Exposure.


 


“Tranche D Term Loan Commitment” means the commitment of a Lender to
make Tranche D Term Loans on the BSN Acquisition Closing Date pursuant to
subsection 2.1A(iv) and “Tranche D Term Loan Commitments” means such commitments of all
Lenders in the aggregate.


 


“Tranche D Term Loan Exposure” means, with
respect to any Lender as of any date of determination, (i) prior to the funding
of the Tranche D Term Loans, that Lender’s Tranche D Term Loan Commitment and
(ii) after the funding of the Tranche D Term Loans, the outstanding principal
amount of the Tranche D Term Loans of that Lender.


 


“Tranche D Term Loan Maturity Date” means
April 1, 2008.


 


“Tranche D Term Loan Notes” means the
promissory notes of Owens-Brockway issued pursuant to subsection 2.1G to
evidence the Tranche D Term Loans of any Lenders, substantially in the form of Exhibit
IV-D annexed hereto, as they may be amended, supplemented or otherwise
modified from time to time.


 


“Tranche D Term Loans” means the Loans made as Tranche D
Term Loans on the BSN Acquisition Closing Date by Lenders to Owens-Brockway
pursuant to subsection 2.1A(iv).


 


“Triggering Asset
Sale” means an Asset Sale that generates Net Asset Sale Proceeds
equal to or in excess of $25,000,000.


 


“2003 Additional Asbestos Reserve” means an
unfunded $450,000,000 increase made as of December 31, 2003 in the reserve for
claims of persons against Holdings for exposure to asbestos-containing products
and expenses related thereto.


 


“Type” means (i) with respect to a
Commitment other than an Offshore Revolving Loan Commitment, (a) a Domestic
Tranche C Term Loan Commitment, (b) a Tranche D Term Loan Commitment, (c) a
French Tranche C1 Term Loan Commitment, (d) French Tranche C2 Term Loan
Commitment, (e) French Tranche C3 Term Loan Commitment or (f) a Revolving
Loan Commitment, (ii) with respect to an Offshore Revolving Loan Commitment,
(a) a UK Revolving Loan Commitment, (b) an Australian Revolving Loan
Commitment, (c) a Canadian Revolving Loan Commitment or (d) an
Italian Revolving Loan Commitment, (iii) with respect to a Loan other than an
Offshore Revolving Loan, (a) a Tranche A1 Term Loan, (b) a Tranche B1 Term
Loan, (c) a Domestic Tranche C Term Loan, (d) a Tranche D Term Loan, (e) a
French Tranche C1 Term Loan, (f) a French Tranche C2 Term Loan, (g) a French
Tranche C3 Term Loan or (h) a Revolving Loan, and (iv) with respect
to an Offshore Revolving Loan, (a) a UK Revolving Loan, (b) an Australian
Revolving Loan, (c) a Canadian Revolving Loan, or (d) an Italian Revolving
Loan.


 


“UK” means the United Kingdom
of Great Britain and Northern Ireland.


 


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“UK Administrative Agent” has the meaning
assigned to that term in the introduction to this Agreement and also includes
any successor UK Administrative Agent appointed pursuant to
subsection 8.6.


 


“UK Funding and Payment Office” means the
office of UK Administrative Agent located in London, England.


 


“UK Lending Office” means, with respect to
any Lender having a Revolving Loan Commitment, the office of such Lender, or
any Affiliate of such Lender, specified as its “UK Lending Office” on the
signature pages hereof or the applicable Assignment and Acceptance, or such
other office of such Lender or any of its Affiliates as such Lender may from
time to time specify to Borrowers’ Agent, Administrative Agent and UK
Administrative Agent.


 


“UK Offshore
Borrower Cross Guaranty” means that certain guaranty executed by
United Glass in connection with the Original Credit Agreement as the same was
amended, amended and restated, or otherwise modified in connection with the
First Restatement Date and as the same may be amended, amended and restated, or
otherwise modified in connection with Second Restatement Date so as to provide
for United Glass’ guaranty of all Loans to the other Offshore Borrowers.


 


“UK Overdraft Account” means the account
established by United Glass with UK Overdraft Account Provider and referenced
in the UK Overdraft Agreement.


 


“UK Overdraft Account Provider” means Bank
One, NA (London Branch) or any successor UK Overdraft Account Provider pursuant
to subsection 10.2E; provided, however, that no such Lender
shall be UK Overdraft Account Provider until United Glass and such Lender have
executed and delivered a UK Overdraft Agreement to Administrative Agent.


 


“UK Overdraft Agreement” means the Offshore
Overdraft Agreement by and between United Glass and UK Overdraft Account
Provider dated as of November 20, 2003, and any successor Offshore Overdraft
Agreement executed and delivered by United Glass and any successor UK Overdraft
Account Provider pursuant to subsection 10.2E, in substantially the form
of Exhibit VIII annexed hereto, with such modifications thereto as may
be approved by Administrative Agent, as any such Offshore Overdraft Agreement
may hereafter be amended, amended and restated, supplemented or otherwise
modified from time to time in accordance with the terms thereof and hereof.


 


“UK Overdraft Amount” means, as at any date
of determination, the aggregate principal amount of outstanding overdrafts
charged to the UK Overdraft Account.


 


“UK Revolving Loan Commitment”
means the commitment of a Lender to make UK Revolving Loans to United Glass
pursuant to subsection 2.1C, and “UK Revolving Loan Commitments” means such
commitments of all Lenders in the aggregate.


 


“UK Revolving Loan Exposure”
means, with respect to any Lender as of any date of determination
(i) prior to the termination of the Revolving Loan Commitments, that
Lender’s UK Revolving Loan Commitment, and (ii) after the termination of
the Revolving Loan Commitments, the sum of (a) the aggregate outstanding
principal amount of the UK Revolving


 


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Loans of that Lender plus (b) in the case of UK Overdraft
Account Provider, the Dollar Equivalent of UK Overdraft Amount (net of any
participations therein purchased by other Lenders) plus (e) the Dollar
Equivalent of the aggregate amount of all participations purchased by that
Lender in the UK Overdraft Amount.


 


“UK Revolving Loans” means the Loans made by
Lenders to United Glass pursuant to subsection 2.1C.


 


 “Unfunded
Pension Liability” means, with respect to any Pension Plan, the
amount of unfunded benefit liabilities of such Pension Plan as defined in Section 4001(a)(18)
of ERISA.


 


“United Glass” has the meaning
assigned to that term in the introduction to this Agreement.


 


“Weighted
Average Life to Maturity”
means, when applied to any Indebtedness at any date, the number of years
obtained by dividing (a) the then outstanding principal amount of such
indebtedness into (b) the total of the products obtained by multiplying
(x) the number of each then remaining installment, sinking fund, serial
maturity or other required payment of principal, including payment at final
maturity, in respect thereof by (y) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making of such
payment.


 


“Wholly-Owned
Subsidiary” with respect to
any Person, means any corporation, partnership, trust, limited liability
company, association or other business entity of which 100% of the total voting
power of shares of stock or other ownership interests entitled (without regard
to the occurrence of any contingency) to vote in the election of the Governing
Body is at the time owned or controlled, directly or indirectly, by that Person
or one or more of the other Wholly-Owned Subsidiaries of that Person (other
than any directors’ qualifying shares or nominee shares); provided that
Avir shall be deemed a Wholly-Owned Subsidiary of OI Italia S.R.L.


 


1.2          Accounting
Terms; Utilization of GAAP for Purposes of Calculations Under Agreement; Change
in Accounting Principles.


 


Except as otherwise expressly provided in this
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP as in effect from time to
time, and all calculations in connection with the financial covenants,
standards or terms found in Section 1, Section 5 and Section 6 hereof
(collectively, “Calculations”) shall utilize accounting principles and
policies in conformity with GAAP as in effect from time to time; provided
that, in the event there is a change in accounting principles and policies that
would result in a change in the method of performing any Calculations as
described in subsection 10.9, such change shall not be given effect for
purposes of any Calculations until such time as Company and Lenders complete
the negotiations provided for in subsection 10.9.  Financial statements and other information
required to be delivered by any Loan Party to Lenders pursuant to clauses (i),
(ii) and (x) of subsection 5.1 shall be prepared in accordance with GAAP
as in effect at the time of such preparation (and, if necessary, delivered
together with the written statements provided for in subsection 5.1(iv)).


 


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1.3          Other
Definitional Provisions; Anniversaries.


 


References to “Sections” and “subsections” shall be to
Sections and subsections, respectively, of this Agreement unless otherwise
specifically provided.  Any of the terms
defined in subsection 1.1 may, unless the context otherwise requires, be
used in the singular or the plural depending on the reference.  For purposes of this Agreement, a monthly
anniversary of a specified date shall occur on the same day of the applicable
month as the day of the month on which such date occurred; provided that
if there is no numerically corresponding day in the applicable month to the day
of the month on which such date occurred, the monthly anniversary of such date
shall be the last day of the applicable month.


 


1.4          Amendment
and Restatement.


 


On the Second Restatement Date, the First Amended and
Restated Credit Agreement shall be amended and restated in its entirety, and
the Revolving Loan Commitments and/or Revolving Loans and/or Australian
Revolving Loans, Tranche A1 Term Loans, and Tranche B1 Term Loans thereunder
shall be continued under and governed by the terms of this Agreement all as more
particularly described herein.  From and
after the Second Restatement Date, the Lenders are not subject to or bound by
any of the terms or provisions of the First Amended and Restated Agreement.  The parties acknowledge and agree that this
Agreement and the other Loan Documents do not constitute a novation, payment
and reborrowing or termination of the obligations under the First Amended and
Restated Credit Agreement and that all such obligations are in all respects
continued and outstanding as obligations under this Agreement and the Notes
with only the terms being modified from and after the Second Restatement Date
as provided in this Agreement, the Notes and the other Loan Documents.


 


SECTION
2



AMOUNT AND TERMS OF COMMITMENTS AND LOANS; NOTES


 


2.1          Commitments; Making of Loans; Domestic
Overdraft Account; Offshore Overdraft Accounts.


 


A.    Term Loan and Revolving Loan Commitments.  Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Borrowers
herein set forth, each Lender hereby severally agrees to maintain the Loans
described in subsections 2.1(A)(i), 2.1A(ii) and 2.1A(viii), and make the Loans
described in subsection 2.1A(iii), 2.1A(iv), 2.1A(v), 2.1A(vi), 2.1A(vii) and
2.1A(viii).


 


(i)            Tranche A1 Term Loans.  On the Second Restatement Date, the “Tranche
A1 Term Loans” outstanding under the First Amended and Restated Credit
Agreement are hereby maintained and continued as Tranche A1 Term Loans
hereunder.  As of the Second Restatement
Date, the aggregate principal amount of Tranche A1 Term Loans hereunder is
$460,000,000.  The Tranche A1 Term Loans
mature on the Tranche A1 Term Loan Maturity Date, and all Tranche A1 Term Loans
and all other amounts owed hereunder with respect to the Tranche A1 Term Loans
shall be paid in full no later than that date. 
Tranche A1 Term Loans repaid or prepaid may not be reborrowed.


 


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(ii)           Tranche B1 Term Loans.  On the Second Restatement Date, the “Tranche
B1 Term Loans” outstanding under the First Amended and Restated Credit
Agreement are hereby maintained and continued as Tranche B1 Term Loans
hereunder.  As of the Second Restatement
Date, the aggregate principal amount of Tranche B1 Term Loans hereunder is
$840,000,000.  The Tranche B1 Term Loans
mature on the Tranche B1 Term Loan Maturity Date, and all Tranche B1 Term Loans
and all other amounts owed hereunder with respect to the Tranche B1 Term Loans
shall be paid in full no later than that date. 
Tranche B1 Term Loans repaid or prepaid may not be reborrowed.


 


(iii)          Domestic Tranche C Term Loans.  Each Lender that has a Domestic Tranche C
Term Loan Commitment severally agrees to lend to Owens-Brockway on the BSN
Acquisition Closing Date an amount in Dollars not exceeding its Pro Rata Share
of the aggregate amount of the Domestic Tranche C Term Loan Commitments to be
used for the purposes identified in subsection 2.5A.  The amount of each Lender’s Domestic Tranche C Term Loan Commitment
is set forth opposite its name on Schedule A annexed hereto and the aggregate
amount of the Domestic Tranche C Term Loan Commitments is $395,000,000; provided
that the Domestic Tranche C Term Loan Commitments of Lenders shall be adjusted
to give effect to any assignments of the Domestic Tranche C Term Loan
Commitments pursuant to subsection 10.2; and provided, further that the amount
of the Domestic Tranche C Term Loan Commitments shall be reduced from time to
time by the amount of any reductions thereto made pursuant to subsection 2.4G.  Domestic Tranche C Term Loans repaid or
prepaid may not be reborrowed.  The
Domestic Tranche C Term Loans shall mature on the Tranche C Term Loan Maturity
Date, and all Domestic Tranche C Term Loans and all other amounts owed
hereunder with respect to the Domestic Tranche C Term Loans shall be paid in
full no later than that date.  Each
Lender’s Domestic Tranche C Term Loan Commitment shall expire immediately and
without further action on September 15, 2004 if the Domestic Tranche C Term
Loans are not made on or before that date.


 


(iv)          Tranche D Term Loans.  Each Lender that has a Tranche D Term Loan
Commitment severally agrees to lend to Owens-Brockway on the BSN Acquisition
Closing Date an amount in Dollars not exceeding its Pro Rata Share of the
aggregate amount of the Tranche D Term Loan Commitments to be used for the
purposes identified in subsection 2.5A. 
The amount of each Lender’s Tranche D Term Loan Commitment is set forth
opposite its name on Schedule A annexed hereto and the aggregate amount of the
Tranche D Term Loan Commitments is $275,000,000; provided that the
Tranche D Term Loan Commitments of Lenders shall be adjusted to give effect to
any assignments of the Tranche D Term Loan Commitments pursuant to subsection
10.2; and provided, further that the amount of the Tranche D Term Loan
Commitments shall be reduced from time to time by the amount of any reductions
thereto made pursuant to subsection 2.4G. 
Tranche D Term Loans repaid or prepaid may not be reborrowed.  The Tranche D Term Loans shall mature on the
Tranche D Term Loan Maturity Date, and all Tranche D Term Loans and all other
amounts owed hereunder with respect to the Tranche D Term Loans shall be paid
in full no later than that date.  Each
Lender’s Tranche D Term Loan Commitment shall expire immediately and without
further action on September 15, 2004 if the Tranche D Term Loans are not made
on or before that date.


 


(v)           French Tranche C1 Term Loans.  Each Lender that has a French Tranche C1
Term Loan Commitment severally agrees to lend to BSN on the BSN Acquisition


 


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Closing Date an amount in Dollars not exceeding its Pro Rata Share of
the aggregate amount of the French Tranche C1 Term Loan Commitments to be used
for the purposes identified in subsection 2.5A.  The amount of each Lender’s French Tranche C1 Term Loan
Commitment is set forth opposite its name on Schedule A annexed hereto and the
aggregate amount of the French Tranche C1 Term Loan Commitments is
$315,000,000; provided that the French Tranche C1 Term Loan Commitments
of Lenders shall be adjusted to give effect to any assignments of the French
Tranche C1 Term Loan Commitments pursuant to subsection 10.2; and provided,
further that the amount of the French Tranche C1 Term Loan Commitments shall be
reduced from time to time by the amount of any reductions thereto made pursuant
to subsection 2.4G.  French Tranche C1
Term Loans repaid or prepaid may not be reborrowed.  The French Tranche C1 Term Loans shall mature on the Tranche C
Term Loan Maturity Date, and all French Tranche C1 Term Loans and all other
amounts owed hereunder with respect to the French Tranche C1 Term Loans shall
be paid in full no later than that date. 
Each Lender’s French Tranche C1 Term Loan Commitment shall expire
immediately and without further action on September 15, 2004 if the French
Tranche C1 Term Loans are not made on or before that date.


 


(vi)          French Tranche C2 Term Loans.  Each Lender that has a French Tranche C2
Term Loan Commitment severally agrees to lend to BSN on the BSN Acquisition
Closing Date an amount in Euros not exceeding its Pro Rata Share of the
aggregate amount of the French Tranche C2 Term Loan Commitments to be used for
the purposes identified in subsection 2.5A. 
The amount of each Lender’s French Tranche C2 Term Loan Commitment is
set forth opposite its name on Schedule A annexed hereto and the aggregate
amount of the French Tranche C2 Term Loan Commitments is €52,000,000; provided
that the French Tranche C2 Term Loan Commitments of Lenders shall be adjusted
to give effect to any assignments of the French Tranche C2 Term Loan
Commitments pursuant to subsection 10.2; and provided, further that the amount
of the French Tranche C2 Term Loan Commitments shall be reduced from time to
time by the amount of any reductions thereto made pursuant to subsection
2.4G.  French Tranche C2 Term Loans
repaid or prepaid may not be reborrowed. 
The French Tranche C2 Term Loans shall mature on the Tranche C Term Loan
Maturity Date, and all French Tranche C2 Term Loans and all other amounts owed
hereunder with respect to the French Tranche C2 Term Loans shall be paid in
full no later than that date.  Each Lender’s
French Tranche C2 Term Loan Commitment shall expire immediately and without
further action on September 15, 2004 if the French Tranche C2 Term Loans are
not made on or before that date.


 


(vii)         French Tranche C3 Term Loans.  Each Lender that has a French Tranche C3
Term Loan Commitment severally agrees to lend to BSN on the BSN Change of
Control Payment Date an amount in Dollars not exceeding its Pro Rata Share of
the aggregate amount of the French Tranche C3 Term Loan Commitments to be used
for the purposes identified in subsection 2.5A.  The amount of each Lender’s French Tranche C3 Term Loan
Commitment is set forth opposite its name on Schedule A annexed hereto and the
aggregate amount of the French Tranche C3 Term Loan Commitments is
$385,000,000; provided that the French Tranche C3 Term Loan Commitments
of Lenders shall be adjusted to give effect to any assignments of the French
Tranche C3 Term Loan Commitments pursuant to subsection 10.2; and provided,
further that the amount of the French Tranche C3 Term Loan Commitments shall be
reduced from time to time by the amount of any reductions thereto made pursuant
to subsection 2.4G.  French Tranche C3
Term Loans repaid or prepaid may not be reborrowed.  The French Tranche C3 Term Loans shall mature on the Tranche C
Term Loan Maturity Date, and all


 


66

















 


French Tranche C3 Term Loans and all other amounts owed hereunder with
respect to the French Tranche C3 Term Loans shall be paid in full no later than
that date.  Each Lender’s French Tranche
C3 Term Loan Commitment shall expire immediately and without further action on
the earlier of (i) September 15, 2004 if the French Tranche C1 Term Loans are
not made on or before that date, and (ii) the date that is 90 days after the
BSN Acquisition Closing Date if the French Tranche C3 Term Loans are not made
on or before that date.


 


(viii)        Revolving Loans.  On the Second Restatement Date, “Revolving
Loans” outstanding and “Revolving Loan Commitments” under the First Amended and
Restated Credit Agreement are hereby continued as outstanding Revolving Loans
and Revolving Loan Commitments hereunder, respectively.  From and after the Second Restatement Date,
each Lender with a Revolving Loan Commitment hereby severally agrees, subject
to the limitations set forth below with respect to the maximum amount of
Revolving Loans permitted to be outstanding from time to time, to make
Revolving Loans in Dollars to the Domestic Borrowers from time to time during
the period from and including the Second Restatement Date to but excluding the
Revolving Loan Commitment Termination Date in an aggregate amount in Dollars at
any one time outstanding not exceeding its Pro Rata Share of the aggregate
amount of the Revolving Loan Commitments to be used for the purposes and
subject to the limitations identified in subsections 2.5A and 2.5B.  The amount of each Revolving Lender’s
Revolving Loan Commitment is set forth opposite its name on Schedule A
annexed hereto and the aggregate amount of the Revolving Loan Commitments as of
the Second Restatement Date is $600,000,000; 
provided, that the Revolving Loan Commitments of Lenders shall be
adjusted to give effect to any assignments of the Revolving Loan Commitments
pursuant to subsection 10.2; and provided, further that the
amount of the Revolving Loan Commitments shall be reduced from time to time by
the amount of any reductions thereto made pursuant to subsection 2.4.  In no event shall the aggregate principal
amount of the Revolving Loans to the Domestic Borrowers from any Lender
outstanding at any time exceed its Revolving Loan Commitment then in
effect.  Each Lender’s Revolving Loan
Commitment shall expire on the Revolving Loan Commitment Termination Date and all
Revolving Loans and all other amounts owed hereunder with respect to the
Revolving Loans and the Revolving Loan Commitments shall be paid in full no
later than that date.  Amounts borrowed
under this subsection 2.1A(viii) may be repaid and reborrowed to but
excluding the Revolving Loan Commitment Termination Date.


 


Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving Loan Commitments
shall be subject to the limitation that in no event shall (i) the Total
Utilization of Revolving Loan Commitments at any time exceed (ii) the
Revolving Loan Commitments then in effect.


 


Revolving Loans (other than (y) Revolving Loans made
for the purpose of reimbursing any Issuing Lender for the amount of a drawing
honored under a Letter of Credit issued by it, which shall be in the amount of
such drawing so honored, or (z) Revolving Loans made for the purpose of
repaying the Domestic Overdraft Amount, which shall be in an amount equal to
the Domestic Overdraft Amount) made on any Funding Date shall be in an aggregate
minimum amount of $5,000,000 and integral multiples of $1,000,000, in excess of
that amount.


 


(ix)           Additional Term Loans.  (a) Owens-Brockway shall have the right at
any time (so long as (x) no Potential Event of Default or Event of Default then
exists and (y)


 


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Borrowers’ Agent shall have delivered to Administrative Agent a
Compliance Certificate for the period of four full Fiscal Quarters immediately
preceding the incurrence described below (prepared in good faith and in a
manner consistent with the requirements of clause (b) of subsection 
5.1(iii) giving pro forma effect to such incurrence and evidencing
compliance with the covenants referred to in such Compliance Certificate and a
Consolidated Senior Secured Leverage Ratio on a pro forma basis
of not more than 2.85:1.0 as of the last day of such period), and from time to
time after the Second Restatement Date to incur from one or more existing
Lenders  and/or other Persons that are
Eligible Assignees and which, in each case, agree to make such loans to
Owens-Brockway, loans and commitments to make loans in an aggregate principal
amount not to exceed $300,000,000 which loans may be incurred as one or more
tranches of additional term loans (the “Additional
Term Loans”) as determined by Administrative Agent that are pari
passu in all respects to the Tranche B1 Term Loans, Domestic Tranche C Term
Loans and Tranche D Term Loans under a facility that would provide that the
Additional Term Loans would have a Weighted Average Life to Maturity of not
less than the Tranche B1 Term Loans and a final maturity no earlier than
Tranche B1 Term Loan Maturity Date; provided, that (i) the terms and
conditions of any Additional Term Loans shall be substantially similar to those
applicable to the Tranche B1 Term Loans and (ii) the applicable margins (which,
for such purposes only, shall be deemed to include all upfront or similar fees
or original issue discount (amortized over the life of such loan) payable to
all Lenders providing such Additional Term Loans, but exclusive of any
arrangement, structuring or other fees payable in connection therewith that are
not shared with all Lenders providing such Additional Term Loans) determined as
of the initial funding date for such Additional Term Loans shall not be greater
than 0.50% above the applicable margins then in effect for Tranche B1 Term
Loans (which, for such purposes only, shall be deemed to include all upfront or
similar fees or original issue discount (amortized over the life of such loan)
paid to all Lenders of Tranche B1 Term Loans as of the initial funding date for
such Additional Term Loans, but exclusive of any arrangement, structuring or
other fees payable in connection therewith that are not shared with all Lenders
of Tranche B1 Term Loans).


 


(b)           In
the event that Owens-Brockway desires to incur Additional Term Loans,
Owens-Brockway will enter into an amendment with the lenders (which shall upon
execution thereof become Lenders hereunder if not theretofore Lenders) to
provide for such Additional Term Loans, which amendment shall set forth any
terms and conditions of the Additional Term Loans not covered by this Agreement
as agreed by Owens-Brockway and such Lenders, and shall provide for the
issuance of promissory notes to evidence the Additional Term Loans if requested
by the lenders advancing Additional Term Loans (which notes shall constitute
Notes for purposes of this Agreement), with such amendment to be in form and
substance reasonably acceptable to Administrative Agent and consistent with the
terms of this subsection 2.1A(ix) and of the other provisions of this
Agreement.  No consent of any Lender
(other than any Lender making Additional Term Loans) is required to permit the
Loans contemplated by this subsection 2.1A(ix) or the aforesaid amendment
to effectuate the Additional Term Loans. 
This section shall supersede any provisions contained in this Agreement,
including, without limitation, subsection 10.7 and references in
subsection 10.7 to “subsection 2.1A(iv)” shall be deemed to refer to this
section.


 


(x)            Refinancing Term Loans. (a)
At any time after the BSN Acquisition Closing Date when there are no Tranche D


 


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Term Loan Commitments or Tranche D Term Loans outstanding,
Owens-Brockway, ACI and BSN shall have the right (so long as (x) no Potential
Event of Default or Event of Default then exists and (y) Borrowers’ Agent shall
have delivered to Administrative Agent a Compliance Certificate for the period of
four full Fiscal Quarters immediately preceding the incurrence described below
(prepared in good faith and in a manner consistent with the requirements of
clause (b) of subsection  5.1(iii) giving pro forma effect to such
incurrence and evidencing compliance with the covenants referred to in such
Compliance Certificate), to incur from one or more existing Lenders and/or
other Persons that are Eligible Assignees and which, in each case, agree to
make such loans to Owens-Brockway, ACI or BSN, as applicable, loans and
commitments to make loans (the “Refinancing Term Loans”) in an aggregate
principal amount not to exceed the aggregate amount of Tranche A1 Term Loans
(in the case of ACI), Tranche B1 Term Loans and Domestic Tranche C Term Loans
(in the case of Owens-Brockway) and French Tranche C1 Term Loan and French
Tranche C2 Term Loans (in the case of BSN) theretofore made to such Borrower
and thereafter repaid (or to be repaid with the proceeds of such Refinancing
Term Loans). Refinancing Term Loans may be incurred as one or more tranches (of
at least $100,000,000 each) of Refinancing Term Loans as determined by Agents
that are pari passu in all respects with, have a Weighted Average Life
to Maturity of not less than, have a final maturity no earlier than and shall
otherwise be (except as to pricing) on terms and conditions substantially
similar to the Type of Term Loan such tranche of Refinancing Term Loans is to
replace or refinance.


 


(b)           In
the event that Owens-Brockway, ACI or BSN desires to incur Refinancing Term
Loans, Owens-Brockway, ACI or BSN, as applicable, will enter into an amendment
with the lenders (which shall upon execution thereof become Lenders hereunder
if not theretofore Lenders) to provide for such Refinancing Term Loans, which
amendment shall set forth any terms and conditions of the Refinancing Term
Loans not covered by this Agreement as agreed by Owens-Brockway, ACI or BSN, as
applicable, and such Lenders, and shall provide for the issuance of promissory
notes to evidence the Refinancing Term Loans if requested by the lenders
advancing Refinancing Term Loans (which notes shall constitute Notes for
purposes of this Agreement), with such amendment to be in form and substance
reasonably acceptable to Agents and consistent with the terms of this
subsection 2.1A(x) and of the other provisions of this Agreement.  No consent of any Lender (other than any
Lender making Refinancing Term Loans) is required to permit the Loans
contemplated by this subsection 2.1A(x) or the aforesaid amendment to
effectuate the Refinancing Term Loans. 
This section shall supersede any provisions contained in this Agreement,
including, without limitation, subsection 10.7.


 


B.    Domestic Overdraft
Account.  Lenders agree that Domestic Borrowers and
Administrative Agent may establish and maintain the Domestic Overdraft Account
to be established pursuant to the Domestic Overdraft Agreement; provided
that (i) the Domestic Overdraft Amount shall not exceed at any time
$50,000,000, and (ii) in no event shall the Total Utilization of Revolving
Loan Commitments at any time exceed the Revolving Loan Commitments then in
effect.  Notwithstanding anything
contained in this Agreement to the contrary (but subject, however, to the
limitations set forth in subsection 2.1A(viii) with respect to the making
of Revolving Loans), Lenders and Domestic Borrowers further agree that
Administrative Agent at any time in its sole and absolute discretion may, upon
notice to the Domestic Borrowers and Lenders having Revolving Loan Exposure,
require each Lender having Revolving Loan Exposure to the Domestic Borrowers
(including Administrative Agent) on one Business Day’s notice to make a
Revolving Loan on behalf of the Domestic Borrowers in an


 


69

















 


amount equal to that Lender’s Pro Rata Share, or, in the sole and
absolute discretion of Administrative Agent, require each other Lender having
Revolving Loan Exposure to purchase a participation in amounts due with respect
to the Domestic Overdraft Amount in an amount equal to that Lender’s Pro Rata
Share of the Domestic Overdraft Amount; provided, however, that
the obligation of each Lender to make each such Revolving Loan on behalf of the
Domestic Borrowers or to purchase each such participation in the Domestic Overdraft
Amount is subject to the condition that at the time such extension of credit
under the Domestic Overdraft Agreement was made the duly authorized officer of
Administrative Agent responsible for the administration of Administrative
Agent’s credit relationship with Domestic Borrowers believed in good faith that
(x) no Event of Default had occurred and was continuing or (y) any
Event of Default that had occurred and was continuing had been waived by
Requisite Lenders (or, if applicable under subsection 10.7, all Lenders)
at the time such extension of credit under the Domestic Overdraft Agreement was
made.  In the case of Revolving Loans
made by Lenders other than Administrative Agent under the immediately preceding
sentence, each such Lender shall make the amount of its Revolving Loan
available to Administrative Agent, in Same Day Funds, at the Domestic Funding
and Payment Office not later than 1:00 P.M. (New York time) on the
Business Day next succeeding the date such notice is given.  The proceeds of such Revolving Loans shall
be immediately delivered to Administrative Agent (and not to any Domestic
Borrower or any other Loan Party) and applied to repay the Domestic Overdraft
Amount.  On the day such Revolving Loans
are made, Administrative Agent’s Pro Rata Share of the Domestic Overdraft
Amount being refunded shall be deemed to be paid with the proceeds of a
Revolving Loan made by Administrative Agent and such portion of the Domestic
Overdraft Amount deemed to be so paid shall no longer be outstanding.  Each Domestic Borrower authorizes
Administrative Agent to charge the Domestic Borrower’s accounts with
Administrative Agent (up to the amount available in each such account) in order
to immediately pay Administrative Agent the amount of the Domestic Overdraft
Amount to be refunded in such order as Administrative Agent may elect,
regardless of whether such amounts were drawn on behalf of such Domestic
Borrower or another Domestic Borrower, to the extent amounts received from
Lenders, including amounts deemed to be received from Administrative Agent, are
not sufficient to repay in full the Domestic Overdraft Amount to be refunded
and provided  further that Administrative Agent shall give
Domestic Borrowers notice of such charges prior thereto or as soon as reasonably
practicable thereafter.  Each Revolving
Loan made in accordance with the foregoing shall be made as a Base Rate
Loan.  If any portion of any such amount
paid to Administrative Agent should be recovered by or on behalf of any
Domestic Borrower from Administrative Agent in bankruptcy, by assignment for
the benefit of creditors or otherwise, the loss of the amount so recovered
shall be ratably shared among all Lenders in the manner contemplated by
subsection 10.6.  In the event that
Administrative Agent requires the other Lenders to purchase participations in
the Domestic Overdraft Amount, payment for such participations shall be made
directly to Administrative Agent at the Domestic Funding and Payment Office not
later than 1:00 P.M. (New York time) on the Business Day next succeeding the
date notice to purchase such participations is given.  Except as provided above in this subsection 2.1B and except
for the satisfaction of the conditions specified in subsection 3.1 and
3.2, each Lender’s obligation to make Revolving Loans pursuant to this
subsection 2.1B and to purchase participations in the Domestic Overdraft
Amount pursuant to this subsection 2.1B shall be absolute and
unconditional and shall not be affected by any circumstance, including, without
limitation, (i) any set-off, counterclaim, recoupment, defense or other
right which such Lender


 


70

















 


may have against Administrative Agent, any Loan Party or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of an
Event of Default or a Potential Event of Default; (iii) any adverse change
in the condition (financial or otherwise) of any Loan Party; (iv) any
breach of this Agreement by any Loan Party or any other Lender having Revolving
Loan Exposure; or (v) any other circumstance, happening, or event
whatsoever, whether or not similar to any of the foregoing; provided
that in the event that the obligations of Lenders to make Revolving Loans are
terminated in accordance with Section 7, Lenders having a Revolving Loan
Commitment shall thereafter only be obligated to purchase participations in the
Domestic Overdraft Amount as provided in this subsection 2.1B.  In the event that any Lender fails to make
available to Administrative Agent the amount of any of such Lender’s Revolving
Loans required to be made pursuant to this subsection 2.1B or the amount
of any participations in the Domestic Overdraft Amount which are required to be
purchased from Administrative Agent by such Lender pursuant to this
subsection 2.1B, Administrative Agent shall be entitled to recover such
amount on demand from such Lender together with interest at the customary rate
set by Administrative Agent for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. 
Nothing in this subsection 2.1B shall be deemed to prejudice the
right of any Lender to recover from Administrative Agent any amounts made
available by such Lender to Administrative Agent pursuant to this
subsection 2.1B in respect of any extension of credit by Administrative
Agent under the Domestic Overdraft Agreement in the event that it is determined
by a court of competent jurisdiction that such extension of credit by
Administrative Agent constituted gross negligence or willful misconduct on the
part of Administrative Agent.


 


Any notice given by Administrative Agent to Lenders
pursuant to the immediately preceding paragraph shall be concurrently given by
Administrative Agent to Domestic Borrowers or Borrowers’ Agent.


 


C.    Offshore Revolving
Loan Commitments.  On the Second Restatement Date,
“Offshore Revolving Loans” outstanding and “Offshore Revolving Loan
Commitments” under the First Amended and Restated Credit Agreement are hereby
continued as outstanding Offshore Revolving Loans in Dollars and Offshore
Revolving Loan Commitments hereunder, respectively.  Subject to the
terms and conditions of this Agreement and in reliance upon the representations
and warranties of Borrowers herein set forth, each Offshore Borrower may request,
in accordance with the provisions of this subsection 2.1C, that Lenders
with a Revolving Loan Commitment make Offshore Revolving Loans.  The making of Offshore Revolving Loans shall
reduce the availability of Revolving Loans to Domestic Borrowers on a dollar-for-dollar
basis to the extent of Offshore Revolving Loans outstanding.  Subject to the limitations set forth below,
(a) each Revolving Lender hereby severally agrees to make UK Revolving Loans to
United Glass in Dollars from time to time during the period from and including
the Second Restatement Date to but excluding the Revolving Loan Commitment
Termination Date in an aggregate amount at any time outstanding not exceeding
its Pro Rata Share of the aggregate amount of the UK Revolving Loan Commitments;
provided, however, Lenders shall not be obligated to make UK
Revolving Loans (and United Glass may not request any such Loans) at any time a
UK Overdraft Agreement is in effect, except to repay the UK Overdraft Amount
upon notice from the UK Overdraft Account Provider pursuant to
subsection 2.1D(ii), (b) each Revolving Lender hereby severally agrees,
subject to the limitations set forth below with respect to the maximum amount
of Offshore Revolving Loans and Australian Revolving Loans permitted to be outstanding
from time to time, to make Australian Revolving Loans to any of the


 


71

















 


Australian Offshore Borrowers in Dollars from time to time during the
period from and including the Second Restatement Date to but excluding the
Revolving Loan Commitment Termination Date, in an aggregate amount at any time
outstanding with respect to all Australian Offshore Borrowers not exceeding its
Pro Rata Share of the aggregate amount of the Australian Revolving Loan Commitments,
(c) each Revolving Lender hereby severally agrees to make Canadian Revolving
Loans to O-I Canada in Dollars from time to time during the period from and
including the Second Restatement Date to but excluding the Revolving Loan
Commitment Termination Date in an aggregate amount at any time outstanding not
exceeding its Pro Rata Share of the aggregate amount of the Canadian Revolving
Loan Commitments, provided, however, Lenders shall not be
obligated to make Canadian Revolving Loans (and O-I Canada may not request any
such Loans) at any time a Canadian Overdraft Agreement is in effect, except to
repay the Canadian Overdraft Amount upon notice from the Canadian Overdraft
Account Provider pursuant to subsection 2.1D(ii), and (d) each Revolving
Lender hereby severally agrees, subject to the limitations set forth below with
respect to the maximum amount of Offshore Revolving Loans and Italian Revolving
Loans permitted to be outstanding from time to time, to make Italian Revolving
Loans to Avir in Dollars from time to time during the period from and including
the Second Restatement Date to but excluding the Revolving Loan Commitment
Termination Date in an aggregate amount at any time outstanding not exceeding
its Pro Rata Share of the aggregate amount of the Italian Revolving Loan
Commitments; provided, however, Lenders shall not be obligated to
make Italian Revolving Loans (and Avir may not request any such Loans) at any
time an Italian Overdraft Agreement is in effect, except to repay the Italian
Overdraft Amount upon notice from the Italian Overdraft Account Provider
pursuant to subsection 2.1D(ii). 
The proceeds of all such Offshore Revolving Loans shall be used for the
purposes identified in subsections 2.5A and 2.5B.  The amount of each Lender’s UK Revolving Loan Commitment, each
Lender’s Australian Revolving Loan Commitment, each Lender’s Canadian Revolving
Loan Commitment and each Lender’s Italian Revolving Loan Commitment in each
case as of the Second Restatement Date is set forth opposite its name in Schedule A
annexed hereto and the aggregate amounts of the (i) UK Revolving Loan
Commitments, (ii) the Australian Revolving Loan Commitments, (iii) the Canadian
Revolving Loan Commitments and (iv) the Italian Revolving Loan Commitments (in
each case set forth in Schedule A) are, as of the Second Restatement
Date, (i) $20,000,000, (ii) $440,000,000, (iii) $10,000,000 and (iv) prior to
the BSN Acquisition Closing Date, $10,000,000, and thereafter, $63,000,000,
respectively; provided that the Offshore Revolving Loan Commitments of
Lenders shall be adjusted to give effect to any assignments thereof pursuant to
subsection 10.2; provided, further that the amount of any
Offshore Revolving Loan Commitment shall be reduced from time to time by the
amount of any reductions thereto made pursuant to subsection 2.4G.  In no event shall the aggregate principal
amount of the UK Revolving Loans of any Lender outstanding at any time exceed
its UK Revolving Loan Commitment then in effect, in no event shall the
aggregate principal amount of the Australian Revolving Loans of any Lender
outstanding at any time exceed its Australian Revolving Loan Commitment then in
effect, in no event shall the aggregate principal amount of Canadian Revolving
Loans of any Lender outstanding at any time exceed its Canadian Revolving Loan
Commitment then in effect and in no event shall the aggregate principal amount
of the Italian Revolving Loans of any Lender outstanding at any time exceed its
Italian Revolving Loan Commitment then in effect.  Each Lender’s Offshore Revolving Loan Commitment shall expire on
the Revolving Loan Commitment Termination Date and all Offshore Revolving Loans
and all other amounts owed hereunder with respect to the Offshore


 


72

















 


Revolving Loans and the Offshore Revolving Loan Commitments shall be
paid in full no later than that date. 
Amounts borrowed under this subsection 2.1C may be repaid and
reborrowed to but excluding the Revolving Loan Commitment Termination Date.


 


Anything contained in this Agreement to the contrary
notwithstanding, no Offshore Borrower shall request Lenders to make any
Offshore Revolving Loans (and no Lender shall be obligated to make Offshore
Revolving Loans) if, immediately after giving effect to the making of such
Offshore Revolving Loans:


 


(1)   the Total
Utilization of Revolving Loan Commitments would exceed the Revolving Loan
Commitments then in effect;


 


(2)   the sum of
the Total Utilization of UK Revolving Loan Commitments plus the Total
Utilization of Australian Revolving Loan Commitments plus the Total
Utilization of the Canadian Revolving Loan Commitments plus the Total
Utilization of Italian Revolving Loan Commitments would exceed the Aggregate
Offshore Sublimit;


 


(3)   the Total
Utilization of UK Revolving Loan Commitments would exceed the UK Revolving Loan
Commitments then in effect;


 


(4)   the Total
Utilization of Australian Revolving Loan Commitments would exceed the
Australian Revolving Loan Commitments then in effect;


 


(5)   the Total
Utilization of the Canadian Revolving Loan Commitments would exceed the
Canadian Revolving Loan Commitments then in effect; or


 


(6)   the Total
Utilization of Italian Revolving Loan Commitments would exceed the Italian
Revolving Loan Commitments then in effect.


 


UK Revolving Loans made on any Funding Date (other
than UK Revolving Loans made for the purpose of repaying the UK Overdraft
Amount, which shall be in an amount equal to the UK Overdraft Amount) shall be
in an aggregate minimum amount of $5,000,000 and integral multiples of
$1,000,000 in excess of that amount; Australian Revolving Loans made on any
Funding Date (other than (y) Australian Revolving Loans made for the purpose of
reimbursing any Issuing Lender for the amount of a drawing honored under a
Letter of Credit issued by it for the account of any Australian Borrower, which
shall be in the amount of such drawing so honored, or (z) Australian Revolving
Loans made for the purpose of repaying the Australian Overdraft Amount, which
shall be in an amount equal to the Australian Overdraft Amount) shall be in an
aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in
excess of that amount; Canadian Revolving Loans made on any Funding Date (other
than Canadian Revolving Loans made for the purpose of repaying the Canadian
Overdraft Amount, which shall be in an amount equal to the Canadian Overdraft
Amount) shall be in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount; and Italian Revolving Loans made
on any Funding Date (other than Italian Revolving Loans made for the purpose of
repaying the Italian Overdraft Amount, which shall be in an amount equal to the
Italian Overdraft Amount) shall be in an aggregate minimum amount of $5,000,000
and integral multiples of $1,000,000 in excess of that amount.


 


73

















 


Each Offshore Borrower hereby unconditionally promises
to pay to the Lenders the then unpaid principal amount of each Offshore
Revolving Loan of such Lender made to such Offshore Borrower on or before the
Revolving Loan Commitment Termination Date or such earlier date on which such
Offshore Revolving Loans become due and payable pursuant to Section 7.  Each Offshore Borrower hereby further agrees
and promises to pay to the Lenders interest on the unpaid principal amount of
each Offshore Revolving Loan of such Lender made to such Offshore Borrower from
time to time outstanding from the date hereof until paid in full, at the rates
and at the times which shall be determined in accordance with the provisions of
this Agreement.


 


D.    Offshore Overdraft Accounts.


 


(i)            Lenders agree that each Offshore
Borrower may establish and maintain an Offshore Overdraft Account with an
Offshore Overdraft Provider pursuant to an Offshore Overdraft Agreement; provided
that (a) (1) the UK Overdraft Amount shall not exceed at any time the
Offshore Currency Equivalent of $20,000,000, (2) the Australian Overdraft
Amount shall not exceed at any time the Offshore Currency Equivalent of
$30,000,000, (3) the Canadian Overdraft Amount shall not exceed at any time the
Offshore Currency Equivalent of $10,000,000 and (4) the Italian Overdraft
Amount shall not exceed at any time prior to the BSN Acquisition Closing Date
the Offshore Currency Equivalent of $10,000,000 and thereafter the Offshore
Currency Equivalent of $63,000,000, and (b) in no event shall an Offshore
Borrower request an extension of credit under an Offshore Overdraft Agreement
(and no Offshore Overdraft Account Provider shall be obligated to extend credit
under an Offshore Overdraft Agreement) if, after giving effect to such
extension of credit:


 


(1)   the Total
Utilization of Revolving Loan Commitments would exceed the Revolving Loan
Commitments then in effect;


 


(2)   the sum of
the Total Utilization of UK Revolving Loan Commitments plus the Total
Utilization of the Australian Revolving Loan Commitments plus the Total
Utilization of the Canadian Revolving Loan Commitments plus the Total
Utilization of Italian Revolving Loan Commitments would exceed the Aggregate
Offshore Sublimit;


 


(3)   the Total
Utilization of UK Revolving Loan Commitments would exceed the UK Revolving Loan
Commitments then in effect;


 


(4)   the Total
Utilization of Australian Revolving Loan Commitments would exceed the
Australian Revolving Loan Commitments then in effect;


 


(5)   the Total
Utilization of Canadian Revolving Loan Commitments would exceed the Canadian
Revolving Loan Commitments then in effect; or


 


(6)   the Total
Utilization of Italian Revolving Loan Commitments would exceed the Italian
Revolving Loan Commitments then in effect.


 


(ii)           Notwithstanding anything contained in
this Agreement to the contrary (but subject, however, to the limitations set
forth in subsection 2.1C with respect to the making of Offshore Revolving
Loans), Lenders and each Offshore Borrower further agree that


 


74

















 


any Offshore Overdraft Account Provider at any time in its sole and
absolute discretion may, upon notice to the relevant Offshore Borrower, the
Administrative Agent and the Lenders, require each Revolving Lender (including
such Offshore Overdraft Account Provider) on one Business Day’s notice to make
an Offshore Revolving Loan in Dollars in an amount equal to that Lender’s Pro
Rata Share (determined with respect to such Type of Offshore Revolving Loan
Commitments) of the relevant Offshore Overdraft Amount (calculated in Dollars
by reference to the applicable Exchange Rate on the date such Offshore
Revolving Loan is to be made) or, in the event the relevant Type of Offshore
Revolving Loan Commitment has terminated, require each Lender having Revolving
Loan Exposure to purchase a participation in amounts due with respect to the
relevant Offshore Overdraft Account in an amount equal to that Lender’s Pro
Rata Share of the relevant Offshore Overdraft Amount (calculated in Dollars by
reference to the applicable Exchange Rate on the date such Offshore Revolving
Loan is to be made); provided, however, that the obligation of
each Revolving Lender to make each such Offshore Revolving Loan or of each
Lender having Revolving Loan Exposure to purchase each such participation in
any such Offshore Overdraft Amount is subject to the condition that at the time
such extension of credit under the applicable Offshore Overdraft Agreement was
made the duly authorized officer of such Offshore Overdraft Account Provider
responsible for the administration of such Offshore Overdraft Account
Provider’s credit relationship with the relevant Offshore Borrower believed in
good faith that (a) no Event of Default had occurred and was continuing or
(b) any Event of Default that had occurred and was continuing had been
waived by Requisite Lenders (or, if applicable under subsection 10.7, all
Lenders) at the time such extension of credit under such Offshore Overdraft
Agreement was made.  In the case of
Offshore Revolving Loans or participation purchases made by Lenders other than
Administrative Agent under the immediately preceding sentence, each such Lender
shall make the amount of its Offshore Revolving Loan or the amount of its
participation, as applicable, available to Administrative Agent in Same Day
Funds in Dollars, at the Domestic Funding and Payment Office not later than
12:00 Noon (New York time) on the Business Day next succeeding the date such
notice is given and upon such transfer such Offshore Revolving Loans shall be
deemed made or such participations purchased, as the case may be.  The proceeds of such Offshore Revolving
Loans or participation purchases shall be delivered by Administrative Agent to
such Offshore Overdraft Account Provider (and not to the relevant Offshore
Borrower) as soon as practicable and applied to repay the relevant Offshore
Overdraft Amount.  On the day such
Offshore Revolving Loans are made or such participations are purchased, such
Offshore Overdraft Account Provider’s Pro Rata Share of the Offshore Overdraft
Amount being refunded shall be deemed to be paid with the proceeds of an
Offshore Revolving Loan made by such Offshore Overdraft Account Provider and
such portion of the Offshore Overdraft Amount deemed to be so paid shall no
longer be outstanding.  Each Offshore
Borrower authorizes the Offshore Overdraft Account Provider to charge such
Offshore Borrower’s accounts with such Offshore Overdraft Account Provider (up
to the amount available in each such account) in order to immediately pay such
Offshore Overdraft Account Provider the amount of the Offshore Overdraft Amount
to be refunded to the extent amounts received from Lenders, including amounts
deemed to be received from such Offshore Overdraft Account Provider, are not
sufficient to repay in full the Offshore Overdraft Amount to be refunded; provided
that such Offshore Overdraft Account Provider shall give such Offshore Borrower
notice of such charges prior thereto or as soon as reasonably practicable
thereafter.  Each Offshore Revolving
Loan made in accordance with the foregoing shall be made as a Base Rate Loan.  If any portion of any such amount paid to
any Offshore Overdraft Account Provider


 


75

















 


should be recovered by or on behalf of such Offshore Borrower from such
Offshore Overdraft Account Provider in bankruptcy, by assignment for the
benefit of creditors or otherwise, the loss of the amount so recovered shall be
ratably shared among all Lenders in the manner contemplated by
subsection 10.6.


 


(iii)          Except as provided above in this
subsection 2.1D and except for the satisfaction of the conditions
specified in subsections 3.1 and 3.2, each Lender’s obligation to make Offshore
Revolving Loans pursuant to this subsection 2.1D and the obligation of
each Lender having Revolving Loan Exposure to purchase participations in any
Offshore Overdraft Amount pursuant to this subsection 2.1D shall be
absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (a) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against such Offshore
Overdraft Account Provider, any Borrower or any other Person for any reason
whatsoever; (b) the occurrence or continuance of an Event of Default or a
Potential Event of Default; (c) any adverse change in the condition
(financial or otherwise) of any Loan Party; (d) any breach of this Agreement
by any Borrower or any other Lender; or (e) any other circumstance,
happening, or event whatsoever, whether or not similar to any of the foregoing;
provided that in the event that the obligations of Lenders to make
Offshore Revolving Loans are terminated in accordance with Section 7, Lenders
having Revolving Loan Exposure shall thereafter only be obligated to purchase
participations in the relevant Offshore Overdraft Amount as provided in this
subsection 2.1D.  In the event that
any Lender fails to make available to the relevant Administrative Agent the
amount of any of such Lender’s Offshore Revolving Loans required to be made
pursuant to this subsection 2.1D or to the Administrative Agent the amount
of any participations in the relevant Offshore Overdraft Amount which are
required to be purchased from such Offshore Overdraft Account Provider by such
Lender pursuant to this subsection 2.1D, such Offshore Overdraft Account
Provider shall be entitled to recover such amount on demand from such Lender together
with interest at the customary rate set by such Offshore Overdraft Account
Provider for the correction of errors among banks in the relevant jurisdiction
for three Offshore Banking Days and thereafter at the Base Rate.  Nothing in this subsection 2.1D shall
be deemed to prejudice the right of any Lender to recover from any Offshore
Overdraft Account Provider any amounts made available by such Lender to such
Offshore Overdraft Account Provider pursuant to this subsection 2.1D in
respect of any extension of credit by such Offshore Overdraft Account Provider
under the relevant Offshore Overdraft Agreement in the event that it is
determined by a court of competent jurisdiction that such extension of credit
by such Offshore Overdraft Account Provider constituted gross negligence or
willful misconduct on the part of such Offshore Overdraft Account Provider.


 


(iv)          Any notice given by any Offshore
Overdraft Account Provider to the relevant Lenders pursuant to
subsection 2.1D(iii) shall be concurrently given by such Offshore
Overdraft Account Provider to the Administrative Agent and the applicable
Offshore Borrower or Borrowers’ Agent.


 


(v)           Anything contained in this Agreement
to the contrary notwithstanding, no amendment, modification, termination or
waiver of any provision of this Agreement or of the other Loan Documents, and
no consent to any departure by any Borrower therefrom, shall modify, terminate
or waive in any manner adverse to any Offshore Overdraft Account Provider any
provision of this subsection 2.1D or any other provision of this Agreement


 


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directly relating to the Offshore Overdraft Accounts or the Offshore
Overdraft Amounts (including any provision directly relating to the repayment
of the Offshore Overdraft Amounts with the proceeds of Offshore Revolving Loans
or directly relating to the obligations of Lenders to purchase participations
in the Offshore Overdraft Amounts) without the written concurrence of the
applicable Offshore Overdraft Account Providers.


 


E.     Notice of Borrowing.


 


(i)            Whenever a Borrower desires that
Lenders make Revolving Loans, Offshore Revolving Loans, Tranche C Term Loans or
Tranche D Term Loans, it shall deliver to Administrative Agent a Notice of
Borrowing no later than 12:00 Noon (New York time) (x) at least one Business
Day in advance of the proposed Funding Date, in the case of any Base Rate Loan,
or (y) three Business Days in advance of the proposed Funding Date, in the case
of a Euro Rate Loan (other than in respect of a UK Borrower) and four Business
Days in advance of the proposed Funding Date in the case of a Eurodollar Rate
Loan to a UK Borrower.  The Notice of
Borrowing shall specify (1) the proposed Funding Date (which shall be a
Business Day), (2) the amount and Type of the proposed Loans,
(3) whether such Loans are initially to consist of Base Rate Loans or Euro
Rate Loans or a combination thereof, and (4) if such Loans, or any portion
thereof, are initially to be Euro Rate Loans, the amounts thereof and the initial
Interest Periods therefor; and except as set forth in subsection 3.4B, such
Notice of Borrowing shall further certify that subsection 3.4B is
satisfied on and as of that Funding Date; provided that the minimum
amount of Revolving Loans, if any, to be made on any Funding Date as Eurodollar
Rate Loans with a particular Interest Period shall be $10,000,000 and integral
multiples of $1,000,000 in excess of that amount and the minimum amount of
Offshore Revolving Loans to be made on any Funding Date shall be as set forth
in subsection 2.1C; and provided  further  that, United
Glass may not deliver a Notice of Borrowing requesting a UK Revolving Loan at
any time a UK Overdraft Agreement is in effect, O-I Canada may not deliver a
Notice of Borrowing requesting a Canadian Revolving Loan at any time a Canadian
Overdraft Agreement is in effect and Avir may not deliver a Notice of Borrowing
requesting an Italian Revolving Loan at any time an Italian Overdraft Agreement
is in effect.  Notwithstanding anything
in this Agreement to the contrary, no Lender shall make or be obligated to make
a Revolving Loan or an Offshore Revolving Loan if it shall have received a Loan
Limitation Notice with respect to such Revolving Loan or Offshore Revolving
Loan from Administrative Agent on or prior to the first Business Day
immediately preceding the proposed Funding Date for such Revolving Loan or
Offshore Revolving Loan.  Term Loans,
Revolving Loans and Offshore Revolving Loans may be continued as or converted
into Base Rate Loans and Euro Rate Loans in the manner provided in
subsection 2.2D.  In lieu of
delivering the above-described Notice of Borrowing, a Borrower may give
Administrative Agent irrevocable telephonic notice by the required time of any
proposed borrowing under this subsection 2.1; provided that such
notice shall be promptly confirmed in writing by delivery of a Notice of
Borrowing to Administrative Agent on or prior to the Funding Date of the
requested Loans.


 


(ii)           Notwithstanding the provisions of the
foregoing 2.1E(i), no Tranche C Term Loan or Tranche D Term Loan may be made
as, or converted into, a Eurodollar Rate Loan until the first Business Day
after the BSN Acquisition Closing Date, and until the thirtieth day after the
BSN Acquisition Closing Date, no such Loan may be made as, or converted into, a
Eurodollar Rate Loan with an Interest Period of more than one month.


 


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(iii)          Neither Administrative Agent nor any
Lender shall incur any liability to any Borrower in acting upon any telephonic
notice referred to above which Administrative Agent or Lender, as the case may
be, believes in good faith to have been given by a duly authorized officer or
other person authorized to borrow on behalf of the relevant Borrower, as the
case may be, or for otherwise acting in good faith under this
subsection 2.1E, and upon funding of Loans by any Lender in accordance
with this Agreement pursuant to any such telephonic notice such Borrower shall
have effected Loans hereunder.


 


(iv)          Except as provided in
subsection 2.6D, a Notice of Borrowing for a Euro Rate Loan (or telephonic
notice in lieu thereof) shall be irrevocable on and after the related Interest
Rate Determination Date, and the Borrower giving such notice shall be bound to
make a borrowing in accordance therewith, unless such Borrower pays to Lenders
such amounts as may be due under subsection 2.6E for failure of a
borrowing of a Euro Rate Loan, to occur on the date specified therefor in a
Notice of Borrowing (or telephonic notice in lieu thereof).


 


(v)           Promptly after receipt of a Notice of
Borrowing pursuant to this subsection 2.1E (or telephonic notice in lieu
thereof) with respect to any Revolving Loans or Offshore Revolving Loans,
Administrative Agent may (but shall not be obligated to) calculate whether,
before and after giving effect to the making of the relevant Loans:


 


(1)   (A) the
Total Utilization of Revolving Loan Commitments shall exceed (B) the Revolving
Loan Commitments then in effect;


 


(2)   the sum of
the Total Utilization of UK Revolving Loan Commitments plus the Total
Utilization of Australian Revolving Loan Commitments plus the Total
Utilization of Canadian Revolving Loan Commitments plus the Total
Utilization of Italian Revolving Loan Commitments shall exceed the Aggregate
Offshore Sublimit;


 


(3)   the Total
Utilization of UK Revolving Loan Commitments shall exceed the UK Revolving Loan
Commitments then in effect;


 


(4)   the Total
Utilization of Australian Revolving Loan Commitments shall exceed the
Australian Revolving Loan Commitments then in effect;


 


(5)   the Total
Utilization of Canadian Revolving Loan Commitments shall exceed the Canadian
Revolving Loan Commitments then in effect; and


 


(6)   the Total
Utilization of Italian Revolving Loan Commitments shall exceed the Italian
Revolving Loan Commitments then in effect.


 


In the event that Administrative Agent determines that
any of the statements in clauses (1) through (6) is true or will be true after
giving effect to the making of the relevant Loans, Administrative Agent shall
deliver to each Borrower written notice (a “Loan Limitation Notice”) thereof, and
shall notify each Lender promptly of its delivery of such notice.


 


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F.     Disbursement of Funds.


 


(i)            All Domestic Tranche C Term Loans,
Tranche D Term Loans, French Tranche C1 Term Loans, French Tranche C2 Term
Loans, French Tranche C3 Term Loans, Revolving Loans and Offshore Revolving
Loans under this Agreement shall be made by Lenders simultaneously and
proportionately to their respective Pro Rata Shares of the Domestic Tranche C
Term Loan Commitments, Tranche D Term Loan Commitments, French Tranche C1 Term
Loan Commitments, French Tranche C2 Term Loan Commitments, French Tranche C3
Term Loan Commitments, Revolving Loan Commitments, Australian Revolving Loan
Commitments, Canadian Revolving Loan Commitments, Italian Revolving Loan
Commitments or UK Revolving Loan Commitments, as the case may be, it being
understood that no Lender shall be responsible for any default by any other
Lender in that other Lender’s obligation to make a Term Loan, a Revolving Loan
or an Offshore Revolving Loan requested hereunder nor shall the Commitment of
any Lender to make the particular type of Loan requested be increased or
decreased as a result of a default by any other Lender in that other Lender’s
obligation to make a Loan requested hereunder. 
Promptly after receipt of a Notice of Borrowing pursuant to
subsection 2.1E (or telephonic notice in lieu thereof) or the deemed
receipt of a Notice of Borrowing pursuant to subsection 2.8D,
Administrative Agent shall notify each Lender of the proposed borrowing.  Except as provided in the next succeeding
sentence for Lenders designating a UK Lending Office, each Lender shall make
the amount of its Term Loan, Revolving Loan or Offshore Revolving Loan
available to Administrative Agent, in Same Day Funds, at the Domestic Funding
and Payment Office not later than 12:00 noon (New York time) on the Funding
Date.  Each Lender which has designated
a UK Lending Office shall make the amount of its UK Revolving Loans available
to UK Administrative Agent, in Same Day Funds, at the UK Funding and Payment
Office not later than 12:00 noon (London time) on the Funding Date.  From and after the Second Restatement Date,
except as provided in subsection 2.1B (with respect to the repayment of
the Domestic Overdraft Amount), subsection 2.1D(ii) (with respect to the
repayment of any Offshore Overdraft Amount), subsection 2.4B(ii)(d) (with
respect to repayments of Term Loans out of the Acquisition Sublimit),
subsection 2.4B(ii)(e) (with respect to the repayment of Term Loans out of the
Existing Holdings Senior Notes Redemption Sublimit) and in subsection 2.8D
(with respect to the reimbursement of amounts drawn under Letters of Credit),
the satisfaction or waiver of the conditions precedent specified in
subsection 3.2, Administrative Agent shall make the proceeds of Revolving
Loans, Offshore Revolving Loans and Term Loans available to the Borrower
requesting such Revolving Loans, Offshore Revolving Loans and Term Loans on
such Funding Date by causing an amount of Same Day Funds equal to the proceeds
of all such Revolving Loans or Offshore Revolving Loans received by
Administrative Agent to be credited to the account of such Borrower at such
office of Administrative Agent; provided that UK Administrative Agent
shall make the proceeds of funds received from Lenders pursuant to the
immediately preceding sentence available to United Glass on such Funding Date
by causing an amount of Same Day Funds equal to such proceeds to be credited to
the account of United Glass at the UK Funding and Payment Office.


 


(ii)           Unless Administrative Agent shall
have been notified by any Lender prior to any Funding Date that such Lender
does not intend to make available to Administrative Agent such Lender’s Loan on
such Funding Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding Date and
Administrative Agent in its sole discretion may, but shall not be obligated to,
make available to the applicable Borrower a corresponding amount on such
Funding Date.  If such corresponding
amount is not in fact made available to Administrative Agent by such


 


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Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the
Base Rate.  If such Lender does not pay
such corresponding amount forthwith upon Administrative Agent’s demand
therefor, Administrative Agent shall promptly notify the applicable Borrower,
and such Borrower shall immediately pay such corresponding amount to
Administrative Agent.  If such Borrower
does not pay such corresponding amount, Administrative Agent may require each
Lender having Revolving Loan Exposure to purchase a participation in the amount
unpaid by such Borrower in an amount equal to that Lender’s Pro Rata Share of
such unpaid amount.  Nothing in this
subsection 2.1F shall be deemed to relieve any Lender from its obligation
to fulfill its Commitments hereunder or to prejudice any rights which Borrower
may have against any Lender as a result of any default by such Lender
hereunder.


 


G.    The Register; Notes.


 


(i)            Administrative Agent, acting for
this purpose as an agent of the Borrowers, shall maintain, at its address
referred to in subsection 10.10, a register for the inscription of the
names and addresses of Lenders and the Commitments and Loans of each Lender
from time to time (the “Register”).  Borrowers, Borrowers’ Agent, Agents, and
Lenders may treat each Person whose name is inscribed in the Register as a
Lender hereunder for all purposes of this Agreement.  The Register shall be available for inspection by Company,
Borrowers, Borrowers’ Agent, Agents or any Lender at any reasonable time and
from time to time upon reasonable prior notice.


 


(ii)           Administrative Agent shall inscribe
in the Register the Commitments and the Loans from time to time of each Lender,
the amount of each Lender’s participation in outstanding Letters of Credit and
each repayment or prepayment in respect of the principal amount of the Loans of
each Lender and the principal amount owing from time to time by Borrowers in
respect of each Loan to each Lender of such Loan.  Any such inscription shall be conclusive and binding on Borrowers
and each Lender, absent manifest or demonstrable error; provided that
failure to make any such inscription, or any error in such inscription, shall
not affect any Borrower’s Obligations in respect of the applicable Loans.  The inscription in the Register of the
principal amount owing from time to time by the Borrowers in respect of each
Tranche A1 Term Loan or Australian Revolving Loan shall constitute an
unconditional and irrevocable covenant by each such Australian Offshore
Borrower in favor of the Person whose name is so inscribed as the Lender in
respect of such Loan that the Australian Offshore Borrower will make all
payments of principal and interest in respect of the Loan in accordance with
this Agreement, make all other payments required by this Agreement to be made
by it in respect of such Loan and otherwise perform all of its obligations
under this Agreement in full and by the due date.


 


(iii)          Each Lender shall record on its
internal records (including, without limitation, any promissory note described
in subsection 2.1G(iv)) the amount of each Loan made by it and each
payment in respect thereof and, in the case of a Lender with respect to each
Loan made by it to an Offshore Borrower, the identity of the Offshore Borrower
in respect thereof, the


 


80

















 


amount thereof and each Interest Period applicable thereto; provided
that in the event of any inconsistency between the Register and any Lender’s
records, the inscriptions in the Register shall govern, absent manifest or
demonstrable error.


 


(iv)          If so requested by any Lender by
written notice to Domestic Borrowers (with a copy to Administrative Agent) at
least two Business Days prior to the Second Restatement Date or at any time
thereafter, each Domestic Borrower shall execute and deliver to such Lender
(and/or, if so specified in such notice, any Person who is an assignee of such
Lender pursuant to subsection 10.2 hereof) on the Second Restatement Date
(or, if such notice is delivered after the Second Restatement Date, promptly
after such Domestic Borrower’s receipt of such notice) a promissory note or
promissory notes to evidence such Lender’s Tranche B1 Term Loan and/or
Revolving Loans to such Domestic Borrower, substantially in the form of Exhibit
IV-B or Exhibit V hereto, respectively.  If so requested by any Lender having Italian Revolving Loan
Exposure by written notice to Avir (with a copy to Administrative Agent and
Borrower’s Agent) at least two Business Days’ prior to the Second Restatement
Date or at any time thereafter, Avir shall execute and deliver to such Lender
(and/or, if so specified in such notice, any Person who is an assignee of such
Lender pursuant to subsection 10.2 hereof) on the Second Restatement Date
(or, if such notice is delivered after the Second Restatement Date, promptly
after Avir’s and Borrowers’ Agent’s receipt of such notice) a promissory note
or promissory notes to evidence such Lender’s Italian Revolving Loans,
substantially in the form of Exhibit VI.  If so requested by any Lender having Canadian Revolving Loan
Exposure by written notice to O-I Canada (with a copy to Administrative Agent
and Borrower’s Agent) at least two Business Days’ prior to the Second Restatement
Date or at any time thereafter, O-I Canada shall execute and deliver to such
Lender (and/or, if so specified in such notice, any Person who is an assignee
of such Lender pursuant to subsection 10.2 hereof) on the Second
Restatement Date (or, if such notice is delivered after the Second Restatement
Date, promptly after O-I Canada’s and Borrowers’ Agent’s receipt of such
notice) a promissory note or promissory notes to evidence such Lender’s
Canadian Revolving Loans, substantially in the form of Exhibit VI.  If so requested by any Lender by written
notice to Owens-Brockway (with a copy to Administrative Agent) at least two
Business Days prior to the BSN Acquisition Closing Date or at any time
thereafter, Owens-Brockway shall execute and deliver to such Lender (and/or, if
so specified in such notice, any Person who is an assignee of such Lender
pursuant to subsection 10.2 hereof) on the BSN Acquisition Closing Date
(or, if such notice is delivered after the BSN Acquisition Closing Date,
promptly after Owens Brockway’s receipt of such notice) a promissory note or
promissory notes to evidence such Lender’s Domestic Tranche C Term Loans or
Tranche D Term Loans, as applicable, to Owens-Brockway, substantially in the
form of Exhibit IV-C and Exhibit IV-D, respectively, hereto.


 


On the BSN
Acquisition Closing Date, the French Tranche C1 Term Loans and French Tranche
C2 Term Loans, and, following the BSN Change of Control Payment Date, the
French Tranche C3 Term Loans, in each case shall be issued by BSN to the
Lenders as debentures in inscribed form. 
Such issue will be effected by inscription of each Loan and the name of
each Lender as described in this subsection 2.1G.  Such inscription shall be made on behalf of BSN for the purposes
of issuing the debentures.  In addition,
BSN shall execute and deliver to each Lender having French Tranche C1 Term Loan
Exposure, French Tranche C2 Term Loan Exposure and French Tranche C3 Term Loan
Exposure one or more French Tranche C1 Term Notes, French Tranche C2 Term Notes
or French Tranche C3 Term Notes, as


 


81

















 


applicable, substantially in the form of Exhibit IV-C1, Exhibit
IV-C2, Exhibit IV-C3, respectively, attached hereto, immediately
after the making of such French Tranche C1 Term Loans, French Tranche C2 Term
Loans or French Tranche C3 Term Loans.


 


Australian
Revolving Loans, other than Australian Revolving Loans under the First Amended
and Restated Credit Agreement which have been amended and restated as
Australian Revolving Loans as described in subsection 2.1A(i) or 2.1C, have
been, and from and after the Second Restatement Date, will be issued by the
either or both of the Australian Offshore Borrowers to the Lenders as
debentures in inscribed form.  Such issue
will be effected by inscription of each Loan and the name of each Lender as
described in this subsection 2.1G.  Such
inscription shall be made on behalf of either or both of the Australian
Offshore Borrowers for the purposes of issuing the debentures.  In addition, the Australian Offshore Borrower(s)
making such issue shall execute and deliver to each Lender having an Australian
Revolving Loan Exposure one or more Australian Revolving Loan Notes,
substantially in the form of Exhibit VI attached hereto, immediately
after the making of such Australian Revolving Loans.


 


The Tranche A Term Loans that were converted into
Tranche A1 Term Loans on the First Amendment Effective Date and amended and
restated as Tranche A1 Term Loans hereunder shall continue as debentures in
inscribed form.


 


In addition, from
time to time, upon receipt of notice from any Lender (with a copy to
Administrative Agent and Borrowers’ Agent) each Australian Offshore Borrower
shall execute and deliver additional Tranche A1 Term Loan Notes substantially
in the form of Exhibit IV-A hereto and/or Australian Revolving Loan Notes
substantially in the form of Exhibit VI hereto to any Person who is an assignee
of a Lender of such Type of Loan pursuant to subsection 10.2 hereof (or,
in the case of any Additional Offshore Borrower, as a condition of becoming an
Australian Offshore Borrower, each Lender having an Australian Revolving Loan
commitment to such Australian Offshore Borrower).


 


2.2          Interest
on the Loans.


 


A.    Rate of Interest.


 


(i)            All Loans shall bear interest on the
unpaid principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to (a) in the case
of all Loans other than the French Tranche C2 Term Loans, the Base Rate or the
Adjusted Eurodollar Rate and (b) in the case of the French Tranche C2 Term
Loans, Euro LIBOR.  Except for French
Tranche C2 Term Loans (which must be made as Euro LIBOR Loans) and except to
the extent that this Agreement specifically provides that certain Revolving
Loans and Offshore Revolving Loans must be made as Base Rate Loans, the
applicable basis for determining the rate of interest with respect to Term
Loans, Revolving Loans and Offshore Revolving Loans shall be selected by a
Borrower at the time such Borrower gives a Notice of Borrowing pursuant to
subsection 2.1E (or is deemed to have given a Notice of Borrowing pursuant
to subsection 2.8D) or at the time a Notice of Conversion/Continuation is
given pursuant to subsection 2.2D. 
Except in the case of French Tranche C2 Term Loans, if on any day a Loan
is outstanding with respect to which notice has not been delivered to
Administrative Agent in accordance with the terms of this Agreement specifying
the basis for


 


82

















 


determining the rate of interest, then for that day that Loan shall
bear interest determined by reference to the Base Rate.  If on any day a French Tranche C2 Term Loan
is outstanding with respect to which notice has not been delivered to
Administrative Agent in accordance with the terms of this Agreement specifying
the basis for determining the rate of interest, then such Loan shall be
automatically continued as a Euro LIBOR Loan with a one month Interest Period.


 


Term Loans, Revolving
Loans and Offshore Revolving Loans shall bear interest through maturity as
follows:


 


(a)           if a Base Rate Loan, then at the sum
of the Base Rate plus the Applicable Base Rate Margin per annum;


 


(b)           if a Eurodollar Rate Loan, then at
the sum of the Adjusted Eurodollar Rate plus the Applicable Euro Margin; or


 


(c)           if
a Euro LIBOR Loan, then at the sum of Euro LIBOR plus the Applicable Euro
Margin.


 


provided, however, in no
event shall any interest be payable in respect of Italian Revolving Loans which
exceeds the amount permitted under applicable Italian law.


 


B.    Interest Periods.


 


In connection with each Euro Rate Loan, the Borrower
requesting such Loan shall elect an interest period (each an “Interest
Period”) to be applicable to such Loan, which Interest Period shall
be a one, two, three or six month period (or, with Administrative Agent’s
consent, a one, two or three week period); provided that:


 


(i)            the initial Interest Period for any
Euro Rate Loan shall commence on the Funding Date in respect of such Loan, in
the case of a Loan initially made as a Euro Rate Loan, or on the date specified
in the applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a Eurodollar Rate Loan;


 


(ii)           in the case of immediately successive
Interest Periods applicable to a Euro Rate Loan continued as such pursuant to a
Notice of Conversion/Continuation or otherwise, each successive Interest Period
shall commence on the day on which the next preceding Interest Period expires;


 


(iii)          if an Interest Period with respect to
any Euro Rate Loan would otherwise expire on a day which is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day; provided
that if any such Interest Period would otherwise expire on a day which is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next preceding
Business Day;


 


(iv)          any Interest Period with respect to
Euro Rate Loans which begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day of
a calendar month;


 


83

















 


(v)           no Interest Period with respect to
any Tranche A1 Term Loan shall extend beyond the Tranche A1 Term Loan Maturity
Date;


 


(vi)          no Interest Period with respect to any
Tranche B1 Term Loan shall extend beyond the Tranche B1 Term Loan Maturity
Date;


 


(vii)         no Interest Period with respect to any
Domestic Tranche C Term Loan, any French Tranche C1 Term Loan, any French
Tranche C2 Term Loan or any French Tranche C3 Term Loan shall extend beyond the
Tranche C Term Loan Maturity Date;


 


(viii)        no Interest Period with respect to any
Tranche D Term Loan shall extend beyond the Tranche D Term Loan Maturity Date;


 


(ix)           there shall be no more than 20
Interest Periods outstanding at any time with respect to Eurodollar Rate Loans
to Domestic Borrowers; and there shall be no more than (a) 10 Interest Periods
outstanding at any time with respect to UK Revolving Loans, (b) 15 Interest
Periods outstanding at any time with respect to Australian Revolving Loans and
Tranche A1 Term Loans, (c) two Interest Periods outstanding at any time with
respect to Canadian Revolving Loans, (d) two Interest Periods outstanding at
any time with respect to Italian Revolving Loans and (e) 10 Interest Periods
outstanding at any time with respect to the French Tranche C1 Term Loans, the
French Tranche C2 Term Loans and the French Tranche C3 Term Loans; and


 


(x)            in the event a Borrower fails to
specify an Interest Period in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, such Borrower shall be deemed to have selected an
Interest Period of one month.


 


C.    Interest Payments. 
Subject to subsection 2.2E, interest shall be payable on the Loans
as follows:


 


(i)            interest on each Base Rate Loan
shall be payable in arrears on and to each March 15, June 15,
September 15, and December 15 of each year, commencing on June 15,
2004, upon prepayment of that Loan (to the extent accrued on the amount being
prepaid) and at maturity; and


 


(ii)           interest on each Euro Rate Loan shall
be payable in arrears on and to each Interest Payment Date applicable to that
Loan, upon any prepayment of that Loan (to the extent accrued on the amount
being prepaid) and at maturity.


 


D.    Conversion or Continuation.  Subject to the provisions of subsection 2.6 and subsection
2.1E(ii), the applicable Borrower shall have the option (i) to convert at
any time all or any part of its outstanding Term Loans (other than French
Tranche C2 Term Loans, which shall always constitute Euro LIBOR Loans) or
Revolving Loans equal to $10,000,000 and integral multiples of $1,000,000 in
excess of that amount from Loans bearing interest at a rate determined by
reference to one basis to Loans bearing interest at a rate determined by
reference to an alternative basis, (ii) upon the expiration of any
Interest Period applicable to a Eurodollar Rate Loan to a Domestic Borrower, to
continue all or any portion of such Eurodollar Rate Loan equal to $10,000,000
and integral multiples of $1,000,000 in excess of that amount as a


 


84

















 


Eurodollar Rate Loan, (iii) to convert at any time all or any part of
its outstanding Offshore Revolving Loans equal to $5,000,000 and integral
multiples of $1,000,000, from Loans bearing interest at a rate determined by
reference to one basis to Loans bearing interest at a rate determined by
reference to an alternative basis and (iv) upon the expiration of any
Interest Period applicable to a Euro Rate Loan, to continue as a Euro Rate Loan
all or any portion of such Euro Rate Loan equal to $5,000,000 and integral
multiples of $1,000,000, and the succeeding Interest Period(s) of such
continued Loan shall commence on the last day of the Interest Period of the
Loan to be continued, provided, however, that a Eurodollar Rate
Loan may only be converted into a Base Rate Loan, on the expiration date of an
Interest Period applicable thereto; and provided, further, that,
unless Requisite Lenders otherwise agree, no outstanding Loan may be continued
as, or be converted into, a Eurodollar Rate Loan when any Event of Default has
occurred and is continuing.


 


The applicable Borrower shall deliver a Notice of
Conversion/Continuation to Administrative Agent no later than 12:00 Noon (New
York time) at least one Business Day in advance of the proposed
conversion/continuation date (in the case of a conversion to a Base Rate Loan) or
three Business Days in advance of the proposed conversion/continuation date (in
the case of a conversion to, or a continuation of, a Euro Rate Loan).  A Notice of Conversion/Continuation shall
specify (i) the proposed conversion/continuation date (which shall be a
Business Day), (ii) the amount and Type of the Loan to be
converted/continued, (iii) the nature of the proposed
conversion/continuation and (iv) in the case of a conversion to, or a
continuation of, a Euro Rate Loan, the requested Interest Period.  In lieu of delivering the above described
Notice of Conversion/Continuation, the applicable Borrower may give
Administrative Agent telephonic notice by the required time of any proposed
conversion/continuation under this subsection 2.2D; provided that such
notice shall be promptly confirmed in writing by delivery of a Notice of
Conversion/Continuation to Administrative Agent on or before the proposed
conversion/continuation date.


 


Administrative Agent shall not incur any liability to
any Loan Party in acting upon any telephonic notice referred to above which
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of a Borrower in
connection with any telephonic notice referred to above or for otherwise acting
in good faith under this subsection 2.2D and upon conversion/continuation
by Administrative Agent in accordance with this Agreement pursuant to any
telephonic notice, such Borrower shall have effected a conversion or continuation,
as the case may be, hereunder.


 


Except as provided in subsection 2.6D, a Notice
of Conversion/Continuation for conversion to, or continuation of, a Euro Rate
Loan (or telephonic notice in lieu thereof) shall be irrevocable on and after
the related Interest Rate Determination Date, and upon delivering a Notice of
Conversion/Continuation, the relevant Borrower, as the case may be, shall be
bound to convert or continue in accordance therewith, unless such Borrower pays
to Lenders such amounts as may be due under subsection 2.6E for failure of
a conversion to or continuation of any Euro Rate Loan to occur on the date
specified therefor in a Notice of Conversion/Continuation (or telephonic notice
in lieu thereof).


 


E.     Post-Maturity Interest. 
Any principal payments on the Loans (other than the French Tranche C2
Term Loans) not paid when due and, to the extent permitted by applicable


 


85

















 


law, any interest payments on the Loans not paid when due, in each case
whether at stated maturity, by notice of prepayment, by acceleration or
otherwise, shall thereafter bear interest payable upon demand at a rate equal
to the sum of the Base Rate plus the Applicable Base Rate Margin plus
2.00% per annum.  Any principal payments
on the French Tranche C2 Term Loans not paid when due and, to the extent
permitted by applicable law, any interest payments on the French Tranche C2
Term Loans not paid when due, in each case whether at stated maturity, by
notice of prepayment, by acceleration or otherwise, shall thereafter bear
interest payable upon demand at a rate equal to the sum of Euro LIBOR plus
the Applicable Euro Margin plus 2.00% per annum.


 


F.     Computation of Interest. 
Interest on the Loans shall be computed on the basis of a 360-day year,
in each case for the actual number of days elapsed in the period during which
it accrues.  In computing interest on
any Loan, the date of the making of the Loan or the first day of an Interest
Period, as the case may be, shall be included and the date of payment or the
expiration date of an Interest Period, as the case may be, shall be excluded; provided
that if a Loan is repaid on the same day on which it is made, one day’s
interest shall be paid on that Loan.


 


G.    Interest Act (Canada).  For purposes of disclosure pursuant to the Interest Act (Canada), the annual rates of
interest or fees to which the rates of interest or fees provided in this
Agreement and the other Loan Documents (and stated herein or therein, as
applicable, to be computed on the basis of a 360 day year or any other period
of time less than a calendar year) are equivalent are the rates so determined
multiplied by the actual number of days in the applicable calendar year and
divided by 360 or such other period of time, respectively.


 


H.    Canadian Interest Limitations. If any provision of this
Agreement or any other Loan Documents would obligate O-I Canada to make any
payment of interest with respect to the Obligations of O-I Canada or other
amount payable to any Lender in an amount or calculated at a rate which would
be prohibited by law or would result in a receipt by that Lender of interest
with respect to the Obligations at a criminal rate (as such terms are construed
under the Criminal Code (Canada)) then, notwithstanding such provision, such
amount or rates shall be deemed to have been adjusted with retroactive effect
to the maximum amount or rate of interest, as the case may be, as would not be
so prohibited by law or so result in a receipt by that Lender of interest with
respect to the Obligations at a criminal rate, such adjustment to be effected,
to the extent necessary, as follows: 
(1) first, by reducing the amount of rates or interest required to be
paid to the affected Lender under this subsection 2.2H; and (2) thereafter, by
reducing any fees, commissions, premiums and other amounts required to be paid
to the affected Lender which would constitute interest with respect to the
Obligations for purposes of Section 347 of the Criminal Code (Canada).  Notwithstanding the foregoing, and after
giving effect to all adjustments contemplated thereby, if any Lender shall have
received an amount in excess of the maximum permitted by that section of the
Criminal Code (Canada), then O-I Canada shall be entitled, by notice in writing
to the affected Lender, to obtain reimbursement from that Lender in an amount
equal to such excess, and pending such reimbursement, such amount shall be
deemed to be an amount payable by that Lender to O-I Canada.  Any amount or rate of interest under the
Obligations of O-I Canada referred to in this subsection 2.2H shall be
determined in accordance with generally accepted actuarial practices and
principals at an effective annual rate of interest over the term that any
Offshore Revolving Loan remains outstanding on the assumption that any charges,
fees or expenses that fall within the meaning of “interest” (as defined in the
Criminal


 


86

















 


Code (Canada)) shall, if related to a specific period of time, be pro-rated
over that period of time and otherwise be pro-rated over the period from the
Restatement Date to the termination of the Offshore Revolving Loan Commitment
(with reference to the Obligations of O-I Canada) and, in the event of a
dispute, a certificate of a Fellow of the Canadian Institute of Actuaries
appointed by the Administrative Agent shall be conclusive for the purposes of
such determination.


 


I.      French “Global Effective Rate”. For the purpose of article L.313-1 to L.313-6
of the French Code de la Consommation, the parties to this Agreement
acknowledge that, due to the floating interest rate, it is not possible to
determine in advance the global effective rate (“taux effectif global”) for
the Loans to BSN. As of the BSN Acquisition Closing Date, BSN acknowledges it
has received from the Administrative Agent as of the date of its execution of
the Agreement a letter stating for information purposes an effective global
rate applicable to outstanding amounts under French Tranche C1 Term Loans, French
Tranche C2 Term Loans and French Tranche C3 Term Loans corresponding to
examples. The parties recognize that this letter is an integral part of the
Agreement.


 


2.3          Fees


 


A.    Restatement Fee. 
On the Second Restatement Date, Domestic Borrowers shall pay or cause to
be paid to Administrative Agent (for distribution to each existing Lender
executing this Agreement) a restatement fee based upon the Tranche A1 Term
Loans, the Tranche B1 Term Loans and/or the Revolving Loan Commitments of such
Lender hereunder multiplied, in each case, by a percentage agreed upon by
Domestic Borrowers and the Agents.


 


B.    Facility Fees. 
Domestic Borrowers shall pay or cause to be paid, to Administrative
Agent (for distribution to each Revolving Lender in accordance with such Lender’s
Pro Rata Share) facility fees with respect to the Revolving Loan Commitments,
for the period from and including the First Restatement Date to and excluding
the Revolving Loan Commitment Termination Date, equal to (i) the daily
average amount of the Revolving Loan Commitments (without regard to the Total
Utilization of Revolving Loan Commitments at any time or from time to time), as
the case may be, multiplied by 0.50% per annum, plus (ii) the daily
average amount of Revolving Loan Commitments reserved to the Acquisition
Sublimit multiplied by a percentage equal to one-half of the Applicable
Euro Margin for Revolving Loans plus (iii) at any time when the amount of
Revolving Loan Commitments reserved to the Existing Holdings Senior Notes
Redemption Sublimit exceeds $75,000,000, the daily average amount of Revolving
Loan Commitments reserved to the Existing Holdings Senior Notes Redemption
Sublimit multiplied by a percentage equal to one-half of the Applicable
Euro Margin for Revolving Loans, such facility fees to be computed on the basis
of a 360-day year and to be payable in arrears on each Fee Payment Date for the
three-month period ending on the day prior to such Fee Payment Date, commencing
on the first such date to occur after the Second Restatement Date, and on the
Revolving Loan Commitment Termination Date.


 


C.    Tranche C Term Loan and Tranche D Term Loan Commitment Fees.


 


(i)            Owens-Brockway
shall pay or cause to be paid, to Administrative Agent (for distribution to
each Tranche C Term Loan Lender and Tranche D Term Loan Lender in accordance
with such Lender’s Pro Rata Share thereof) commitment fees with respect to the


 


87

















 


Term Loan Commitments, for the period from and including the Second
Restatement Date to and excluding the BSN Acquisition Closing Date, equal to
the total amount of Term Loan Commitments multiplied by .50% per annum, such
commitment fees to be computed on the basis of a 360-day year and to be payable
in arrears on each Fee Payment Date and
on the BSN Acquisition Closing Date or the date of termination of the Term Loan
Commitments, commencing on the first such date to occur after the Second
Restatement Date, and ending on the BSN Acquisition Closing Date.


 


(ii)           BSN shall pay or cause to be paid, to
Administrative Agent (for distribution to each French Tranche C3 Term Loan
Lender in accordance with such Lender’s Pro Rata Share) commitment fees with
respect to the French Tranche C3 Term Loan Commitments, for the period from and
including the BSN Acquisition Closing Date to and excluding the BSN Change of
Control Payment Date, equal to the total amount of French Tranche C3 Term Loan
Commitments multiplied by 1.00% per annum, such commitment fees to be computed
on the basis of a 360-day year and to be payable in arrears on each Fee Payment
Date and on the BSN
Change of Control Payment Date or the date of termination of the French Tranche
C3 Term Loan Commitments, commencing on the first such date to occur
after the BSN Acquisition Closing Date, and ending on the BSN Change of Control
Payment Date.


 


D.    Other Fees. 
Domestic Borrowers agree to pay or cause to be paid an annual
administrative fee to Administrative Agent and such other fees to Arrangers and
Agents, in each case in the amounts and at the times agreed upon between
Domestic Borrowers and the applicable Arranger or Agent.


 


2.4          Repayment
and Prepayments; Reductions in Commitments


 


A.    Scheduled Payments of Term Loans.


 


(i)            Scheduled Payments of Tranche A1
Term Loans.  ACI shall make principal
payments in Dollars on the Tranche A1 Term Loans in installments on the dates
and in the amounts set forth below:


 


	
  Date

  	
   

  	
  Scheduled
  Repayment-

  Tranche A1 Term Loans

  	
   

  
	
  April 1, 2005

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  October 1, 2005

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  April 1, 2006

  	
   

  	
  $

  	
  55,000,000

  	
   

  
	
  October 1, 2006

  	
   

  	
  $

  	
  55,000,000

  	
   

  
	
  April 1, 2007

  	
   

  	
  $

  	
  300,000,000

  	
   

  
	
  Total:

  	
   

  	
  $

  	
  460,000,000

  	
   

  



 


; provided that the scheduled installments of
principal of the Tranche A1 Term Loans set forth above shall be reduced in
connection with any voluntary or mandatory prepayments of the Tranche A1 Term
Loans in accordance with subsection 2.4B(iii); and provided, further
that the Tranche A1 Term Loans and all other amounts owed hereunder with
respect to the Trance A Term Loans shall be paid in full no later than April 1,
2007, and the final installment payable by


 


88

















 


ACI in respect of the Tranche A1 Term Loans on such date shall be in an
amount, if such amount is different from that specified above, sufficient to
repay all amounts owing by ACI under this Agreement with respect to the Tranche
A1 Term Loans.


 


(ii)           Scheduled Payments of Tranche B1
Term Loans.  Owens-Brockway shall
make principal payments on the Tranche B1 Term Loans in Dollars on the dates
and in the amounts set forth below:


 


	
  Date

  	
   

  	
  Scheduled
  Repayment-

  Tranche B1 Term Loans

  	
   

  
	
  October 1, 2007

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
  April 1, 2008

  	
   

  	
  $

  	
  805,000,000

  	
   

  
	
  Total:

  	
   

  	
  $

  	
  840,000,000

  	
   

  



 


; provided that the scheduled installments of
principal of the Tranche B1 Term Loans set forth above shall be reduced in
connection with any voluntary or mandatory prepayments of the Tranche B1 Term
Loans in accordance with subsection 2.4B(iii); and provided, further that
the Tranche B1 Term Loans and all other amounts owed hereunder with respect to
the Trance B1 Term Loans shall be paid in full no later than April 1, 2008, and
the final installment payable by Owens-Brockway in respect of the Tranche B1
Term Loans on such date shall be in an amount, if such amount is different from
that specified above, sufficient to repay all amounts owing by Owens-Brockway
under this Agreement with respect to the Tranche B1 Term Loans.


 


(iii)          Scheduled Payments of Domestic
Tranche C Term Loans. 
Owens-Brockway shall make principal payments on the Domestic Tranche C
Term Loans in Dollars on the dates and in the amounts set forth below:


 


	
  Date

  	
   

  	
  Scheduled
  Repayment-

  Domestic Tranche C Term

  Loans

  	
   

  
	
  October 1, 2007

  	
   

  	
  $

  	
  16,000,000

  	
   

  
	
  April 1, 2008

  	
   

  	
  $

  	
  379,000,000

  	
   

  
	
  Total:

  	
   

  	
  $

  	
  395,000,000

  	
   

  



 


; provided that
the scheduled installments of principal of the Domestic Tranche C Term Loans
set forth above shall be reduced in connection with any voluntary or mandatory
prepayments of the Domestic Tranche C Term Loans in accordance with
subsection 2.4B(iii); and provided, further that the Domestic Tranche C
Term Loans and all other amounts owed hereunder with respect to the Domestic
Tranche C Term Loans shall be paid in full no later than April 1, 2008, and the
final installment payable by Owens-Brockway in respect of the Domestic Tranche
C Term Loans on such date shall be in an amount, if such amount is different
from that specified above, sufficient to repay all amounts owing by
Owens-Brockway under this Agreement with respect to the Domestic Tranche C Term
Loans.


 


89

















 


(iv)          Scheduled Payments of Tranche D
Term Loans.  Owens-Brockway shall
make principal payments on the Tranche D Term Loans in Dollars on the dates and
in the amounts set forth below:


 


	
  Date

  	
   

  	
  Scheduled
  Repayment-

  Tranche D Term Loans

  	
   

  
	
  October 1, 2007

  	
   

  	
  $

  	
  11,000,000

  	
   

  
	
  April 1, 2008

  	
   

  	
  $

  	
  264,000,000

  	
   

  
	
  Total:

  	
   

  	
  $

  	
  275,000,000

  	
   

  



 


; provided that
the scheduled installments of principal of the Tranche D Term Loans set forth
above shall be reduced in connection with any voluntary or mandatory
prepayments of the Tranche D Term Loans in accordance with
subsection 2.4B(iii); and provided, further that the Tranche D Term Loans
and all other amounts owed hereunder with respect to the Tranche D Term Loans
shall be paid in full no later than April 1, 2008, and the final installment
payable by Owens-Brockway in respect of the Tranche D Term Loans on such date
shall be in an amount, if such amount is different from that specified above,
sufficient to repay all amounts owing by Owens-Brockway under this Agreement
with respect to the Tranche D Term Loans.


 


(v)           Scheduled Payments of French
Tranche C1 Term Loans.  BSN shall
make principal payments on the French Tranche C1 Term Loans in Dollars on the
dates and in the amounts set forth below:


 


	
  Date

  	
   

  	
  Scheduled
  Repayment-

  French Tranche C1 Term

  Loans

  	
   

  
	
  October 1, 2007

  	
   

  	
  $

  	
  13,000,000

  	
   

  
	
  April 1, 2008

  	
   

  	
  $

  	
  302,000,000

  	
   

  
	
  Total:

  	
   

  	
  $

  	
  315,000,000

  	
   

  



 


; provided that
the scheduled installments of principal of the French Tranche C1 Term Loans set
forth above shall be reduced in connection with any voluntary or mandatory
prepayments of the French Tranche C1 Term Loans in accordance with
subsection 2.4B(iii); and provided, further that the French Tranche C1
Term Loans and all other amounts owed hereunder with respect to the French
Tranche C1 Term Loans shall be paid in full no later than April 1, 2008, and
the final installment payable by BSN in respect of the French Tranche C1 Term
Loans on such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by BSN under this
Agreement with respect to the French Tranche C1 Term Loans.


 


(vi)          Scheduled Payments of French
Tranche C2 Term Loans.  BSN shall
make principal payments on the French Tranche C2 Term Loans in Euros on the
dates and in the amounts set forth below:


 


90

















 


	
  Date

  	
   

  	
  Scheduled
  Repayment-

  French Tranche C2 Term

  Loans

  	
   

  
	
  October 1, 2007

  	
   

  	
  €

  	
  2,000,000

  	
   

  
	
  April 1, 2008

  	
   

  	
  €

  	
  50,000,000

  	
   

  
	
  Total:

  	
   

  	
  €

  	
  52,000,000

  	
   

  



 


; provided that
the scheduled installments of principal of the French Tranche C2 Term Loans set
forth above shall be reduced in connection with any voluntary or mandatory
prepayments of the French Tranche C2 Term Loans in accordance with
subsection 2.4B(iii); and provided, further that the French Tranche C2
Term Loans and all other amounts owed hereunder with respect to the French
Tranche C2 Term Loans shall be paid in full no later than April 1, 2008, and
the final installment payable by BSN in respect of the French Tranche C2 Term
Loans on such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by BSN under this Agreement
with respect to the French Tranche C2 Term Loans.


 


(vii)         Scheduled Payments of French Tranche
C3 Term Loans.  BSN shall make
principal payments on the French Tranche C3 Term Loans in Dollars on the dates
and in the amounts set forth below:


 


	
  Date

  	
   

  	
  Scheduled
  Repayment-

  French Tranche C3 Term

  Loans

  	
   

  
	
  October 1, 2007

  	
   

  	
  4% of aggregate
  principal

  amount funded on BSN

  Change of Control Payment

  Date

  	
   

  
	
  April 1, 2008

  	
   

  	
  96% of aggregate
  principal

  amount funded on BSN

  Change of Control Payment

  Date

  	
   

  
	
  Total:

  	
   

  	
  100%

  	
   

  



 


; provided that the scheduled installments of principal of the
French Tranche C3 Term Loans set forth above shall be reduced in connection
with any voluntary or mandatory prepayments of the French Tranche C3 Term Loans
in accordance with subsection 2.4B(iii); and provided, further that the
French Tranche C3 Term Loans and all other amounts owed hereunder with respect
to the French Tranche C3 Term Loans shall be paid in full no later than April
1, 2008, and the final installment payable by BSN in respect of the French
Tranche C3 Term Loans on such date shall be in an amount, if such amount is
different from that specified above, sufficient to repay all


 


91

















 


amounts owing by BSN under this Agreement with respect to the French
Tranche C3 Term Loans.


 


B.    Prepayments.


 


(i)            Voluntary Prepayments.  Borrowers may, upon written or telephonic
notice to Administrative Agent on or prior to 12:00 Noon (New York time)
on the date of prepayment (in the case of Base Rate Loans) or three Business
Days’ prior written or telephonic notice (in the case of Euro Rate Loans),
which notice, if telephonic, shall be promptly confirmed in writing to
Administrative Agent and which notice Administrative Agent will promptly
transmit by telegram, telex or telephone to each Lender, at any time and from
time to time prepay any Term Loan, Revolving Loan or Offshore Revolving Loan in
whole or in part in an aggregate minimum amount of $5,000,000 and integral
multiples of $1,000,000 in excess of that amount; provided, however,
that if a Euro Rate Loan is prepaid on a date other than the last day of the
Interest Period applicable thereto, the prepaying Borrower shall be liable for
any payments required by subsection 2.6E. 
Notice of prepayment having been given as aforesaid, the principal
amount of the Loans specified in such notice shall become due and payable on
the prepayment date.


 


(ii)           Mandatory Prepayments of Loans and
Mandatory Reductions of Tranche D Term Loan Commitments and Revolving Loan Commitments.  The Loans shall be prepaid and/or the
Tranche D Term Loan Commitments shall be reduced and/or, subject to
subsection 2.4B(iii), the Revolving Loan Commitments shall be permanently
reduced in the amount and under the circumstances set forth below:


 


(a)   Prepayments
from Net Asset Sale Proceeds.  (i)
No later than the third Business Day after the date of receipt by Company or
any of its Subsidiaries that are Loan Parties (including Borrowers) of any Net
Asset Sale Proceeds in respect of any Triggering Asset Sale by Company or any
of its Subsidiaries that are Loan Parties (including Borrowers), the Borrowers
shall prepay the Term Loans in an amount equal to the lesser of (x) the portion
of the Net Asset Sale Proceeds permitted to be applied to the Loans under the
terms of the Intercreditor Agreement and (y) the aggregate amount outstanding
under the Term Loans, and (ii) in the event of a Triggering Asset Sale by a
foreign Wholly-Owned Subsidiary of Company that is not an Offshore Borrower or
Offshore Guarantor, within 355 days after receipt by such Foreign Subsidiary of
any Net Asset Sale Proceeds, if and to the extent such Net Asset Sale Proceeds
may be repatriated (by reason of payment of intercompany note or otherwise) to
the United States of America without (in the reasonable judgment of Company)
resulting in a material tax or other liability to Company or its Subsidiaries,
such Net Asset Sale Proceeds shall be applied pursuant to clause (i), above.


 


(b)   Prepayments
from Excess Cash Flow.  If there shall
be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the
Fiscal Year ending on December 31, 2004) and the Consolidated Leverage Ratio as
of the end of such Fiscal Year is greater than 3.50:1, Borrowers shall, no
later than


 


92

















 


ninety (90) days
after the last day of such Fiscal Year, prepay the Term Loans in an amount
equal to 50% of such Consolidated Excess Cash Flow.


 


(c)   Prepayments
and Reductions from Net Insurance/Condemnation Proceeds.  No later than the third Business Day
following the date of receipt by Administrative Agent or by Company or any of
its Domestic Subsidiaries (including Borrowers) of any Net
Insurance/Condemnation Proceeds that are required to be applied to prepay the
Loans and/or reduce the Revolving Loan Commitments pursuant to the provisions
of subsection 5.4, (i) the Borrowers shall prepay the Term Loans in an
amount equal to the lesser of (A) the portion of the Net Insurance/
Condemnation Proceeds permitted to be applied to the Loans under the terms of
the Intercreditor Agreement and (B) the aggregate outstanding amount of the
Term Loans, and (ii) the Revolving Loan Commitment shall be permanently reduced
by an amount equal to the Revolving Loan Commitments multiplied by the positive
difference between the Net Insurance/Condemnation Proceeds permitted to be
applied to the Loans under the terms of the Intercreditor Agreement and amounts
applied to the Term Loans under clause (i) of this subsection.


 


(d)   Prepayments
and Reductions from Net Equity Securities Proceeds.  No later than the third Business Day after
the date of receipt by Holdings or Company or any of its Subsidiaries of any
Net Equity Securities Proceeds:


 


(A)            the Borrowers shall prepay the Term
Loans in an amount equal to the Applicable Percentage of such Net Equity
Securities Proceeds; or


 


(B)             at the written election of
Borrowers’ Agent delivered to Administrative Agent not later than the third
Business Day after receipt of such Net Equity Securities Proceeds, so long as
no Tranche D Term Loans are then outstanding, the Borrowers may deposit up to
an amount equal to the Applicable Percentage of such Net Equity Securities
Proceeds into the OI Grantor Collateral Account established with the Collateral
Agent pursuant to Section 12 of the Security Agreement (such amounts so
deposited being referred to herein as the “Acquisition
Collateral Account”), with amounts therein to be used thereafter
solely to finance a Permitted Acquisition consummated within 180-days of such
deposit. To the extent that any amounts deposited in the Acquisition Collateral
Account are not utilized to finance a Permitted Acquisition during the 180-day
period immediately following their deposit under the preceding sentence, then
immediately upon the expiration of such 180-day period or such earlier period
as elected by the Borrower’s Agent, amounts held in such Acquisition Collateral
Account shall be released to prepay Term Loans in accordance with clause (A),
above; or


 


93

















 


(C)     at the
written election of Borrowers’ Agent delivered to Administrative Agent not
later than the third Business Day after receipt of such Net Equity Securities
Proceeds,  so long as no Tranche D Term
Loans are then outstanding, an amount equal to the lesser of (i) the Applicable
Percentage of such Net Equity Securities Proceeds and (ii) the aggregate
Revolving Loan Commitments may be reserved within the Revolving Loan
Commitments as a subfacility thereunder (the “Acquisition
Sublimit”) (with any excess to be
applied pursuant to clause (A) or (B), above). 
The portion of the Revolving Loan Commitments reserved to the
Acquisition Sublimit under the preceding sentence may be used solely to finance
a Permitted Acquisition consummated within 180-days of such reservation.  If, after giving effect to such reservation,
the Total Utilization of the Revolving Loan Commitments exceeds the amount of
the Revolving Loan Commitments, Domestic Borrowers shall immediately prepay the
Revolving Loans to the extent necessary so that Total Utilization of the
Revolving Loan Commitments does not exceed the amount of the Revolving Loan
Commitments.  To the extent that any
amounts reserved to the Acquisition Sublimit hereunder are not utilized to finance
a Permitted Acquisition consummated within 180-days of such reservation under
the preceding sentence, then immediately upon the expiration of such 180-day
period or such earlier period as elected by Borrower’s Agent, Borrowers shall
prepay Term Loans in accordance with clause (A) above in an amount equal to the
amount reserved within the Acquisition Sublimit not so utilized; provided,
that,  unless the Borrowers’
Agent shall have notified Administrative Agent prior to 11:00 a.m. (New York
time) on the Business Day immediately prior to the expiration of such 180-day
period that the Borrowers intend to make such prepayment of the Term Loans with
funds other than the proceeds of Revolving Loans, each of the Domestic
Borrowers shall be deemed to have given a Notice of Borrowing to Administrative
Agent requesting Lenders to make Revolving Loans to the Domestic Borrowers
which are Base Rate Loans, on the date on which such 180-day period expires, in
an amount equal to fifty percent (50%) times the lesser of  (i) the amount of Term Loans required to be
prepaid pursuant to this clause (C), and (ii) the aggregate amount of Term
Loans outstanding, and, subject to satisfaction or waiver of the conditions
specified in subsection 3.2, Lenders shall, on the date of  prepayment of the Term Loans is required by
this clause (C), make Revolving Loans to such Borrowers which are Base Rate
Loans in such amount as aforesaid, the proceeds of which shall be applied
directly by Administrative Agent to prepay Term Loans as required by this
clause (C); provided, further, that, if, as of the date such Revolving
Loans are to be made, the Revolving Loan Commitments have terminated due to an
Event of Default or the conditions specified in subsection 3.2 have not
been satisfied or waived,  each Lender
with Revolving Loan Exposure shall purchase its Pro Rata Share (determined with
respect to Revolving Loans) of participations in the Term Loans in an aggregate
amount equal


 


94

















 


to that portion of the
Acquisition Sublimit that bears the same ratio to the total Acquisition
Sublimit as the outstanding Term Loans bear to an amount equal to the sum of
all Loans then outstanding plus the total Acquisition Sublimit (with such
participation allocated ratably among the outstanding Tranche A1 Term Loans,
Tranche B1 Term Loans, Tranche C Term Loans (if any), Tranche D Term Loans (if
any), Additional Term Loans (if any) and Refinancing Term Loans (if any)), with
payment for such participations to be made directly to Administrative Agent at
the Domestic Funding and Payment Office not later than 1:00 P.M. (New York
time) on the Business Day next succeeding the date notice to purchase such
participations is given by Administrative Agent.  Each Lender’s obligation to purchase participations pursuant to
this clause (C) and, so long as the Revolving Loan Commitments are in effect
and subject to the satisfaction or waiver of the conditions set forth in
subsection 3.2, to make Revolving Loans pursuant to this clause (C), shall
be absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against Administrative Agent,
any Loan Party or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of an Event of Default or a Potential Event of
Default; (iii) any adverse change in the condition (financial or
otherwise) of any Loan Party; (iv) any breach of this Agreement by any
Loan Party or any other Lender having Revolving Loan Exposure; or (v) any
other circumstance, happening, or event whatsoever, whether or not similar to
any of the foregoing. In the event that any Lender fails to make available to
Administrative Agent the amount of any of such Lender’s Revolving Loans
required to be made pursuant to this clause (C) or the amount of any
participations in the Term Loans which are required to be purchased from
Administrative Agent by such Lender pursuant to this clause (C), Administrative
Agent shall be entitled to recover such amount on demand from such Lender
together with interest at the customary rate set by Administrative Agent for
the correction of errors among banks for three Business Days and thereafter at the
Base Rate.  Upon, and to the extent of,
any prepayment of the Term Loans pursuant to this clause (C), the Revolving
Loan Commitments shall no longer be restricted by the Acquisition Sublimit.


 


(e)   Prepayments
and Reductions from Net Debt Securities Proceeds Other Than From Receivables
Sale Indebtedness.  No later than
the third Business Day after the date of receipt by Holdings, Company or any of
its Subsidiaries (including Domestic Borrowers) of any Net Debt Securities
Proceeds (other than those arising from the issuance of Receivables Sale
Indebtedness):


 


(1)           (i) prior to the BSN Acquisition
Closing Date, the Tranche D Term Loan Commitments will be permanently reduced
in an amount equal to such Net Debt Securities Proceeds, (ii) the


 


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Borrowers shall prepay the Term Loans in an amount
equal the positive difference between such Net Debt Securities Proceeds and the
amounts thereof applied to reduce Tranche D Term Loan Commitments under clause
(i) of this subsection and (iii) the Revolving Loan Commitments shall be
permanently reduced by an amount equal to the positive difference between the
Net Debt Securities Proceeds and the amounts thereof applied to reduce the the
Tranche D Term Loan Commitments under clause (i) of this subsection and the
amounts thereof applied to the Term Loans under clause (ii) of this subsection;
or


 


(2)           at the written election of Borrowers’
Agent delivered to Administrative Agent not later than the third Business Day
after receipt of such Net Debt Securities Proceeds, so long as the Reservation
Conditions are satisfied (and Borrower’s Agent has delivered an Officers’
Certificate to such effect), the Borrowers may deposit all or any portion of
such Net Debt Securities Proceeds into the OI Grantor Collateral Account
established with Collateral Agent pursuant to Section 12 of the Security
Agreement (such amounts so deposited being referred to herein as the “Existing Holdings Senior Notes Redemption  Collateral Account”), with amounts therein
to be used thereafter solely to redeem, repurchase or otherwise repay Existing
Holdings Senior Notes due 2005, and, so long as the outstanding principal
amount of the Existing Holdings Senior Notes due 2005 is $75,000,000 or less,
to redeem, repay or otherwise repurchase Existing Holdings Senior Notes due
2007. To the extent amounts deposited in the Existing Holdings Senior Notes
Redemption Collateral Account plus any amounts then reserved to the
Existing Holdings Senior Notes Redemption Sublimit at any time exceed the
aggregate outstanding principal amount of the Existing Holdings Senior Notes
due 2005 and 2007 by more than 10%, or at any time at the election of the
Borrowers’ Agent, the amount of such excess (or any amount in the case of a
Borrowers’ Agent election) shall be released to prepay Term Loans and/or reduce
Revolving Loan Commitments in accordance with clause (1), above (except to the
extent such payment is made pursuant to clause (3), below); or


 


(3)           at the written election of Borrowers’
Agent delivered to Administrative Agent not later than the third Business Day
after receipt of such Net Debt Securities Proceeds, so long as the Reservation
Conditions are satisfied (and Borrowers’ Agent has delivered an Officers’
Certificate to such effect), an amount equal to the result of the following
calculation may be reserved within the Revolving Loan Commitments to each
Domestic Borrower as a subfacility thereunder (the “Existing Holdings Senior Notes Redemption Sublimit”):  the lesser of (i) such Net


 


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Debt Securities Proceeds and (ii) the aggregate
Revolving Loan Commitments (with any excess to be applied pursuant to clause
(1) or (2), above).  Except as set forth
below, the portion of the Revolving Loan Commitments reserved to the Existing
Holdings Senior Notes Redemption Sublimit under the preceding sentence may be
used solely to redeem, repurchase or otherwise repay Existing Holdings Senior
Notes due 2005, and, so long as the outstanding principal amount of the
Existing Holdings Senior Notes due 2005 is $75,000,000 or less, to redeem,
repay or otherwise repurchase Existing Holdings Senior Notes due 2007.  If, after giving effect to such reservation,
the Total Utilization of the Revolving Loan Commitments exceeds the amount of
the Revolving Loan Commitments, Domestic Borrowers shall immediately prepay the
Revolving Loans to the extent necessary so that Total Utilization of the
Revolving Loan Commitments does not exceed the amount of the Revolving Loan
Commitments.  To the extent amounts
reserved in the Existing Holdings Senior Notes Redemption Sublimit plus any
amount then deposited in the Existing Holdings Senior Notes Redemption
Collateral Account at any time exceed the aggregate outstanding principal
amount of the Existing Holdings Senior Notes due 2005 and 2007 by more than
10%, or at any time at the election of the Borrowers’ Agent, Borrowers shall
notify Administrative Agent thereof and prepay Term Loans and/or the Revolving
Loan Commitments shall be reduced in accordance with clause (1) above in an
amount equal to such excess (or any amount in the case of a Borrowers’ Agent
election) except to the extent such payment is made pursuant to clause (2)
above; provided, that, 
unless the Borrowers’ Agent shall have notified Administrative Agent by
11:00 a.m. (New York time) on the Business Day immediately following Borrowers’
delivery of notice to Administrative Agent of such excess that Borrowers intend
to make such repayment of the Term Loans with funds other than the proceeds of
Revolving Loans, the Domestic Borrowers shall be deemed to have given a Notice
of Borrowing to Administrative Agent requesting Lenders to make Revolving Loans
to the Borrowers which are Base Rate Loans, on the date, in an amount equal to
the lesser of (i) the amount of Term Loans required to be prepaid pursuant to
this clause (3), and (ii) the aggregate amount of Term Loans outstanding, and,
subject to satisfaction or waiver of the conditions specified in
subsection 3.2, Lenders shall, on the date prepayment of the Term Loans is
required by this clause (3), make Revolving Loans to such Borrowers which are
Base Rate Loans in such amount as aforesaid, the proceeds of which shall be
applied directly by Administrative Agent to prepay Term Loans as required by
this clause (3); provided, further, that, if, as of the date such
Revolving Loans are


 


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to be made, the Revolving Loan Commitments have
terminated due to an Event of Default or the conditions specified in
subsection 3.2 have not been satisfied or waived,  each Lender with Revolving Loan Exposure
shall purchase its Pro Rata Share (determined with respect to Revolving Loans)
of participations in the Term Loans in an aggregate amount equal to that
portion of the Existing Holdings Senior Notes Redemption Sublimit that bears
the same ratio to the total Existing Holdings Senior Notes Redemption Sublimit
as the outstanding Term Loans bear to an amount equal to the sum of all Loans
then outstanding plus the total Existing Holdings Senior Notes Redemption
Sublimit (with such participation allocated ratably among the outstanding
Tranche A1 Term Loans, Tranche B1 Term Loans, Tranche C Term Loans (if any),
Additional Term Loans (if any) and Refinancing Term Loans (if any)), with
payment for such participations to be made directly to Administrative Agent at
the Domestic Funding and Payment Office not later than 1:00 P.M. (New York
time) on the Business Day next succeeding the date notice to purchase such
participations is given by Administrative Agent.  Each Lender’s obligation to purchase participations pursuant to
this clause (3) and, so long as the Revolving Loan Commitments are in effect
and subject to the satisfaction or waiver of the conditions set forth in
subsection 3.2, to make Revolving Loans pursuant to this clause (3), shall
be absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against Administrative Agent,
any Loan Party or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of an Event of Default or a Potential Event of
Default; (iii) any adverse change in the condition (financial or
otherwise) of any Loan Party; (iv) any breach of this Agreement by any
Loan Party or any other Lender having Revolving Loan Exposure; or (v) any
other circumstance, happening, or event whatsoever, whether or not similar to
any of the foregoing. In the event that any Lender fails to make available to
Administrative Agent the amount of any of such Lender’s Revolving Loans
required to be made pursuant to this clause (3) or the amount of any
participations in the Term Loans which are required to be purchased from
Administrative Agent by such Lender pursuant to this clause (3), Administrative
Agent shall be entitled to recover such amount on demand from such Lender
together with interest at the customary rate set by Administrative Agent for
the correction of errors among banks for three Business Days and thereafter at
the Base Rate.  Upon, but only to the
extent of, any prepayment of the Term Loans pursuant to this clause (3), the
Revolving Loan Commitments shall


 


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no longer be restricted by the Existing Holdings
Senior Notes Redemption Sublimit.


 


(f)    Prepayments and Reductions from Net Debt Securities Proceeds
from Receivables Sale Indebtedness. 
No later than the third Business Day after the date of receipt by
Holdings, Company or any of its Domestic Subsidiaries (including Domestic
Borrowers) of any Net Debt Securities Proceeds arising from the issuance of
Receivables Sale Indebtedness: (A) the Borrowers shall prepay the Term
Loans in an amount equal to the lesser of (x) the Net Debt Securities Proceeds
permitted to be applied to the Loans under the terms of the Intercreditor
Agreement and (y) the aggregate amount outstanding under the Term Loans, and
(B) the Revolving Loan Commitments shall be permanently reduced by an amount
equal to the positive difference between the Net Debt Securities Proceeds
permitted to be applied to the Loans under the terms of the Intercreditor
Agreement and the amounts applied to the Term Loans under the foregoing clause
(A).


 


(g)   Prepayments
due to Excess Total Utilization. 
Domestic Borrowers shall make such prepayments of Revolving Loans (and
cause the relevant Offshore Borrowers in the case of Offshore Revolving Loans,
to make prepayments of the Revolving Loans, and Offshore Revolving Loans) to
the extent necessary so that the Total Utilization of Revolving Loan
Commitments at any time does not exceed the Revolving Loan Commitments then in
effect.  United Glass shall make
prepayments of the UK Revolving Loans to the extent necessary so that the Total
Utilization of UK Revolving Loan Commitments does not exceed the Offshore
Sublimit then in effect for United Glass. The Australian Offshore Borrowers
shall make prepayments of the Australian Revolving Loans to the extent
necessary so that the Total Utilization of Australian Revolving Loan
Commitments does not exceed the Offshore Sublimit then in effect for the
Australian Offshore Borrowers.  Avir
shall make prepayments of the Italian Revolving Loans to the extent necessary
so that the Total Utilization of Italian Revolving Loan Commitments does not
exceed the Offshore Sublimit then in effect for Avir. O-I Canada shall make
prepayments of the Canadian Revolving Loans to the extent necessary so that the
Total Utilization of Canadian Revolving Loan Commitments does not exceed the
Offshore Sublimit then in effect for O-I Canada.


 


(h)   Officer’s Certificate.  Concurrently with any prepayment of the
Loans and/or reduction of the Revolving Loan Commitments pursuant to subsections
2.4B(ii)(a)-(f), Domestic Borrowers shall deliver to Administrative Agent an
Officer’s Certificate demonstrating the calculation of the amount of the
applicable Net Asset Sale Proceeds, Consolidated Excess Cash Flow, Net
Insurance/Condemnation Proceeds, Net Equity Securities Proceeds or Net Debt
Securities Proceeds, as the case may be, that gave rise to such prepayment
and/or reduction.  In the event that the
Domestic Borrowers shall subsequently determine that the actual amount was
greater than the amount set forth in such Officer’s Certificate, Domestic
Borrowers shall promptly cause an additional prepayment


 


99

















 


of the Loans (and/or, if applicable, the Revolving Loan Commitments
shall be permanently reduced and/or the Existing Holdings Senior Notes
Redemption Sublimit and/or Acquisition Sublimit may be increased, as the case
may be) in an amount equal to the amount of such excess, and Domestic Borrowers
shall concurrently therewith deliver to Administrative Agent an Officer’s
Certificate demonstrating the derivation of the additional amount resulting in
such excess.


 


(iii)          Application of Prepayments.  Any voluntary prepayments pursuant to
subsection 2.4B(i) shall be applied as specified by the applicable Borrower
in the applicable notice of prepayment; provided that in the event the
applicable Borrower fails to specify the Loans to which any such prepayment by
it shall be applied, such prepayment shall be first to repay outstanding
Revolving Loans to the full extent thereof, second to repay outstanding
Term Loans ratably, in accordance with their respective outstanding principal
balances to the full extent thereof, and third to the L/C Collateral
Account until the L/C Collateral Account holds an amount equal to the Aggregate
Available Amount (as defined in the Security Agreement); provided that
if no order is specified, voluntary prepayments applicable to the Revolving
Loans hereunder shall be applied pro rata among all Revolving Loans and, in the
case of Offshore Borrowers, to prepay Offshore Revolving Loans.  Any mandatory prepayment pursuant to
subsections 2.4B(ii)(a)-(f) shall be applied as set forth in such subsections; provided
that mandatory prepayments of the Term Loans shall be made ratably among the
Tranche A1 Term Loans, Tranche B1Term Loans, Tranche C Term Loans, Tranche D
Term Loans, Additional Term Loans (if any) and Refinancing Term Loans (if any)
in accordance with their respective outstanding principal amounts at the time
of payment (except for (x) mandatory prepayments of Term Loans pursuant to
subsection 2.4B(ii)(a) which shall be applied first to the Domestic Tranche C
Term Loans until the same are paid in full, then to the Tranche D Term Loans
until the same are paid in full and thereafter applied ratably among the
Tranche A1 Term Loans, Tranche B1 Term Loans, remaining Tranche C Term Loans,
Additional Term Loans (if any) and Refinancing Term Loans (if any) in
accordance with their respective outstanding principal amounts at the time of
payment and (y) mandatory prepayments of Term Loans pursuant to subsection
2.4B(ii)(d), 2.4B(ii)(e) and 2.4B(ii)(f), which shall be applied first against
the Tranche D Term Loans until the same are paid in full and thereafter applied
ratably among the Tranche A1 Term Loans, Tranche B1 Term Loans, Tranche C Term
Loans, Additional Term Loans (if any) and Refinancing Term Loans (if any) in
accordance with their respective outstanding principal amounts at the time of
payment), and shall reduce the scheduled installments of principal of the
applicable Term Loans set forth in subsection 2.4B pro rata to all
remaining installments (except for mandatory prepayments of Term Loans under
subsection 2.4B(ii)(b), which shall be applied to all such installments in
forward order of maturity); provided  further, if at the time of
such mandatory prepayment, the Term Loans have been repaid in full and (to the
extent such prepayment is required to be applied to the Revolving Loan
Commitments) the amount of such prepayment exceeds the sum of the Revolving
Loan Commitments then in effect the amount by which such prepayment exceeds
such amount shall be applied to the L/C Collateral Account until the L/C
Collateral Account holds an amount equal to the Aggregate Available Amount (as
defined in the Security Agreement).  Any
mandatory prepayment of any Type of Term Loans, Revolving Loans or Offshore
Revolving Loans shall be applied first to Base Rate Loans of the applicable
Type to the full extent thereof before application to Euro Rate Loans of such
Type as determined by Administrative Agent, in each case in a manner which
minimizes the amount of any payments required to be made by the


 


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applicable Borrowers pursuant to subsection 2.6E.  All prepayments of Euro Rate Loans Term
Loans and Offshore Revolving Loans shall include payment of accrued interest on
the principal amount so prepaid and shall be applied to payment of interest
before application to principal.  For
purposes of this subsection 2.4B(iii), the outstanding principal balance of the
French Tranche C2 Term Loans shall be deemed to be the Dollar Equivalent of the
outstanding principal balance of such Term Loans as of the date of the
applicable voluntary or mandatory prepayment to be applied to repay Term Loans
in accordance with this subsection 2.4B(iii). 
Amounts to be applied to French Tranche C2 Term Loans pursuant to this
subsection 2.4B(iii) received by the Administrative Agent in Dollars shall be
converted by the Administrative Agent into Euros at the Spot Rate on the date
of application.


 


(iv)          Notwithstanding anything in the
foregoing Section 2.4B, any mandatory or optional prepayment of Tranche A1 Term
Loans in either case that results in the prepayment of all, but not less than
all, outstanding Tranche A1 Term Loans prior to the Applicable Date with the
proceeds of new term loans under this Agreement that have an applicable rate
that is less than the rate currently calculated using the Applicable Euro
Margin or Applicable Base Rate Margin for Tranche A1 Term Loans as of the
Second Restatement Date may only be made if each Tranche A1 Lender is paid a
prepayment premium of 1% of the principal amount of such Lender’s Tranche A1
Term Loans.  Any mandatory or optional
prepayment of Tranche B1 Term Loans in either case that results in the
prepayment of all, but not less than all, outstanding Tranche B1 Term Loans
prior to the Applicable Date with the proceeds of new term loans under this
Agreement that have an applicable rate that is less than the rate currently
calculated using the Applicable Euro Margin or Applicable Base Rate Margin for
Tranche B1 Term Loans as of the Second Restatement Date may only be made if
each Tranche B1 Lender is paid a prepayment premium of 1% of the principal
amount of such Lender’s Tranche B1 Term Loans. 
Any mandatory or optional prepayment of any Type of Tranche C Term Loans
in either case that results in the prepayment of all, but not less than all,
outstanding Tranche C Term Loans of such Type prior to the date that is one
year after the BSN Acquisition Closing Date with the proceeds of new term loans
under this Agreement that have an applicable rate that is less than the rate
currently calculated using the Applicable Euro Margin or Applicable Base Rate
Margin for such Type of Tranche C Term Loans as of the Second Restatement Date
may only be made if each Tranche C Term Loan Lender having Tranche C Term Loans
of such Type is paid a prepayment premium of 1% of the principal amount of such
Lender’s Tranche C Term Loans of such Type. Any mandatory or optional
prepayment of Tranche D Term Loans in either case that results in the
prepayment of all, but not less than all, outstanding Tranche D Term Loans
prior to the date that is one year after the BSN Acquisition Closing Date with
the proceeds of new term loans under this Agreement that have an applicable
rate that is less than the rate currently calculated using the Applicable Euro
Margin or Applicable Base Rate Margin for Tranche D Term Loans as of the Second
Restatement Date may only be made if each Tranche D Lender is paid a prepayment
premium of 1% of the principal amount of such Lender’s Tranche D Term Loans.


 


C.    Manner and Time of Payment.  Except as provided in the immediately succeeding sentence with respect
to UK Revolving Loans and in subsection 2.7C or 2.8E, all payments of
principal, interest and fees hereunder and under the Loans by Borrowers shall
be made without defense, setoff, counterclaim or other deduction and in Same
Day Funds and delivered to Administrative Agent not later than 12:00 Noon (New
York time) on the date due at


 


101

















 


the Domestic Funding and Payment Office for the account of Lenders, in
Dollars (except for payments in respect of the French Tranche C2 Term Loans,
which shall be made in Euros); funds received by Administrative Agent after the
applicable time shall be deemed to have been paid by the relevant Borrower on
the next succeeding Business Day.  All
payments with respect to UK Revolving Loans by UK Borrowers shall be made
without defense, setoff, counterclaim or other deduction (except to the extent
required by law) and in Same Day Funds and delivered to UK Administrative Agent
not later than 12:00 noon (London time) on the date due at the UK Funding and
Payment Office for the account of Lenders, in Dollars; funds received by UK
Administrative Agent after the applicable time shall be deemed to have been
paid by the relevant Borrower on the next succeeding Business Day.  UK Administrative Agent shall distribute to
each Lender having a UK Lending Office its Pro Rata Share of the amount so
received to such Lender’s UK Lending Office and shall transfer the remaining
balance to Administrative Agent for distribution to all other Lenders.  Company and each Borrower hereby authorize
Administrative Agent and the UK Administrative Agent to charge their accounts
with Administrative Agent or the UK Administrative Agent, as the case may be,
in order to cause timely payment to be made to Administrative Agent or the UK
Administrative Agent, as the case may be, of all principal, interest and fees
due hereunder (subject to sufficient funds being available in its accounts for
that purpose); provided that Administrative Agent or the UK
Administrative Agent, as the case may be, shall give Company or the Borrower
whose accounts are being so charged notice of such charges prior thereto or as
soon as reasonably practicable thereafter.


 


D.    Apportionment of Payments.  Aggregate principal and interest payments in respect of Term
Loans and Revolving Loans and, to the extent payments are made by Borrowers
after payments have been made by Lenders pursuant to subsection 2.8E,
payments in respect of Letters of Credit, shall be apportioned among the Term
Loans, Revolving Loans and Letters of Credit to which such payments relate,
payments of the aggregate facility fees and Letter of Credit commissions shall
be apportioned ratably among Lenders with Revolving Loan Commitments, payment
of commitment fees under Section 2.3C(i) shall be apportioned ratably among
Lenders with Tranche C Term Loan Exposure and Tranche D Term Loan Exposure and
payment of commitment fees under Section 2.3(ii) shall be apportioned ratably
among Lenders with French Tranche C3 Term Loan Exposure, in each case
proportionally to their respective Pro Rata Shares.  All principal and interest payments in respect of the Domestic
Overdraft Account shall be transferred to and retained by Administrative Agent;
provided that Administrative Agent shall distribute to each Lender that
has purchased a participation in amounts due with respect to the Domestic
Overdraft Account pursuant to subsection 2.1B such Lender’s Pro Rata Share
of any payments subsequently received by Administrative Agent in respect of
such amounts due with respect to the Domestic Overdraft Account.  All principal and interest payments in
respect of any Offshore Overdraft Account shall be transferred to and retained
by the relevant Offshore Overdraft Account Provider; provided that such
Offshore Overdraft Account Provider shall transfer to the Administrative Agent
that portion of any payments subsequently received by such Offshore Overdraft
Account Provider in respect of amounts due with respect to such Offshore
Overdraft Account necessary to permit Administrative Agent to distribute to
each Lender that has purchased a participation in such amounts due pursuant to
subsection 2.1D such Lender’s Pro Rata Share of such payments.  Aggregate principal and interest payments in
respect of Offshore Revolving Loans shall be apportioned among the Offshore
Revolving Loans to which such payments relate, in each case proportionally to
the relevant Lenders’ respective Pro Rata


 


102

















 


Shares.  Subject to the provisions
of subsection 2.4C relating to amounts received by the UK Administrative
Agent and to the last sentence of subsection 2.8E, Administrative Agent
(or, in the case of payments received by any Issuing Lender from a Borrower
after payments have been made to such Issuing Lender by Lenders pursuant to
subsection 2.8E, such Issuing Lender) shall promptly distribute to each
Lender, at its primary address set forth below its name on the appropriate
signature page hereof or at such other address as any Lender may request, its
share of all such payments in respect of Term Loans, Revolving Loans, Letters
of Credit, the Domestic Overdraft Account, the Offshore Overdraft Accounts and
Offshore Revolving Loans received by Administrative Agent (or such Issuing
Lender) and the facility fees of such Lender when received by Administrative
Agent pursuant to subsection 2.3B. 
Notwithstanding the foregoing provisions of this subsection 2.4D,
(i) with respect to any Lender which fails to fund the purchase all or any part
of its participation in a Letter of Credit as required by subsection 2.8C,
its participation in the Domestic Overdraft Amount as required under
subsection 2.1B, its participation in an Offshore Overdraft Amount as
required under subsection 2.1D or its participation in the Term Loans
pursuant to subsection 2.4B(ii)(d) or 2.4B(ii)(e) (such Lender being a “Defaulting Participating Lender”), all
amounts which would otherwise be payable or allocable to such Defaulting
Participating Lender under this subsection 2.4D shall instead be paid by
Administrative Agent to the Issuing Lender (in the case of a failure to fund
the purchase of a participation in a Letter of Credit under
subsection 2.8E), Administrative Agent (in the case of a failure to fund
the purchase of a participation in the Domestic Overdraft Amount under
subsection 2.1B) the applicable Offshore Overdraft Account Provider (in
the case of a failure to fund a purchase of a participation in an Offshore
Overdraft Amount under subsection 2.1D), or to the Lenders having Term
Loan Exposure (in the case of a failure to fund a purchase of a participation
in the Term Loans pursuant to subsection 2.4B(ii)(d) or 2.4B(ii)(e) (each,
a “Recipient”), until such
Recipient has received, either pursuant to this proviso or otherwise from such
Defaulting Participating Lender, an amount equal to the amount such Defaulting
Participating Lender failed to so fund plus interest at the customary
rate set by such Recipient for the correction of errors among banks for three
Business Days and thereafter at the Base Rate plus the Applicable Base Rate
Margin (and in the case such Defaulting Participating Lender is a Defaulting
Participating Lender with respect to more than one Recipient, such amounts
shall be paid to such Recipients ratably in accordance with amounts owed to
such Recipients by such Defaulting Participating Lender); (ii) if, pursuant to
the provisions of subsection 2.6D, any Notice of Borrowing or Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of Euro
Rate Loans, Administrative Agent shall give effect thereto in apportioning
payments received thereafter and (iii) after the occurrence of an Event of
Default and acceleration of the maturity of the Loans and amounts available for
drawing under Letters of Credit as provided in Section 7, Administrative Agent
shall apportion all payments received by it in the manner specified in Section
7.


 


E.     Payments on Non-Business Days.  Whenever any payment to be made hereunder or under the Notes
shall be stated to be due on a day which is not a Business Day, the payment
shall be made on the next succeeding Business Day and such extension of time
shall be included in the computation of the payment of interest hereunder or
under the Notes or of the facility fees and other fees hereunder, as the case
may be.


 


103

















 


F.     Notation of Payment. 
Each Lender agrees that before disposing of any Note held by it, or any
part thereof (other than by granting participations therein or to a Federal
Reserve Bank pursuant to subsection 10.2D), that Lender will make a
notation thereon of all Loans and principal payments previously made thereon
and of the date to which interest thereon has been paid and will notify the
Borrower obligated under such Note and Administrative Agent of the name and
address of the transferee of that Note; provided that the failure to
make (or any error in the making of) a notation of any Loan made under such
Note or to notify such Borrower or Administrative Agent of the name and address
of such transferee shall not limit or otherwise affect the obligation of such
Borrower hereunder or under such Note with respect to any Loan and payments of
principal or interest on any such Note.


 


G.    Voluntary Reductions of Commitments and Offshore Sublimits.  Borrowers’ Agent shall have the right, at
any time and from time to time, (i) to terminate in whole or permanently reduce
in part, without premium or penalty, the Revolving Loan Commitments in an
amount up to the amount by which the Revolving Loan Commitments exceed the
Total Utilization of Revolving Loan Commitments at the time of such proposed
termination or reduction, (ii) to terminate in whole or reduce in part, without
premium or penalty, the UK Revolving Loan Commitments in an amount up to the
amount by which the UK Revolving Loan Commitments exceed the Total Utilization
of UK Revolving Loan Commitments at the time of such proposed termination or
reduction, (iii) to terminate in whole or reduce in part, without premium or
penalty, the Australian Revolving Loan Commitments in an amount up to the
amount by which the Australian Revolving Loan Commitments exceed the Total
Utilization of Australian Revolving Loan Commitments at the time of such
proposed termination or reduction, (iv) to terminate in whole or reduce in
part, without premium or penalty, the Canadian Revolving Loan Commitments in an
amount up to the amount by which the Canadian Revolving Loan Commitments exceed
the Total Utilization of the Canadian Revolving Loan Commitments at the time of
such proposed termination or reduction, (v) to terminate in whole or reduce in
part, without premium or penalty, the Italian Revolving Loan Commitments in an
amount up to the amount by which the Italian Revolving Loan Commitments exceed
the Total Utilization of Italian Revolving Loan Commitments at the time of such
proposed termination or reduction, and (vi) prior to the Restatement Date, to
terminate in whole or permanently reduce in part, without premium or penalty,
the Term Loan Commitments.


 


Borrowers’ Agent shall give not less than three
Business Days’ prior written notice to Administrative Agent designating the
date (which shall be a Business Day) of such termination or reduction and the
amount of any partial reduction. 
Promptly after receipt of a notice of such termination or partial
reduction, Administrative Agent shall notify each Lender of the proposed
termination or partial reduction.  Such
termination or partial reduction of any of the Offshore Revolving Loan
Commitments, the Revolving Loan Commitments or the Term Loan Commitments shall
be effective on the date specified in the notice delivered by Borrowers’ Agent
and shall reduce the applicable Offshore Revolving Loan Commitment, the
Revolving Loan Commitment or the Term Loan Commitment, as the case may be, of
each Lender proportionately to its Pro Rata Share.  Any such partial reduction of the Revolving Loan Commitments, the
Term Loan Commitments or the Offshore Revolving Loan Commitments shall be in an
aggregate minimum amount of $5,000,000, and integral multiples of $1,000,000 in
excess of that amount.


 


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2.5          Use of Proceeds


 


A.    Tranche C Term Loans; Tranche D Term Loans.  The proceeds of the Domestic Tranche C Term
Loans and the Tranche D Term Loans shall be applied (i) on the BSN
Acquisition Closing Date, pay that portion of the purchase price for the BSN
Acquisition attributable to the shares of BSN and its Subsidiaries and the
purchase price of the BSN Subordinated Shareholder Loan and (ii) to pay fees
and expenses related with such acquisition. 
The proceeds of the French Tranche C1 Term Loans and the French Tranche
C2 Term Loans shall be applied to (i) on the BSN Acquisition Closing Date, to
repay in full all outstanding indebtedness under the Existing BSN Credit
Agreement and to repay in full the Other BSN Indebtedness and (ii) to pay fees
and expenses related to such refinancings. 
The proceeds of the French Tranche C3 Term Loans shall be applied to
make BSN Change of Control Payments to the holders of the Existing BSN
Subordinated Notes on the BSN Change of Control Payment Date and to pay fees
and expenses related thereto.


 


B.    Revolving Loans and Offshore Revolving Loans; Additional Term
Loans; Refinancing Term Loans.  The
proceeds of any Revolving Loans shall be used to provide for the working
capital requirements and general corporate purposes of Borrowers and their
Subsidiaries, which may include the payment of the Domestic Overdraft Amount
pursuant to subsection 2.1B, the reimbursement to any Issuing Lender of
any amounts drawn under any Letters of Credit issued by such Issuing Lender for
the account of a Domestic Borrower as provided in subsection 2.8D, the
payment or prepayment of the Term Loans, the making of intercompany loans and
dividends to Company and its Subsidiaries for their own general corporate
purposes (including making any or all BSN Change of Control Payments on the BSN
Change of Control Payment Date to the extent BSN may not borrow French Tranche
C3 Term Loans to pay the same due to the limitations set forth in subsection
3.3A or 3.3C), the redemption, repayment or repurchase of the Existing Holdings
Senior Notes maturing in 2004 (or the making of Restricted Junior Payments to
Holdings for the purpose of doing so) at any time and the making of other
Restricted Junior Payments permitted by subsection 6.5, except that the
proceeds of any Revolving Loans made under the Existing Holdings Senior Notes
Redemption Sublimit may be used solely to redeem, repay or otherwise repurchase
the Existing Holdings Senior Notes maturing in 2005 or 2007 to the extent not
prohibited under subsection 6.12B or to repay Loans as described in subsection 2.4B(ii)(e),
and the proceeds of any Revolving Loans made under any Acquisition Sublimit may
be used solely to finance a Permitted Acquisition or repay Loans.  In addition, the proceeds of Revolving Loans
(other than any such Loans made under the Existing Holdings Senior Notes
Redemption Sublimit) may only be used to redeem, repay or otherwise repurchase
(A) Existing Holdings Senior Notes maturing in 2005 (or make Restricted Junior
Payments to Holdings for the purpose of doing same), whether at maturity or otherwise,
if after giving effect to the making of such Revolving Loans and the
application of the proceeds thereof, the Revolving Loan Commitments then in
effect would exceed the Total Utilization of Revolving Loan Commitments by at
least $250,000,000 and the Consolidated Senior Secured Leverage Ratio is less
than 2.85:1.00, or (B) Existing Holdings Senior Notes maturing in 2007 (or make
Restricted Junior Payments to Holdings for the purpose of doing same), whether
at maturity or otherwise, if (i) the outstanding principal balance of the
Existing Holdings Senior Notes maturing in 2005 is $75,000,000 or less and (ii)
after giving effect to the making of such Revolving Loans and the application
of the proceeds thereof, the Revolving Loan Commitments then in effect would
exceed the Total Utilization of Revolving Loan


 


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Commitments by at least $250,000,000 and the Consolidated Senior
Secured Leverage Ratio is less than 2.85:1.00. 
Except as permitted by the previous sentence, amounts in the Existing
Holdings Senior Notes Redemption Sublimit or any Acquisition Sublimit may not
be reborrowed.  The proceeds of any
Offshore Revolving Loans to any Offshore Borrower shall be used to provide for
the working capital requirements and general corporate purposes of such
Offshore Borrower and its Subsidiaries, which may include the payment of
Offshore Overdraft Amounts pursuant to subsection 2.1D, the reimbursement
to any Issuing Lender of any amounts drawn under any Letters of Credit issued
by such Issuing Lender for the account of an Offshore Borrower as provided in
subsection 2.8D and the making and repayment of intercompany loans to such
Subsidiaries for their own general corporate purposes.  The proceeds of any Additional Term Loans or
Refinancing Term Loans may be used for any purpose permitted by this Agreement;
provided, that, the proceeds of any Additional Term Loans or
Refinancing Term Loans may only be used to redeem, repay or otherwise
repurchase the Existing Holdings Senior Notes maturing in 2005 or 2007 if,
after giving effect to the making of such Loans and the application of the
proceeds thereof, the Senior Secured Leverage Ratio is less than 2.85:1.00.


 


C.    Letters of Credit.  Letters of Credit shall be issued solely for
the purposes specified in the definitions of Commercial Letter of Credit and
Standby Letter of Credit.


 


D.    Margin Regulations. 
No portion of the proceeds of any borrowing under this Agreement shall
be used by any Borrower in any manner which would cause the borrowing or the
application of such proceeds to violate Regulation U, Regulation T, or
Regulation X of the Board of Governors of the Federal Reserve System or any
other regulation of such Board or to violate the Exchange Act, in each case as
in effect on the date or dates of such borrowing and such use of proceeds.


 


2.6          Special
Provisions Governing Euro Rate Loans


 


Notwithstanding other provisions of this Agreement,
the following provisions shall govern with respect to Euro Rate Loans as to the
matters covered:


 


A.    Determination of Interest Rate.  As soon as practicable after 11:00 A.M. (New York time) on each
Interest Rate Determination Date with respect to Eurodollar Rate Loans and
11:00 A.M. (Brussels time) with respect to Euro LIBOR Loans, Administrative
Agent shall determine (which determination shall, absent manifest or
demonstrable error, be final, conclusive and binding upon all parties) the
interest rate which shall apply to the Euro Rate Loans for which an interest
rate is then being determined for the applicable Interest Period (subject to
any changes in the Applicable Euro Margin pursuant to the terms of the
definition thereof) and shall promptly give notice thereof (in writing or by
telephone and confirmed in writing) to the applicable Borrowers and to each
Lender.


 


B.    Substituted Rate of Borrowing.  In the event that on any Interest Rate Determination Date any
Lender (including Administrative Agent) shall have determined (which
determination shall, absent manifest or demonstrable error, be final and
conclusive and binding upon all parties but, with respect to the following
clauses (i) and (ii)(b), shall be made only after consultation with the
applicable Borrower and Administrative Agent) that:


 


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(i)            by reason of any changes arising
after the date of this Agreement affecting the applicable interbank markets or
affecting the position of that Lender in such market, adequate and fair means
do not exist for ascertaining the applicable interest rate on the basis
provided for in the definition of Adjusted Eurodollar Rate or Euro LIBOR with
respect to the Euro Rate Loans as to which an interest rate determination is
then being made; or


 


(ii)           by reason of (a) any change
after the date hereof in any applicable law or governmental rule, regulation or
order (or any interpretation thereof and including the introduction of any new
law or governmental rule, regulation or order) or (b) other circumstances
affecting that Lender or the Eurodollar or Euro LIBOR markets or the position
of that Lender in such market (such as for example, but not limited to,
official reserve requirements required by Regulation D or by the Bank of
England, the Financial Services Authority, the European Central Bank or any other
relevant monetary or regulatory authority to the extent not given effect in the
Adjusted Eurodollar Rate), the Adjusted Eurodollar Rate shall not represent the
effective pricing to that Lender for Dollar deposits of comparable amounts for
the relevant period, or Euro LIBOR shall not represent the effective pricing to
that Lender for Euro deposits of comparable amounts for the relevant period;


 


then, and in any such event, that Lender shall be an
Affected Lender and it shall promptly (and in any event as soon as possible
after being notified of a borrowing, conversion or continuation) give notice
(by telephone and confirmed in writing) to the applicable Borrower and
Administrative Agent (which notice Administrative Agent shall promptly transmit
to each other relevant Lender) of such determination.  Thereafter, the applicable Borrower shall pay to the Affected
Lender with respect to such Borrower’s Euro Rate Loans, upon written demand
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as the Affected Lender
in its sole discretion shall reasonably determine) as shall be required to
cause the Affected Lender to receive interest with respect to such Affected
Lender’s Euro Rate Loans for the Interest Period(s) following that Interest
Rate Determination Date at a rate per annum equal to the sum of the effective
pricing to the Affected Lender for Dollar deposits or Euro deposits, as
applicable, to make or maintain its Euro Rate Loans plus the Applicable
Euro Margin.  A certificate as to
additional amounts owed the Affected Lender, showing in reasonable detail the
basis for the calculation thereof, submitted in good faith to the relevant
Borrower and Administrative Agent by the Affected Lender shall, absent manifest
or demonstrable error, be final and conclusive and binding upon all of the
parties hereto.


 


C.    Required Termination and Prepayment.  In the event that on any date any Lender
shall have reasonably determined (which determination shall, absent manifest or
demonstrable error, be final and conclusive and binding upon all parties) that
the making or continuation of its Euro Rate Loans or Offshore Revolving Loans
has become unlawful by compliance by that Lender or its UK Lending Office in
good faith with any law, governmental rule, regulation or order (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful), then, and in any such event, that Lender shall be an Affected Lender
and it shall promptly give notice (by telephone and confirmed in writing) to
the applicable Borrower, Administrative Agent (which notice Administrative
Agent shall promptly


 


107

















 


transmit to each Lender) of that determination.  Subject to the following
subsection 2.6D, the obligation of the Affected Lender to make or maintain
its Euro Rate Loans or Offshore Revolving Loans, as the case may be, during any
such period shall be terminated at the earlier of the termination of the
Interest Period then in effect or when required by law and Domestic Borrowers
or the relevant Offshore Borrower shall, no later than the termination of the
Interest Period in effect at the time any such determination pursuant to this
subsection 2.6C is made, or earlier when required by law, repay the Euro
Rate Loans or Offshore Revolving Loans, as the case may be, of the Affected
Lender, together with all interest accrued thereon.


 


D.    Options of Borrowers. 
In lieu of paying an Affected Lender such additional moneys as are
required by subsection 2.6B or the prepayment of an Affected Lender
required by subsection 2.6C, Borrowers may exercise any one of the
following options:


 


(i)            If the determination by an Affected
Lender relates only to Eurodollar Rate Loans then being requested by a Borrower
pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation, such
Borrower may by giving notice (by telephone and confirmed in writing) to
Administrative Agent (who shall promptly give similar notice to each relevant
Lender) no later than the date immediately prior to the date on which such
Eurodollar Rate Loans are to be made, converted or continued, withdraw as to
the Affected Lender that Notice of Borrowing or such Notice of
Conversion/Continuation and such Affected Lender shall thereupon make or
maintain its Pro Rata Share of the Eurodollar Rate Loan then being requested,
converted or continued as a Base Rate Loan; or


 


(ii)           Upon written notice to Administrative
Agent, the applicable Borrower may terminate the obligations of Lenders to make
or maintain Loans as, and to convert Loans into, Eurodollar Rate Loans and, in
any such event, the applicable Borrower shall, prior to the time any payment
pursuant to subsection 2.6C is required to be made or, if the provisions
of subsection 2.6B are applicable, at the end of the then current Interest
Period, convert all of the Eurodollar Rate Loans into Base Rate Loans in the
manner contemplated by subsection 2.2D but without satisfying the advance
notice requirements therein;


 


(iii)          The applicable Borrower may give
notice (by telephone and confirmed in writing) to the Affected Lender and
Administrative Agent and require the Affected Lender to make the Eurodollar
Rate Loan then being requested as a Base Rate Loan or to continue to maintain
its outstanding Base Rate Loan then the subject of a Notice of Conversion/
Continuation as a Base Rate Loan or to convert its Eurodollar Rate Loans then
outstanding that are so affected into Base Rate Loans at the end of the then
current Interest Period (or at such earlier time as prepayment is otherwise
required to be made pursuant to subsection 2.6C) in the manner
contemplated by subsection 2.2D but without satisfying the advance notice
requirements therein, that notice to pertain only to the Loans of the Affected
Lender and to have no effect on the obligations of the other Lenders to make or
maintain Eurodollar Rate Loans or to convert Base Rate Loans into Eurodollar
Rate Loans; or


 


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(iv)          Solely with respect to the French
Tranche C2 Term Loans, the applicable Borrower may give notice (by telephone
and confirmed in writing) to the Affected Lender and Administrative Agent and
require the Affected Lender to make the Euro Rate Loan then being request at a
rate determined by the Administrative Agent as the all-in-cost of funds for
such Affected Lender to fund a borrowing of Loans denominated in Euros with
maturities comparable to the Interest Period applicable thereto.


 


E.     Compensation.  The
applicable Borrower shall compensate each Lender, upon written request by that
Lender (which request shall set forth in reasonable detail the basis for
requesting such amounts), for all reasonable losses, expenses and liabilities
(including, without limitation, any interest paid by that Lender to lenders of
funds borrowed by it to make or carry its Euro Rate Loans, and any loss
sustained by that Lender in connection with the re-employment of such funds),
which that Lender may sustain with respect to Borrowers’ Euro Rate Loans:  (i) if for any reason (other than a
default by that Lender) a borrowing of any Euro Rate Loan does not occur on a
date specified therefor in a Notice of Borrowing, a Notice of Conversion/Continuation
or a telephonic request for borrowing or conversion/continuation or a
successive Interest Period does not commence after notice therefor is given
pursuant to subsection 2.2D, (ii) if any prepayment or other
principal payment of any of its Euro Rate Loans occurs on a date prior to the
last day of the Interest Period applicable to that Loan, (iii) if any
prepayment of any of such Lender’s Euro Rate Loans is not made on any date
specified in a notice of prepayment given by the applicable Borrower, or (iv)
as a consequence of any other default by such Borrower to repay such Lender’s
Euro Rate Loans when required by the terms of this Agreement.


 


F.     Quotation of Adjusted Eurodollar Rate.  Anything herein to the contrary
notwithstanding, if on any Interest Rate Determination Date no Adjusted
Eurodollar Rate is available by reason of the failure of all Reference Lenders
to provide offered quotations to Administrative Agent in accordance with the
definition of “Adjusted Eurodollar Rate,” Administrative Agent shall give
Borrowers and each Lender prompt notice thereof and the Loans requested shall
be made as Base Rate Loans.


 


G.    Booking of Loans. 
Any Lender may make, carry or transfer Loans at, to, or for the account
of, any of its branch offices or the office of an Affiliate of that
Lender.  Each Lender (other than a
Person exempt from Taxes with respect to any payments to such Lender of
interest payable by United Glass under the Loan Documents) shall endeavor to
designate a UK Lending Office for the making of its UK Revolving Loans, so long
as such Lender may legally do so at no more than nominal cost and such
designation is consistent with such Lender’s internal policies.


 


H.    Assumptions Concerning Funding of Eurodollar Rate Loans.  Calculation of all amounts payable to a
Lender under this subsection 2.6 shall be made with respect to Euro Rate
Loans, as though that Lender had actually funded its relevant Eurodollar Rate
Loan through the purchase of a deposit bearing interest at the rate obtained
pursuant to clause (i) of the definition of Adjusted Eurodollar Rate or
pursuant to the definition of Euro LIBOR in an amount equal to the amount of
that Eurodollar Rate Loan and having a maturity comparable to the relevant
Interest Period and through the transfer of such deposit from an offshore office
of that Lender to a domestic office of that Lender in the United States of
America; provided that to the extent that a Lender designates a UK
Lending Office, it shall be assumed that such Eurodollar


 


109

















 


deposit was used to directly fund the making of the UK Revolving Loan
in England; provided, further, however, that each Lender
may fund each of its Eurodollar Rate Loans in any manner it sees fit and the
foregoing assumptions shall be utilized only for the calculation of amounts
payable under this subsection 2.6.


 


I.      Eurodollar Rate Loans After Default.  Unless Requisite Lenders shall otherwise
agree, after the occurrence of and during the continuance of an Event of
Default, no Borrower may elect to have a Loan be made or maintained as, or
converted to, a Eurodollar Rate Loan after the expiration of any Interest
Period then in effect for that Loan.


 


J.     Affected Lenders’ Obligation to Mitigate.  Each Lender agrees that, as promptly as
practicable after it becomes aware of the occurrence of an event or the
existence of a condition that would cause it to be an Affected Lender under
subsection 2.6B or 2.6C, it will, to the extent not inconsistent with such
Lender’s internal policies, use reasonable commercial efforts to make, fund or
maintain the affected Euro Rate Loans of such Lender through another lending
office of such Lender if as a result thereof the additional moneys which would
otherwise be required to be paid in respect of such Loans pursuant to subsection 2.6B
would be materially reduced or the illegality or other adverse circumstances
which would otherwise require prepayment of such Loans pursuant to
subsection 2.6C would cease to exist and if, as determined by such Lender,
in its sole discretion, the making, funding or maintaining of such Loans
through such other lending office would not otherwise materially adversely
affect such Loans or such Lender.  The
applicable Borrower hereby agrees to pay all reasonable expenses incurred by
any Lender in utilizing another lending office of such Lender pursuant to this
subsection 2.6J.


 


K.    Replacement of Lender. 
If a Borrower receives a notice pursuant to subsection 2.6B or
2.6C, so long as no Event of Default shall have occurred and be continuing and
the applicable Borrower has obtained a commitment from another Lender or an
Eligible Assignee to become a Lender for all purposes under this Agreement and
to assume all obligations of the Lender to be replaced, the applicable Borrower
may require the Lender giving such notice to assign all of its Loans, its
Commitments and its other Obligations to such other Lender or Eligible
Assignee, at par, pursuant to the provisions of subsection 10.2B; provided
that, prior to or concurrently with such replacement (i) the applicable
Borrower has paid or caused to be paid to the Lender giving such notice all
principal, interest, fees and other amounts due and owing to such Lender
hereunder through such date of replacement (including any amounts payable under
subsection 2.6E), (ii) the applicable Borrower has paid to Administrative
Agent the processing and recordation fee required to be paid by
subsection 10.2B(i); and (iii) all of the requirements for such
assignment contained in subsection 10.2B, including, without limitation,
the receipt by Administrative Agent of an executed Assignment and Acceptance
and other supporting documents, have been fulfilled.


 


L.    Calculation of Spot Rates.  On each Calculation Date with respect to any Offshore Currency,
the Administrative Agent shall determine the Spot Rate as of such Calculation
Date with respect to such Offshore Currency (it being acknowledged and agreed
that Administrative Agent shall use the Spot Rates so calculated for the
purposes of determining compliance with subsection 2.1C with respect to
any borrowing request).  Any Spot Rate
so determined shall become effective on the first Business Day immediately
following the relevant Calculation Date (each, a “Reset Date”) and shall remain effective until the next
succeeding


 


110

















 


Reset Date.  Administrative
Agent shall promptly notify Borrowers of each determination of a Spot Rate
hereunder.  No later than 10:30 A.M.
(London Time) on each Calculation Date with respect to Sterling, Administrative
Agent shall determine the Sterling Spot Rate as of such Calculation Date (it
being acknowledged and agreed that Administrative Agent shall use the Sterling
Spot Rates so calculated for the purposes of determining compliance with
subsection 2.1C with respect to any borrowing request).  Any Sterling Spot Rate so determined shall
become effective on the first Offshore Banking Day with respect to Sterling
immediately following the relevant Calculation Date (each, a “Sterling
Reset Date”) and shall remain effective until the next succeeding
Sterling Reset Date.


 


2.7          Capital
Adequacy Adjustment; Increased Costs; Taxes


 


A.    Capital Adequacy. 
If any Lender shall have determined in good faith that the adoption,
effectiveness, phase-in or applicability (excluding any adoption,
effectiveness, phase-in or applicability published as of the Second Restatement
Date and currently scheduled to take effect) after the date hereof of any law,
rule or regulation (or any provision thereof) regarding capital adequacy, or
any change therein or in the interpretation or administration thereof after the
date hereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender (or its applicable lending office) with any guideline, request or
directive regarding capital adequacy (whether or not having the force of law)
of any such governmental authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of, or with
reference to, such Lender’s Loans or Commitments or Letters of Credit or
participations therein or other obligations hereunder to a level below that which
such Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or compliance (taking
into consideration the policies of such Lender or such controlling corporation
with regard to capital adequacy), then from time to time, within fifteen
Business Days after receipt by Borrowers from such Lender of the statement
referred to in the next sentence, Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such controlling
corporation on an after-tax basis for such reduction; provided that a
Lender shall not be entitled to avail itself of the benefit of this
subsection 2.7A to the extent that any such reduction in return was
incurred more than six months prior to the time it first makes a demand
therefor, unless the circumstance giving rise to such reduced return arose or
became applicable retrospectively, in which case no time limit shall apply (provided
that such Lender has notified Borrowers within six months from the date such
circumstances arose or became applicable). 
Each Lender, upon determining in good faith that any additional amounts
will be payable pursuant to this subsection 2.7A, will give prompt written
notice thereof to Borrowers’ Agent (with a copy to Administrative Agent), which
notice shall set forth in reasonable detail the basis of the calculation of
such additional amounts.


 


B.    Compensation for Increased Costs and Taxes.  Subject to the provisions of
subsection 2.7C (which shall be conclusive with respect to the matters
covered thereby), in the event that any Lender shall determine in good faith
(which determination shall, absent manifest or demonstrable error, be final and
conclusive and binding upon all parties hereto) that any law, treaty or
governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or


 


111

















 


governmental rule, regulation or order), or any determination of a
court or governmental authority, in each case that is adopted after the date
hereof, or compliance by such Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other governmental
or quasi-governmental authority, including, without limitation, any agency of
the European Monetary Union (whether or not having the force of law):


 


(i)            subjects such Lender (or its
applicable lending office) to any additional Tax (other than any Excluded Tax
or Covered Tax subject to subsection 2.7C) with respect to this Agreement
or any of the Loans or any of its obligations hereunder, or changes the basis
of taxation of payments to such Lender (or its applicable lending office) of
principal, interest, fees or any other amount payable hereunder;


 


(ii)           imposes, modifies or holds applicable
any reserve (including without limitation any marginal, emergency,
supplemental, special or other reserve), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or other
liabilities in or for the account of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of such Lender
(other than any such reserve or other requirements with respect to Eurodollar
Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate);
or


 


(iii)          imposes any other condition on or
affecting such Lender (or its applicable lending office) or its obligations
hereunder or any applicable interbank market, other than with respect to Taxes;


 


and the result of any of the foregoing is to increase
the cost to such Lender of agreeing to make, making or maintaining Loans
hereunder or to reduce any amount received or receivable by such Lender (or its
applicable lending office) with respect thereto; then, in any such case,
Domestic Borrowers shall promptly pay (or cause the applicable Offshore
Borrower to promptly pay) to such Lender, upon written demand and receipt of
the written notice referred to below, such additional amount or amounts (in the
form of an increased rate of, or a different method of calculating, interest or
otherwise as such Lender in its sole discretion shall determine) as may be
necessary to compensate such Lender on an after-tax basis for any such
increased cost or reduction in amounts received or receivable hereunder; provided
that any increased cost arising as a result of any of the foregoing other than
in respect of Taxes shall apply only to Euro Rate Loans; provided  further
that a Lender shall not be entitled to avail itself of the benefit of this
subsection 2.7B to the extent that any such increased cost or reduction
was incurred more than six months prior to the time it gives notice to
Borrowers’ Agent (as provided in the next sentence) of the relevant
circumstance, unless such circumstance arose or became applicable
retrospectively, in which case no time limit shall apply (provided that
such Lender has notified Borrowers’ Agent within six months from the date such
circumstances arose or became applicable). 
Such Lender shall deliver to Borrowers’ Agent a written notice, setting
forth in reasonable detail the basis for calculating the additional amounts
owed to such Lender under this subsection 2.7B, which statement shall be
conclusive and binding upon all parties hereto absent manifest or demonstrable
error.  If any event described above
would otherwise result in any Lender (or its applicable lending office) being
subject to any additional Tax or other cost for which a Borrower would be
required to indemnify such Lender under the provisions of this


 


112

















 


subsection 2.7, then such Lender shall use its reasonable efforts
to avoid the imposition of such Taxes or other costs if doing so would not, in
the reasonable judgment of such Lender, be otherwise adverse to such Lender.


 


C.    Withholding of Taxes.


 


(i)            Payments to Be Free and Clear.  Except to the extent required by law, all
sums payable by any Borrower under this Agreement and the other Loan Documents
shall be paid free and clear of and without any deduction or withholding on
account of any Covered Tax imposed, levied, collected, withheld or assessed by
or within the United States of America or any political subdivision in or of
the United States of America or any other jurisdiction from or to which a
payment is made by or on behalf of such Borrower or in respect of any
participation by any Lender in any Obligation or by any federation or organization
of which the United States of America or any such jurisdiction is a member at
the time of payment.


 


(ii)           Withholding in respect of Payments.  If any Borrower or any other Person is
required by law to make any deduction or withholding on account of any Tax from
any sum paid or payable by such Borrower or other Person to Administrative
Agent or any Lender under any of the Loan Documents:


 


(a)   such
Borrower shall notify Administrative Agent of any such requirement or any
change in any such requirement as soon as such Borrower becomes aware of it;


 


(b)   such
Borrower shall pay any such Tax before the date on which penalties attach
thereto, such payment to be made (if the liability to pay is imposed on a
Borrower) for its own account or (if that liability is imposed on
Administrative Agent or such Lender, as the case may be) on behalf of and in
the name of Administrative Agent or such Lender;


 


(c)   (1) with
respect to any Borrower other than an Australian Offshore Borrower, in the
event such Tax is a Covered Tax, the sum payable by such Borrower in respect of
which the relevant deduction, withholding or payment is required shall be
increased to the extent necessary to ensure that, after the making of that
deduction, withholding or payment, Administrative Agent or such Lender, as the
case may be, receives on the due date and retains (free from any liability in
respect of any such deduction, withholding or payment) a net sum equal to what
it would have received and so retained had no such deduction, withholding or
payment in respect of Covered Taxes been required or made; and (2) solely with
respect to any Australian Offshore Borrower and amounts payable thereby, in the
event such Tax is a Covered Tax, such Australian Offshore Borrower shall pay an
additional amount by way of indemnity so that the Administrative Agent or such
Lender, as the case may be, receives on the due date and retains (free and
clear of any Tax on such additional amount) the full amount it would have
received and so retained and had no such deduction, withholding or payment in
respect of Covered Taxes been required or made; each Australian


 


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Borrower (y) acknowledges that its indemnity under paragraph (c) is a
separate and independent obligation from its obligation to pay interest in
respect of the Tranche A1 Term Loans and Australian Offshore Revolving Loans,
and is not discharged by reason of its withholding amounts on account of
Australian withholding tax and remitting those amounts to the Australian
taxation authorities, and (z) subject to subsection 2.7C(iii) below,
waives any right which it may have (whether under statute or otherwise) to be
reimbursed by any Lender or Agent for any amounts which it may from time to
time pay under that indemnity; and


 


(d)   within 30
days after paying any sum from which it is required by law to make any
deduction or withholding, and within 30 days after the due date of payment of
any Tax which it is required by clause (b) above to pay, such Borrower shall
deliver to Administrative Agent evidence reasonably satisfactory to the other
affected parties of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other authority;


 


The provisions of this
subsection 2.7C(ii) apply to any Australian interest withholding tax
(including fines and penalties), whether:


 


(1)                                  deducted
or remitted by an Australian Offshore Borrower, or


 


(2)                                  otherwise
recovered by the Australian taxation authorities from an Australian Offshore
Borrower, or


 


(3)                                  paid
directly by a Lender to the Australian taxation authorities, or


 


(4)                                  recovered
by the Australian taxation authorities either directly from a Lender or from
amounts payable by a Person in Australia to a Lender.


 


(iii)          Tax Refund.  If any Borrower determines in good faith
that a reasonable basis exists for contesting a Covered Tax, the relevant
Lender or Tax Transferee or Administrative Agent, as applicable, shall
cooperate with such Borrower (but shall have no obligation to disclose any confidential
information, unless arrangements satisfactory to the relevant Lender have been
made to preserve the confidential nature of such information) in challenging
such Tax at such Borrower’s expense if requested by such Borrower (it being
understood and agreed that none of Administrative Agent or any Lender shall
have any obligation to contest, or any responsibility for contesting, any
Tax).  If a Lender shall become aware
that it is entitled to receive a refund (whether by way of a direct payment or
by offset) in respect of a Covered Tax paid by a Borrower, it shall promptly
notify such Borrower of the availability of such refund (unless it was made
aware of such refund by a Borrower) and shall, within 30 days after the receipt
of a request from such Borrower, apply for such refund at such Borrower’s sole
expense.  If any Lender, Tax Transferee
or Administrative Agent, as applicable, receives a refund (whether by way of a
direct payment or by offset) of any Covered Tax for which a payment has been
made pursuant to this subsection 2.7C or subsection 2.7B which, in
the reasonable good faith judgment of such Lender, Tax


 


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Transferee or
Administrative Agent, as the case may be, is allocable to such payment made
under this subsection 2.7C or subsection 2.7B, the amount of such
refund (together with any interest received thereon) shall be paid to such
Borrower to the extent payment has been made in full as and when required
pursuant to this subsection 2.7C or subsection 2.7B.


 


(iv)          Tax Certificates.  (1) Each Lender with Revolving Loan
Commitments, Tranche B1 Term Loans, Domestic Tranche C Term Loan Commitments,
Domestic Tranche C Term Loans, Tranche D Term Loan Commitments or Tranche D
Term Loans that is organized under the laws of any jurisdiction other than the
United States of America or any state or other political subdivision thereof
shall deliver to Administrative Agent for transmission to Domestic Borrowers,
on or prior to the Restatement Date (in the case of each Lender listed on the
signature pages hereof) or on the date of the Assignment and Acceptance
pursuant to which it becomes a Lender (in the case of each other Lender), and
at such other times as may be necessary in the determination of Borrowers’ Agent
or Administrative Agent (each in the reasonable exercise of its discretion),
such certificates, documents or other evidence, properly and accurately
completed and duly executed by such Lender (including, without limitation,
Internal Revenue Service Form W-8BEN or Form W-8ECI or any other certificate or
statement of exemption required by Treasury Regulations
Section 1.1441-4(a) or Section 1.1441-6(c) or any successor thereto)
to establish that such Lender is not subject to deduction or withholding of
United States federal income tax under Section 1441 or 1442 of the
Internal Revenue Code or otherwise (or under any comparable provisions of any
successor statute) with respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of the Loan Documents and
shall deliver to the appropriate Person upon request such other certificates,
documents or other evidence as may be required from time to time, properly
completed and duly executed by such Lender, to establish the basis for any
applicable exemption from or reduction of Taxes with respect to any payments to
such Lender of principal, interest, fees, commissions or any other amount
payable under any of the Loan Documents, (2) each Lender (other than a
Person exempt from Taxes with respect to any payments to such Lender of
interest payable by United Glass under the Loan Documents) shall deliver to the
appropriate Person such application forms, certificates, documents or other
evidence as may be reasonably requested from time to time by United Glass,
properly completed and duly executed by such Lender, to enable United Glass, to
the extent permitted by applicable law, to be able to pay interest on the UK
Revolving Loans of such Lender without withholding or deduction, or at reduced
rates of withholding or deduction, for or on account of any UK income tax and
(3) each Lender with French Tranche C1 Term Loan Exposure, French Tranche C2
Term Loan Exposure or French Tranche C3 Term Loan Exposure shall deliver to the
appropriate Person such application forms, certificates, documents or other
evidence as may be reasonably requested from time to time by BSN, properly
completed and duly executed by such Lender, to enable BSN, to the extent
permitted by applicable law, to be able to pay interest on the French Tranche
C1 Term Loans, French Tranche C2 Term Loans and/or French Tranche C3 Term Loans
of such Lender without withholding or deduction, or at reduced rates of
withholding or deduction, for or on account of any French income tax.


 


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Each
Arranger will cooperate with the Australian Offshore Borrowers, and it will do
or provide such other things as may be reasonably requested from time to time
by the Australian Offshore Borrowers, to demonstrate that the requirements of
section 128F of the Income Tax Assessment Act of 1936 (Commonwealth of
Australia) were satisfied in relation to the respective issues of “Australian
Loans” and the “Australian Loan Notes” under the Original Credit Agreement, the
Tranche A Term Loans and the notes evidencing such “Tranche A Term Loans”
under the First Amended and Restated Credit Agreement as in effect prior to the
First Amendment, and the Tranche A1 Term Loans, the Australian Revolving
Loans, the Tranche A1 Term Loan Notes, and the Australian Revolving Loan
Notes under this Agreement so that payment of interest under each of the
above-mentioned Loans will be exempt from withholding tax under the Income Tax
Assessment Act of 1936 (Commonwealth of Australia).  Non-compliance by either Arranger with this paragraph shall not
relieve the Australian Offshore Borrowers of their obligations under
subsections 2.7C(i) or 2.7C(ii).


 


D.    Replacement of Lender. 
If any Borrower receives a notice pursuant to subsections 2.7A, 2.7B or
2.7C, so long as no Event of Default shall have occurred and be continuing and
such Borrower has obtained a commitment from another Lender or an Eligible
Assignee to become a Lender for all purposes under this Agreement and to assume
all obligations of the Lender to be replaced, such Borrower may require the
Lender giving such notice to assign all of its Loans, its Commitments and its
other Obligations to such other Lender or Eligible Assignee, at par, pursuant
to and in accordance with the provisions of subsection 10.2B; provided
that, prior to or concurrently with such replacement (i) the applicable
Borrower has paid or caused to be paid to the Lender giving such notice all
principal, interest, fees and other amounts due and owing to such Lender
hereunder through such date of replacement (including any amounts payable under
subsection 2.6E), (ii) the applicable Borrower has paid to Administrative
Agent the processing and recordation fee required to be paid pursuant to
subsection 10.2B(i); and (iii) all of the requirements for such
assignment contained in subsection 10.2B, including, without limitation,
the receipt by Administrative Agent of an executed Assignment and Acceptance
and other supporting documents, have been fulfilled.


 


2.8          Letters
of Credit


 


A.    Letters of Credit. 
Subject to the terms and conditions of this Agreement and in reliance
upon the representations and warranties of Company and Borrowers set forth
herein, Borrowers’ Agent may request on behalf and for the account of any
Borrower (other than Avir, United Glass, BSN or O-I Canada; provided, however,
Borrowers’ Agent may request that a Letter of Credit be issued for the account
of a Domestic Borrower which will support an obligation of any such Borrower),
in accordance with the provisions of this subsection 2.8A, in addition to
requesting that Lenders make Loans pursuant to subsection 2.1, that on and
after the Second Restatement Date one or more Issuing Lenders issue, and one or
more Issuing Lenders will issue, subject to the terms and conditions hereof,
Standby Letters of Credit and Commercial Letters of Credit for the account of
such Borrower.  Issuances of Letters of
Credit shall be subject to the following limitations:


 


(i)            Borrowers’ Agent shall not request
that any Lender issue, and no Lender shall have any obligation hereunder to
issue, any Letter of Credit if, after


 


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giving effect to
such issuance, the Total Utilization of Revolving Loan Commitments would exceed
the Revolving Loan Commitments then in effect;


 


(ii)           Borrowers’ Agent shall not request
that any Lender issue and no Lender shall have any obligation hereunder to
issue, any Letter of Credit for the account of any Offshore Borrower if, after
giving effect to such issuance (A) the Total Utilization of Revolving Loan
Commitments would exceed the Revolving Loan Commitments then in effect; (B) (i)
the Total Utilization of UK Revolving Loan Commitments would exceed the UK
Revolving Loan Commitments then in effect; (ii) the Total Utilization of
Australian Revolving Loan Commitments would exceed the Australian Revolving
Loan Commitments then in effect; (iii) the Total Utilization of Canadian
Revolving Loan Commitments would exceed the Canadian Revolving Commitments then
in effect or (iv) the Total Utilization of Italian Revolving Loan Commitments
would exceed the Italian Revolving Loan Commitments then in effect; or (C) the
sum of the Total Utilization of UK Revolving Loan Commitments, plus the
Total Utilization of Italian Revolving Loan Commitments plus the Total
Utilization of Australian Revolving Loan Commitments plus the Total
Utilization of the Canadian Revolving Loan Commitments would exceed the
Aggregate Offshore Sublimit;


 


(iii)          In no event shall any Issuing Lender
issue (w) any Letter of Credit having an expiration date later than ten
days prior to the Revolving Loan Commitment Termination Date; (x) subject
to the foregoing clause (w), any Standby Letter of Credit having an expiration
date more than one year after its date of issuance; provided that,
subject to the foregoing clause (w) and to subsection 2.8A(iv), this
clause (x) shall not prevent any Issuing Lender from issuing a Standby
Letter of Credit having an expiration date up to two years after its date of
issuance if such Standby Letter of Credit will be used by the applicable
Borrower in connection with, or in lieu of, posting an appeal bond; provided,
further that, subject to the foregoing clause (w), this clause (x) shall
not prevent any Issuing Lender from agreeing that a Standby Letter of Credit
will automatically be extended annually for a period not to exceed one year
unless such Issuing Lender gives notice that it will not extend; provided,
further that such Issuing Lender shall deliver a written notice to
Administrative Agent setting forth the last day on which such Issuing Lender
may give notice that it will not extend (the “Notification
Date” with respect to such Standby Letter of Credit) at least ten
Business Days prior to such Notification Date; and provided, further
that, unless Requisite Lenders otherwise consent, such Issuing Lender shall
give notice that it will not extend if it has knowledge that an Event of
Default has occurred and is continuing on such Notification Date; or
(y) any Commercial Letter of Credit (1) having a tenor other than sight or
(2) having an expiration date which is more than 180 days after its date of
issuance or which is less than 30 days prior to the Revolving Loan Commitment
Termination Date or which is otherwise unacceptable to such Issuing Lender in
its reasonable discretion;


 


(iv)          Borrowers’ Agent shall not request
that any Issuing Lender issue, and no Lender shall have any obligation
hereunder to issue, any Standby Letter of Credit having an expiration date more
than one year after its date of issuance which will be used by a Borrower in
connection with, or in lieu of, posting an appeal bond if, after


 


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giving effect to
such issuance, the Letter of Credit Usage in respect of all such Standby
Letters of Credit would exceed $25,000,000;


 


(v)           Borrowers’ Agent shall not request
that any Issuing Lender issue, and no Lender shall have any obligation
hereunder to issue, any Standby Letter of Credit of the type described in clause
(i), (v), (vi) or (ix) of the definition thereof for the purpose of supporting
Indebtedness of Holdings, if after giving effect to such issuance, the Letter
of Credit Usage in respect of all such Standby Letters of Credit would exceed
$100,000,000; and


 


(vi)          Borrowers’ Agent shall not request
that any Issuing Lender issue, and no Lender shall have any obligation
hereunder to issue, any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage in respect of all Letters of Credit would
exceed, prior to the BSN Acquisition Closing Date, $300,000,000 and thereafter,
$350,000,000.


 


The issuance of any Letter of Credit in accordance
with the provisions of this subsection 2.8 shall be given effect in the
calculation of the Total Utilization of Revolving Loan Commitments and shall
require the satisfaction of each condition set forth in subsections 3.1, 3.2
and 3.5.


 


Domestic Borrowers, ACI and Lenders agree that any
Letter of Credit issued by any Issuing Lender as a “Letter of Credit” (as
defined in the Original Credit Agreement or First Amended and Restated Credit
Agreement, as applicable) pursuant to the Original Credit Agreement or the
First Amended and Restated Credit Agreement and outstanding as of the Second
Restatement Date (each such letter of credit being referred to herein as an “Existing
Letter of Credit”) shall for all purposes of this Agreement be a
Letter of Credit outstanding under this Agreement as of the Second Restatement
Date for the joint and several account of Domestic Borrowers (in the case of
any Existing Letter of Credit issued for the account of either Domestic
Borrower) or ACI (in the case of any Existing Letter of Credit issued for the
account of ACI) under and pursuant to the terms of this Agreement, and all fees
payable under subsection 2.8F with respect to such Existing Letters of
Credit shall accrue from and after the Second Restatement Date.  All Existing Letters of Credit as of the
date hereof are described in Schedule D annexed hereto.


 


Immediately upon the issuance of any Letter of Credit
by an Issuing Lender, each Lender other than such Issuing Lender shall be
deemed to, and hereby agrees to, have irrevocably purchased from such Issuing
Lender a participation in such Letter of Credit and drawings thereunder in an
amount equal to such Lender’s Pro Rata Share of the maximum amount which is or
at any time may become available to be drawn thereunder.


 


B.    Notice of Request for Issuance.  Whenever a Borrower desires the issuance of a Letter of Credit,
it shall cause Borrowers’ Agent to deliver to Administrative Agent and to the
Lender which the Borrowers’ Agent has requested to issue such Letter of Credit
a Notice of Request for Issuance of Letter of Credit no later than 1:00 P.M.
(New York time) at least five Business Days, or such shorter period as may be
agreed to by an Issuing Lender in any particular instance, in advance of the
proposed date of issuance.  The Notice
of Request for Issuance of


 


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Letter of Credit
shall specify (i) the Borrower for whose account the Letter of Credit has been
requested in accordance with subsection 2.8A, (ii) the proposed date of
issuance (which shall be a business day under the laws of the jurisdiction of
the Issuing Lender), (iii) the face amount of the Letter of Credit, (iv)
in the case of a Letter of Credit which the Borrowers’ Agent requests to be
denominated in a currency other than Dollars, the currency in which the
Borrowers’ Agent requests such Letter of Credit to be issued, (v) the
expiration date of the Letter of Credit, (vi) the name and address of the
beneficiary, and (vii) the Lender which the Borrowers’ Agent has requested
to issue such Letter of Credit; and such Notice of Request for Issuance of
Letter of Credit shall further certify that subsection 3.4B is satisfied
on and as of the date of issuance of such Letter of Credit.  As soon as practicable after delivery of
such notice with respect to any Letter of Credit, the Issuing Lender for such
Letter of Credit shall be determined as provided in
subsection 2.8C(ii).  Prior to the
date of issuance, the Borrowers’ Agent shall specify a precise description of
the documents and the verbatim text of any certificate to be presented by the
beneficiary which, if presented by the beneficiary prior to the expiration date
of the Letter of Credit, would require the Issuing Lender to make payment under
the Letter of Credit; provided that the Issuing Lender, in its sole
reasonable judgment, may require changes in any such documents and
certificates.  In determining whether to
pay under any Letter of Credit, the Issuing Lender shall be responsible only to
determine that the documents and certificates required to be delivered under
that Letter of Credit have been delivered and that they comply on their face
with the requirements of that Letter of Credit.


 


C.    Determination of Issuing Lender.


 


(i)            Borrowers’ Agent may request any
Revolving Lender to issue a Letter of Credit and, upon receipt by such Lender
of a notice from Borrowers’ Agent pursuant to subsection 2.8B requesting
the issuance of a Letter of Credit, such Lender shall promptly notify the
Borrowers’ Agent and Administrative Agent whether or not, in its sole
discretion, it has elected to issue such Letter of Credit.  If such Lender elects to issue such Letter
of Credit, such Lender shall be the Issuing Lender with respect thereto.  If such Lender declines to issue such Letter
of Credit, the Borrowers’ Agent may request any other Revolving Lender to issue
such Letter of Credit, by delivering the notice described in
subsection 2.8B to such Lender.  In
the event that all Lenders shall have declined to issue such Letter of Credit,
Administrative Agent shall be obligated to issue the Letter of Credit requested
by Borrowers’ Agent and shall be the Issuing Lender with respect to such Letter
of Credit; provided that Administrative Agent shall not be obligated to issue
any Letter of Credit denominated in a foreign currency which in the reasonable
judgment of Administrative Agent is not readily and freely available.


 


(ii)           Each Issuing Lender which elects to
issue or amend a Letter of Credit shall promptly give written notice to
Administrative Agent, and the applicable Borrower of the information required
under clauses (i)-(v) of subsection 2.8B relating to such Letter of Credit
and shall provide a copy of such Letter of Credit (as amended, if applicable)
to Administrative Agent, and the applicable Borrower.  Promptly after receipt of such notice, Administrative Agent shall
notify each Revolving Lender (other than the Issuing Lender) of the amount of
its respective participation therein, determined in accordance with
subsection 2.8A.


 


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(iii)          In the event that Administrative Agent
is not the Issuing Lender in respect of a Commercial Letter of Credit, the
Issuing Lender of such Commercial Letter of Credit will deliver to
Administrative Agent, promptly on the first Business Day of each week such
Commercial Letter of Credit is outstanding, a report setting forth the daily
aggregate outstandings for the previous week under such Commercial Letter of
Credit.  Administrative Agent shall
deliver to each Lender, promptly after the end of each calendar month and upon
each payment by Administrative Agent to Lenders of the letter of credit fees
described in subsection 2.8F(1)(b), a report setting forth, for the period
from the date of the last such report, the daily aggregate amount available to
be drawn (to the extent such amounts have been reported to Administrative Agent
pursuant to the immediately preceding sentence) under each Commercial Letter of
Credit issued by each Issuing Lender.


 


D.    Payment of Amounts Drawn Under Letters of Credit.  In the event of any drawing under any Letter
of Credit by the beneficiary thereof, the Issuing Lender shall notify the
Borrower at whose request the Letter of Credit was issued and Administrative
Agent on or before the date which is two Business Days prior to the date on
which such Issuing Lender intends to honor such drawing (unless such Letter of
Credit by its terms requires the Issuing Lender to honor a drawing on or prior
to the second Business Day following such drawing, in which case the Issuing
Lender shall notify the Borrower at whose request the Letter of Credit was
issued and Administrative Agent as soon as reasonably practicable but in any
event on or before the date on which such Issuing Lender intends to honor such
drawing), and the Borrower at whose request the Letter of Credit was issued
shall reimburse such Issuing Lender on the date on which such drawing is
honored, in each case in an amount in either the currency in which such Letter
of Credit is denominated or in Dollars and in Same Day Funds equal to the
amount of such drawing (which amount, in the case of a reimbursement in Dollars
of a drawing under a Letter of Credit which is denominated in a currency other
than Dollars, shall be calculated by reference to the applicable Exchange
Rate); provided  that, anything contained in this Agreement to the
contrary notwithstanding, unless the Borrower at whose request the Letter of
Credit was issued shall have notified Administrative Agent and such Issuing
Lender prior to 11:00 a.m. (New York time) on the Business Day immediately
prior to the date of such drawing that the Borrower at whose request the Letter
of Credit was issued intends to reimburse such Issuing Lender for the amount of
such drawing with funds other than the proceeds of Loans, the Borrower at whose
request the Letter of Credit was issued shall be deemed to have given a Notice
of Borrowing to Administrative Agent requesting Lenders to make Revolving Loans
(or Offshore Revolving Loans, as applicable) to such Borrower which are Base
Rate Loans, on the date on which such drawing is honored, in an amount in
Dollars equal to the amount of such honored drawing (which amount, in the case
of a drawing under a Letter of Credit which is denominated in a currency other
than Dollars, shall be calculated by reference to the applicable Exchange Rate
on the date such drawing is honored), and subject to satisfaction or waiver of
the conditions specified in subsection 3.4B, Lenders shall, on the date of
such requested borrowing, make Revolving Loans (or Offshore Revolving Loans, as
applicable) to such Borrower which are Base Rate Loans in the amount of such
drawing as aforesaid, the proceeds of which shall be applied directly by
Administrative Agent to reimburse such Issuing Lender for the amount of such
drawing, and if for any reason proceeds of Revolving Loans (or Offshore
Revolving Loans, as applicable) are not received by such Issuing Lender on such
date in an amount equal to the amount of such drawing, Borrowers shall
reimburse such Issuing Lender in Dollars, on the


 


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business day (under the laws of the jurisdiction of such Issuing
Lender) immediately following the date on which reimbursement of such drawing
is required as provided above, in an amount in Same Day Funds equal to the
excess of the amount of such drawing over the amount of such Revolving Loans,
if any, which are so received, plus accrued interest on such amount at the rate
set forth in subsection 2.8F(2).


 


E.     Payment by Lenders with Respect to Letters of Credit.  In the event that Borrowers shall fail to
reimburse an Issuing Lender as provided in subsection 2.8D in either the
currency in which such Letter of Credit is denominated or in an amount in
Dollars (calculated, in the case of a drawing under a Letter of Credit
denominated in a currency other than Dollars, by reference to the applicable
Exchange Rate on the date such drawing is honored) equal to the amount of any
drawing honored by such Issuing Lender under a Letter of Credit issued by it,
such Issuing Lender shall promptly notify Administrative Agent of the
unreimbursed amount of such drawing and Administrative Agent shall promptly
notify each Revolving Lender of such unreimbursed amount and of such Lender’s
respective participation therein pursuant to this subsection 2.8E.  Each such Lender shall make available to
such Issuing Lender an amount equal to its respective participation, in Dollars
and in Same Day Funds, at the office of such Issuing Lender specified in such
notice, not later than 1:00 P.M. (New York time) on the business day (under the
laws of the jurisdiction of such Issuing Lender) after the date notified by
such Issuing Lender (provided, that, such Issuing Lender may
request that such purchase of participations be transacted through
Administrative Agent).  In the event
that any Revolving Lender fails to make available to such Issuing Lender the
amount of such Lender’s required participation in such Letter of Credit as
provided in this subsection 2.8E, such Issuing Lender shall be entitled to
recover such amount on demand from such Lender together with interest at the
customary rate set by such Issuing Lender for the correction of errors among
banks for three Business Days and thereafter at the Base Rate plus the
Applicable Base Rate Margin.  Nothing in
this subsection 2.8 shall be deemed to prejudice the right of any Lender
to recover from such Issuing Lender any amounts made available by such Lender
to such Issuing Lender pursuant to this subsection 2.8E in the event that
it is determined by a court of competent jurisdiction that the payment with
respect to a Letter of Credit by such Issuing Lender in respect of which
payment was made by such Lender constituted gross negligence or willful
misconduct on the part of such Issuing Lender. 
Each Issuing Lender shall distribute to each other Lender which has paid
all amounts payable by it under this subsection 2.8E with respect to any
Letter of Credit issued by such Issuing Lender such other Lender’s Pro Rata
Share of all payments received by such Issuing Lender from Borrowers in
reimbursement of drawings honored by such Issuing Lender under such Letter of
Credit when such payments are received. 
Notwithstanding subsection 2.8D, any reimbursements by Borrowers of
amounts drawn on any Letter of Credit after participations in such unreimbursed
drawing have been purchased by Lenders under this subsection 2.8E shall be made
in Dollars.


 


F.     Compensation. 
Borrowers agree to pay the following amounts to each Issuing Lender for
its own account with respect to Letters of Credit issued by it (with respect to
paragraphs (1)(a) and (3) below) and to Administrative Agent for the account of
each Revolving Lender (with respect to paragraphs 1(b) and (2) below) with
respect to all Letters of Credit:


 


(1)   with
respect to each Letter of Credit, (a) an administrative fee equal to 0.25%
per annum of the maximum amount available from time to time to be drawn under


 


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such Letter of
Credit (but in no event less than $250 per annum), payable in arrears on and to
(but excluding) each January 1, April 1, July 1 and October 1 of each year
and calculated on the basis of a 360-day year and the actual number of days
elapsed; and (b) a Letter of Credit Fee payable to the Lenders equal to (x) the
Applicable Euro Margin as in effect for Revolving Loans from time to time
multiplied by (y) the maximum amount available from time to time to be
drawn under such Letter of Credit, per annum payable in arrears on and to (but
excluding) each January 1, April 1, July 1 and October 1 of each year and
calculated on the basis of a 360-day year and the actual number of days elapsed
which Letter of Credit Fee shall be shared by all Revolving Lenders in
accordance with their respective Pro Rata Shares;


 


(2)   with
respect to drawings made under any Letter of Credit, interest, payable on
demand, on the amount paid by such Issuing Lender in respect of each such
drawing from the date of payment of the drawing through the date such amount is
reimbursed by Borrowers (including any such reimbursement out of the proceeds
of Loans pursuant to subsection 2.8D) at a rate equal to the sum of the
Base Rate plus the Applicable Base Rate Margin plus 2.00% per annum; and


 


(3)   with
respect to the issuance, amendment or transfer of, or payment of a drawing
under, each Letter of Credit, documentary and processing charges in accordance
with such Issuing Lender’s standard schedule for such charges in effect at the
time of such issuance, amendment, transfer or payment, as the case may be.


 


For purposes of calculating any fees payable under
clause (1) of this subsection 2.8F, (a) the maximum amount available
to be drawn under any Letter of Credit as of any date of determination shall be
determined as of the close of business on such date and (b) any amount described
in such clauses which is denominated in a currency other than Dollars shall be
valued based on the applicable Exchange Rate for such currency as of the
applicable date of determination. 
Promptly upon receipt by Administrative Agent of any amount described in
clause (1)(b) of this subsection 2.8F, Administrative Agent shall
distribute to each Revolving Lender its Pro Rata Share of such amount.  In the event Lenders have purchased
participations in a Letter of Credit pursuant to subsection 2.8E, the
Issuing Lender in respect of such Letter of Credit may request that interest
payments with respect thereto to participants be administered by and through
the Administrative Agent.


 


G.    Obligations Absolute. 
The obligation of Borrowers to reimburse each Issuing Lender for drawings
made under the Letters of Credit issued by it and the obligations of Lenders
under subsection 2.8E shall be unconditional and irrevocable and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances including, without limitation, any of the following
circumstances:


 


(1)   any lack of
validity or enforceability of any Letter of Credit;


 


(2)   the
existence of any claim, set-off, defense or other right which any Loan Party
may have at any time against a beneficiary or any transferee of any Letter of
Credit (or any persons or entities for whom any such transferee may be acting),
such Issuing Lender, any Lender or any other Person, whether in connection with
this


 


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Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between any Borrower or one
of its Subsidiaries and the beneficiary for which the Letter of Credit was
procured);


 


(3)   any draft,
demand, certificate or any other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;


 


(4)   payment by
such Issuing Lender under any Letter of Credit against presentation of a
demand, draft or certificate or other document which does not substantially
comply with the terms of such Letter of Credit, provided that such payment does
not constitute gross negligence or willful misconduct of such Issuing Lender as
determined by a court of competent jurisdiction;


 


(5)   any other
circumstance or happening whatsoever, which is similar to any of the foregoing;
or


 


(6)   the fact
that an Event of Default or a Potential Event of Default shall have occurred
and be continuing.


 


H.    Additional Payments. 
If by reason of (a) any change after the date hereof in applicable
law, regulation, rule, decree or regulatory requirement or any change after the
date hereof in the interpretation or application by any judicial or regulatory
authority of any law, regulation, rule, decree or regulatory requirement (in
each case other than any law, regulation, rule, decree or regulatory
requirement regarding capital adequacy) or (b) compliance by any Issuing
Lender or any Lender with any direction, request or requirement (whether or not
having the force of law) of any governmental or monetary authority imposed
after the date hereof including, without limitation, Regulation D (but
excluding, however, any direction, request or requirement regarding capital
adequacy):


 


(i)            such Issuing Lender or any Lender
shall be subject to any tax, levy, charge or withholding of any nature or to
any variation thereof or to any penalty with respect to the maintenance or
fulfillment of its obligations under this subsection 2.8, whether directly
or by such being imposed on or suffered by such Issuing Lender or any Lender;


 


(ii)           any reserve, deposit or similar
requirement is or shall be applicable, imposed or modified in respect of any
Letters of Credit issued by such Issuing Lender or participations therein
purchased by any Lender; or


 


(iii)          there shall be imposed on such Issuing
Lender or any Lender any other condition regarding this subsection 2.8,
any Letter of Credit or any participation therein;


 


and the result of the foregoing is to directly or
indirectly increase the cost to such Issuing Lender or any Lender of issuing,
making or maintaining any Letter of Credit or of purchasing or maintaining any
participation therein, or to reduce the amount receivable in respect thereof by
such Issuing Lender or any Lender, then and in any such case such Issuing
Lender or such


 


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Lender may, at any time within six months after the
additional cost is incurred or the amount received is reduced, notify
Borrowers, and Borrowers shall pay within ten days of receipt of such notice
such amounts as such Issuing Lender or such Lender may specify to be necessary
to compensate such Issuing Lender or such Lender for such additional cost or
reduced receipt, together with interest on such amount from 10 days after the
date of such demand until payment in full thereof at a rate equal at all times
to the Base Rate per annum.  The
determination by such Issuing Lender or any Lender, as the case may be, of any
amount due pursuant to this subsection 2.8H as set forth in a certificate
setting forth the calculation thereof in reasonable detail, shall, in the
absence of manifest or demonstrable error, be final and conclusive and binding
on all of the parties hereto.


 


I.      Indemnification; Nature of Issuing Lender’s Duties.  In addition to amounts payable as elsewhere
provided in this subsection 2.8, (i) Domestic Borrowers hereby agree to
protect, indemnify, pay and save each Issuing Lender harmless from and against
any and all claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys’ fees and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (A) the issuance of the Letters of Credit for the
account of any Domestic Borrower, other than as a result of the gross
negligence or willful misconduct of such Issuing Lender as determined by a
court of competent jurisdiction or (B) the failure of such Issuing Lender
to honor a drawing under any Letter of Credit for the account of any Domestic
Borrower as a result of any act or omission, whether rightful or wrongful, of
any present or future de jure or de facto government or governmental authority
(all such acts or omissions herein called “Government Acts”); and (ii) the
Offshore Borrowers hereby agree to protect, indemnify, pay and save each
Issuing Lender harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
attorneys’ fees and allocated costs of internal counsel) which such Issuing
Lender may incur or be subject to as a consequence, direct or indirect, of (A)
the issuance of any Letter of Credit for the account of any Offshore Borrower,
other than as a result of the gross negligence or willful misconduct of such
Issuing Lender as determined by a court of competent jurisdiction or (B) the
failure of such Issuing Lender to honor a drawing under any Letter of Credit
for the account of any Offshore Borrower as a result of Government Acts.


 


Subject to the preceding paragraph, as between each
relevant Borrower and each Issuing Lender, such Borrower assumes all risks of
the acts and omissions of, or misuse of the Letters of Credit issued by such
Issuing Lender on account of that Borrower by, the respective beneficiaries of
such Letters of Credit.  In furtherance
and not in limitation of the foregoing, such Issuing Lender shall not be
responsible: (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of such Letters of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for failure of the
beneficiary of any such Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise; (v) for errors in
interpretation of technical terms; (vi) for any loss or delay in the
transmission or otherwise of any document


 


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required in order
to make a drawing under any such Letter of Credit or of the proceeds thereof;
(vii) for the misapplication by the beneficiary of any such Letter of
Credit of the proceeds of any drawing under such Letter of Credit; and
(viii) for any consequences arising from causes beyond the control of such
Issuing Lender, including, without limitation, any Government Acts.  None of the above shall affect, impair, or
prevent the vesting of any of such Issuing Lender’s rights or powers hereunder;
provided, however, that such Issuing Lender shall be responsible
for any payment it makes under any Letter of Credit against presentation of a
demand, draft or certificate or other document which does not substantially
comply with the terms of such Letter of Credit in the event such payment
constitutes gross negligence or willful misconduct of such Issuing Lender as
determined by a court of competent jurisdiction.


 


In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or omitted by
any Issuing Lender under or in connection with the Letters of Credit issued by
it or the related certificates, if taken or omitted in good faith and in the
absence of gross negligence or willful misconduct, shall not put such Issuing
Lender under any resulting liability to Borrowers.


 


Notwithstanding anything to the contrary contained in
this subsection 2.8I, Borrowers shall have no obligation to indemnify any
Issuing Lender in respect of any liability incurred by such Issuing Lender
arising solely out of the gross negligence or willful misconduct of such
Issuing Lender, as determined by a court of competent jurisdiction, or out of
the wrongful dishonor by such Issuing Lender of proper demand for payment made
under the Letters of Credit issued by it.


 


J.     Computation of Interest. 
Interest payable pursuant to this subsection 2.8 shall be computed
on the basis of a 360-day year and the actual number of days elapsed in the
period during which it accrues.


 


2.9          Joint and Several Liability;
Contribution; O-I General as Borrowers’ Agent


 


A.    Joint and Several Liability; Cross Guaranty – Domestic
Borrowers.  The liabilities relating
to the Revolving Loans and the Revolving Loan Commitments shall be the joint
and several Obligations of each Domestic Borrower. The liability of  Owens-Brockway with respect to the Tranche
B1 Term Loans, Domestic Tranche C Term Loans and Tranche D Term Loans shall be
guaranteed by O-I Plastic under the Domestic Borrowers’ Guaranty.  The Obligations of and the Liens granted by
any such Domestic Borrower under the Loan Documents shall not be impaired or
released by any action or inaction on the part of any Agent or any Lender with
respect to any other Domestic Borrower, including any action or inaction which
would otherwise release a surety.  The
Obligations of each Domestic Borrower shall be limited in amount to an amount
not to exceed the maximum amount of obligations that can be made or assumed by
such Domestic Borrower without rendering such obligation made or assumed, as it
relates to such Domestic Borrower, void or voidable under applicable laws
relating to fraudulent conveyance, fraudulent transfer or other similar laws
affecting the rights of creditors generally.


 


B.    Contribution – Domestic Borrowers.  In order to provide for just and equitable
contribution among the Domestic Borrowers if any payment is made by a Domestic
Borrower (a


 


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“Domestic Funding Borrower”) in
discharging any of the Obligations of the other Domestic Borrower, that
Domestic Funding Borrower shall be entitled to a contribution from the other
Domestic Borrower for all payments, damages and expenses incurred by that
Domestic Funding Borrower in discharging the Obligations, in the manner and to
the extent required to allocate liabilities in an equitable manner among
Domestic Borrowers by the relative benefits received by Domestic
Borrowers.  If and to the extent that a
Domestic Funding Borrower makes any payment to any Lender or any other Person
in respect of the Obligations, any claim which said Funding Borrower may have
against the other Domestic Borrower by reason thereof shall be subject and
subordinate to the prior Cash payment in full to the Lenders of the
Obligations.  The parties hereto
acknowledge that the right to contribution hereunder shall constitute an asset
of the party to which such contribution is owing.  Notwithstanding any of the foregoing to the contrary, such
contribution arrangements shall not limit in any manner the joint and several
nature of the Obligations of the Domestic Borrowers, limit, release or
otherwise impair any rights of any Agent or any Lender under the Loan
Documents, or alter, limit or impair the obligation of each Domestic Borrower,
which is absolute and unconditional, to repay its Obligations.


 


C.    Joint and Several Liability – Australian Offshore Borrowers.  All liabilities and obligations in respect
of and relating to the Australian Revolving Loans shall be the joint and
several Obligations of each Australian Offshore Borrower.  The liability of ACI with respect to the
Tranche A1 Term Loan shall be guaranteed by O-I Australia under an Offshore
Guaranty.


 


D.    Contribution – Australian Offshore Borrowers.  In order to provide for just and equitable
contribution among the Australian Offshore Borrowers in Australia if any
payment is made by an Australian Offshore Borrower from Australia (an “Offshore Funding Australian Borrower”) in
discharging any of the Obligations of another Australian Offshore Borrower,
that Offshore Funding Australian Borrower shall be entitled to a contribution
from the such Australian Offshore Borrower for all payments, damages and
expenses incurred by that Offshore Funding Australian Borrower in discharging
Obligations on behalf of such other Australian Offshore Borrower, in the manner
and to the extent required to allocate liabilities in an equitable manner among
the Australian Offshore Borrowers by the relative benefits received by such Australian
Offshore Borrowers.  If and to the
extent that an Offshore Funding Australian Borrower makes any payment to any
Lender or any other Person in respect of the Obligations, any claim which said
Offshore Funding Australian Borrower may have against the other Australian
Offshore Borrower by reason thereof shall be subject and subordinate to the
prior Cash payment in full of the Obligations. 
The parties hereto acknowledge that the right to contribution hereunder
shall constitute an asset of the party to which such contribution is
owing.  Notwithstanding any of the
foregoing to the contrary, such contribution arrangements shall not limit in
any manner the joint and several nature of the Obligations of the Australian
Offshore Borrowers as described in clause C, above, limit, release or otherwise
impair any rights of any Agent or any Lender under the Loan Documents, or
alter, limit or impair the obligation of each Australian Offshore Borrower,
which is absolute and unconditional, to repay its Obligations.


 


E.     O-I General as Borrowers’ Agent.  O-I General is hereby appointed Borrowers’
agent hereunder by each Borrower (in such capacity “Borrowers’
Agent”).  Each Borrower
hereby authorizes, directs and empowers O-I General to act for and in the name
of such Borrower and as its agent hereunder and under the other instruments and
agreements referred to herein.  O-I
General hereby accepts each such appointment. 
Each Borrower hereby


 


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irrevocably authorizes O-I General to take such action
on such Borrower’s behalf and to exercise such powers hereunder, under the
other Loan Documents, and under the other agreements and instruments referred
to herein or therein as may be contemplated being taken or exercised by such Borrower
by the terms hereof and thereof, together with such powers as may be incidental
thereto, including, without limitation, to borrow hereunder and deliver Notices
of Borrowing, Notices of Conversion/Continuation, Notices of Issuance of Letter
of Credit and Compliance Certificates hereunder, to convert, continue, repay or
prepay Loans made hereunder, to reduce the Commitments, to pay interest, fees,
costs and expenses incurred in connection with the Loans, this Agreement, the
other Loan Documents, and the other agreements and instruments referred to
herein or therein, to receive from or deliver to any Agent any notices,
statements, reports, certificates or other documents or instruments
contemplated herein, in the other Loan Documents or in any other agreement or
instrument referred to herein and to receive from or transmit to any Agent any
Loan proceeds or payments.  Each Agent
and each Lender shall be entitled to rely on the appointment and authorization
of O-I General with respect to all matters related to this Agreement, the other
Loan Documents and any other agreements or instruments referred to herein or
therein whether or not any particular provision hereof or thereof specifies
that such matters may or shall be undertaken by Borrowers’ Agent.  In reliance hereon, each Agent and each
Lender may deal with O-I General alone with the same effect as if such Agent or
such Lender had dealt with each Borrower separately and individually.


 


2.10        Collection Allocation Mechanism


 


A.    Implementation of Collection Allocation Mechanism.  On the CAM Exchange Date, (i) the
Commitments shall terminate as provided in Section 7, (ii) all Loans
denominated in an Offshore Currency shall be converted into, and all such
amounts due thereunder shall accrue and be payable in, Dollars at the
applicable Spot Rate on such date, and on and after such date the interest rate
applicable to all such Loans shall be the rate applicable to overdue Loans of
the relevant type that are Base Rate Loans hereunder, (iii) the Lenders shall
automatically and without further action (and without regard to the provisions
of subsection 10.2) be deemed to have exchanged interests in the Loans
constituting Specified Obligations (and as more particularly described in
clauses (iv) and (v) of this subclause (A), in Domestic Overdraft Amounts,
Offshore Overdraft Amounts and Letters of Credit, respectively) such that in
lieu of the interest of each Lender in each such Loan (and such other
Obligations) in which it shall participate as of such date (including such
Lender’s interest in the Specified Obligations of each Loan Party in respect of
each such Loan and other Obligations), such Lender shall hold an interest in
every one of the Loans constituting Specified Obligations, the Domestic
Overdraft Amounts, the Offshore Overdraft Amounts and the Letters of Credit
(including the Specified Obligations of each Loan Party in respect of each such
Loans, the Domestic Overdraft Amounts, the Offshore Overdraft Amounts, and the
Letters of Credit), whether or not such Lender shall previously have
participated therein, equal to such Lender’s CAM Percentage thereof, (iv) the
Lenders shall automatically and without further action (and without regard to
the provisions of subsection 10.2 be deemed to have exchanged interests in
the Domestic Overdraft Amount and, if any such participations shall be then
outstanding, in participations in amounts due with respect to the Domestic
Overdraft Amount previously purchased pursuant to subsection 2.1B, such
that in lieu of the interest of each Lender in each Domestic Overdraft Amount
in which it shall participate as of such date (including such Lender’s interest
in the Specified Obligations of each Loan Party in respect of each such
Domestic Overdraft Amount), such Lender shall hold an


 


127

















 


interest in every one of the Domestic Overdraft
Amounts (including the Specified Obligations of each Loan Party in respect of
each such Domestic Overdraft Amount), whether or not such Lender shall
previously have participated therein, equal to such Lender’s CAM Percentage
thereof, (v) all Offshore Overdraft Amounts denominated in an Offshore Currency
shall be converted into, and all such amounts due thereunder shall accrue and
be payable in, Dollars at the applicable Exchange Rates on such date, and on
and after such date the interest rate applicable to all such Offshore Overdraft
Amounts shall be the rate applicable to overdue Offshore Overdraft Amounts of
such type that are Base Rate Loans hereunder, and the Lenders shall
automatically and without further action (and without regard to the provisions
of subsection 10.2) be deemed to have exchanged interests in the converted
Offshore Overdraft Amount and, if any such participations shall be then outstanding,
in participations in amounts due with respect to the converted Offshore
Overdraft Amount previously purchased pursuant to subsection 2.1D, such
that in lieu of the interest of each Lender in each Offshore Overdraft Amount
in which it shall participate as of such date (including such Lender’s interest
in the Specified Obligations of each Loan Party in respect of each such
Offshore Overdraft Amount), such Lender shall hold an interest in every one of
the Offshore Overdraft Amounts (including the Specified Obligations of each
Loan Party in respect of each such Offshore Overdraft Amount), whether or not
such Lender shall previously have participated therein, equal to such Lender’s
CAM Percentage thereof.


 


B.    Binding Nature of Collection Allocation Mechanism.  Each Lender hereby consents and agrees (and
each Borrower hereby consents) to the CAM Exchange, and each Lender agrees that
the CAM Exchange shall be binding upon its successors and assigns and any
Person that acquires a participation in its interests in any Loan constituting
Specified Obligations.  Each Borrower
agrees from time to time to execute and deliver to the Administrative Agent all
participation certificates and other instruments and documents as the Administrative
Agent shall reasonably request to evidence and confirm the respective interests
of the Lenders after giving effect to the CAM Exchange, and each Lender agrees
to surrender any promissory notes originally received by it in connection with
its Loans constituting Specified Obligations hereunder to the Administrative
Agent against delivery of new promissory notes evidencing its interests in the
Specified Obligations with respect to the Loans; provided that the failure of
any Borrower to execute or deliver or of any Lender to accept any such promissory
note, instrument or document shall not affect the validity or effectiveness of
the CAM Exchange.


 


C.    Payments Subsequent to CAM Exchange Date.  As a result of the CAM Exchange, upon and
after the CAM Exchange Date, each payment received by the Administrative Agent
or Collateral Agent pursuant to any Loan Document in respect of the Specified
Obligations, and each distribution made by the Collateral Agent pursuant to any
Collateral Documents in respect of the Specified Obligations, shall be
distributed to the Lenders pro rata in accordance with their respective CAM
Percentages.  Any direct payment
received by a Lender upon or after the CAM Exchange Date, including by way of
set-off, in respect of a Specified Obligation shall be paid over to the
Administrative Agent for distribution to the Lenders in accordance herewith.


 


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D.            Letters of Credit.


 


(i)            In the event that on the CAM
Exchange Date any Letter of Credit shall be outstanding and undrawn in whole or
in part, or any amount drawn under a Letter of Credit shall not have been
reimbursed by the applicable Borrower or with the proceeds of a Revolving Loan,
each Lender with Revolving Loan Exposure shall promptly pay over to the
Administrative Agent, in immediately available funds, an amount in Dollars
equal to such Lender’s Pro Rata Share of such Letter of Credit’s undrawn face
amount or (to the extent it has not already done so) such Letter of Credit’s
unreimbursed drawing (in each case, based on the Dollar amount thereof, in the
case of any Letters of Credit issued to Offshore Borrowers), together with
interest thereon from the CAM Exchange Date to the date on which such amount
shall be paid to the Administrative Agent at the rate that would be applicable
at the time to a Base Rate Revolving Loan in a principal amount equal to such
amount, as the case may be.  The
Administrative Agent shall establish a separate account or accounts for each
Lender (each, an “LC Reserve Account”)
for the amounts received with respect to each such Letter of Credit pursuant to
the preceding sentence.  The
Administrative Agent shall deposit in each Lender’s L/C Reserve Account such
Lender’s CAM Percentage of the amounts received from the Lenders with Revolving
Loan Exposure as provided above. The Administrative Agent shall have sole
dominion and control over each LC Reserve Account, and the amounts deposited in
each LC Reserve Account shall be held in such LC Reserve Account until
withdrawn as provided in clauses (ii), (iii), (iv) and (v) below.  The Administrative Agent shall maintain
records enabling it to determine the amounts paid over to it and deposited in
the LC Reserve Accounts in respect of each Letter of Credit and the amounts on
deposit in respect of each Letter of Credit attributable to each Lender’s CAM
Percentage.  The amounts held in each
Lender’s LC Reserve Account shall be held as a reserve against the Letter of
Credit Usage, shall be the property of such Lender, shall not constitute Loans
to or give rise to any claim of or against any Loan Party and shall not give
rise to any obligation on the part of any Borrower to pay interest to such
Lender, it being agreed that the reimbursement obligations in respect of
Letters of Credit shall arise only at such times as drawings are made
thereunder, as provided in subsection 2.8.


 


(ii)           In the event that after the CAM
Exchange Date any drawing shall be made in respect of a Letter of Credit, the
Administrative Agent shall, at the request of the applicable Issuing Lender,
withdraw from the LC Reserve Account of each Lender any amounts, up to the
amount of such Lender’s CAM Percentage of such drawing, deposited in respect of
such Letter of Credit and remaining on deposit and deliver such amounts to such
Issuing Lender in satisfaction of the reimbursement obligations of such
Revolving Lender under subsections 2.8D and 2.8E (but not of the applicable
Borrower under subsection 2.8D).  In the
event any Revolving Lender shall default on its obligation to pay over any
amount to the Administrative Agent in respect of any Letter of Credit as
provided in this subsection 2.10D, the applicable Issuing Bank shall, in
the event of a drawing thereunder, have a claim against such Revolving Lender
to the same extent as if such Lender had defaulted on its obligations under
subsections 2.8D and 2.8E; but shall have no claim against any other Lender in
respect of such defaulted amount, notwithstanding the exchange of interests in
the reimbursement obligations pursuant to subsection 2.10.  Each other Lender shall have a claim against
such defaulting Revolving Lender for any damages sustained by it as a result of
such default, including, in the event such Letter of Credit shall expire
undrawn, its CAM Percentage of the defaulted amount.


 


(iii)          In the event that after the CAM
Exchange Date any Letter of Credit shall expire undrawn, the Administrative
Agent shall withdraw from the LC Reserve


 


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Account
of each Lender the amount remaining on deposit therein in respect of such
Letter of Credit and distribute such amount to such Lender.


 


(iv)          With the prior written approval of the
Administrative Agent and each Issuing Lender with an outstanding Letter of
Credit, any Lender may withdraw the amount held in its LC Reserve Account in
respect of the undrawn amount of any Letter of Credit.  Any Lender making such a withdrawal shall be
unconditionally obligated, in the event there shall subsequently be a drawing
under such Letter of Credit, to pay over to the Administrative Agent in
Dollars, for the account of the applicable Issuing Lender on demand, its CAM
Percentage of such drawing.


 


(v)           Pending the withdrawal by any Lender
of any amounts from its LC Reserve Account as contemplated by the above
paragraphs, the Administrative Agent will, at the direction of such Lender and
subject to such rules as the Administrative Agent may prescribe for the
avoidance of inconvenience, invest such amounts in Cash Equivalents.  Each Lender that has not withdrawn its
amounts in its LC Reserve Account as provided in paragraph (d) above shall have
the right, at intervals reasonably specified by the Administrative Agent, to
withdraw the earnings on investments so made by the Administrative Agent with
amounts in its LC Reserve Account and to retain such earnings for its own
account.


 


SECTION
3


 


CONDITIONS
TO SECOND RESTATEMENT DATE; DOMESTIC TRANCHE C TERM LOANS, TRANCHE D TERM
LOANS, FRENCH TRANCHE C1 TERM LOANS AND FRENCH TRANCHE C2 TERM LOANS; FRENCH
TRANCHE C3 TERM LOANS; LOANS AND LETTERS OF CREDIT


 


The
obligations of Lenders to consummate the amendment and restatement of the First
Amended and Restated Credit Agreement on the Second Restatement Date and to
make Loans and to issue Letters of Credit hereunder, is subject to the
satisfaction of the following conditions.


 


3.1          Conditions to Second Restatement Date.


 


The effectiveness of this Agreement is subject to
prior or concurrent satisfaction of the following conditions:


 


A.    Loan Party Documents. 
On or before the Second Restatement Date, Company shall, and shall cause
each of its Subsidiaries then a Loan Party to, deliver to Lenders (or to
Administrative Agent with sufficient originally executed copies, where
appropriate, for each Lender) the following with respect to Company or such other
Loan Party, as the case may be, each, unless otherwise noted, dated the Second
Restatement Date:


 


(i)            Copies of the Organizational
Documents of such Person, certified by the Secretary of State of its
jurisdiction of organization (or other applicable authority) or, if such
document is of a type that may not be so certified, certified by the


 


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secretary or
similar officer of such Person, or, in the case of Loan Parties other than the
Borrowers, a certification by an officer of such Person that the Organizational
Documents delivered to Agent in connection with the First Amended and Restated
Credit Agreement are (as of the date hereof) in full force and effect without
any amendment thereto, together with a good standing certificate from the
Secretary of State (or other applicable authority) of its jurisdiction of
organization (if available from such jurisdiction) and, to the extent generally
available, a certificate or other evidence of good standing as to payment of
any applicable franchise or similar taxes from the appropriate taxing authority
of such jurisdiction, each dated a recent date prior to the Second Restatement
Date;


 


(ii)           Resolutions of the Governing Body of
such Person approving and authorizing the execution, delivery and performance
of the Loan Documents to which it is a party, certified as of the Second
Restatement Date by the secretary or similar officer of such Person as being in
full force and effect without modification or amendment;


 


(iii)          Signature and incumbency certificates
of the officers of such Person executing the Loan Documents to which it is a
party; and


 


(iv)          Executed originals of the Loan
Documents to which such Person is a party.


 


B.    Fees.  Domestic
Borrowers shall have paid, or caused to have been paid, to Administrative
Agent, for distribution (as appropriate) to Lenders and Agents, the fees
payable on the Second Restatement Date referred to in subsection 2.3.


 


C.    Execution by Requisite Lenders.  The Requisite Lenders under (and as defined in) the First Amended
and Restated Credit Agreement shall have executed and delivered to
Administrative Agent counterparts of this Agreement.


 


D.    Representations and Warranties; Performance of Agreements.  Company and each Borrower shall have delivered
to Administrative Agent an Officer’s Certificate, in form and substance
satisfactory to Agents, to the effect that the representations and warranties
in Section 4, are true, correct and complete in all material respects on and as
of the Second Restatement Date to the same extent as though made on and as of
that date (or, to the extent such representations and warranties specifically
relate to an earlier date, that such representations and warranties were true,
correct and complete in all material respects on and as of such earlier date)
and that the appropriate Loan Party or Loan Parties shall have performed in all
material respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by it on or before the
Second Restatement Date except as otherwise disclosed to and agreed to in
writing by Agents.


 


E.     BSN Share Purchase Agreement.  Borrowers shall have delivered to Administrative Agent a fully
executed copy of the BSN Share Purchase Agreement, in form and substance
satisfactory to the Agents.


 


F.     Opinions of Counsel to Loan Parties.  Lenders shall have received originally
executed copies of one or more favorable written opinions of special counsel to
Company,


 


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Latham & Watkins LLP, and other counsel for
Company and its Subsidiaries then Loan Parties, in form and substance
reasonably satisfactory to Agents and their counsel, dated as of the Second
Restatement Date and setting forth substantially the matters in the opinions
designated in Exhibit XI annexed hereto and as to such other customary
matters as Agents acting on behalf of Lenders may reasonably request (this
Agreement constituting a written request by Company and its Subsidiaries then
Loan Parties to such counsel to deliver such opinions to Lenders).


 


G.    Opinions of Agents’ Counsel.  Lenders shall have received originally executed copies of one or
more favorable written opinions of O’Melveny & Myers LLP, counsel to
Agents, dated as of the Second Restatement Date, substantially in the form of Exhibit
XII annexed hereto.


 


H.    [Reserved].


 


I.      Intercreditor Agreement.  The Intercreditor Agreement, as amended by the amendment
substantially in the form of Exhibit XVII annexed hereto, shall be in full
force and effect.


 


J.     Security Interests in Personal Property.  Administrative Agent shall have received
evidence satisfactory to it that the Loan Parties shall have taken or caused to
be taken all such actions, executed and delivered or caused to be executed and
delivered all such agreements, documents and instruments, and made or caused to
be made all such filings that may be necessary or, in the opinion of Agents,
desirable in order to continue in favor of Collateral Agent, for the benefit of
Lenders, and holders of the Other Lender Guarantied Obligations and certain
other parties, a valid and (upon such filing and recording or other means of
perfection) perfected First Priority security interest in substantially all
personal property Collateral under the Domestic Collateral Documents.  Such actions shall include the following:


 


(i)            Stock Certificates and
Instruments.  Delivery to Collateral
Agent of (a) certificates (which certificates shall be accompanied by
irrevocable undated stock powers, duly endorsed in blank and otherwise
satisfactory in form and substance to Collateral Agent) representing all
Capital Stock of Subsidiaries pledged pursuant to the Pledge Agreement, the
Security Agreement and the Offshore Security Agreements (other than pursuant to
the BSN Guaranty and Collateral Documents) and (b) all intercompany notes
required to be pledged pursuant to the Pledge Agreement or Security Agreement;


 


(ii)           Lien Searches and UCC Termination
Statements.  Delivery to Collateral
Agent of (a) the results of a recent search, by a Person satisfactory to
Collateral Agent, of all effective UCC financing statements and fixture filings
which may have been made with respect to any personal or mixed property of any
Company or any Domestic Subsidiary that is a Loan Party, together with copies
of all such filings disclosed by such search, and (b) UCC termination
statements duly executed by all applicable Persons for filing in all applicable
jurisdictions as may be necessary to terminate any effective UCC financing statements
or fixture filings disclosed in such search (other than any such financing
statements or fixture filings in respect of Liens created by the Collateral
Documents or otherwise permitted to remain outstanding pursuant to the terms of
this Agreement).


 


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(iii)          UCC Financing Statements.  To the extent deemed necessary by Collateral
Agent for the Liens created by the Collateral Documents to continue to be
perfected or as may be necessary or, in the opinion of Collateral Agent,
desirable to perfect the security interests created pursuant to the Collateral
Documents, delivery to Collateral Agent of UCC financing statements duly
authorized by each applicable Loan Party with respect to all personal and mixed
property Collateral of such Loan Party under the Domestic Collateral Documents,
for filing in all jurisdictions deemed necessary or desirable by Collateral
Agent.


 


(iv)          Copyright Filing.  To the extent deemed necessary by Collateral
Agent to create or perfect Liens in respect of copyrights described on Schedule
1(f)(iii) to the Security Agreement (or to maintain or continue the
perfection thereof), delivery to Collateral Agent of Copyright Security
Agreements (or amendments of those delivered in connection with the Original
Credit Agreement or the First Amended and Restated Credit Agreement) to be
filed with the U.S. Copyright Office.


 


(v)           Foreign Pledge Agreements.  Execution and delivery to Collateral Agent
of foreign pledge agreements with respect to 65% of the Capital Stock owned by
Company or a Domestic Subsidiary of all Foreign Subsidiaries with respect to
which Collateral Agent deems a foreign pledge agreement necessary or advisable
to perfect, continue perfection, or otherwise protect the First Priority Liens
granted to Collateral Agent on behalf of Lenders and the holders of the Other
Lender Guarantied Obligations in such Capital Stock, and the taking of all such
other actions under the laws of such jurisdictions as Collateral Agent may deem
necessary or advisable to perfect, continue the perfection of, or otherwise
protect such Liens; and


 


(vi)          Opinions of Local Counsel.  Delivery to Collateral Agent of an opinion
of counsel (which counsel shall be reasonably satisfactory to Collateral Agent)
under the laws of each jurisdiction deemed necessary by Collateral Agent in
which any Loan Party or any personal or mixed property Domestic Collateral is
located with respect to the creation and perfection (or continuation and
continued perfection) of the security interests in favor of Collateral Agent in
such Collateral and such other matters governed by the laws of such
jurisdiction regarding such security interests as Collateral Agent may
reasonably request, in each case in form and substance reasonably satisfactory
to Collateral Agent.


 


K.    Offshore Collateral Documents and Offshore Guaranties.  Administrative Agent shall have received
duly executed and delivered copies of the Offshore Collateral Documents and the
Offshore Guaranties (other than the BSN Guaranty and Collateral Documents and
the Australian Cross Guaranty with respect to the French Tranche C3 Term Loans)
(or any necessary amendments of the same) and all related documentation, all in
form, substance and scope satisfactory to Agents.


 


L.    Completion of Proceedings.  All corporate and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and all documents
incidental thereto not previously found acceptable by Agents, acting on behalf
of Lenders, and its counsel shall be satisfactory in form and substance to
Agents and such


 


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counsel, and Agents and such counsel shall have
received all such counterpart originals or certified copies of such documents
as Agents may reasonably request.


 


3.2          Conditions
to Domestic Tranche C Term Loans; Tranche D Term Loans; French Tranche C1 Term
Loans; French Tranche C2 Term Loans.


 


The obligations of Lenders
to make Domestic Tranche C Term Loans, Tranche D Term Loans, French Tranche C1
Term Loans and French Tranche C2 Term Loans hereunder is subject to the prior
or concurrent satisfaction of the following conditions (it being understood
that the satisfaction of the conditions described in subsections 3.2C-F below
immediately after the making of the Domestic Tranche C Term Loans and Tranche D
Term Loans and the refinancing of the Existing BSN Credit Agreement immediately
after the making of the French Tranche C1 Term Loans and French Tranche C2 Term
Loans shall be considered concurrent satisfaction):


 


A.    Consummation of the Acquisition.  The BSN Share Purchase Agreement shall be in full force and
effect and shall not have been amended, supplemented, waived or otherwise
modified in any manner which the Tranche C and D Joint Lead Arrangers determine
could reasonably be expected to be adverse to the Lenders without the prior
written approval of the Tranche C and D Joint Lead Arrangers.  All conditions to the consummation of the
transactions contemplated by the BSN Share Purchase Agreement (other than the
payment of the purchase price therefor) shall have been satisfied or waived
(and in the case of any waiver of any such condition by Holdings or O-I Europe
SAS, such waiver shall have been approved by the Tranche C and D Joint Lead
Arrangers).  The Administrative Agent
shall have received an Officer’s Certificate to the effect that immediately
upon the making of the Domestic Tranche C Term Loans, the Tranche D Term Loans,
the French Tranche C1 Term Loans and the French Tranche C2 Term Loans, the BSN
Acquisition and the other transactions contemplated by the BSN Share Purchase
Agreement will be consummated.


 


B.    No BSN Material Adverse Change.  As of the BSN Acquisition Closing Date, there shall have occurred
no material adverse change in the business, assets, condition (financial or
otherwise), results of operations, or properties of BSN and its Subsidiaries,
taken as a whole, since the Second Restatement Date (which for the avoidance of
doubt, shall exclude material adverse changes in the financial markets).


 


C.    Joinder.  BSN shall
have executed and delivered to the Administrative Agent a Joinder Agreement
substantially in the form of Exhibit XIX annexed hereto, which Joinder
Agreement shall have been executed by BSN, Company and each other Borrower.  Upon delivery of such executed Joinder
Agreement by BSN and the other Borrowers, notice of which is hereby waived by
the Borrowers, BSN shall be a Borrower and shall be as fully a party hereto as
if it were an original signatory hereto as a Borrower.  Company and each Borrower hereby expressly
agrees that its Obligations arising hereunder or under the other Loan Documents
shall not be impaired or diminished by the addition of BSN as a Borrower
hereunder.


 


D.    BSN Guaranty and Collateral Documents.  BSN and its applicable Subsidiaries shall
have executed and delivered to the Administrative Agent the BSN Guaranty


 


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and Collateral Documents and the amendments to or
replacements of the Existing BSN Intercreditor Agreements as provided for
therein.


 


E.     Security Interests in Personal Property.  BSN and its subsidiaries shall have taken
all such further action and executed all such further documents and instruments
(including actions, documents and instruments comparable to those described in
Section 3.1J of this Agreement) as may be reasonably required by the Agents to
grant and perfect in favor of the Collateral Agent, for the benefit of the
Lenders, a Lien in substantially all of the BSN Collateral.


 


F.     Loan Documents. 
On or before the BSN Acquisition Closing Date, BSN shall, and shall
cause each of its Subsidiaries to, deliver to Lenders (or to Administrative
Agent with sufficient originally executed copies, where appropriate, for each
Lender) the following with respect to BSN or such Subsidiary, as the case may
be, each, unless otherwise noted, dated the BSN Acquisition Closing Date:


 


(i)            Copies of the Organizational
Documents of such Person, certified by the applicable authority of its
jurisdiction of organization or, if such document is of a type that may not be
so certified, certified by the secretary or similar officer of such Person,
together with a good standing certificate from the applicable authority of its
jurisdiction of organization (if available from such jurisdiction), each dated
a recent date prior to the BSN Acquisition Closing Date;


 


(ii)           Resolutions of the Governing Body of
such Person approving and authorizing the execution, delivery and performance
of the Loan Documents to which it is a party, certified as of the BSN
Acquisition Closing Date by the secretary or similar officer of such Person as
being in full force and effect without modification or amendment;


 


(iii)          Signature and incumbency certificates
of the officers of such Person executing the Loan Documents to which it is a
party; and


 


(iv)          Executed originals of the Loan
Documents to which such Person is a party.


 


G.    Opinions of Counsel to BSN and its Subsidiaries.  Lenders shall have received originally
executed copies of one or more favorable written opinions of special counsel to
Company and its Subsidiaries, Latham & Watkins LLP, and other counsel for
Company and its Subsidiaries, in each case, regarding certain matters
concerning BSN and certain of its Subsidiaries, in form and substance
reasonably satisfactory to Agents and their counsel, dated as of the BSN
Acquisition Closing Date and setting forth such customary matters as Agents
acting on behalf of Lenders may reasonably request (this Agreement constituting
a written request by BSN and its Subsidiaries to such counsel to deliver such
opinions to Lenders).


 


3.3          Conditions to French Tranche C3 Term
Loans.


 


The obligations of Lenders to make French Tranche C3
Term Loans are subject to the satisfaction of the following condition:


 


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A.    Exercise of Put Rights. 
Not later than 90 days after the BSN Acquisition Closing Date, holders
of Existing BSN Senior Subordinated Notes in an aggregate amount not less than
€5,000,000 shall have accepted the applicable issuer’s “change of control
offer” with respect to such holder’s BSN Senior Subordinated Notes in
accordance with Section 5.8 of the applicable BSN Senior Subordinated Note
Indentures.


 


B.    Officer’s Certificate. 
The Administrative Agent shall have received an Officer’s Certificate
stating the aggregate principal amount of Existing BSN Senior Subordinated
Notes for which BSN Change of Control Payments will be made on the BSN Change
of Control Payment Date and that such BSN Change of Control Payments shall be
made immediately upon the making of the French Tranche C3 Term Loans.


 


C.    Indenture Compliance. 
The aggregate amount of French Tranche C3 Term Loans requested by BSN in
its Notice of Borrowing shall not exceed the amount of Indebtedness permitted
as secured indebtedness under the Existing BSN Senior Subordinated Note
Indentures (unless, concurrently with the making of the French Tranche C3 Term
Loans, the Existing BSN Senior Subordinated Notes are repaid (or repurchased)
in full and such indentures discharged).


 


D.    Australian Cross Guaranty.  The Australian Offshore Borrowers shall have delivered the
Australian Cross Guaranty with respect to the French Tranche C3 Term Loans
together with such amendments or supplements to the Offshore Collateral
Documents as Administrative Agent may reasonably require to ensure that such
guaranty is properly secured thereby.


 


3.4          Conditions to All Loans.


 


The obligations of Lenders to make Loans on each
Funding Date are subject to the following further conditions precedent:


 


A.    Administrative Agent shall have received on or before that
Funding Date, in accordance with the provisions of subsection 2.1E, an
originally executed Notice of Borrowing, in each case signed by a duly
authorized Officer of the applicable Borrower.


 


B.    Except with respect to the Domestic Tranche C Term Loans, the
Tranche D Term Loans, the French Tranche C1 Term Loans and the French Tranche
C2 Term Loans, as of that Funding Date:


 


(i)            The representations and warranties
contained herein and in the other Loan Documents shall be true, correct and
complete in all material respects on and as of that Funding Date to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true, correct and
complete in all material respects on and as of such earlier date;


 


(ii)           No event shall have occurred and be
continuing or would result from the consummation of the borrowing contemplated
by such Notice of Borrowing that would constitute an Event of Default or a
Potential Event of Default;


 


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(iii)          Each Loan Party shall have performed
in all material respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by it on or before that
Funding Date;


 


(iv)          No order, judgment or decree of any
arbitrator or Government Authority shall purport to enjoin or restrain any
Lender from making the Loans to be made by it on that Funding Date; and


 


(v)           The making of the Loans requested on
such Funding Date shall not violate Regulation U of the Board of Governors of
the Federal Reserve System.


 


3.5          Conditions to Letters of Credit


 


The issuance of any Letter of Credit (other than
Existing Letters of Credit) hereunder (whether or not the applicable Issuing
Lender is obligated to issue such Letter of Credit) is subject to the following
conditions precedent:


 


A.    On or before the date of issuance of the initial Letter of Credit
pursuant to this Agreement, the initial Loans shall have been made.


 


B.    On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 2.8B, an originally executed Notice of Request for Issuance of
Letter of Credit (or a facsimile copy thereof) in each case signed by a duly
authorized officer of the Borrower requesting the Letter of Credit, together
with all other information specified in subsection 2.8B and such other
documents or information as the applicable Issuing Lender may reasonably
require in connection with the issuance of such Letter of Credit.


 


C.    On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 3.1 and subsection 3.4 shall be
satisfied to the same extent as if the issuance of such Letter of Credit were
the making of a Loan and the date of issuance of such Letter of Credit were a
Funding Date.


 


SECTION
4


 


LOAN
PARTIES’ REPRESENTATIONS AND WARRANTIES


 


In order to induce Lenders to enter into this
Agreement and to amend and restate the First Amended and Restated Credit
Agreement as provided hereunder, to induce the Lenders to thereafter make
Tranche C Term Loans, Tranche D Term Loans, Revolving Loans and Offshore
Revolving Loans hereunder, to induce Administrative Agent to make overdrafts in
respect of the Domestic Overdraft Account, to induce Offshore Overdraft Account
Providers to make overdrafts in respect of the Offshore Overdraft Accounts, to
induce Issuing Lenders to issue Letters of Credit and to induce Lenders to
purchase participations in Letters of Credit, in the Domestic Overdraft Amount
and in the Offshore Overdraft Amounts, Company and each Borrower represents and
warrants to each Lender, on the date of this Agreement, the Second Restatement
Date, the BSN Acquisition Closing Date, the BSN Change of Control Payment Date
and on each other Funding Date, on the date of issuance of each Letter of Credit
and on the date


 


137

















 


of execution by
any Loan Party of a Loan Document pursuant to subsection 5.9, 5.10 or
10.22, that the following statements are true, correct and complete, which
representations and warranties in the case of each Offshore Borrower shall be
limited to such Offshore Borrower and its Subsidiaries:


 


4.1          Organization, Powers, Good Standing,
Business and Subsidiaries


 


A.    Organization and Powers. 
Each of the Loan Parties is a company, duly organized, validly existing
and, where applicable,  in good standing
under the laws of its jurisdiction of formation.  Each of the Loan Parties has all requisite organizational power
and authority to own and operate its properties, to carry on its business as now
conducted and proposed to be conducted, to enter into each Loan Document to
which it is a party and to carry out the transactions contemplated hereby and
thereby, and, in the case of Borrowers, to issue the Notes.


 


B.    Good Standing. 
Each of the Loan Parties is in good standing wherever necessary to carry
on its present business and operations, except in jurisdictions in which the
failure to be in good standing has not had and will not have a Material Adverse
Effect.


 


C.    Conduct of Business. 
Company and its Subsidiaries are engaged only in the businesses
permitted to be engaged in under subsection 6.11.


 


D.    Subsidiaries.  All
of the Subsidiaries of Company and their jurisdictions of organization are
identified in Schedule 4.1 annexed hereto, as said Schedule 4.1
may be supplemented from time to time pursuant to the provisions of
subsection 5.1(xi).  The Capital
Stock of each of the Subsidiaries of Company identified in Schedule 4.1
annexed hereto (as so supplemented), is duly authorized, validly issued, fully
paid and nonassessable and as of the Second Restatement Date and the BSN
Acquisition Closing Date none of such Capital Stock constitutes Margin
Stock.  Each of the Subsidiaries of
Company identified in Schedule 4.1 annexed hereto (as so
supplemented) is a company duly organized, validly existing and in good
standing where applicable under the laws of its respective jurisdiction of
organization set forth therein, has all requisite power and authority to own
and operate its properties and to carry on its business as now conducted and as
proposed to be conducted, and is qualified to do business and in good standing
where applicable in every jurisdiction where its assets are located and
wherever necessary to carry out its business and operations, in each case
except where failure to be so qualified or in good standing or a lack of such
power and authority has not had and could not reasonably be expected to result
in a Material Adverse Effect.  Schedule 4.1
annexed hereto (as so supplemented) correctly sets forth, as of the Second
Restatement Date, the ownership interest of Company and each of its
Subsidiaries in each of the Subsidiaries of Company identified therein.


 


4.2          Authorization of Borrowing, Etc.


 


A.    Authorization of Borrowing.  The execution, delivery and performance of the Loan Documents and
the issuance, delivery and payment of the Notes have been duly authorized by
all necessary organizational action by each Loan Party which is a party
thereto.


 


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B.    No Conflict.  The
execution, delivery and performance by each Loan Party of the Loan Documents to
which it is a party and the issuance, delivery and performance of the Notes do
not and will not (i) violate any provision of law applicable to such Loan Party,
the Organizational Documents of such Loan Party, or any order, judgment or
decree of any court or other agency of government binding on such Loan Party,
(ii) conflict with, result in a material breach of or constitute (with due
notice or lapse of time or both) a material default under any Contractual
Obligation of Company or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien (other than Liens in favor of
the Collateral Agent) upon any of the properties or assets of Company or any of
its Subsidiaries, or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual Obligation of Company
or any of its Subsidiaries, other than those approvals and consents which have
been obtained.


 


C.    Governmental Consents. 
The execution, delivery and performance by each Loan Party of the Loan
Documents to which it is a party and the issuance, delivery and performance of
the Notes did not, do not and will not require any registration with, consent
or approval of, or notice to, or other action to, with or by, any federal,
state or other governmental authority or regulatory body except for filings,
consents or notices that have been or will be made during the period in which
they are required to be made.


 


D.    Binding Obligations. 
This Agreement and the other Loan Documents executed prior to the date
of this Agreement are, and the other Loan Documents and the Notes to be
executed subsequent to the date of this Agreement, when executed and delivered
will be, the legally valid and binding obligations of the applicable Loan
Parties, enforceable against the applicable Loan Parties in accordance with
their respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors’ rights generally or by equitable principles relating to
enforceability.


 


4.3          Financial Condition


 


Borrowers have heretofore delivered to Lenders, at
Lenders’ request, the audited consolidated balance sheet of Holdings and its
Subsidiaries as at December 31, 2002  and the related consolidated statements of
income, stockholders’ equity and cash flows of Holdings and its Subsidiaries
for the Fiscal Year then ended and the unaudited consolidated balance sheet of
Holdings and its Subsidiaries and the unaudited consolidated balance sheet of
Company and its Subsidiaries as of December 31, 2003 and the related unaudited
consolidated statements of income and cash flows of Company and its
Subsidiaries for the periods then ended. 
All such statements were prepared in conformity with GAAP.  All such consolidated financial statements
fairly present the consolidated financial position of Holdings and its
Subsidiaries as at the date thereof and the consolidated results of operations
and cash flows of Holdings and its Subsidiaries for the period covered
thereby.  Neither Company nor any of its
Subsidiaries has any material contingent liability or material liability for
taxes, long-term lease or unusual forward or long-term commitment, which is not
reflected in the foregoing financial statements or in the most recent
consolidated financial statements delivered pursuant to subsection 3.1E or
5.1 of this Agreement, except for those incurred since the date of such financial
statements that are not prohibited hereunder.


 


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4.4          No Adverse Material Change; No
Restricted Junior Payment


 


Since December 31, 2002, except as publicly
disclosed in filings by Holdings or any Borrower with the Securities and
Exchange Commission prior to the date hereof, 
there has been no change in the business, operations, properties, assets
or condition (financial or otherwise) of Company and its Subsidiaries, which
has been, either in any case or in the aggregate, materially adverse to Company
and its Subsidiaries, taken as a whole. 
Since the Second Restatement Date, neither Company nor any of its
Subsidiaries has directly or indirectly declared, ordered, paid or made or set
apart any sum or property for any Restricted Junior Payment or agreed so to do
except as permitted by subsection 6.5.


 


4.5          Litigation; Adverse Facts


 


Except as disclosed in Holdings’ annual report on Form
10-K for the Fiscal Year ended December 31, 2002, there is no action, suit,
proceeding, governmental investigation or arbitration of which Company has
knowledge (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity or before or by any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, pending or, to the knowledge of Company,
threatened against or affecting Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries which would reasonably be
expected to result in a Material Adverse Effect.


 


4.6          Payment of Taxes


 


Except to the extent permitted by subsection 5.3,
all material tax returns and reports of Holdings and each of its Subsidiaries
required to be filed by any of them have been timely filed, and all material
taxes, assessments, fees and other governmental charges upon such Persons and
upon their respective properties, assets, income and franchises which are due
and payable have been paid when due and payable.


 


4.7          Governmental Regulation


 


Neither Holdings nor any of its Subsidiaries is
subject to regulation under the Public Utility Holding Company Act of 1935 or
the Investment Company Act of 1940 or to any federal or state statute or
regulation limiting its ability to incur Indebtedness for money borrowed.


 


4.8          Securities Activities


 


A.    Neither Holdings nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock.


 


B.    Following application of the proceeds of each Loan, not more than
25% of the value of the assets (either of Company only or of Company and its
Subsidiaries on a consolidated basis) subject to the provisions of
subsection 6.2 or 6.7, or subject to any similar restriction contained in
any agreement or instrument between Company and any Lender or any Affiliate of


 


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any Lender relating to Indebtedness and within the
scope of subsection 7.2, will be attributable to Margin Stock.


 


4.9          Employee Benefit Plans


 


A.    Each of Holdings and each of its Subsidiaries is in compliance
with all applicable provisions of ERISA, the Internal Revenue Code and other
applicable federal, state or foreign law with respect to each Plan, and has
performed all of its obligations under each Plan, except to the extent that
failure to comply, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. 
Holdings, each of its Subsidiaries and each ERISA Affiliate has made all
required contributions to any Plan subject to Section 412 of the Internal
Revenue Code, except to the extent that a failure to do so would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Internal Revenue Code
has been made with respect to any Plan.


 


B.    (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan which is reasonably likely to be terminated
has any Unfunded Pension Liability in an amount which, individually or in the
aggregate for all such Pension Plans (excluding for purposes of such
computation any such Pension Plans with respect to which assets exceed benefit
liabilities), would reasonably be expected to have a Material Adverse Effect if
such Pension Plan or Pension Plans were then terminated; and (iii) none of
Holdings, any of its Subsidiaries or any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA
that, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.


 


4.10        Disclosure


 


No representation or warranty of any Loan Party
contained in this Agreement, any Loan Document or any other document,
certificate or written statement furnished to Lenders by or on behalf of any
Loan Party for use in connection with the transactions contemplated by this
Agreement contains any untrue statement of a material fact or omits to state a
material fact (known to Company in the case of any document not furnished by
it) necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances in which the same were made.  The projections and pro forma financial
information contained in such materials are based upon good faith estimates and
assumptions believed by Company and its Subsidiaries to be reasonable at the
time made, it being recognized by Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results.  There are no facts known to
Company or any Borrower (other than matters of a general economic nature) which
materially and adversely affects the business, operations, property, assets or
condition (financial or otherwise) of Company and its Subsidiaries, taken as a
whole, which have not been disclosed herein or in such other documents,
certificates and statements furnished to Lenders for use in connection with the
transactions contemplated hereby.


 


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4.11        Environmental Protection


 


Company and each of its Subsidiaries are in compliance
with all applicable Environmental Laws in respect of the conduct of its
business and the ownership of its property, except such noncompliance as would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.  Without limiting the
effect of the preceding sentence:


 


A.    to the best of Company’s knowledge, neither Company nor any of
its Subsidiaries has received a complaint, order, citation, notice or other
written communication with respect to the existence or alleged existence of a
violation of, or liability arising under, any Environmental Law, the outcome of
which, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect; and


 


B.    to the best of Company’s knowledge there are no environmental,
health or safety conditions existing at any real property owned, operated or
leased by Company or any of its existing or former Subsidiaries or any of their
respective predecessors, including off-site treatment or disposal facilities
used by Company or any of its existing or former Subsidiaries for waste
treatment or disposal, which would reasonably be expected to require any
construction or other capital costs or clean-up obligations to be incurred
prior to the final scheduled maturity of the Obligations in order to assure
compliance with any Environmental Law, including provisions regarding clean-up,
to the extent that any of such conditions, construction or other capital costs
or clean-up obligations, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.


 


4.12        Title to Properties; Liens; Real
Property; Intellectual Property


 


A.    Title to Properties;
Liens.  Company and its Subsidiaries have (i)
good, sufficient and legal title to (in the case of fee or freehold interests
in Real Property Assets), (ii) valid leasehold interests in (in the case
of Ground Leasehold Interests, or other leasehold interests in the UK, in Real
Property Assets or personal property), or (iii) good title to (in the case of
all other personal property), all of their respective properties and assets
reflected in the financial statements referred to in subsection 4.3 or in
the most recent financial statements delivered pursuant to subsection 5.1,
in each case except for assets disposed of since the date of such financial
statements in the ordinary course of business or as otherwise permitted under
subsection 6.7 and except for such defects that individually or in the
aggregate, would not have a Material Adverse Effect.  Except as permitted by this Agreement, all such properties and
assets are free and clear of Liens.


 


B.    Real Property. 
As of the Second Restatement Date, Schedule 4.12B-1 annexed
hereto contains a true, accurate and complete list of all fee and Ground
Leasehold Interests (or in the UK, all freehold and leasehold interests) in any
Real Property Assets with an insurable or assessed value in excess of
$25,000,000.  As of the BSN Acquisition
Closing Date, Schedule 4.12B-2 annexed hereto contains a true, accurate
and complete list of all fee and Ground Leasehold Interests in any Real
Property Assets owned by BSN and its Subsidiaries with an insurable or assessed
value in excess of €25,000,000.


 


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C.    Intellectual Property. 
As of the Second Restatement Date and the BSN Acquisition Closing Date,
Company and its Subsidiaries own or have the right to use all Intellectual
Property used in the conduct of their business, except where the failure to own
or have such right to use, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.  No claim has been asserted and is pending by
any Person challenging or questioning the use of any such Intellectual Property
or the validity or effectiveness of any such Intellectual Property, and Loan
Parties do not know of any valid basis for any such claim except for such
claims that, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect. 
The use of such Intellectual Property by Company and its Subsidiaries
does not infringe on the rights of any Person, except for such claims and
infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.


 


4.13        Solvency


 


Each Loan Party is and, upon the incurrence of any
Obligations by such Loan Party on any date on which this representation is
made, will be, Solvent.


 


4.14        Matters Relating to Collateral


 


A.    Creation, Perfection
and Priority of Liens.


 


(i)            As of the Second Restatement Date,
the execution and delivery of the Collateral Documents (except Mortgages and
fixture filings, until such time as same are required pursuant to
subsection 5.10) by Loan Parties (other than Avir and O-I Canada),
together with (i) the actions taken on or prior to or after the date hereof
pursuant to subsections 3.1J, 3.1K, 5.9 and 5.10, and (ii) the delivery to
Collateral Agent of any Collateral not delivered to Collateral Agent at the time
of execution and delivery of the applicable Collateral Document (all of which
Collateral has been so delivered) are effective to create in favor of
Collateral Agent for the benefit of Lenders, as security for the respective
Secured Obligations (as defined in the applicable Collateral Document in
respect of any Collateral), a valid First Priority Lien on all of the
Collateral, and all filings and other actions necessary or desirable to perfect
and maintain the perfection and First Priority status of such Liens have been
duly made or taken and remain in full force and effect, other than the filing
of any UCC financing statements and similar filings required in the UK or
Australia delivered to Collateral Agent for filing (but not yet filed) and the
periodic filing of UCC continuation statements and such other ongoing filings
as may be required in the UK and Australia in respect of UCC financing
statements and similar filings required in the UK or Australia filed by or on
behalf of Collateral Agent, and in the case of filings in Australia and the
United Kingdom, payment of applicable stamp duties.


 


(ii)           As of the BSN Acquisition Closing
Date, the execution and delivery of the BSN Guaranty and Collateral Documents
(except for such documents and related filings which, with the approval of the
Agents, are to be delivered after the BSN Acquisition Closing Date by BSN and
its Subsidiaries), together with (i) the actions taken on or prior to or after
the BSN Acquisition Closing Date pursuant to subsections 3.2E, 5.9 and 5.10,
and (ii) the delivery to Collateral Agent of any Collateral not delivered to
Collateral Agent at the time of execution and delivery of the BSN Guaranty and
Collateral Documents are effective to create in


 


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favor
of Collateral Agent for the benefit of Lenders, as security for the respective
secured obligations (as defined in the BSN Guaranty and Collateral Documents in
respect of any Collateral), a valid First Priority Lien on all of the
Collateral purported to be covered thereby, and all filings and other actions
necessary or desirable to perfect and maintain the perfection and First
Priority status of such Liens have been duly made or taken and remain in full
force and effect, other than the filing of any filings required in any
applicable jurisdiction delivered to Collateral Agent for filing (but not yet
filed) and any periodic filing of continuation statements or such other ongoing
filings as may be required in any applicable jurisdictions in respect of
financing statements and similar filings required in such applicable
jurisdiction filed by or on behalf of Collateral Agent.


 


B.    Governmental
Authorizations.  No authorization, approval or other action
by, and no notice to or filing with, any Government Authority is required for
either (i) the pledge or grant by any Loan Party of the Liens purported to
be created in favor of Collateral Agent pursuant to any of the Collateral
Documents or (ii) the exercise by Collateral Agent of any rights or
remedies in respect of any Collateral (whether specifically granted or created
pursuant to any of the Collateral Documents or created or provided for by
applicable law), except for filings or recordings contemplated by
subsection 4.14A and except as may be required, in connection with the
disposition of any Collateral, by laws generally affecting the offering and
sale of securities.


 


C.    Absence of
Third-Party Filings.  Except such as may have been filed in favor
of Collateral Agent as contemplated by subsection 4.14A and to evidence
permitted lease obligations and other Liens permitted pursuant to
subsection 6.2, (i) no effective UCC financing statement, fixture filing
or other instrument similar in effect covering all or any part of the
Collateral is on file in any filing or recording office, (ii) no effective
filing covering all or any part of the IP Collateral is on file in the PTO (or
analogous foreign agencies with respect to Collateral secured by the Offshore
Collateral Documents), and (iii) no effective filings, registrations or other
notices of Liens exist in relation to any of the Loan Parties or any of the
Collateral at any agencies, registries offices or relevant governmental or
other regulatory bodies outside the United States of America.


 


SECTION
5


 


COMPANY’S
AFFIRMATIVE COVENANTS


 


Company, each Domestic Borrower and each Offshore
Borrower covenants and agrees that, so long as any of the Commitments hereunder
shall be in effect and until payment in full of all of the Loans, the Offshore
Overdraft Amounts and the Domestic Overdraft Amount, the cancellation or
expiration of all Letters of Credit and the reimbursement of all amounts drawn
thereunder, unless Requisite Lenders shall otherwise give prior written
consent, Company, each Domestic Borrower and each Offshore Borrower shall
perform, and shall cause each of their respective Subsidiaries to perform, all
covenants in this Section 5.


 


5.1          Financial Statements and Other Reports


 


Company and Borrowers will maintain, and cause
Holdings and each of their respective Subsidiaries to maintain, a system of
accounting established and administered in


 


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accordance with
sound business practices to permit preparation of consolidated financial
statements in conformity with GAAP (which, in the case of financial statements
of the Offshore Borrowers, shall mean generally accepted accounting principles
as applicable in their respective foreign jurisdictions).  Company and Borrowers will deliver, or cause
to be delivered, to Lenders:


 


(i)            Quarterly Financials.  as soon as practicable and in any event
within 45 days after the end of each Fiscal Quarter, other than quarters which
are the last quarter in a Fiscal Year, (a) the consolidated balance sheets
of Holdings and Company as at the end of such period and the related
consolidated statements of income and cash flows of Holdings and Company for
the period from the beginning of the then current Fiscal Year to the end of
such Fiscal Quarter and (b) a statement setting forth sales and EBIT data
by Reporting Unit for the last month of such Fiscal Quarter and for the period
from the beginning of the then current Fiscal Year to the end of such Fiscal
Quarter, setting forth in the case of the statements described in clauses (a)
and (b) above in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and, with respect to the
consolidated statements of income and the statement of sales and EBIT data by
Reporting Unit, the corresponding figures from the consolidated plan and
financial forecast for the current Fiscal Year delivered pursuant to
subsection 5.1(x), all in reasonable detail and certified by the chief
accounting officer, the chief financial officer, the treasurer, an assistant treasurer,
the controller or an assistant controller of Company that they fairly present
the consolidated financial condition of Company and its Subsidiaries as at the
dates indicated and the consolidated results of operations and cash flows for
the periods indicated, subject to changes resulting from audit and normal
year-end adjustment and insofar as related to Reporting Units based on
Company’s normal accounting procedures applied on a consistent basis;


 


(ii)           Year-End Financials.  as soon as practicable and in any event
within 90 days after the end of each Fiscal Year of Company (except in the case
of Australian Offshore Borrowers, which shall be delivered promptly after
becoming available) (a) the consolidated balance sheets of each of
Holdings, Company and each Domestic Borrower and Australian Offshore Borrower
and, following the BSN Acquisition Closing Date, BSN, in each case as at the
end of such year and the related consolidated statements of income,
stockholders’ equity and cash flows of Holdings, Company and each Domestic
Borrower and Australian Offshore Borrower and, following the BSN Acquisition
Closing Date, BSN for such Fiscal Year and (b) a statement setting forth
sales and EBIT data by Reporting Unit for such Fiscal Year, setting forth in
the case of the statements described in clauses (a) and (b) above, in
comparative form the corresponding figures for the previous year and, with
respect to the consolidated statements of income and the statement of sales and
EBIT data by Reporting Unit, the corresponding figures from the consolidated
plan and financial forecast for the current Fiscal Year delivered pursuant to
subsection 5.1(x), all in reasonable detail, (c) in the case of such
consolidated financial statements accompanied by a report thereon of independent
certified public accountants of recognized national standing selected by
Company which report shall be unqualified as to going concern and scope of
audit and shall state that such consolidated financial statements present
fairly the financial position of Holdings and its Subsidiaries, Company and its
Subsidiaries or each Domestic


 


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Borrower and Australian Offshore Borrower and its
respective Subsidiaries and, following the BSN Acquisition Closing Date, BSN
and its Subsidiaries, as the case may be as at the dates indicated and the
results of their operations and cash flows for the periods indicated in
conformity with GAAP consistently applied and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards and (d) in
the case of such financial statements with respect to Reporting Units,
certified by the chief accounting officer, the chief financial officer, the
treasurer, an assistant treasurer, the controller or an assistant controller of
Company based on Company’s normal accounting procedures applied on a consistent
basis;


 


(iii)          Officers’ Certificates and
Compliance Certificates.  together
with each delivery of financial statements of Company and its Subsidiaries
pursuant to subdivisions (i) and (ii) above, (a) an Officers’
Certificate of Company stating that the signers thereof have reviewed the terms
of this Agreement and have made, or caused to be made under their supervision,
a review in reasonable detail of the transactions and condition of Company and
its Subsidiaries during the accounting period covered by such financial
statements and that such review has not disclosed the existence during or at
the end of such accounting period, and that such signers do not have knowledge
of the existence as at the date of the Officers’ Certificate, of any condition
or event which constitutes an Event of Default or Potential Event of Default,
or, if any such condition or event existed or exists, specifying the nature and
period of existence thereof and what action Company has taken, is taking and
proposes to take with respect thereto; and (b) a Compliance Certificate
demonstrating compliance (as determined in accordance with GAAP) during and at
the end of such accounting periods with the restrictions contained in
subsections 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7 and 6.8 and, in addition, a
written statement of the chief accounting officer, chief financial officer,
treasurer, any assistant treasurer, controller or any assistant controller of
Company describing in reasonable detail (A) the differences between the
financial information contained in such financial statements and the
information contained in the Compliance Certificate relating to Company’s
compliance with subsections 6.6 and 6.8 and (B) the non-recurring cash
charges added back to Consolidated Net Income for purposes of calculating
Consolidated Adjusted EBITDA pursuant to clause (vii) of the definition
thereof;


 


(iv)          Accountants’ Certification.  to the extent required pursuant to clause
(a) or (b) below, together with each delivery of financial statements pursuant
to subdivisions (i) or (ii) of this subsection 5.1, a written statement
from the chief accounting officer, chief financial officer, treasurer, an
assistant treasurer, controller or any assistant controller of Company setting
forth (a) if necessary to explain any material changes in the consolidated
financial statements caused by the adoption of new accounting principles, a
comparison and reconciliation of the consolidated financial statements with pro
forma consolidated financial statements prepared as if the new accounting
principles had not been adopted (it being understood that, subject to the
following clause (b), only one such statement shall be required with respect to
any particular adoption of any new accounting principles) and (b) during
the pendency of any negotiations provided for in subsection 10.9 resulting
from any change in accounting


 


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principles and
policies, the differences which would have resulted if such financial
statements had been prepared without giving effect to such change;


 


(v)           SEC Filings and Press Releases.  promptly upon their becoming available,
copies of (a) all annual reports and proxy statements sent or made available
generally by Holdings to its security holders or by any Subsidiary of Holdings
to its security holders other than Holdings or another Subsidiary, (b) all
reports (including, without limitation, its Annual Report on Form 10-K and its
Quarterly Report on Form 10-Q) and all registration statements of Holdings or
any of its Subsidiaries filed with the Securities and Exchange Commission on
Forms S-2, S-3, S-4 and 8-K, (c) all press releases and other statements made
available generally by Holdings, any Borrower or any of its Domestic
Subsidiaries or any of its material Foreign Subsidiaries to the public
concerning material developments in the business of Holdings or any of such
Subsidiaries, and (d) such other filings with the Securities and Exchange
Commission or any other regulatory agency having jurisdiction over the affairs
of Holdings and its Subsidiaries as Administrative Agent may reasonably request;


 


(vi)          Events of Default, Etc.  promptly upon any Responsible Officer of
Company or any Borrower obtaining knowledge (a) of any condition or event
which constitutes an Event of Default or Potential Event of Default, or
becoming aware that any Lender or Administrative Agent has given any notice or
taken any other action with respect to a claimed Event of Default or Potential
Event of Default under this Agreement, (b) that any Person has given any
notice to Company or any Subsidiary of Company or taken any other action with
respect to a claimed default or event or condition of the type referred to in
subsection 7.2, or (c) of the occurrence of any event or change
(including any event or change relating to environmental or ERISA matters) that
has caused or evidences, or would reasonably be expected to give rise to,
either in any case or in the aggregate, a Material Adverse Effect, an Officers’
Certificate specifying the nature and period of existence of any such condition
or event, or specifying the notice given or action taken by such holder or
Person and the nature of such claimed default, Event of Default, Potential
Event of Default, event or condition, and what action Company or such Borrower
has taken, is taking and proposes to take with respect thereto;


 


(vii)         Litigation or Other Proceedings.  promptly upon any Responsible Officer of
Company or any Borrower obtaining knowledge of (a) the institution of, or
non-frivolous threat of, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries not
previously disclosed by Company or a Borrower to Lenders, or (b) any
material development in any such action, suit, proceeding, governmental investigation
or arbitration, which, in either case, if adversely determined, would
reasonably be expected to cause a Material Adverse Effect, written notice
thereof to Lenders and provide such other information as may be reasonably
available to it to enable Lenders and their counsel to evaluate such matters;


 


(viii)        ERISA Events.  promptly upon becoming aware of the
occurrence of or forthcoming occurrence of any ERISA Event, a written notice
specifying the nature thereof, what action Company, any of its Subsidiaries or
any of


 


147

















 


their respective
ERISA Affiliates has taken, is taking or proposes to take with respect thereto
and, when known, any action taken or threatened by the Internal Revenue
Service, the Department of Labor or the PBGC with respect thereto;


 


(ix)           ERISA Notices.  with reasonable promptness, copies of (a)
all notices received by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an
ERISA Event; and (b) copies of such other documents or governmental reports or
filings relating to any Employee Benefit Plan as Administrative Agent or any
Lender through Administrative Agent shall reasonably request;


 


(x)            Financial Plans.  as soon as practicable and in any event
within 90 days after the beginning of each Fiscal Year of Company, a
consolidated plan and financial forecast, prepared in accordance with Company’s
normal accounting procedures applied on a consistent basis, for such Fiscal
Year of Company and its Subsidiaries, including, without limitation, (a) a
forecasted consolidated balance sheet, consolidated statement of income and
consolidated statement of cash flows of Company for such Fiscal Year,
(b) forecasted consolidated balance sheets and statements of income of
Company and a statement setting forth forecasted sales and operating income
data for each Reporting Unit for each Fiscal Quarter of such Fiscal Year, and
(c) the amount of forecasted capital expenditures and unallocated overhead
for such Fiscal Year;


 


(xi)           New Subsidiaries.  On the BSN Acquisition Closing Date and
within 45 days of the end of the first, second and third Fiscal Quarter, and
within 90 days of the end of the fourth Fiscal Quarter, as applicable, a
written notice setting forth with respect to all Persons becoming Subsidiaries
of Company on such date during the previous Fiscal Quarter, (a) the date on
which such Person became a Subsidiary of Company and (b) all of the data
required to be set forth in Schedule 4.1 annexed hereto with respect to
all Subsidiaries of Company (it being understood that such written notice shall
be deemed to supplement Schedule 4.1 annexed hereto for all purposes of
this Agreement);


 


(xii)          Holdings Ordinary Course Payments.  within 90 days of the end of each Fiscal
Year, a written report in form satisfactory to Agents, setting forth by each
category set forth in the definition of such term all Holdings Ordinary Course
Payments during such Fiscal Year including a report in a form and covering the
matters covered in the report previously delivered to the Administrative Agent;


 


(xiii)         promptly upon receipt thereof pursuant
to the BSN Share Purchase Agreement, a copy of the audited financial statements
for fiscal year 2003 for BSN and its Subsidiaries; and


 


(xiv)        Other Information.  with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries as from
time to time may be reasonably requested by any Lender through Administrative
Agent.


 


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Company
and Borrowers shall be deemed to have delivered reports referred to in clauses
(i),(ii), (iii) or (v) of this subsection 5.1 when (A) such reports or other
information have been posted on the Internet website of the Securities and
Exchange Commission (http://www.sec.gov) or on its own Internet website as
previously identified to Agents and Lenders, and (B) Company and Borrowers have
notified Agents and Lenders by electronic mail of such posting; provided that
if any Agent or any Lender requests such information to be delivered in hard
copies, Company and/or any Borrower, as applicable, shall furnish to such Agent
or Lender, as applicable, such information accordingly.


 


5.2          Corporate Existence, Etc.


 


Company and each Borrower will at all times preserve
and keep in full force and effect its corporate existence and rights and
franchises material to its business and the businesses of each of its
Subsidiaries; provided, however, that the existence of any such
Subsidiary (other than any Domestic Borrower or Offshore Borrower) may be
terminated if its parent corporation determines that such termination is in the
best interest of such parent corporation.


 


5.3          Payment of Taxes and Claims; Tax
Consolidation


 


A.    Company and each Borrower will, and will cause each of its
Subsidiaries to, pay all taxes, assessments and other governmental charges
imposed upon it or any of its properties or assets or in respect of any of its
franchises, business, income or property before any material penalty accrues
thereon, and all claims (including, without limitation, claims for labor,
services, materials and supplies) for sums which have become due and payable
and which by law have or may become a material Lien upon any of its properties
or assets, prior to the time when any material penalty or fine shall be
incurred with respect thereto; provided that no such charge or claim need be
paid if being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and if such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor.


 


B.    Company will not, nor will it permit any of its Subsidiaries to,
file or consent to the filing of any consolidated income tax return with any
Person (other than Holdings or any of its Subsidiaries or such other Person as
may be reasonably acceptable to Requisite Lenders).


 


5.4          Maintenance of Properties; Insurance;
Application of Net Insurance/Condemnation Proceeds


 


A.    Company and Borrowers will maintain or cause to be maintained in
good repair, working order and condition all material properties used or useful
in the business of Company and its Subsidiaries and from time to time will make
or cause to be made all appropriate repairs, renewals and replacements
thereof.  Company and Borrowers will
each maintain or cause to be maintained, with financially sound and reputable
insurers, insurance with respect to its properties and business and the
properties and business of its Subsidiaries against loss or damage of the kinds
customarily insured against by corporations of established reputation engaged
in the same or similar businesses and similarly situated, of such types and in
such amounts as are customarily carried under similar circumstances by such
other corporations


 


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(“Industry Standards”)
and may self insure to the extent, and only to the extent, consistent with
Industry Standards.  Without limiting
the generality of the foregoing, Company will maintain or cause to be
maintained (i) flood insurance with respect to each Flood Hazard Property that
is located in a community that participates in the National Flood Insurance
Program, in each case in compliance with any applicable regulations of the
Board of Governors of the Federal Reserve System, and (ii) replacement value
casualty insurance on the Collateral under such policies of insurance, with
such insurance companies, in such amounts, with such deductibles, and covering
such risks as are at all times satisfactory to Collateral Agent in its
commercially reasonable judgment. Each such policy of insurance shall (a) name
Collateral Agent for the benefit of Lenders as an additional insured thereunder
as its interests may appear and (b) in the case of each casualty insurance
policy, contain a loss payable clause or endorsement, satisfactory in form and
substance to Collateral Agent, that names Collateral Agent for the benefit of
Lenders as the loss payee thereunder for any covered loss in excess of
$25,000,000 and provides for at least 30 days’ prior written notice to
Collateral Agent of any modification or cancellation of such policy.


 


B.    Application of Net Insurance/Condemnation Proceeds.  Upon receipt by Company or any of its
Domestic Subsidiaries, or by Collateral Agent as loss payee, of any Net
Insurance/Condemnation Proceeds, so long as no Event of Default shall have
occurred and be continuing, Company or such Domestic Subsidiary shall cause to
be deposited all such Net Insurance/Condemnation Proceeds with Collateral
Agent, and Collateral Agent shall hold the same in the General Collateral
Account pending a determination by Company or its applicable Subsidiary as to
whether the Company or applicable Domestic Subsidiary (a) will repair, restore
or replace the assets in respect of which such Net Insurance/Condemnation
Proceeds were received or (b) will elect to cause prepayments of the Loans
and/or the reduction of the Revolving Loan Commitments as provided in subsection 2.4B.  The failure by Company or such Domestic
Subsidiary to make an election under the preceding sentence on or before the
date that is 120 days after receipt of the Net Insurance/Condemnation Proceeds
shall be deemed an election to cause the prepayments of the Loans and/or the
reduction in the Revolving Commitments as provided in subsection 2.4B and
Collateral Agent shall be entitled (but shall not be obligated) to use any Net
Insurance/Condemnation Proceeds held by Collateral Agent to prepay the Loans and
to make any other payments required under the Intercreditor Agreement.  If an Event of Default shall have occurred
and be continuing, Domestic Borrowers shall deliver to Collateral Agent for
application to the Loans if Collateral Agent so elects (or, if Collateral Agent
is holding Net Insurance/Condemnation Proceeds, Collateral Agent shall be
entitled to apply if it so elects) an amount equal to such portion of such Net
Insurance/Condemnation Proceeds to prepay the Loans (and/or reduce the
Revolving Loan Commitments) as provided in subsection 2.4B subject to any
limitations contained in the Intercreditor Agreement.  If any Net Insurance/Condemnation Proceeds are released to
Company or its applicable Subsidiary pursuant to this subsection 5.4B, and
any portion of such Net Insurance/Condemnation Proceeds are not used to repair,
replace or restore the assets in respect of which such Net
Insurance/Condemnation Proceeds were received, any amount of such Net
Insurance/Condemnation Proceeds not so used shall be applied to prepay the Term
Loans and/or reduce Revolving Loan Commitments as provided in
subsection 2.4B and shall be otherwise applied as required by the
Intercreditor Agreement.


 


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5.5          Inspection; Lender Meeting


 


A.    Company and Borrowers shall permit any authorized representatives
designated by any Lender, at the expense of that Lender, to visit and inspect
any of the properties of Company or any of its Subsidiaries, including its and
their financial and accounting records, and to make copies and take extracts
therefrom, and to discuss its and their affairs, finances and accounts with its
and their officers and independent public accountants, all upon reasonable
notice and at such reasonable times during normal business hours and as often
as may be reasonably requested.


 


B.    Company and Borrowers will, upon the request of Agents or
Requisite Lenders, participate in a meeting of Agents and Lenders once during
each Fiscal Year to be held at Company’s principal offices (or at such other
location as may be agreed to by Company and Agents) at such time as may be
agreed to by Company and Administrative Agent.


 


5.6          Compliance with Laws, Etc.


 


Company, Borrowers and its/their Subsidiaries shall
exercise all due diligence in order to comply with the requirements of all
applicable laws, rules, regulations and orders (including all Environmental
Laws) of any governmental authority, noncompliance with which in any case or in
the aggregate would reasonably be expected to result in a Material Adverse
Effect.


 


5.7          Securities Activities


 


Following the application of the proceeds of any
Loans, not more than 25% of the value of the assets (either of Company only or
of Company and its Subsidiaries on a consolidated basis) subject to the
provisions of subsection 6.2 or 6.7, or subject to any similar restriction
contained in any agreement or instrument between Company and any Lender or any
Affiliate of any Lender relating to Indebtedness and within the scope of
subsection 7.2, will be attributable to Margin Stock.


 


5.8          Environmental Matters


 


A.    Environmental
Disclosure.  Company will deliver to Administrative Agent
and Lenders:


 


(i)            Environmental Audits and Reports.  As soon as practicable following receipt
thereof, copies of all non-privileged environmental audits, investigations,
analyses and reports of any kind or character, whether prepared by personnel of
Company, any Borrower or any of its Domestic Subsidiaries or by independent
consultants, governmental authorities or any other Persons, with respect to
significant environmental matters at any Mortgaged Property that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect or with respect to any Environmental Claims that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect;


 


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(ii)           Notice of Certain Releases,
Remedial Actions, Etc.  Within 90
days following the end of each Fiscal Year, a written summary describing in
reasonable detail (a) any Release required to be reported to any federal, state
or local governmental or regulatory agency under any applicable Environmental
Laws, and (b) any remedial action taken by Company, any Borrower or any
other Domestic Subsidiary in response to (1) any Hazardous Materials
Activities the existence of which could reasonably be expected to result in one
or more Environmental Claims having, individually or in the aggregate, a
Material Adverse Effect, or (2) any Environmental Claims that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.


 


(iii)          Written Communications Regarding
Environmental Claims, Releases, Etc. 
As soon as practicable following the sending or receipt thereof by
Company or any of its Subsidiaries, a copy of any and all non-privileged
written communications with respect to any Environmental Claims that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.


 


(iv)          Notice of Certain Proposed Actions
Having Environmental Impact.  In
addition to the quarterly reporting required under subsection 5.1(xi),
prompt written notice describing in reasonable detail (a) any proposed
acquisition of stock, assets, or property by Company or any of its Subsidiaries
that could reasonably be expected to (1) expose Company or any of its
Subsidiaries to, or result in, Environmental Claims that could reasonably be
expected to result in, individually or in the aggregate, a Material Adverse
Effect or (2) affect the ability of Company or any of its Subsidiaries to
maintain in full force and effect all material Governmental Authorizations
required under any Environmental Laws for their respective operations and (b) any
proposed action to be taken by Company or any of its Subsidiaries to modify
current operations in a manner that could reasonably be expected to subject
Company or any of its Subsidiaries to any material additional obligations or
requirements under any Environmental Laws that could reasonably be expected to
result in, individually or in the aggregate, a Material Adverse Effect.


 


B.    Company’s Actions Regarding Hazardous Materials Activities,
Environmental Claims and Violations of Environmental Laws.


 


(i)            Remedial Actions Relating to
Hazardous Materials Activities. 
Company and each Borrower shall, in compliance with all applicable
Environmental Laws, promptly undertake, and shall cause each of its
Subsidiaries promptly to undertake, any and all investigations, studies,
sampling, testing, abatement, cleanup, removal, remediation or other response
actions necessary to remove, remediate, clean up or abate any Hazardous
Materials Activity on, under or about any Mortgaged Property that is in
violation of any Environmental Laws or that presents a material risk of giving
rise to an Environmental Claim.


 


(ii)           Actions with Respect to
Environmental Claims and Violations of Environmental Laws.  Company and each Borrower shall promptly
take, and shall cause each of its Subsidiaries promptly to take, any and all
actions necessary to


 


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(i) cure any
violation of applicable Environmental Laws by Company, any Borrower or its or
their Subsidiaries that could reasonably be expected to result in, individually
or in the aggregate, a Material Adverse Effect and (ii) make an appropriate
response to any Environmental Claim against Company or any of its Subsidiaries
and discharge any obligations it may have to any Person thereunder where
failure to do so could reasonably be expected to result in, individually or in
the aggregate, a Material Adverse Effect.


 


C.    Environmental Review
and Investigation.  Company and Borrowers each agree that
Administrative Agent may, from time to time and in its reasonable discretion,
(i) retain, at Borrowers’ expense, an independent professional consultant to
review any environmental audits, investigations, analyses and reports relating
to Hazardous Materials prepared by or for Company and (ii) in the event (a)
Administrative Agent reasonably believes that Company or any Borrower or any of
its or their Subsidiaries has breached any representation, warranty or covenant
contained in this subsection 5.8 or that there has been a material
violation of Environmental Laws at any Mortgaged Property or by Company, any
Borrower or any of its or their Subsidiaries at any other location or (b) an
Event of Default has occurred and is continuing, conduct its own investigation
of any Mortgaged Property; provided that, in the case of any Facility no
longer owned, leased, operated or used by Company, any Borrower or any of its
or their Subsidiaries, Company shall only be obligated to use its best efforts
to obtain permission for Administrative Agent’s professional consultant to
conduct an investigation of such Facility. 
For purposes of conducting such a review and/or investigation, Company
and each Borrower hereby grants to Administrative Agent and its agents,
employees, consultants and contractors the right to enter into or onto any
Mortgaged Property currently owned, leased, operated or used by Company, any
Borrower or any of its or their Subsidiaries and to perform such tests on such
property (including taking samples of soil, groundwater and suspected
asbestos-containing materials) as are reasonably necessary in connection
therewith.  Any such investigation of
any Facility shall be conducted, unless otherwise agreed to by Company, the
relevant Borrower and Administrative Agent, during normal business hours and,
to the extent reasonably practicable, shall be conducted so as not to interfere
with the ongoing operations at such Facility or to cause any damage or loss to
any property at such Facility.  Company,
Borrowers and Administrative Agent hereby acknowledge and agree that any report
of any investigation conducted at the request of Administrative Agent pursuant
to this subsection 5.8C will be subject to the provisions of
subsection 10.20 and will be obtained and shall be used by Administrative
Agent and Lenders solely for the purposes of Lenders’ internal credit
decisions, to monitor and police the Loans and to protect Lenders’ security
interests created by the Loan Documents or in connection with any transaction
relating to the Loans or to such Facility. Administrative Agent agrees to
deliver a copy of any such report to Company with the understanding that
Company and each Borrower acknowledge and agree that (x) it will indemnify
and hold harmless Administrative Agent and each Lender from any costs, losses
or liabilities relating to Company’s use of or reliance on such report,
(y) neither Administrative Agent nor any Lender makes any representation
or warranty with respect to such report, and (z) by delivering such report
to Company, neither Administrative Agent nor any Lender is requiring or
recommending the implementation of any suggestions or recommendations contained
in such report.


 


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5.9          Execution of Subsidiary Guaranty and
Security Agreement After the Second Restatement Date.


 


A.    Execution of
Subsidiary Guaranty and Security Agreement.  In the event that (a) any wholly-owned
Domestic Subsidiary of Company existing on the Restatement Date (other than the
Harbor Capital Subsidiaries) that has not previously executed the Subsidiary
Guaranty or (b) any Person becomes a wholly-owned Domestic Subsidiary of
Company after the date hereof (other than a Domestic Subsidiary formed in
connection with any Receivables Sale Indebtedness and other than any Domestic
Subsidiary subject to a restriction permitted under subsection 6.2B
prohibiting such Subsidiary’s execution of the Subsidiary Guaranty and/or the
Security Agreement), and such Subsidiary owns or acquires assets with an
aggregate fair market value (without netting such fair market value against any
liability of such Subsidiary) exceeding $5,000,000, Borrowers’ Agent will
promptly notify Administrative Agent of that fact and cause such Domestic
Subsidiary to execute and deliver to Administrative Agent a counterpart of the
Subsidiary Guaranty and a counterpart of the Security Agreement and to take all
such further actions and execute all such further documents and instruments
(including actions, documents and instruments comparable to those described in
subsection 3.1J) as may be necessary or, in the opinion of Collateral
Agent, desirable to create in favor of Collateral Agent, for the benefit of
Lenders, a valid and perfected First Priority Lien on all of the personal and
mixed property assets of such Domestic Subsidiary described in the applicable
forms of Collateral Documents.


 


B.    Foreign Subsidiaries.  In
the event that any Person becomes an English Wholly-Owned Subsidiary or
Australian Wholly-Owned Subsidiary after the date hereof, or becomes a
Subsidiary of BSN organized in France, Germany, the Netherlands, Spain or
Luxembourg after the BSN Acquisition Closing Date, and such Subsidiary owns or
acquires assets with an aggregate fair market value (without netting such fair
value against a liability of such Subsidiary) exceeding $5,000,000, Borrowers’
Agent will promptly notify Collateral Agent of that fact and cause such
Subsidiary to the extent legally permissible in the case of Subsidiaries
organized in France or Germany to execute and deliver to Collateral Agent a
counterpart of the applicable Offshore Guaranty and a counterpart of the
applicable Offshore Security Agreement and such documents and instruments and
take such further actions (including actions, documents and instruments
comparable to those referred to in subsection 3.1K or 3.2, as applicable)
as may be necessary, or in the reasonable opinion of Collateral Agent,
desirable to create in favor of Collateral Agent, for the benefit of Lenders, a
valid and perfected First Priority Lien on all of the personal and mixed property
assets of such Subsidiary described in the applicable forms of Collateral
Documents.


 


C.    Subsidiary
Organizational Documents, Legal Opinions, Etc.  Company and Borrowers shall deliver to
Administrative Agent, together with such Loan Documents, (i) certified
copies of such Subsidiary’s Organizational Documents, together with, if such
Subsidiary is a Domestic Subsidiary, a good standing certificate from the
Secretary of State (or other applicable authority) of the jurisdiction of its
organization, each to be dated a recent date prior to their delivery to
Administrative Agent, (ii) a certificate executed by the secretary or
similar officer of such Subsidiary as to (a) the fact that the attached
resolutions of the Governing Body of such Subsidiary approving and authorizing
the execution, delivery and performance of such Loan Documents are in full
force and effect and have not been modified or amended and (b) the
incumbency and signatures of the officers of such Subsidiary executing such
Loan


 


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Documents, and (iii) if such Subsidiary owns assets
with a value in excess of $100,000,000, a favorable opinion of counsel to such
Subsidiary, in form and substance satisfactory to Administrative Agent and its
counsel, as to (a) the due organization and good standing of such
Subsidiary, (b) the due authorization, execution and delivery by such
Subsidiary of such Loan Documents, (c) the enforceability of such Loan
Documents against such Subsidiary and (d) such other matters (including
matters relating to the creation and perfection of Liens in any Collateral
pursuant to such Loan Documents) as Administrative Agent may reasonably
request, all of the foregoing to be satisfactory in form and substance to
Administrative Agent and its counsel.


 


5.10        Real Estate Matters


 


A.    As to (i) each Real Property Asset listed on Schedule 4.12B-1
annexed hereto (each, an “Existing Mortgaged
Property”, and collectively, the “Existing
Mortgage Properties”), any amendment to the existing Mortgage
encumbering such Existing Mortgaged Property (an “Existing
Mortgage”) or a new Mortgage to the extent no Existing Mortgage
encumbers such property, and in either case related documentation to the extent
deemed necessary by the Agents, and (ii) in the event, from and after the
Second Restatement Date that (x) Company, any Borrower, any Subsidiary
Guarantor or any Offshore Guarantor organized in Australia, the UK, the
Netherlands or Spain acquires any fee or Ground Leasehold Interest in a Real
Property Asset (or freehold title, in the case of a Real Property Asset located
in the UK) the acquisition cost of which (including purchase-money Indebtedness
or assumed Indebtedness) or insurable value of which exceeds $50,000,000 or (y)
at the time any Person becomes a Subsidiary Guarantor or Offshore Guarantor
organized in Australia, the UK, the Netherlands or Spain, such Person owns or
holds any fee or Ground Leasehold Interest in a Real Property Asset (or
freehold title, in the case of a Real Property Asset located in the UK) with an
assessed or insurable value in excess of $50,000,000 excluding any such Real
Property Asset the encumbrancing of which requires the consent of (in the case
of clause (y) above) a then-existing senior lienholder, where Company and its Subsidiaries
are unable to obtain such senior lienholder’s consent (any Real Property Asset
described in clause (i) and any such non-excluded Real Property Asset described
in the clause (ii) above being an “Additional
Mortgaged Property”), Company or such Subsidiary Guarantor shall
deliver to Collateral Agent, within 60 days of the Second Restatement Date in
the case of any amendment to the Existing Mortgages (or any new Mortgage with
respect to an Existing Mortgaged Property) (subject to extensions as approved
by Collateral Agent) and as soon as practicable after such Person acquires such
Additional Mortgaged Property or becomes a Subsidiary Guarantor or Offshore
Guarantor, as the case may be, the following as applicable:


 


(i)            Mortgage.  A fully executed and notarized Mortgage or
amendment to an Existing Mortgage, as applicable, duly recorded in all
appropriate places in all applicable jurisdictions, encumbering the interest of
such Loan Party in such Existing Mortgaged Property or Additional Mortgage Property
(any such Mortgage encumbering an Additional Mortgaged Property being an “Additional Mortgage”);


 


(ii)           Landlord Consents and Estoppels;
Recorded Leasehold Interests.  In
the case of each Additional Mortgaged Property located in the United States of
America and consisting of a Ground Leasehold Interest, (a) a Landlord Consent
and Estoppel with respect thereto (to the extent such Loan Party can obtain
same using its


 


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commercially
reasonable efforts) and (b) evidence that such Ground Leasehold Interest is a
Recorded Leasehold Interest;


 


(iii)          Title Insurance.  With respect to any Additional Mortgaged
Property located in the United States of America:  (a) If required by Administrative Agent, an ALTA mortgagee title
insurance policy or an unconditional commitment therefor issued by a Title
Company, in an amount satisfactory to Administrative Agent, insuring fee simple
title to or a valid leasehold interest in, such Additional Mortgaged Property
vested in such Loan Party and assuring Agents that such Mortgage creates a
valid and enforceable First Priority mortgage Lien on such Additional Mortgaged
Property, subject only to a standard survey exception and Permitted
Encumbrances and Liens otherwise permitted under subsection 6.2, which
policy (1) shall include an endorsement for mechanics’ liens, for future
advances under this Agreement and for any other matters reasonably requested by
Administrative Agent and (2) shall provide for affirmative insurance and such reinsurance
as Administrative Agent may reasonably request, all of the foregoing in form
and substance reasonably satisfactory to Administrative Agent; and (b) evidence
satisfactory to Administrative Agent that such Loan Party has (i) delivered to
the title company all certificates and affidavits required by the Title Company
in connection with the issuance of such policy and (ii) paid to the title
company or to the appropriate governmental authorities all expenses and
premiums of the Title Company in connection with the issuance of such policy
and all recording and stamp taxes (including mortgage recording and intangible
taxes) payable in connection with recording such Mortgage in the appropriate
real estate records;


 


(iv)          Title Report, Certificate of Title.  If no title insurance policy is required
with respect to an Additional Mortgaged Property located in the United States
of America, a preliminary title report issued by a Title Company, dated not
more than 30 days prior to the date such Mortgage is to be recorded and
satisfactory in form to Administrative Agent; or, in the case of any Additional
Mortgaged Property located in the UK or Australia, a certificate of title
prepared by Borrowers’ counsel or other customary assurances of title.


 


(v)           Copies of Documents Relating to
Title Exceptions.  Copies of all
recorded documents listed as exceptions to title or otherwise referred to in
the additional title insurance policy or title report delivered pursuant to
clause (iii) and (iv) above;


 


(vi)          Matters Relating to Flood Hazard
Properties.  With respect to each
Additional Mortgaged Property located in the United States of America:  (a) Evidence, which may be in the form of a
letter from an insurance broker or a municipal engineer, as to (1) whether
such Additional Mortgaged Property is a Flood Hazard Property and (2) if
so, whether the community in which such Flood Hazard Property is located is
participating in the National Flood Insurance Program, (b) if such Additional
Mortgaged Property is a Flood Hazard Property, such Loan Party’s written
acknowledgement of receipt of written notification from Administrative Agent
(1) that such Additional Mortgaged Property is a Flood Hazard Property and
(2) as to whether the community in which such Flood Hazard Property is located
is participating in the


 


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National Flood
Insurance Program, and (c) in the event such Additional Mortgaged Property is a
Flood Hazard Property that is located in a community that participates in the
National Flood Insurance Program, evidence that Company has obtained flood
insurance in respect of such Flood Hazard Property to the extent required under
the applicable regulations of the Board of Governors of the Federal Reserve
System; and


 


(vii)         Environmental Audit.  If required by Administrative Agent, reports
and other information, in form, scope and substance satisfactory to
Administrative Agent and prepared by environmental consultants satisfactory to
Administrative Agent, concerning any material environmental hazards or
liabilities to which Company or any of its Subsidiaries may be subject with
respect to such Additional Mortgaged Property.


 


SECTION
6


 


COMPANY’S
NEGATIVE COVENANTS


 


Company and each Borrower covenants and agrees that,
so long as any of the Commitments hereunder shall remain in effect and until
payment in full of all of the Loans, the Notes, the Offshore Overdraft Amounts
and the Domestic Overdraft Amount and other Obligations and the cancellation or
expiration of all Letters of Credit and reimbursement of all amounts drawn
thereunder, unless Requisite Lenders shall otherwise give prior written
consent, Company and each Borrower shall perform, and shall cause each of its
respective Subsidiaries to perform, all covenants in this Section 6.


 


6A.          Second Restatement Date to BSN Acquisition Closing
Date


 


From the Second Restatement Date until, but excluding,
the BSN Acquisition Closing Date, Company and each Borrower shall perform, and
shall cause each of its Subsidiaries to perform, all covenants in this Section
6A.  From the Second Restatement Date
until, but excluding the BSN Acquisition Closing Date, references to Section 6
and subsections thereof in this Agreement shall be deemed to be references to
this Section 6A and the subsections thereof, respectively.


 


6.1          Indebtedness


 


Company and each Borrower shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, create, incur,
assume or guaranty, or otherwise become or remain directly or indirectly liable
with respect to, any Indebtedness, except:


 


(i)            Loan Parties may become and remain
liable with respect to the Obligations and may guaranty the Obligations and the
Other Lender Guarantied Obligations pursuant to their respective Guaranties;


 


(ii)           Company and its Subsidiaries may
become and remain liable with respect to Contingent Obligations permitted by
subsection 6.4 and, upon any matured obligations actually arising pursuant
thereto, the Indebtedness corresponding to the Contingent Obligations so
extinguished;


 


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(iii)          Company and its Subsidiaries may
become and remain liable with respect to Indebtedness in respect of Capital
Leases aggregating not in excess of $250,000,000 at any one time;


 


(iv)          Company may become and remain liable
with respect to Indebtedness to any of its Subsidiaries, and any Subsidiary of
Company may become and remain liable with respect to Indebtedness to Company or
any other Subsidiary of Company; provided that (a) all such intercompany
Indebtedness shall be evidenced by promissory notes to the extent it evidences
Indebtedness owed to a Loan Party (unless promissory notes are not recognized
evidences of indebtedness under the applicable law governing such
Indebtedness), (b) all such intercompany Indebtedness owed by Company to any of
its Subsidiaries shall be subordinated in right of payment to the payment in
full of the Obligations pursuant to the terms of the applicable promissory
notes or an intercompany subordination agreement, and (c) any payment by any
Subsidiary of Company under any guaranty of the Obligations shall result in a pro
tanto reduction of the amount of any intercompany Indebtedness owed by
such Subsidiary to any Domestic Borrower or to any of their respective
Subsidiaries for whose benefit such payment is made; and Company may become and
remain liable with respect to Indebtedness to Holdings; provided that
such Indebtedness shall be evidenced by its existing subordinated intercompany
note dated as of April 23, 2001, as amended prior to the First Restatement Date
and as the same may be amended in accordance with the written consent of the
Agents provided under the Original Credit Agreement prior to the First
Restatement Date; provided, that,  such subordinated note shall not be further amended without the
consent of Agents;


 


(v)           Company and its Subsidiaries, as
applicable, may remain liable with respect to Indebtedness or the commitments
therefor described in Schedule 6.1 annexed hereto and any extensions,
renewals and refinancings of the Indebtedness or the commitments therefor
described in Part I thereof to the extent that such extensions, renewals and
refinancings thereof do not result in an increase in the aggregate principal
amount or commitment amount of such Indebtedness as described in Schedule
6.1 Part I;


 


(vi)          Company and Packaging may become and
remain liable with respect to the Existing Holdings Senior Notes on a
subordinated basis;


 


(vii)         Company and the other Loan Parties may
become and remain liable with respect to the New Senior Debt;


 


(viii)        Company and Packaging may become and
remain liable with respect to the Refinancing Senior Debt on a subordinated
basis;


 


(ix)           Company and Packaging may become and
remain liable with respect to New Junior Debt on a subordinated or unsecured
basis or both;


 


(x)            Company and its Subsidiaries may
become and remain liable with respect to Purchase Money Indebtedness in an
aggregate principal amount not to exceed $200,000,000 at any time outstanding;


 


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(xi)           In addition to Indebtedness permitted
by the other clauses of this subsection, Foreign Subsidiaries of Company may
become and remain liable with respect to other Indebtedness in an aggregate
principal amount not to exceed $606,000,000 at any time outstanding (of which
approximately $356,000,000 was outstanding or committed as of the First
Restatement Date, as described in Schedule 6.1 Part II);


 


(xii)          In addition to Indebtedness permitted
by the other clauses of this subsection, Company and its Domestic Subsidiaries
may become and remain liable with respect to other Indebtedness in an aggregate
principal amount not to exceed $200,000,000 at any time outstanding;


 


(xiii)         Company and its Subsidiaries may become
and remain liable with respect to Acquired Indebtedness; and


 


(xiv)        Company and its Subsidiaries may become
and remain liable with respect to Receivables Sale Indebtedness; provided,
that, Domestic Subsidiaries may not become and remain liable with
respect to any such Receivables Sale Indebtedness until the earlier to occur of
(i) the BSN Acquisition Closing Date, and (ii) the termination of all Tranche D
Term Loan Commitments without the BSN Acquisition having been consummated.


 


6.2          Liens and Related Matters


 


A.    Prohibition on Liens. 
Company and each Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company, any Borrower or any of their Subsidiaries, whether now
owned or hereafter acquired, or any income or profits therefrom, or file or
permit the filing of, or permit to remain in effect, any financing statement or
other similar notice of any Lien with respect to any such property, asset,
income or profits under the UCC or under any similar recording or notice
statute, except:


 


(i)            Permitted Encumbrances;


 


(ii)           Liens granted pursuant to the
Collateral Documents;


 


(iii)          Liens described in Schedule B
annexed hereto (“Existing Liens”)
and Liens securing Indebtedness incurred to refinance any Indebtedness secured
by Existing Liens so long as (a) the principal amount of such refinancing
Indebtedness does not exceed the greater of (1) the fair market value of the
assets subject to such Lien and (2) the principal amount (or, if greater, the
committed amount) of the Indebtedness refinanced thereby and (b) such
refinancing Indebtedness is not secured by any collateral which did not secure
the Indebtedness refinanced thereby;


 


(iv)          Liens securing Purchase Money
Indebtedness permitted by subsection 6.1(x) and arising from the giving,
simultaneously with or within 180 days after the acquisition, construction or
improvement of real property or tangible personal


 


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property, of any
purchase money Lien (including vendors’ rights under purchase contracts under
an agreement whereby title is retained for the purpose of securing the purchase
price thereof) of real property or tangible personal property hereafter
acquired, constructed or improved and not heretofore owned by Company, any
Borrower or any of its Subsidiaries, or from the acquiring hereafter of real
property or tangible personal property not heretofore owned by Company, any
Borrower or any of its Subsidiaries subject to any then-existing Lien (whether
or not assumed), or from the extension, renewal or replacement of any
Indebtedness secured by any of the foregoing Liens so long as the aggregate
principal amount thereof and the security therefor is not thereby increased; provided,
however, that in each case (a) such Lien is limited to such acquired,
constructed or improved real or tangible personal property and fixed improvements,
if any, then existing or thereafter erected thereon, and (b) the principal
amount of the Indebtedness secured by such Lien, together (without duplication)
with the principal amount of all other Indebtedness secured by Liens on such
property, shall not exceed the cost (which shall be deemed to include, without
duplication, the amount of Indebtedness secured by Liens, including existing
Liens, on such property) of such property to Company, any Borrower or its
applicable Subsidiary;


 


(v)           Liens encumbering accounts receivable
sold and cash reserves established in connection therewith pursuant to any
transaction permitted under subsection 6.7(vi);


 


(vi)          Liens on acquired assets securing
Acquired Indebtedness; provided that such Liens were created prior to
the acquisition of such acquired assets or acquired Subsidiary;


 


(vii)         In addition to Liens permitted by the
other clauses of this subsection, Liens on the assets of Foreign Subsidiaries
securing Indebtedness or other obligations of such Foreign Subsidiaries (other
than the Australian Offshore Borrowers, United Glass and Offshore Guarantors);


 


(viii)        In addition to Liens permitted by the
other clauses of this subsection, Liens securing Indebtedness or Contingent
Obligations of Company and its Subsidiaries in an aggregate principal amount
not to exceed $200,000,000 at any time outstanding;


 


(ix)           Liens securing Receivables Sale
Indebtedness; provided that such Liens encumber solely the receivables
so sold and customary related assets; and


 


(x)            Liens on deposits of cash or Cash
Equivalents securing bona-fide hedging arrangements with Lenders or Affiliates
thereof.


 


B.    No Restrictions on Subsidiary Distributions to Company or
Other Subsidiaries.  Company and
Borrowers will not, and will not permit any of its or their Subsidiaries to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any such Subsidiary to
(i) pay dividends or make any other distributions on any of such Subsidiary’s
Capital Stock owned by Company or


 


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any other Subsidiary of Company, (ii) repay or prepay
any Indebtedness owed by such Subsidiary to Company or any other Subsidiary of
Company, (iii) make loans or advances to Company or any other Subsidiary of
Company, or (iv) transfer any of its property or assets to Company or any other
Subsidiary of Company, except for such restrictions or encumbrances existing by
reason of (a) any restrictions existing under any of the Loan Documents or any
other agreements or contracts in effect on the Original Closing Date, (b) any
restrictions with respect to any Person that becomes a Subsidiary of Company
after the Second Restatement Date under any agreement in existence at the time
such Person becomes such a Subsidiary, (c) any restrictions with respect to any
Subsidiary of Company imposed pursuant to an agreement which has been entered
into for the sale or disposition of all or substantially all of the Capital
Stock or assets of such Subsidiary, (d) any restrictions with respect to any
Subsidiary of Company all or substantially all of whose assets consist of
property encumbered by Liens permitted under subsection 6.2A, (e)
restrictions imposed by applicable laws, (f) restrictions under leases of, or
mortgages and other agreements relating to Liens on, specified property or
assets limiting or prohibiting transfers of such property or assets (including,
without limitation, non-assignment clauses, due-on-sale clauses and clauses
prohibiting junior Liens), (g) any restrictions under indentures governing New
Senior Debt, which restrictions are either substantially the same as those
under clause (h) or are approved by Administrative Agent, (h) any
restrictions under the indentures governing the Existing Owens-Brockway Senior
Secured Notes and the Existing Owens-Brockway Senior Unsecured Notes and
(i) any restrictions existing under any agreement that amends, refinances
or replaces any agreement containing restrictions permitted under the preceding
clauses (a) through (h); provided that the terms and conditions of any such
agreement, as they relate to any such restrictions, are no less favorable to
Company, Borrowers and such Subsidiaries, as applicable, than those under the
agreement so amended, refinanced or replaced.


 


6.3          Investments; Acquisitions


 


Company and Borrowers shall not, and shall not permit
any of its or their Subsidiaries to, directly or indirectly, make or own any
Investment in any Person, including any Joint Venture, or acquire, by purchase
or otherwise, all or substantially all the business, property or fixed assets
of, or Capital Stock or other ownership interest of any Person, or any division
or line of business of any Person (each such acquisition, an “Acquisition”) except:


 


(i)            Company and its Domestic
Subsidiaries may make and own Investments in Cash Equivalents and the Foreign
Subsidiaries may make and own Investments in Cash Equivalents and short term
investments similar to Cash Equivalents customarily used in the countries in
which they are located;


 


(ii)           Company and its Subsidiaries may
continue to own the Investments owned by them as of the First Restatement Date
in any Subsidiaries of Company, and Company and its Domestic Subsidiaries may
form new wholly-owned Domestic Subsidiaries and make and own additional equity
Investments in their respective wholly-owned Domestic Subsidiaries and Foreign
Subsidiaries may form new wholly-owned Foreign Subsidiaries and make and own
additional equity investments in their respective wholly-owned Foreign
Subsidiaries;


 


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(iii)          Company and its Subsidiaries may make
intercompany loans to the extent permitted under subsection 6.1(iv);
provided, that the aggregate amount of such intercompany loans made in cash by
Loan Parties (other than Avir or O-I Canada) to non-Loan Parties, Avir or O-I
Canada from and after the First Restatement Date and outstanding at any time
shall not exceed $500,000,000 minus the amount of Investments made by Loan
Parties (other than Avir or O-I Canada) in non-Loan Parties, Avir or O-I Canada
pursuant to subsection 6.3(vi) from and after the First Restatement Date;


 


(iv)          Company and its Subsidiaries may
continue to own the Investments owned by them and described in Schedule 6.3
annexed hereto and make the Investments contemplated by Schedule 6.3;


 


(v)           Company, its Domestic Subsidiaries
and the other Loan Parties (other than Avir and O-I Canada) may make
Acquisitions; provided that aggregate consideration paid or given
(including, without limitation, cash paid, Acquired Indebtedness or assumed
Indebtedness and the value of any other consideration paid or given, other than
Capital Stock of Holdings issued in connection with such Acquisition) for all
Acquisitions after the First Restatement Date does not exceed $250,000,000; provided
further that Company and Domestic Borrowers shall comply with and shall
cause their Subsidiaries to comply with subsections 5.9 and 5.10 hereof; and provided
still further that upon from and after the first such date that the
Consolidated Leverage Ratio is less than 3.5:1, Company, its Domestic
Subsidiaries and the other Loan Parties (other than Avir and O-I Canada) may
make additional Acquisitions such that the aggregate consideration paid or
given for all Acquisitions (including those made after the First Restatement
Date and prior to such first such date) does not exceed $500,000,000;


 


(vi)          Company and its Subsidiaries may make
additional Investments in their respective Foreign Subsidiaries; provided
that the amount of all such Investments made after the First Restatement Date
minus the aggregate amount of all cash dividends, distributions and other cash
payments actually received by Company and its Subsidiaries (other than Foreign
Subsidiaries) from their respective Foreign Subsidiaries after the First
Restatement Date, shall not exceed $250,000,000; and provided  still
further that upon and from and after the first such date that the
Consolidated Leverage Ratio is less than 3.5:1, Company and its Subsidiaries
may make additional Investments in their respective Foreign Subsidiaries such
that the aggregate amount for all such Investments (including those made after
the First Restatement Date and prior to such first such date) minus the
aggregate amount of all cash dividends, distributions and other cash payments
actually received by Company and its Subsidiaries (other than Foreign
Subsidiaries) from their respective Foreign Subsidiaries after the First
Restatement Date (including those received after the First Restatement Date and
prior to such first such date) does not exceed $500,000,000;


 


(vii)         Company and its Subsidiaries may make
and own Investments arising in connection with Commodities Agreements entered
into in accordance with current industry practice (at the time of making any
such Investment) or the past practices of Company and its Subsidiaries;


 


(viii)        Company may acquire and hold obligations
of one or more officers or other employees of Company or its Subsidiaries in
connection with such officers’ or


 


162

















 


employees’
acquisition of shares of Holdings’ common stock, so long as no cash is actually
advanced by Company or any of its Subsidiaries to such officers or employees in
connection with the acquisition of any such obligations;


 


(ix)           Company and its Subsidiaries may
receive and hold promissory notes and other non-cash consideration received in
connection with any Asset Sale or other sales of assets permitted by
subsection 6.7;


 


(x)            Company and its Subsidiaries may
acquire Securities in connection with the satisfaction or enforcement of
Indebtedness or claims due or owing to Company or any of its Subsidiaries or as
security for any such Indebtedness or claim;


 


(xi)           Foreign Subsidiaries of Company other
than Offshore Borrowers (except Avir and O-I Canada) and Offshore Guarantors
may make Investments, Acquisitions and acquire assets (including Capital Stock
and including Capital Stock of Foreign Subsidiaries other than Offshore Borrowers
and Offshore Guarantors formed in connection with any such acquisition);


 


(xii)          Company and its Subsidiaries may make
and own additional Investments in Joint Ventures made after the First
Restatement Date in an aggregate amount not to exceed at any time $100,000,000;


 


(xiii)         In addition to Investments permitted by
the other clauses of this subsection, Company and its Subsidiaries may make and
own other Investments in an aggregate amount not to exceed at any time
$125,000,000; and


 


(xiv)        Company and its Subsidiaries may enter into and consummate transactions
described in subsection 6.7(i) and 6.7(x).


 


6.4          Contingent
Obligations


 


Company and Borrowers shall not, and shall not permit
any of its or their Subsidiaries to, directly or indirectly, create or become
or remain liable with respect to any Contingent Obligation, except:


 


(i)            Loan Parties may become and remain
liable with respect to Contingent Obligations under their respective
Guaranties;


 


(ii)           Company, Borrowers and its and their
Subsidiaries may become and remain liable with respect to Contingent
Obligations in respect of Letters of Credit in an aggregate amount not to
exceed at any time $300,000,000 and Contingent Obligations in respect of other
letters of credit and surety bonds in an aggregate amount not to exceed at any
time $150,000,000;


 


(iii)          Company and its Subsidiaries may
become and remain liable with respect to Contingent Obligations under Hedge
Agreements with respect to Indebtedness;


 


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(iv)          Company and its Subsidiaries may
become and remain liable with respect to Contingent Obligations in respect of
customary indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of assets;


 


(v)           Company and its Subsidiaries may
become and remain liable with respect to Contingent Obligations under
guarantees in the ordinary course of business of the obligations of suppliers,
customers, franchisees and licensees of Company and its Subsidiaries in an
aggregate amount not to exceed at any time $100,000,000;


 


(vi)          Company and its Subsidiaries may
become and remain liable with respect to Contingent Obligations in respect of
any Indebtedness of Company or any of its Subsidiaries to the extent such Indebtedness
is specifically permitted by subsection 6.1 (other than Existing Holdings
Senior Notes, Refinancing Senior Debt and New Junior Debt);


 


(vii)         Company and its Subsidiaries, as
applicable, may remain liable with respect to Contingent Obligations described
in Schedule 6.4 annexed hereto and any extensions, renewals and
refinancings thereof to the extent that such extensions, renewals and
refinancings thereof do not result in an increase in the aggregate amount of
Contingent Obligations as described in Schedule 6.4;


 


(viii)        Company and its Subsidiaries may become
and remain liable with respect to Contingent Obligations in respect of any
obligation of Company or any of its Subsidiaries not prohibited under this
Agreement (other than any obligation with respect to Indebtedness) (other than
Existing Holdings Senior Notes, Refinancing Senior Debt and New Junior Debt);


 


(ix)           Company and Packaging may become and
remain liable on a subordinated basis with respect to Existing Holdings Senior
Notes, Refinancing Senior Debt and New Junior Debt; provided Company and
Packaging may become and remain liable with respect to New Junior Debt on an
unsubordinated basis if such New Junior Debt is unsecured; and


 


(x)            In addition to Contingent
Obligations permitted by the other clauses of this subsection, Company and its
Subsidiaries may become and remain liable with respect to other Contingent
Obligations; provided that the maximum aggregate principal liability,
contingent or otherwise, of Company and its Subsidiaries in respect of all such
Contingent Obligations shall at no time exceed $250,000,000.


 


6.5          Restricted Junior Payments


 


Company and Borrowers shall not, and shall not permit
any of its and their Subsidiaries to, directly or indirectly, declare, order,
pay, make or set apart any sum for any Restricted Junior Payment; provided
that Company may (i) make Holdings Ordinary Course Payments to the extent then
due and payable, so long as Holdings applies the amount of any such Restricted
Junior Payment for such purpose; (ii) make Restricted Junior Payments to
Holdings for purchases of Common Stock of Holdings in connection with the
administration of Holdings’ employee benefits program and repurchases of
employee shares, (iii) make regularly scheduled payments of interest in respect
of any Subordinated Indebtedness in accordance with the terms of, and only to
the extent required by, and subject to the subordination provisions contained
in,


 


164

















 


the indenture or
other agreement pursuant to which such Subordinated Indebtedness was issued, as
such indenture or other agreement may be amended from time to time to the
extent not prohibited by subsection 6.12A; provided, in the case of
Company’s intercompany note to Holdings, such payments of interest shall be
limited to non-cash payments on a basis consistent with past practices and (v)
make, and Subsidiaries of Company may make, payments of intercompany
indebtedness other than payments of Company’s intercompany Indebtedness to
Holdings.  The provisions of this
subsection 6.5 shall not be breached by the payment of any Restricted
Junior Payments to Holdings for the purposes of Holdings making a dividend
payment under clause (x) of Holdings Ordinary Course Payments definition within
60 days after the declaration of the dividend by Holdings, if at such date of
declaration, the making of such payment would not have been in violation of
this subsection.


 


6.6          Financial Covenants


 


A.    Minimum Fixed Charge Coverage Ratio.  Company and Borrowers shall not permit the
Consolidated Fixed Charge Coverage Ratio for any Fiscal Quarter period ending
during any of the periods set forth below, calculated on a Pro Forma Basis, to
be less than the correlative ratio indicated:


 


	
  Fiscal Quarter Ending

  	
   

  	
  Minimum Consolidated

  Fixed Charge Coverage

  Ratio

  
	
  June 30, 2003

  	
   

  	
  1.15: 1:00

  
	
  September 30, 2003

  	
   

  	
  1.15: 1.00

  
	
  December 31, 2003

  	
   

  	
  1.15: 1.00

  
	
  March 31, 2004

  	
   

  	
  1.15: 1.00

  
	
  June 30, 2004

  	
   

  	
  1.15: 1.00

  
	
  September 30, 2004

  	
   

  	
  1.30: 1.00

  
	
  December 31, 2004

  	
   

  	
  1.30: 1.00

  
	
  March 31, 2005

  	
   

  	
  1.50: 1.00

  
	
  June 30, 2005

  	
   

  	
  1.50: 1.00

  
	
  September 30, 2005

  	
   

  	
  1.50: 1.00

  
	
  December 31, 2005

  	
   

  	
  1.50: 1.00

  
	
  March 31, 2006

  	
   

  	
  1.75: 1.00

  
	
  June 30, 2006

  	
   

  	
  1.75: 1.00

  
	
  September 30, 2006

  	
   

  	
  1.75: 1.00

  
	
  December 31, 2006

  	
   

  	
  1.75: 1.00

  
	
  March 31, 2007

  	
   

  	
  1.75: 1.00

  
	
  June 30, 2007

  	
   

  	
  1.75: 1.00

  
	
  September 30, 2007

  	
   

  	
  1.75: 1.00

  
	
  December 31, 2007

  	
   

  	
  1.75: 1.00

  
	
  March 31, 2008

  	
   

  	
  1.75: 1.00

  



 


165

















 


B.    Maximum Leverage Ratio. 
Company and Borrowers shall not permit the Consolidated Leverage Ratio
as of the last day of the Fiscal Quarter ending during any of the periods set
forth below, calculated on a Pro Forma Basis, to exceed the correlative ratio
indicated:


 


	
  Fiscal Quarter Ending

  	
   

  	
  Maximum
  Consolidated

  Leverage Ratio

  
	
  June 30, 2003

  	
   

  	
  4.65: 1.00

  
	
  September 30, 2003

  	
   

  	
  4.65: 1.00

  
	
  December 31, 2003

  	
   

  	
  4.65: 1.00

  
	
  March 31, 2004

  	
   

  	
  4.65: 1.00

  
	
  June 30, 2004

  	
   

  	
  4.65: 1.00

  
	
  September 30, 2004

  	
   

  	
  4.35: 1.00

  
	
  December 31, 2004

  	
   

  	
  4.35: 1.00

  
	
  March 31, 2005

  	
   

  	
  4.35: 1.00

  
	
  June 30, 2005

  	
   

  	
  4.35: 1.00

  
	
  September 30, 2005

  	
   

  	
  4.10: 1.00

  
	
  December 31, 2005

  	
   

  	
  4.10: 1.00

  
	
  March 31, 2006

  	
   

  	
  4.10: 1.00

  
	
  June 30, 2006

  	
   

  	
  4.10: 1.00

  
	
  September 30, 2006

  	
   

  	
  3.85: 1.00

  
	
  December 31, 2006

  	
   

  	
  3.85: 1.00

  
	
  March 31, 2007

  	
   

  	
  3.85: 1.00

  
	
  June 30, 2007

  	
   

  	
  3.85: 1.00

  
	
  September 30, 2007

  	
   

  	
  3.85: 1.00

  
	
  December 31, 2007

  	
   

  	
  3.75: 1.00

  
	
  March 31, 2008

  	
   

  	
  3.75: 1.00

  



 


6.7          Restriction on Fundamental Changes;
Asset Sales


 


Company and Borrowers shall not, and shall not permit
any of its and their Subsidiaries to enter into any transaction of merger or
consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or
sublessor), transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets (including
its notes or receivables and Capital Stock of a Subsidiary, whether newly
issued or outstanding), whether now owned or hereafter acquired, except:


 


(i)            any Subsidiary of Company (other
than a Domestic Borrower or ACI) may be merged or amalgamated with or into
Company, any Borrower, any Subsidiary Guarantor or any Offshore Guarantor, or
be liquidated, wound up or dissolved, or all or any part of its business,
property or assets may be conveyed, sold, leased, transferred or otherwise
disposed of (including its notes or receivables and Capital Stock), in one
transaction or a series of transactions, to Company, any Borrower, any


 


166

















 


Subsidiary
Guarantor or any Offshore Guarantor; provided that, in the case of such
a merger, Company, such Borrower, such Subsidiary Guarantor or such Offshore
Guarantor shall be the continuing or surviving Person;


 


(ii)           Company and its Subsidiaries may
sell, lease, sublease or otherwise dispose of assets in transactions that do
not constitute Asset Sales and sell inventory and other personal and real
property held for resale in the ordinary course of business;


 


(iii)          Company and its Subsidiaries may
dispose of obsolete, worn out or surplus property in the ordinary course of
business;


 


(iv)          Company and its Subsidiaries may
consummate the BSN Acquisition in accordance with the BSN Share Purchase
Agreement;


 


(v)           Company and its Subsidiaries may make
Asset Sales of assets having a fair market value not in excess of $500,000,000
for any twelve-month period provided that (a) the consideration received for
such assets shall be in an amount at least equal to the fair market value
thereof; and (b) for the period from the First Restatement Date until the date
of determination Company and its Subsidiaries may not make aggregate Asset
Sales under this clause (v) of assets having an aggregate value of more than
$1,000,000,000; provided that Asset Sales made by Avir and its
Subsidiaries after the First Restatement Date shall not exceed $100,000,000; provided,
further, that, from and after the Second Restatement Date through
the earlier to occur of (i) the BSN Acquisition Closing Date and (ii) the
termination of all Domestic Tranche C Term Loan Commitments and all Tranche D
Term Loan Commitments without the BSN Acquisition having been consummated,
Company and its Subsidiaries may not make Asset Sales under this clause (v) of
assets having an aggregate value in excess of $175,000,000;


 


(vi)          in order to resolve disputes that
occur in the ordinary course of business, Company and its Subsidiaries may
discount or otherwise compromise for less than the face value thereof, notes or
accounts receivable in accordance with past practice and Company and
Subsidiaries may sell accounts receivable to the extent that the proceeds of
Receivables Sale Indebtedness are applied as required by
subsection 2.4B(ii)(f);


 


(vii)         Company and its Subsidiaries may make
Acquisitions and Investments permitted by subsection 6.3;


 


(viii)        Company or a Subsidiary may sell or
dispose of shares of Capital Stock of any of its Subsidiaries in order to
qualify members of the Governing Body of the Subsidiary if required by
applicable law;


 


(ix)           Any Person (other than Holdings or a
Domestic Borrower) may be merged or amalgamated with or into Company or any
Subsidiary if the acquisition of the Capital Stock of such Person by Company or
such Subsidiary would not be prohibited pursuant to subsection 6.3; provided
that (a) in the case of Company or a Domestic Borrower, Company or such
Domestic Borrower shall be the continuing or


 


167

















 


surviving Person,
(b) if a Subsidiary is not the surviving or continuing Person, the surviving
Person becomes a Subsidiary and complies with the provisions of subsections 5.9
and 5.10 and (c) no Potential Event of Default or Event of Default shall have
occurred or be continuing after giving effect thereto; and


 


(x)            Any Subsidiary of Company (other
than a Borrower) may be merged with or into any other Subsidiary of Company
(other than a Borrower) or be liquidated, wound up or dissolved, or all or any
part of its business, property or assets may be conveyed, sold, leased or
otherwise disposed of (including its notes or receivables and Capital Stock),
in one transaction or a series of transactions to any other Subsidiary of
Company (other than a Borrower), so long as, at the time of such event, neither
Subsidiary is a Subsidiary Guarantor or an Offshore Guarantor,


 


provided,
that, notwithstanding any of the foregoing clauses or anything else in
this Agreement to the contrary, (i) no Domestic Borrower may issue any new
Capital Stock to any Person other than to Company or Packaging, and (ii)
neither Company nor Packaging may convey, sell, transfer or otherwise dispose
of any Capital Stock in any Domestic Borrower, other than the security interest
therein pledged to Collateral Agent pursuant to the Pledge Agreement.


 


6.8          Consolidated Capital Expenditures


 


Company and Borrowers shall not, and shall not permit
its or their Subsidiaries to, make or incur Consolidated Capital Expenditures,
in any Fiscal Year, in an aggregate amount in excess of the Maximum
Consolidated Capital Expenditures Amount for such Fiscal Year.


 


6.9          Transactions with Shareholders and
Affiliates


 


(i)            Company and Borrowers shall not, and
shall not permit any of its or their Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder of 5% or more of any class of equity Securities of Company or Holdings
or with any Affiliate of Company or Holdings or of any such holder, on terms
that are less favorable to Company or that Subsidiary, as the case may be, than
those that might be obtained at the time from Persons who are not such a holder
or Affiliate; provided that the foregoing restriction shall not apply to
(A) any transaction between Company and any of its Subsidiaries or between any
of its Subsidiaries, (B) customary fees paid to members of the Board of
Directors of Company and its Subsidiaries, (C) transactions approved by a
majority of the disinterested members of the Board of Directors or other
similar governing body of Company or the applicable Subsidiary, (D) purchases
and sales of goods from retailers and suppliers affiliated with KKR in the
ordinary course of business on terms not materially less favorable than
generally available from such retailers or suppliers, (E) the payment of an
annual fee to KKR for rendering management and consulting services to Company
and the reimbursement of expenses in connection therewith, (F) transactions
pursuant to subsection 6.5, (G) the payment by Owens Insurance, Ltd. to
Holdings of insurance settlement amounts received, consistent with past
practices or (H) any transaction between or among Holdings, Company, any
Borrower or any other Subsidiary, subject to the restrictions of
subsection 6.9(ii) below.


 


168

















 


(ii)           Company and Borrowers shall not, and
shall not permit any of its or their Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction (including the purchase, sale,
lease or exchange or any property or the rendering of any service) between such
Person and Holdings that is not consistent generally with past practices.


 


6.10        Sales and Lease Backs


 


Company and Borrowers shall not, and shall not permit
any of its or their Subsidiaries to, directly or indirectly, become or remain
liable as lessee or as a guarantor or other surety with respect to any lease
entered into after the date hereof, whether an Operating Lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (i) that Company or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person (other than Company
or any of its Subsidiaries) or (ii) that Company or any of its Subsidiaries
intends to use for substantially the same purpose as any other property that
has been or is to be sold or transferred by Company or any of its Subsidiaries
to any Person (other than Company or any of its Subsidiaries) in connection
with such lease; provided that Company and its Subsidiaries may become
and remain liable as lessee, guarantor or other surety with respect to any such
lease if and to the extent that Company or any of its Subsidiaries would be
permitted to enter into, and remain liable under, such lease to the extent that
the transaction would be permitted under subsection 6.1, assuming the sale
and lease back transaction constituted Indebtedness in a principal amount equal
to the gross proceeds of the sale.


 


6.11        Conduct of Business


 


From and after the First Restatement Date, Company and
Borrowers shall not, and shall not permit any of its or their Subsidiaries to,
fundamentally or substantively alter the character of its business from that
conducted by Company and its Subsidiaries, taken as a whole, as of the First
Restatement Date.


 


6.12        Amendments of Documents Relating to
Restricted Debt Obligations; No Prepayments of Restricted Debt Obligations


 


A.    Amendments of Documents Relating to Restricted Debt
Obligations.  Company and Borrowers
shall not, and shall not permit Holdings or any of its or their Subsidiaries
to, amend or otherwise change, or consent to any amendment or change to, the
terms of any Restricted Debt Obligations, or make any payment (including making
any Restricted Junior Payment to permit Holdings to make any such payment)
consistent with an amendment thereof or change thereto, if the effect of such
amendment or change is to increase the interest rate on such Restricted Debt
Obligations, change (to earlier dates) any dates upon which payments of
principal or interest are due thereon, change any event of default or condition
to an event of default with respect thereto (other than the waiver of any such
default by the holders of such Restricted Debt Obligations, to eliminate any
such event of default or increase any grace period related thereto), change the
redemption, prepayment or defeasance provisions thereof, change any
subordination provisions thereof (or of any guaranty thereof other than to
release such guaranty), or change any collateral therefor (other than to release
such collateral), or if the effect of such amendment or change, together with
all other amendments or changes made, is to increase materially the obligations
of the obligor thereunder or to confer any additional


 


169

















 


rights on the
holders of such Restricted Debt Obligations (or a trustee or other
representative on their behalf) which would be adverse to Company or Lenders
(as determined by Administrative Agent in its reasonable judgment).


 


B.    No Prepayments of Restricted Debt Obligations.  Company and Borrowers shall not make, and
shall not permit any of its or their Subsidiaries to make, any voluntary or
optional payment on Restricted Debt Obligations (or in the case of Existing
Holdings Senior Notes maturing in 2004, 2005 or 2007, any payment at maturity)
or to make any Restricted Junior Payment to Holdings to permit Holdings to make
any voluntary or optional payment on Restricted Debt Obligations (or in the
case of Existing Holdings Senior Notes maturing in 2004, 2005 or 2007, any
payment at maturity) except that Company or any of the Borrowers shall be
entitled to redeem, repay, repurchase or defease (or make a Restricted Junior
Payment to Holdings to permit Holdings to redeem, repay, repurchase or defease)
(i) at any time the Existing Holdings Senior Notes maturing in 2004 with
proceeds of Revolving Loans or otherwise, (ii)  Existing Holdings Senior
Notes maturing in 2005 with Revolving Loans made under the Existing Holdings
Senior Notes Redemption Sublimit or funds reserved to Existing Holdings Senior
Notes Collateral Account, or with the proceeds of Revolving Loans (other than
Loans made under the Existing Holdings Senior Notes Redemption Sublimit),
Additional Term Loans or Refinancing Term Loans in each case to the extent
permitted under subsection 2.5B or, so long as the Reservation Conditions
are satisfied, with Net Debt Securities Proceeds or, at maturity thereof only,
with other funds available to Company and its Subsidiaries to do so and (iii) after
redemption, repayment or other repurchase of the Existing Holdings Senior Notes
maturing in 2004 in full and so long as the outstanding principal amount of the
Existing Holdings Senior Notes due 2005 is $75,000,000 or less, to redeem,
repay, or otherwise repurchase Existing Holdings Senior Notes maturing in 2007
with Revolving Loans made under the Existing Holdings Senior Notes Redemption
Sublimit or funds reserved to Existing Holdings Senior Notes Collateral
Account, or the proceeds of Revolving Loans (other than Loans made under the
Existing Holdings Senior Notes Redemption Sublimit), Additional Term Loans or
Refinancing Term Loans in each case to the extent permitted under
subsection 2.5B, or, so long as the Reservation Conditions are satisfied,
with Net Debt Securities Proceeds or, at maturity thereof only, with other
funds available to Company and its Subsidiaries to do so.  So long as the applicable payment of any
Restricted Debt Obligation is permitted by this subsection 6.12B, the
payment of accrued interest, premiums, fees and expenses in connection
therewith may also be made with proceeds of Revolving Loans or with other funds
available to Company and its Subsidiaries to do so.


 


6B.          From and After BSN Acquisition Closing
Date


 


From and after the BSN Acquisition Closing Date,
Company and each Borrower shall perform, and shall cause each of its
Subsidiaries to perform, all covenants in this Section 6B.  From and after the BSN Acquisition Closing
Date, references to Section 6 and subsections thereof in this Agreement shall
be deemed to be references to this Section 6B and the subsections thereof,
respectively.


 


170

















 


6.1          Indebtedness


 


Company and each Borrower shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, create, incur,
assume or guaranty, or otherwise become or remain directly or indirectly liable
with respect to, any Indebtedness, except:


 


(i)            Loan Parties may become and remain
liable with respect to the Obligations and may guaranty the Obligations and the
Other Lender Guarantied Obligations pursuant to their respective Guaranties;


 


(ii)           Company and its Subsidiaries may
become and remain liable with respect to Contingent Obligations permitted by
subsection 6.4 and, upon any matured obligations actually arising pursuant
thereto, the Indebtedness corresponding to the Contingent Obligations so
extinguished;


 


(iii)          Company and its Subsidiaries may
become and remain liable with respect to Indebtedness in respect of Capital Leases
aggregating not in excess of $250,000,000 at any one time;


 


(iv)          Company may become and remain liable
with respect to Indebtedness to any of its Subsidiaries, and any Subsidiary of
Company may become and remain liable with respect to Indebtedness to Company or
any other Subsidiary of Company; provided that, except with respect to
Indebtedness existing on the BSN Acquisition Closing Date, (a) all such
intercompany Indebtedness shall be evidenced by promissory notes to the extent
it evidences Indebtedness owed to a Loan Party (unless promissory notes are not
recognized evidences of indebtedness under the applicable law governing such
Indebtedness), (b) all such intercompany Indebtedness owed by Company or any
Borrower to any of its Subsidiaries shall be subordinated in right of payment
to the payment in full of the Obligations pursuant to the terms of the
applicable promissory notes or an intercompany subordination agreement, and (c)
any payment by any Subsidiary of Company under any guaranty of the Obligations
shall result in a pro  tanto reduction of the amount of any
intercompany Indebtedness owed by such Subsidiary to any Domestic Borrower or
to any of their respective Subsidiaries for whose benefit such payment is made
and, with respect to Indebtedness of BSN or any of its Subsidiaries, such
Indebtedness shall be subordinated in right of payment to the French Tranche C1
Term Loans, French Tranche C2 Term Loans and French Tranche C3 Term Loans as
set forth in the Existing BSN Intercreditor Agreements (as amended on the BSN
Acquisition Closing Date); and Company may become and remain liable with
respect to Indebtedness to Holdings; provided that such Indebtedness
shall be evidenced by its existing subordinated intercompany note dated as of
April 23, 2001, as amended prior to the First Restatement Date and as the same
may be amended in accordance with the written consent of the Agents provided
under the Original Credit Agreement prior to the First Restatement Date; provided,
that, such subordinated note shall not be further amended without the
consent of Agents;


 


(v)           Company and its Subsidiaries, as
applicable, may remain liable with respect to Indebtedness or the commitments
therefor described in Schedule 6.1


 


171

















 


annexed hereto and
any extensions, renewals and refinancings of the Indebtedness or the
commitments therefor described in Part I thereof to the extent that such
extensions, renewals and refinancings thereof do not result in an increase in
the aggregate principal amount or commitment amount of such Indebtedness as
described in Schedule 6.1 Part I;


 


(vi)          Company and Packaging may become and
remain liable with respect to the Existing Holdings Senior Notes on a
subordinated basis;


 


(vii)         Company and the other Loan Parties may
become and remain liable with respect to the New Senior Debt;


 


(viii)        Company and Packaging may become and
remain liable with respect to the Refinancing Senior Debt on a subordinated
basis;


 


(ix)           Company and Packaging may become and
remain liable with respect to New Junior Debt on a subordinated or unsecured
basis or both;


 


(x)            Company and its Subsidiaries may
become and remain liable with respect to Purchase Money Indebtedness in an
aggregate principal amount not to exceed $200,000,000 at any time outstanding;


 


(xi)           In addition to Indebtedness permitted
by the other clauses of this subsection, Foreign Subsidiaries of Company may
become and remain liable with respect to other Indebtedness in an aggregate
principal amount not to exceed $656,000,000 at any time outstanding (inclusive
of amounts outstanding or committed under Schedule 6.1, Part II);


 


(xii)          In addition to Indebtedness permitted
by the other clauses of this subsection, Company and its Domestic Subsidiaries
may become and remain liable with respect to other Indebtedness in an aggregate
principal amount not to exceed $200,000,000 at any time outstanding;


 


(xiii)         Company and its Subsidiaries may become
and remain liable with respect to Acquired Indebtedness;


 


(xiv)        Company and its Subsidiaries may become
and remain liable with respect to Receivables Sale Indebtedness;


 


(xv)         BSN and its Subsidiaries liable
therefor on the Second Restatement Date may remain liable with respect to the
Existing BSN Senior Subordinated Notes in an aggregate principal amount not to
exceed the aggregate principal amount of Existing BSN Senior Subordinated Notes
outstanding on the BSN Acquisition Closing Date minus the principal
amount of Existing BSN Senior Subordinated Notes repaid or repurchased on the BSN
Change of Control Payment Date and, at any time when there are no Tranche D
Term Loans or Tranche D Term Loan Commitments outstanding, any Indebtedness
renewing or refinancing the same provided that such Indebtedness (a) if
secured, is secured only by all or any portion of the collateral securing the 9
1⁄4% Senior Subordinated Notes in the case of Indebtedness refinancing such
notes, (b) is subordinated in right of payment (and to the extent secured, the
Liens securing


 


172

















 


the same are
subordinated) on terms substantially equivalent to those applicable to the
applicable Existing BSN Senior Subordinated Notes or on other terms approved by
Administrative Agent, (c) has no obligors other than one or more persons liable
for the applicable Existing BSN Senior Subordinated Notes refinanced thereby
and/or any other Foreign Subsidiary (other than any Loan Party, except for
Avir), (d) has a Weighted Average Life to Maturity longer than the Existing BSN
Senior Subordinated Notes, and (e) is in an aggregate principal amount not
exceeding the amount of Existing BSN Senior Subordinated Notes so refinanced
plus related fees and expenses and applicable premiums.


 


(xvi)        BSN Glasspack Services may remain liable
with respect to the Existing BSN Receivables Securitization Facility in an
aggregate principal amount outstanding not to exceed €210,000,000; and


 


(xvii)       BSN and its Subsidiaries may become and
remain liable with respect to additional working capital financing, in an aggregate
principal amount not to exceed €80,000,000 and committed for no less than three
years, so long as the principal amount of the French Tranche C1 Term Loans and
French Tranche C2 Term Loans have been repaid in an amount at least equal to
the US Dollar equivalent of the committed amount of such financing.


 


6.2          Liens and Related Matters


 


A.    Prohibition on Liens. 
Company and each Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company, any Borrower or any of their Subsidiaries, whether now
owned or hereafter acquired, or any income or profits therefrom, or file or
permit the filing of, or permit to remain in effect, any financing statement or
other similar notice of any Lien with respect to any such property, asset,
income or profits under the UCC or under any similar recording or notice
statute, except:


 


(i)            Permitted Encumbrances;


 


(ii)           Liens granted pursuant to the
Collateral Documents;


 


(iii)          Liens described in Schedule B
annexed hereto (“Existing Liens”)
and Liens securing Indebtedness incurred to refinance any Indebtedness secured
by Existing Liens so long as (a) the principal amount of such refinancing
Indebtedness does not exceed the greater of (1) the fair market value of the
assets subject to such Lien and (2) the principal amount (or, if greater, the
committed amount) of the Indebtedness refinanced thereby and (b) such
refinancing Indebtedness is not secured by any collateral which did not secure
the Indebtedness refinanced thereby;


 


(iv)          Liens securing Purchase Money
Indebtedness permitted by subsection 6.1(x) and arising from the giving,
simultaneously with or within 180 days after the acquisition, construction or
improvement of real property or tangible personal property, of any purchase
money Lien (including vendors’ rights under purchase


 


173

















 


contracts under an
agreement whereby title is retained for the purpose of securing the purchase
price thereof) of real property or tangible personal property hereafter
acquired, constructed or improved and not heretofore owned by Company, any
Borrower or any of its Subsidiaries, or from the acquiring hereafter of real
property or tangible personal property not heretofore owned by Company, any
Borrower or any of its Subsidiaries subject to any then-existing Lien (whether
or not assumed), or from the extension, renewal or replacement of any
Indebtedness secured by any of the foregoing Liens so long as the aggregate
principal amount thereof and the security therefor is not thereby increased; provided,
however, that in each case (a) such Lien is limited to such acquired,
constructed or improved real or tangible personal property and fixed
improvements, if any, then existing or thereafter erected thereon, and (b) the
principal amount of the Indebtedness secured by such Lien, together (without
duplication) with the principal amount of all other Indebtedness secured by
Liens on such property, shall not exceed the cost (which shall be deemed to
include, without duplication, the amount of Indebtedness secured by Liens,
including existing Liens, on such property) of such property to Company, any
Borrower or its applicable Subsidiary;


 


(v)           Liens encumbering accounts receivable
sold and cash reserves established in connection therewith pursuant to any
transaction permitted under subsection 6.7(vi);


 


(vi)          Liens on acquired assets securing
Acquired Indebtedness; provided that such Liens were created prior to
the acquisition of such acquired assets or acquired Subsidiary;


 


(vii)         In addition to Liens permitted by the
other clauses of this subsection, Liens on the assets of Foreign Subsidiaries
securing Indebtedness or other obligations of such Foreign Subsidiaries (other
than the Australian Offshore Borrowers, United Glass, BSN and Offshore
Guarantors);


 


(viii)        In addition to Liens permitted by the
other clauses of this subsection, Liens securing Indebtedness or Contingent
Obligations of Company and its Subsidiaries in an aggregate principal amount
not to exceed $200,000,000 at any time outstanding;


 


(ix)           Liens securing Receivables Sale
Indebtedness; provided that such Liens encumber solely the receivables
so sold and customary related assets;


 


(x)            Liens on deposits of cash or Cash
Equivalents securing bona-fide hedging arrangements with Lenders or Affiliates
thereof;


 


(xi)           Liens on the Capital Stock of BSN and
certain assets of BSN securing the obligations of BSN under the Existing BSN
Senior Subordinated Notes; provided that such Liens shall be limited to
assets securing (or, pursuant to the existing governing documentation therefor,
required to secure) such Existing BSN Senior Subordinated Notes as of the
Second Restatement Date and provided  further that such Liens are
subordinated to the Liens


 


174

















 


securing the
Tranche C Term Loans pursuant to the Existing BSN Intercreditor Agreements or
otherwise on terms and conditions satisfactory to Administrative Agent; and


 


(xii)          Liens on the inventory of BSN and its
Subsidiaries securing the obligations of BSN and its Subsidiaries under the
working capital financing described in subsection 6.1(xvii).


 


B.    No Restrictions on Subsidiary Distributions to Company or
Other Subsidiaries.  Company and
Borrowers will not, and will not permit any of its or their Subsidiaries to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any such Subsidiary to
(i) pay dividends or make any other distributions on any of such Subsidiary’s
Capital Stock owned by Company or any other Subsidiary of Company, (ii) repay
or prepay any Indebtedness owed by such Subsidiary to Company or any other
Subsidiary of Company, (iii) make loans or advances to Company or any other
Subsidiary of Company, or (iv) transfer any of its property or assets to
Company or any other Subsidiary of Company, except for such restrictions or
encumbrances existing by reason of (a) any restrictions existing under any of
the Loan Documents or any other agreements or contracts in effect on the
Original Closing Date, (b) any restrictions with respect to any Person that
becomes a Subsidiary of Company after the Second Restatement Date under any
agreement in existence at the time such Person becomes such a Subsidiary, (c)
any restrictions with respect to any Subsidiary of Company imposed pursuant to
an agreement which has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary, (d) any
restrictions with respect to any Subsidiary of Company all or substantially all
of whose assets consist of property encumbered by Liens permitted under
subsection 6.2A, (e) restrictions imposed by applicable laws, (f)
restrictions under leases of, or mortgages and other agreements relating to
Liens on, specified property or assets limiting or prohibiting transfers of
such property or assets (including, without limitation, non-assignment clauses,
due-on-sale clauses and clauses prohibiting junior Liens), (g) any restrictions
under indentures governing New Senior Debt, which restrictions are either
substantially the same as those under clause (h) or are approved by
Administrative Agent, (h) any restrictions under the indentures governing
the Existing Owens-Brockway Senior Secured Notes, the Existing Owens-Brockway
Senior Unsecured Notes and the Existing BSN Senior Subordinated Notes, and
(i) any restrictions existing under any agreement that amends, refinances
or replaces any agreement containing restrictions permitted under the preceding
clauses (a) through (h); provided that the terms and conditions of any such
agreement, as they relate to any such restrictions, are no less favorable to
Company, Borrowers and such Subsidiaries, as applicable, taken as a whole, than
those under the agreement so amended, refinanced or replaced.


 


6.3          Investments; Acquisitions


 


Company and Borrowers shall not, and shall not permit
any of its or their Subsidiaries to, directly or indirectly, make or own any
Investment in any Person, including any Joint Venture, or acquire, by purchase
or otherwise, all or substantially all the business, property or fixed assets
of, or Capital Stock or other ownership interest of any Person, or any division
or line of business of any Person (each such acquisition, an “Acquisition”) except:


 


175

















 


(i)            Company and its Domestic
Subsidiaries may make and own Investments in Cash Equivalents and the Foreign
Subsidiaries may make and own Investments in Cash Equivalents and short term
investments similar to Cash Equivalents customarily used in the countries in
which they are located;


 


(ii)           Company and its Subsidiaries may
continue to own the Investments owned by them as of the Second Restatement Date
in any Subsidiaries of Company, and Company and its Domestic Subsidiaries may
form new wholly-owned Domestic Subsidiaries and make and own additional equity
Investments in their respective wholly-owned Domestic Subsidiaries and Foreign
Subsidiaries may form new wholly-owned Foreign Subsidiaries and make and own
additional equity investments in their respective wholly-owned Foreign
Subsidiaries;


 


(iii)          Company and its Subsidiaries may make
intercompany loans to the extent permitted under subsection 6.1(iv);
provided, that the aggregate amount of such intercompany loans made in cash by
Loan Parties (other than Avir or O-I Canada) to non-Loan Parties, Avir or O-I
Canada from and after the Second Restatement Date and outstanding at any time
shall not exceed $500,000,000 minus the amount of Investments made by Loan
Parties (other than Avir or O-I Canada) in non-Loan Parties, Avir or O-I Canada
pursuant to subsection 6.3(vi) from and after the Second Restatement Date;


 


(iv)          Company and its Subsidiaries may
continue to own the Investments owned by them and described in Schedule 6.3
annexed hereto and make the Investments contemplated by Schedule 6.3;


 


(v)           Company, its Domestic Subsidiaries
and the other Loan Parties (other than Avir and O-I Canada) may make
Acquisitions; provided that aggregate consideration paid or given
(including, without limitation, cash paid, Acquired Indebtedness or assumed
Indebtedness and the value of any other consideration paid or given, other than
Capital Stock of Holdings issued in connection with such Acquisition) for all
Acquisitions after the Second Restatement Date does not exceed $250,000,000; provided
further that Company and Domestic Borrowers shall comply with and shall
cause their Subsidiaries to comply with subsections 5.9 and 5.10 hereof; and provided
still further that upon from and after the first such date that the
Consolidated Leverage Ratio is less than 3.5:1, Company, its Domestic
Subsidiaries and the other Loan Parties (other than Avir and O-I Canada) may
make additional Acquisitions such that the aggregate consideration paid or
given for all Acquisitions (including those made after the Second Restatement
Date and prior to such first such date) does not exceed $500,000,000; provided,
still  further, that such Acquisitions may not be financed through
the issuance of Indebtedness at any time any Tranche D Term Loans are outstanding.


 


(vi)          Company and its Subsidiaries may make
additional Investments in their respective Foreign Subsidiaries; provided
that the amount of all such Investments made after the Second Restatement Date
minus the aggregate amount of all cash dividends, distributions and other cash
payments actually received by Company and its Subsidiaries (other than Foreign
Subsidiaries) from their respective Foreign Subsidiaries after the Second
Restatement Date, shall not exceed $250,000,000; and provided  still
further that upon and from and after the first such date that the
Consolidated Leverage Ratio is less than 3.5:1, Company and


 


176

















 


its
Subsidiaries may make additional Investments in their respective Foreign
Subsidiaries such that the aggregate amount for all such Investments (including
those made after the Second Restatement Date and prior to such first such date)
minus the aggregate amount of all cash dividends, distributions and other cash
payments actually received by Company and its Subsidiaries (other than Foreign
Subsidiaries) from their respective Foreign Subsidiaries after the Second
Restatement Date (including those received after the Second Restatement Date
and prior to such first such date) does not exceed $500,000,000;


 


(vii)         Company and its Subsidiaries may make
and own Investments arising in connection with Commodities Agreements entered
into in accordance with current industry practice (at the time of making any
such Investment) or the past practices of Company and its Subsidiaries;


 


(viii)        Company may acquire and hold obligations
of one or more officers or other employees of Company or its Subsidiaries in
connection with such officers’ or employees’ acquisition of shares of Holdings’
common stock, so long as no cash is actually advanced by Company or any of its
Subsidiaries to such officers or employees in connection with the acquisition
of any such obligations;


 


(ix)           Company and its Subsidiaries may
receive and hold promissory notes and other non-cash consideration received in
connection with any Asset Sale or other sales of assets permitted by
subsection 6.7;


 


(x)            Company and its Subsidiaries may
acquire Securities in connection with the satisfaction or enforcement of
Indebtedness or claims due or owing to Company or any of its Subsidiaries or as
security for any such Indebtedness or claim;


 


(xi)           Foreign Subsidiaries of Company other
than Offshore Borrowers (except Avir and O-I Canada) and Offshore Guarantors
may make Investments, Acquisitions and acquire assets (including Capital Stock
and including Capital Stock of Foreign Subsidiaries other than Offshore
Borrowers and Offshore Guarantors formed in connection with any such
acquisition); provided  that, such Acquisitions may not be
financed through the issuance of Indebtedness at any time any Tranche D Term
Loans are outstanding.


 


(xii)          Company and its Subsidiaries may make
and own additional Investments in Joint Ventures made after the Second
Restatement Date in an aggregate amount not to exceed at any time $100,000,000;


 


(xiii)         In addition to Investments permitted by
the other clauses of this subsection, Company and its Subsidiaries may make and
own other Investments in an aggregate amount not to exceed at any time
$125,000,000;


 


(xiv)        Company and
its Subsidiaries may consummate the BSN Acquisition in accordance with the BSN
Share Purchase Agreement;


 


(xv)         Company and its
Subsidiaries may enter into and consummate transactions described in subsection
6.7(i) and 6.7(x);


 


177

















 


(xvi)        BSN and its Subsidiaries may continue to
own the Investments owned by them as of the BSN Acquisition Closing Date; and


 


(xvii)       Owens-Brockway and its Subsidiaries may
contribute and/or loan the proceeds of the Domestic Tranche C Term Loans and
the Tranche D Term Loans to its Subsidiaries so as to permit one or more of
such Subsidiaries to pay the purchase price for the Acquisition in accordance
with Section 2.5.


 


6.4          Contingent Obligations


 


Company and Borrowers shall not, and shall not permit
any of its or their Subsidiaries to, directly or indirectly, create or become
or remain liable with respect to any Contingent Obligation, except:


 


(i)            Loan Parties may become and remain
liable with respect to Contingent Obligations under their respective
Guaranties;


 


(ii)           Company, Borrowers and its and their
Subsidiaries may become and remain liable with respect to Contingent
Obligations in respect of Letters of Credit in an aggregate amount not to
exceed at any time $350,000,000 and Contingent Obligations in respect of other
letters of credit and surety bonds in an aggregate amount not to exceed at any
time $150,000,000;


 


(iii)          Company and its Subsidiaries may
become and remain liable with respect to Contingent Obligations under Hedge
Agreements with respect to Indebtedness;


 


(iv)          Company and its Subsidiaries may
become and remain liable with respect to Contingent Obligations in respect of
customary indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales or other sales of assets;


 


(v)           Company and its Subsidiaries may
become and remain liable with respect to Contingent Obligations under
guarantees in the ordinary course of business of the obligations of suppliers,
customers, franchisees and licensees of Company and its Subsidiaries in an
aggregate amount not to exceed at any time $100,000,000;


 


(vi)          Company and its Subsidiaries may
become and remain liable with respect to Contingent Obligations in respect of
any Indebtedness of Company or any of its Subsidiaries to the extent such
Indebtedness is specifically permitted by subsection 6.1 (other than
Existing Holdings Senior Notes, the Existing BSN Senior Subordinated Notes,
Refinancing Senior Debt and New Junior Debt);


 


(vii)         Company and its Subsidiaries, as applicable,
may remain liable with respect to Contingent Obligations described in Schedule
6.4 annexed hereto and any extensions, renewals and refinancings thereof to
the extent that such extensions, renewals and refinancings thereof do not
result in an increase in the aggregate amount of Contingent Obligations as
described in Schedule 6.4;


 


178

















 


(viii)        Company and its Subsidiaries may become
and remain liable with respect to Contingent Obligations in respect of any
obligation of Company or any of its Subsidiaries not prohibited under this
Agreement (other than any obligation with respect to Indebtedness) (other than
Existing Holdings Senior Notes, the Existing BSN Senior Subordinated Notes,
Refinancing Senior Debt and New Junior Debt);


 


(ix)           Company and Packaging may become and
remain liable on a subordinated basis with respect to Existing Holdings Senior
Notes, Refinancing Senior Debt and New Junior Debt; provided Company and
Packaging may become and remain liable with respect to New Junior Debt on an
unsubordinated basis if such New Junior Debt is unsecured;


 


(x)            BSN and its Subsidiaries remain
liable with respect to Contingent Obligations under the Existing BSN Senior
Subordinated Notes; provided that such obligations are subordinated to
the French Tranche C1 Term Loans, the French Tranche C2 Term Loans and the
French Tranche C3 Term Loans as set forth in the Existing BSN Senior
Subordinated Indentures or otherwise on terms and conditions satisfactory to
Administrative Agent; and


 


(xi)           In addition to Contingent Obligations
permitted by the other clauses of this subsection, Company and its Subsidiaries
may become and remain liable with respect to other Contingent Obligations; provided
that the maximum aggregate principal liability, contingent or otherwise, of
Company and its Subsidiaries in respect of all such Contingent Obligations
shall at no time exceed $250,000,000.


 


6.5          Restricted Junior Payments


 


Company and Borrowers shall not, and shall not permit
any of its and their Subsidiaries to, directly or indirectly, declare, order,
pay, make or set apart any sum for any Restricted Junior Payment; provided
that (A) Company may (i) make Holdings Ordinary Course Payments to the extent
then due and payable, so long as Holdings applies the amount of any such
Restricted Junior Payment for such purpose; (ii) make Restricted Junior
Payments to Holdings for purchases of Common Stock of Holdings in connection
with the administration of Holdings’ employee benefits program and repurchases
of employee shares, (iii) make regularly scheduled payments of interest in
respect of any Subordinated Indebtedness (including the Existing BSN Senior
Subordinated Notes) in accordance with the terms of, and only to the extent
required by, and subject to the subordination provisions contained in, the
indenture or other agreement pursuant to which such Subordinated Indebtedness
was issued, as such indenture or other agreement may be amended from time to
time to the extent not prohibited by subsection 6.12A; provided, in
the case of Company’s intercompany note to Holdings, such payments of interest
shall be limited to non-cash payments on a basis consistent with past practices
and (v) make, and Subsidiaries of Company may make, payments of intercompany
indebtedness other than payments of Company’s intercompany Indebtedness to
Holdings and (B) BSN and its Subsidiaries may use the proceeds of the French
Tranche C3 Term Loans to make BSN Change of Control Payments on the BSN Change
of Control Payment Date and may redeem, repurchase or otherwise repay the BSN
Senior Subordinated Notes with the proceeds of Indebtedness incurred under
subsection 6.1(xv).  The provisions of
this subsection 6.5 shall not be breached by the payment of any Restricted
Junior Payments to Holdings for the purposes of Holdings making a dividend
payment under clause (x) of Holdings Ordinary Course Payments definition within
60


 


179

















 


days after the
declaration of the dividend by Holdings, if at such date of declaration, the
making of such payment would not have been in violation of this subsection.


 


6.6          Financial Covenants


 


A.    Minimum Fixed Charge Coverage Ratio.  Company and Borrowers shall not permit the
Consolidated Fixed Charge Coverage Ratio for any Fiscal Quarter period ending
during any of the periods set forth below, calculated on a Pro Forma Basis, to
be less than the correlative ratio indicated:


 


	
  Fiscal Quarter Ending

  	
   

  	
  Minimum
  Consolidated

  Fixed Charge Coverage

  Ratio

  
	
  June 30, 2004

  	
   

  	
  1.15: 1.00

  
	
  September 30, 2004

  	
   

  	
  1.15: 1.00

  
	
  December 31, 2004

  	
   

  	
  1.15: 1.00

  
	
  March 31, 2005

  	
   

  	
  1.15: 1.00

  
	
  June 30, 2005

  	
   

  	
  1.15: 1.00

  
	
  September 30, 2005

  	
   

  	
  1.15: 1.00

  
	
  December 31, 2005

  	
   

  	
  1.30: 1.00

  
	
  March 31, 2006

  	
   

  	
  1.30: 1.00

  
	
  June 30, 2006

  	
   

  	
  1.30: 1.00

  
	
  September 30, 2006

  	
   

  	
  1.30: 1.00

  
	
  December 31, 2006

  	
   

  	
  1.50: 1.00

  
	
  March 31, 2007

  	
   

  	
  1.50: 1.00

  
	
  June 30, 2007

  	
   

  	
  1.50: 1.00

  
	
  September 30, 2007

  	
   

  	
  1.50: 1.00

  
	
  December 31, 2007

  	
   

  	
  1.70: 1.00

  
	
  March 31, 2008

  	
   

  	
  1.70: 1.00

  



 


B.    Maximum Leverage Ratio. 
Company and Borrowers shall not permit the Consolidated Leverage Ratio
as of the last day of the Fiscal Quarter ending during any of the periods set
forth below, calculated on a Pro Forma Basis, to exceed the correlative ratio
indicated:


 


	
  Fiscal Quarter Ending

  	
   

  	
  Maximum
  Consolidated

  Leverage Ratio

  
	
  June 30, 2004

  	
   

  	
  5.10: 1.00

  
	
  September 30, 2004

  	
   

  	
  5.10: 1.00

  
	
  December 31, 2004

  	
   

  	
  5.00: 1.00

  
	
  March 31, 2005

  	
   

  	
  5.00: 1.00

  
	
  June 30, 2005

  	
   

  	
  5.00: 1.00

  
	
  September 30, 2005

  	
   

  	
  5.00: 1.00

  



 


180

















 


	
  Fiscal Quarter Ending

  	
   

  	
  Maximum
  Consolidated

  Leverage Ratio

  
	
  December 31, 2005

  	
   

  	
  4.65: 1.00

  
	
  March 31, 2006

  	
   

  	
  4.65: 1.00

  
	
  June 30, 2006

  	
   

  	
  4.65: 1.00

  
	
  September 30, 2006

  	
   

  	
  4.65: 1.00

  
	
  December 31, 2006

  	
   

  	
  4.30: 1.00

  
	
  March 31, 2007

  	
   

  	
  4.30: 1.00

  
	
  June 30, 2007

  	
   

  	
  4.30: 1.00

  
	
  September 30, 2007

  	
   

  	
  4.30: 1.00

  
	
  December 31, 2007

  	
   

  	
  3.95: 1.00

  
	
  March 31, 2008

  	
   

  	
  3.95: 1.00

  



 


6.7          Restriction on Fundamental Changes;
Asset Sales


 


Company and Borrowers shall not, and shall not permit
any of its and their Subsidiaries to enter into any transaction of merger or
consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor or
sublessor), transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets (including
its notes or receivables and Capital Stock of a Subsidiary, whether newly
issued or outstanding), whether now owned or hereafter acquired, except:


 


(i)            any Subsidiary of Company (other
than a Domestic Borrower, ACI or BSN) may be merged or amalgamated with or into
Company, any Borrower, any Subsidiary Guarantor or any Offshore Guarantor, or
be liquidated, wound up or dissolved, or all or any part of its business,
property or assets may be conveyed, sold, leased, transferred or otherwise
disposed of (including its notes or receivables and Capital Stock), in one
transaction or a series of transactions, to Company, any Borrower, any
Subsidiary Guarantor or any Offshore Guarantor; provided that, in the
case of such a merger, Company, such Borrower, such Subsidiary Guarantor or
such Offshore Guarantor shall be the continuing or surviving Person;


 


(ii)           Company and its Subsidiaries may
sell, lease, sublease or otherwise dispose of assets in transactions that do
not constitute Asset Sales and sell inventory and other personal and real
property held for resale in the ordinary course of business;


 


(iii)          Company and its Subsidiaries may
dispose of obsolete, worn out or surplus property in the ordinary course of
business;


 


(iv)          [reserved];


 


(v)           Company and its Subsidiaries may make
Asset Sales of assets having a fair market value not in excess of $500,000,000
for any twelve-month period provided that (a) the consideration received for
such assets shall be in an amount


 


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at least equal to
the fair market value thereof; and (b) for the period from the Second
Restatement Date until the date of determination Company and its Subsidiaries
may not make aggregate Asset Sales under this clause (v) of assets having an
aggregate value of more than $1,000,000,000; provided that Asset Sales
made by Avir and its Subsidiaries after the Second Restatement Date shall not
exceed $100,000,000;


 


(vi)          in order to resolve disputes that
occur in the ordinary course of business, Company and its Subsidiaries may
discount or otherwise compromise for less than the face value thereof, notes or
accounts receivable in accordance with past practice and Company and
Subsidiaries may sell accounts receivable to the extent that the proceeds of
Receivables Sale Indebtedness are applied as required by
subsection 2.4B(ii)(f);


 


(vii)         Company and its Subsidiaries may make
Acquisitions and Investments permitted by subsection 6.3;


 


(viii)        Company or a Subsidiary may sell or
dispose of shares of Capital Stock of any of its Subsidiaries in order to
qualify members of the Governing Body of the Subsidiary if required by
applicable law;


 


(ix)           Any Person (other than Holdings, a
Domestic Borrower, ACI or BSN) may be merged or amalgamated with or into
Company or any Subsidiary if the acquisition of the Capital Stock of such
Person by Company or such Subsidiary would not be prohibited pursuant to
subsection 6.3; provided that (a) in the case of Company or a
Domestic Borrower, Company or such Domestic Borrower shall be the continuing or
surviving Person, (b) if a Subsidiary is not the surviving or continuing
Person, the surviving Person becomes a Subsidiary and complies with the
provisions of subsections 5.9 and 5.10 and (c) no Potential Event of Default or
Event of Default shall have occurred or be continuing after giving effect
thereto;


 


(x)            Any Subsidiary of Company (other
than a Borrower) may be merged with or into any other Subsidiary of Company (other
than a Borrower) or be liquidated, wound up or dissolved, or all or any part of
its business, property or assets may be conveyed, sold, leased or otherwise
disposed of (including its notes or receivables and Capital Stock), in one
transaction or a series of transactions to any other Subsidiary of Company
(other than a Borrower), so long as, at the time of such event, neither
Subsidiary is a Subsidiary Guarantor or an Offshore Guarantor;


 


(xi)           BSN Glasspack Services may sell
accounts receivable in connection with the Existing BSN Receivables
Securitization Facility; and


 


(xii)          Company and its Subsidiaries may
consummate the BSN Acquisition in accordance with the BSN Share Purchase
Agreement,


 


provided,
that, notwithstanding any of the foregoing clauses or anything else in
this Agreement to the contrary, (i) no Domestic Borrower may issue any new
Capital Stock to any Person other than to Company or Packaging, and (ii)
neither Company nor Packaging may convey, sell,


 


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transfer or otherwise dispose of any Capital Stock in
any Domestic Borrower, other than the security interest therein pledged to
Collateral Agent pursuant to the Pledge Agreement.


 


6.8          Consolidated Capital Expenditures


 


Company and Borrowers shall not, and shall not permit
its or their Subsidiaries to, make or incur Consolidated Capital Expenditures,
in any Fiscal Year, in an aggregate amount in excess of the Maximum
Consolidated Capital Expenditures Amount for such Fiscal Year.


 


6.9          Transactions with Shareholders and
Affiliates


 


(i)            Company and Borrowers shall not, and
shall not permit any of its or their Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder of 5% or more of any class of equity Securities of Company or Holdings
or with any Affiliate of Company or Holdings or of any such holder, on terms
that are less favorable to Company or that Subsidiary, as the case may be, than
those that might be obtained at the time from Persons who are not such a holder
or Affiliate; provided that the foregoing restriction shall not apply to
(A) any transaction between Company and any of its Subsidiaries or between any
of its Subsidiaries, (B) customary fees paid to members of the Board of
Directors of Company and its Subsidiaries, (C) transactions approved by a
majority of the disinterested members of the Board of Directors or other
similar governing body of Company or the applicable Subsidiary, (D) purchases
and sales of goods from retailers and suppliers affiliated with KKR in the
ordinary course of business on terms not materially less favorable than
generally available from such retailers or suppliers, (E) the payment of an
annual fee to KKR for rendering management and consulting services to Company
and the reimbursement of expenses in connection therewith, (F) transactions
pursuant to subsection 6.5, (G) the payment by Owens Insurance, Ltd. to
Holdings of insurance settlement amounts received, consistent with past
practices or (H) any transaction between or among Holdings, Company, any
Borrower or any other Subsidiary, subject to the restrictions of
subsection 6.9(ii) below.


 


(ii)           Company and Borrowers shall not, and
shall not permit any of its or their Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction (including the purchase, sale,
lease or exchange or any property or the rendering of any service) between such
Person and Holdings that is not consistent generally with past practices.


 


6.10        Sales and Lease Backs


 


Company and Borrowers shall not, and shall not permit
any of its or their Subsidiaries to, directly or indirectly, become or remain
liable as lessee or as a guarantor or other surety with respect to any lease
entered into after the date hereof, whether an Operating Lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (i) that Company or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person (other than Company
or any of its Subsidiaries) or (ii) that Company or any of its Subsidiaries
intends to use for substantially the same purpose as any other property that
has been or is to be sold or transferred by Company or any of its Subsidiaries
to any


 


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Person (other than
Company or any of its Subsidiaries) in connection with such lease; provided
that Company and its Subsidiaries may become and remain liable as lessee,
guarantor or other surety with respect to any such lease if and to the extent
that Company or any of its Subsidiaries would be permitted to enter into, and
remain liable under, such lease to the extent that the transaction would be
permitted under subsection 6.1, assuming the sale and lease back
transaction constituted Indebtedness in a principal amount equal to the gross
proceeds of the sale.


 


6.11        Conduct of Business


 


From and after the Second Restatement Date, Company
and Borrowers shall not, and shall not permit any of its or their Subsidiaries
to, fundamentally or substantively alter the character of its business from
that conducted by Company and its Subsidiaries, taken as a whole, as of the
Second Restatement Date.


 


6.12        Amendments of Documents Relating to
Restricted Debt Obligations; No Prepayments of Restricted Debt Obligations


 


A.    Amendments of Documents Relating to Restricted Debt
Obligations.  Company and Borrowers
shall not, and shall not permit Holdings or any of its or their Subsidiaries
to, amend or otherwise change, or consent to any amendment or change to, the
terms of any Restricted Debt Obligations, or make any payment (including making
any Restricted Junior Payment to permit Holdings to make any such payment)
consistent with an amendment thereof or change thereto, if the effect of such
amendment or change is to increase the interest rate on such Restricted Debt
Obligations, change (to earlier dates) any dates upon which payments of
principal or interest are due thereon, change any event of default or condition
to an event of default with respect thereto (other than the waiver of any such
default by the holders of such Restricted Debt Obligations, to eliminate any
such event of default or increase any grace period related thereto), change the
redemption, prepayment or defeasance provisions thereof, change any
subordination provisions thereof (or of any guaranty thereof other than to
release such guaranty), or change any collateral therefor (other than to
release such collateral), or if the effect of such amendment or change,
together with all other amendments or changes made, is to increase materially
the obligations of the obligor thereunder or to confer any additional rights on
the holders of such Restricted Debt Obligations (or a trustee or other
representative on their behalf) which would be adverse to Company or Lenders
(as determined by Administrative Agent in its reasonable judgment); provided
that BSN and the other applicable parties may amend or otherwise change, or
consent to any amendment or change to (i) the Existing BSN Intercreditor
Agreements or any security document executed and delivered in connection with
the Existing BSN Senior Subordinated Notes so as to account for the addition of
the French Tranche C1 Term Loans, the French Tranche C2 Term Loans and the
French Tranche C3 Term Loans as senior obligations thereunder, in forms
satisfactory to Administrative Agent and (ii) the Existing BSN Senior
Subordinated Note Indentures, if the effect of such amendment is to eliminate
or otherwise relax certain restrictive covenants contained therein as confirmed
by Administrative Agent.


 


B.    No Prepayments of Restricted Debt Obligations.  Company and Borrowers shall not make, and
shall not permit any of its or their Subsidiaries to make, any voluntary or
optional payment on Restricted Debt Obligations (or in the case of Existing
Holdings Senior


 


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Notes maturing in 2004, 2005 or 2007, any payment at
maturity) or to make any Restricted Junior Payment to Holdings to permit
Holdings to make any voluntary or optional payment on Restricted Debt
Obligations (or in the case of Existing Holdings Senior Notes maturing in 2004,
2005 or 2007, any payment at maturity) except that Company or any of the
Borrowers shall be entitled to redeem, repay, repurchase or defease (or make a
Restricted Junior Payment to Holdings to permit Holdings to redeem, repay,
repurchase or defease) (i) at any time the Existing Holdings Senior Notes
maturing in 2004 with proceeds of Revolving Loans or otherwise, (ii) 
Existing Holdings Senior Notes maturing in 2005 with Revolving Loans made under
the Existing Holdings Senior Notes Redemption Sublimit or funds reserved to
Existing Holdings Senior Notes Collateral Account, or with the proceeds of
Revolving Loans (other than Loans made under the Existing Holdings Senior Notes
Redemption Sublimit), Additional Term Loans or Refinancing Term Loans in each
case to the extent permitted under subsection 2.5B or, so long as the
Reservation Conditions are satisfied, with Net Debt Securities Proceeds or, at
maturity thereof only, with other funds available to Company and its
Subsidiaries to do so, (iii) after redemption, repayment or other repurchase
of the Existing Holdings Senior Notes maturing in 2004 in full and so long as
the outstanding principal amount of the Existing Holdings Senior Notes due 2005
is $75,000,000 or less, to redeem, repay, or otherwise repurchase Existing
Holdings Senior Notes maturing in 2007 with Revolving Loans made under the
Existing Holdings Senior Notes Redemption Sublimit or funds reserved to
Existing Holdings Senior Notes Collateral Account, or the proceeds of Revolving
Loans (other than Loans made under the Existing Holdings Senior Notes
Redemption Sublimit), Additional Term Loans or Refinancing Term Loans in each
case to the extent permitted under subsection 2.5B, or, so long as the
Reservation Conditions are satisfied, with Net Debt Securities Proceeds or, at maturity
thereof only, with other funds available to Company and its Subsidiaries to do
so, (iv) on the BSN Change of Control Payment Date, Existing BSN Senior
Subordinated Notes with the proceeds of the French Tranche C3 Term Loans and to
the extent permitted under Section 2.5, Revolving Loans, at a price not
exceeding 101% of the principal amount thereof and (v) the Existing BSN Senior
Subordinated Notes with the proceeds of Indebtedness permitted under subsection
6.1(xv).  In addition, Company and its
Subsidiaries may make consent fee payments in connection with any amendments to
the Existing BSN Senior Subordinated Note Indentures described in subsection
6.12A(ii) above on prevailing market terms. 
So long as the applicable payment of any Restricted Debt Obligation is
permitted by this subsection 6.12B, the payment of accrued interest, fees,
expenses and, except in the case of clause (iv) above, premiums in connection
therewith may also be made with proceeds of Revolving Loans or with other funds
available to Company and its Subsidiaries to do so.


 


SECTION
7


 


EVENTS
OF DEFAULT


 


If any of the following
conditions or events (“Events of Default”) shall occur and be
continuing:


 


7.1          Failure to Make Payments When Due


 


Failure to pay any installment of principal of any
Loan when due, whether at stated maturity, by acceleration, by notice of
prepayment or otherwise; failure to make


 


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reimbursement with
respect to any Letter of Credit when due; or failure to pay any interest on any
Loan or any other amount due under this Agreement within five days after the
date due; or


 


7.2          Default in Other Agreements


 


A.    Failure of Holdings, any Borrower or any of its or their
Subsidiaries to pay when due any principal or interest on any Indebtedness
(other than Indebtedness referred to in subsection 7.1) or guaranties of
Indebtedness (other than Company’s Guaranty of the Obligations under Section 9)
or amounts due in respect of early termination of Hedge Agreements in an
individual principal amount of $50,000,000 or more or with an aggregate
principal amount of $100,000,000 or more, in each case beyond the end of any
period prior to which the obligee thereunder is prohibited from accelerating
payment thereunder; or


 


B.    Breach or default by Holdings, any Borrower or any of its or
their Subsidiaries with respect to any other term of any evidence of any
Indebtedness (other than Indebtedness referred to in subsection 7.1) or
guaranties of Indebtedness (other than Company’s Guaranty of the Obligations
under Section 9) in an individual principal amount of $50,000,000 or more or
with an aggregate principal amount of $100,000,000 or more (or any loan
agreement, mortgage, indenture or other agreement relating thereto) if the
effect of such failure, default or breach is to cause, or (in the case of a
breach or default with respect to a material term of the applicable
Indebtedness or guaranty) to permit the holder or holders of that Indebtedness
or guaranty (or a trustee on behalf of such holder or holders) then to cause,
that Indebtedness or guaranty to become or be declared due prior to its stated
maturity (or the stated maturity of any underlying obligation, as the case may
be); provided that such failure, default or breach has not been waived
by such holder or holders or trustee on behalf of such holder or holders; or


 


7.3          Breach of Certain Covenants


 


Failure of Company or any Borrower to perform or
comply with any term or condition contained in subsections 2.5 or 5.2 or
Section 6 of this Agreement; or


 


7.4          Breach of Warranty


 


Any representation or warranty made by any Loan Party
in any Loan Document or in any statement or certificate at any time given by
any Loan Party in writing pursuant hereto or thereto or in connection herewith
or therewith shall be false in any material respect on the date as of which
made or deemed made; or


 


7.5          Other Defaults under Agreement or Loan
Documents


 


Any Loan Party shall default in the performance of or
compliance with any term contained in this Agreement or any other Loan Document
other than those referred to above in subsections 7.1, 7.3 or 7.4 and such
default shall not have been remedied or waived within 30 days after receipt of
notice from Administrative Agent or any Lender of such default; or


 


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7.6          Involuntary Bankruptcy; Appointment of
Receiver, Etc.


 


A.    (i)  A court having
jurisdiction in the premises shall enter a decree or order for relief in
respect of Holdings, Company, any Domestic Borrower or any of their respective
Material Subsidiaries or any Offshore Borrower in an involuntary case under the
Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect (whether in the United States of America, the UK,
Australia, Italy, France or any other jurisdiction), which decree or order is
not stayed; or any other similar relief shall be granted under any applicable
federal or state law; or (ii) an involuntary case is commenced against
Holdings, Company, any Domestic Borrower or any of their respective Material
Subsidiaries or any Offshore Borrower under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect (whether in the
United States of America, the UK, Australia, Italy, France or any other
jurisdiction, including, in the case of any Loan Party organized under the laws
of France, redressement judiciaire and liquidation judiciaire); or a decree or
order of a court having jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian, administrator,
administrative receiver or other officer having similar powers over Holdings,
Company, any Domestic Borrower or any of their respective Material Subsidiaries
or any Offshore Borrower, or over all or a substantial part of its property,
shall have been entered (including, in the case of any Loan Party organized
under the laws of France, any conciliateur, administrateur judiciaire,
liquidateur judiciaire or mandataire ad hoc); or the involuntary appointment of
an interim receiver, trustee, administrator, administrative receiver or other
custodian of Holdings, Company, any Domestic Borrower or any of their
respective Material Subsidiaries or any Offshore Borrower for all or a
substantial part of its property; or the issuance of a warrant of attachment,
execution or similar process against any substantial part of the property of
Holdings, Company, any Domestic Borrower or any of their respective Material
Subsidiaries or any Offshore Borrower, and the continuance of any such events
in subpart (ii) for 60 days unless dismissed, bonded or discharged; or


 


7.7          Voluntary Bankruptcy; Appointment of
Receiver, Etc.


 


Holdings, Company, any Domestic Borrower or any of
their respective Material Subsidiaries or any Offshore Borrower shall have an
order for relief entered with respect to it or commence a voluntary case under
the Bankruptcy Code or any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect (whether in the United States of America, the
UK, Australia, Italy, France or any other jurisdiction and including, in the
case of any Loan Party organized under the laws of France, procedure de
reglement amiable within the meaning of Article L. 611-3 of the French
Commercial Code, redressement judiciaire or liquidation judiciaire), or shall
consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law, or
shall consent to or apply for the appointment of or taking possession by a
receiver, trustee, administrator, administrative receiver or other custodian
for all or a substantial part of its property (including, in the case of any
Loan Party organized under the laws of France, any conciliateur, administrateur
judiciaire, liquidateur judiciaire or mandataire ad hoc); the making by
Holdings, Company, any Domestic Borrower or any of their respective Material
Subsidiaries or any Offshore Borrower of any general assignment for the benefit
of creditors (including, in the case of any Loan Party organized under the laws
of France, transactions, accord ou reglement amiable); or the inability or
failure of Holdings, Company, any Domestic Borrower or any of


 


187

















 


their respective
Material Subsidiaries or any Offshore Borrower, or the admission by Holdings,
Company, any Domestic Borrower or any of their respective Material Subsidiaries
or any Offshore Borrower in writing of its inability to pay its debts as such
debts become due (including, the case of any Loan Party organized under the
laws of France, en etat de cessation des paiements within the meaning of
article L 621-1 of the French Commercial Code); or the Board of Directors or
other governing body of Holdings, Company, any Domestic Borrower or any of
their respective Material Subsidiaries or any Offshore Borrower (or any
committee thereof) adopts any resolution or otherwise authorizes action to
approve any of the foregoing; provided, however, that no Event of
Default shall be deemed to have occurred for purposes of this
subsection 7.7 in the event that any Australian Subsidiary other than an
Australian Offshore Borrower, with the consent of Administrative Agent (which
consent shall not be unreasonably withheld), commences a voluntary winding up
with respect to itself for the purposes of a solvent reconstruction or
amalgamation under Australian law; or


 


7.8          Judgments and Attachments


 


Any money judgment, writ or warrant of attachment, or
similar process involving (i) in any individual case an amount in excess
of $50,000,000 or (ii) in the aggregate at any time an amount in excess of
$100,000,000 (in either case not adequately covered by insurance as to which
the insurance company has acknowledged coverage) shall be entered or filed
against Holdings, any Borrower or any of Holdings’ other Material Subsidiaries
or any Offshore Borrower or any of their respective assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period of 60 days or in any
event later than five days prior to the date of any proposed sale thereunder;
or


 


7.9          Dissolution


 


Any order, judgment or decree shall be entered against
Holdings, any Borrower or any of Holdings’ other Material Subsidiaries or any
Offshore Borrower decreeing the dissolution or split up of Holdings or that
Subsidiary or that Offshore Borrower and such order shall remain undischarged
or unstayed for a period in excess of 30 days; or


 


7.10        Change of Control


 


A Change of Control shall
have occurred; or


 


7.11        Employee Benefit Plans


 


An ERISA Event shall
occur with respect to a Pension Plan or Multiemployer Plan; or


 


7.12        Invalidity of Guaranties; Failure of
Security


 


At any time after the execution and delivery thereof,
(i) any of the Guaranties for any reason, other than the satisfaction in full
of all Obligations, shall cease to be in full force and effect (other than in
accordance with its terms) in any material respect or shall be declared to be
null and void, (ii) any Collateral Document shall cease to be in full force and
effect (other than by reason of a release of Collateral thereunder in
accordance with the terms hereof or thereof or


 


188

















 


any other
termination of such Collateral Document in accordance with the terms hereof or
thereof) in any material respect or shall be declared null and void, or
Collateral Agent shall not have or shall cease to have a valid and perfected
First Priority Lien in any Collateral purported to be covered thereby securing
only the obligations purported to be covered thereby, in each case (A) if such
unenforceability, nullity or invalidity (in the aggregate with any other such
unenforceability, nullity or invalidity) relates to Collateral the value of
which exceeds $250,000,000 and (B) such unenforceability, nullity or invalidity
did not arise from the failure of Collateral Agent, Administrative Agent or any
Lender to take any action within its control, or (iii) any Loan Party shall
contest the validity or enforceability of any Loan Document in writing or deny
in writing that it has any further liability, including with respect to future
advances by Lenders, under any Loan Document to which it is a party; or


 


7.13        Activities
of Holdings; OI General FTS; Harbor Capital Subsidiaries; BSN Financing Co. S.A.
and BSN Glasspack Obligation S.A. and their respective Subsidiaries


 


Holdings shall engage in any activity other than the
ownership of the Capital Stock and intercompany debt of Company and activities
related to the administration of claims for asbestos-related liabilities,
serving as a guarantor of O-I Europe SAS’s obligations under the BSN Share
Purchase Agreement and other activities constituting substantially the same
business conducted by Holdings as of the Second Restatement Date, or OI General
FTS shall engage in any activity other than the ownership of the Capital Stock
and intercompany debt of its Subsidiaries and other activities constituting
substantially the same business conducted by OI General FTS as of the Second
Restatement Date, or any of the Harbor Capital Subsidiaries shall engage in any
activity other than the activities constituting the same business conducted by
such Subsidiaries as of the Second Restatement Date or acquire any material
assets from and after the Second Restatement Date, or, from and after the BSN
Acquisition Closing Date, BSN Financing Co. S.A. or BSN Glasspack Obligation
S.A. shall trade or undertake any commercial activities other than acting as
issuer of the Existing BSN Senior Subordinated Notes (or any Indebtedness
incurred to refinance the same pursuant to subsection 6.1(xv),


 


THEN (i) upon the occurrence of any Event of
Default described in the foregoing subsection 7.6 or 7.7, (A) each of
(x) the unpaid principal amount of and accrued interest on the Loans, (y)
the Domestic Overdraft Amount and the Offshore Overdraft Amounts and all
accrued and unpaid interest thereon, and (z) an amount equal to the
maximum amount which may at any time be drawn under all Letters of Credit then
outstanding (whether or not any beneficiary under any Letter of Credit shall
have presented, or shall be entitled at such time to present, the drafts or
other documents required to draw under such Letter of Credit), in each case
outstanding to (or issued for the account of) any Borrower that is subject of a
decree, order, case, proceeding, assignment, admission or other event giving
rise to such Event of Default shall automatically become immediately due and
payable, without presentment, demand, protest or other requirements of any
kind, all of which are hereby expressly waived by each Borrower, and the
obligation of Administrative Agent to honor any overdraft in respect of the
Domestic Overdraft Account, the obligation of any Offshore Overdraft Account
Provider to honor any overdraft in respect of any Offshore Overdraft Account,
the obligation of each Lender to make any Loan (other than a Domestic Tranche C
Term Loan, Tranche D Term Loan, French Tranche C1 Term Loan or French Tranche
C2 Term Loan), the obligation of Administrative Agent to issue any


 


189

















 


Letter of Credit
for the account of any Domestic Borrower and the right of any other Lender to
issue any Letter of Credit hereunder shall thereupon automatically terminate
and (B) Requisite Lenders (or Administrative Agent, at the direction or with
the consent of Requisite Lenders) may, by written notice to Borrowers, declare
an amount equal to the amounts described in clauses (x), (y) and (z) above
outstanding to or issued for the account of all other Borrowers (or such of
such other Borrowers as Requisite Lenders may direct) to be, and the same shall
forthwith become due and payable, without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by each
Borrower and (ii) upon the occurrence of any other Event of Default,
Requisite Lenders (or Administrative Agent, at the direction or with the
consent of Requisite Lenders) may, by written notice to Borrowers, declare an
amount equal to the amounts described in clauses (x), (y) and (z) above with
respect to any or all Borrowers to be, and the same shall forthwith become, due
and payable, without (except for such notice) presentment, demand, protest or
other requirements of any kind, all of which are hereby expressly waived by
each Borrower, together with accrued interest thereon, and the obligation of
Administrative Agent to honor any overdraft in respect of the Domestic
Overdraft Account, the obligation of any Offshore Overdraft Account Provider to
honor any overdraft in respect of any Offshore Overdraft Account, the
obligation of each Lender to make any Loan (other than a Domestic Tranche C
Term Loan, Tranche D Term Loan, French Tranche C1 Term Loan or French Tranche
C2 Term Loan), the obligation of Administrative Agent to issue any Letter of
Credit for the account of any Domestic Borrower and the right of any other
Lender to issue any Letter of Credit hereunder shall thereupon terminate; provided
that the foregoing shall not affect in any way (A) the right of
Administrative Agent to cause Lenders to make Revolving Loans in order to repay
the then outstanding Domestic Overdraft Amount as provided in (and subject to
the conditions set forth in) subsection 2.1B, (B) the obligations of
Lenders to purchase from Administrative Agent participations in the Domestic
Overdraft Amount as provided in subsection 2.1B, (C) the obligations
of Lenders to purchase from Issuing Lenders participations in the unreimbursed
amount of any drawings under any Letters of Credit as provided in
subsection 2.8E, or (D) the obligations of Lenders to purchase
participations in Offshore Overdraft Amounts as provided in
subsection 2.1D.


 


Any amounts described in clause (z) above, when
received by Administrative Agent, shall be held by Administrative Agent in the
L/C Collateral Account, for the benefit of Lenders, as collateral security for
the Obligations of Company and Domestic Borrowers in respect of all outstanding
Letters of Credit, and Company and Domestic Borrowers hereby (X) grant to
Administrative Agent a security interest in all such amounts, together with any
interest accrued thereon and any Investments of such amounts, as security for
such Obligations, (Y) agree to execute and deliver to Administrative Agent all
such documents and instruments as may be necessary or, in the opinion of
Administrative Agent, desirable in order to more fully evidence, perfect or
protect such security interest, and (Z) agree that, upon the honoring by any
Issuing Lender of any drawing under a Letter of Credit issued by it,
Administrative Agent is authorized and directed to apply any amounts held as
collateral security in accordance with the terms of this paragraph to reimburse
such Issuing Lender for the amount of such drawing.


 


Notwithstanding the foregoing, if at any time within
60 days after acceleration of the maturity of any Loan, Borrowers shall pay all
arrears of interest and all payments on account of principal which shall have
become due otherwise than by acceleration (with interest on principal and, to
the extent permitted by law, on overdue interest, at the rates specified in
this


 


190

















 


Agreement or the
Notes) and all Events of Default and Potential Events of Default (other than
non-payment of principal of and accrued interest on the Loans and the Notes,
and payments of amounts referred to in clause (z) above, in each case which is
due and payable solely by virtue of acceleration) shall be remedied or waived
pursuant to subsection 10.7, then Requisite Lenders by written notice to
Borrowers may rescind and annul the acceleration and its consequences (and upon
such written notice all obligations of each Lender hereunder shall be
reinstated, in each case as in effect immediately prior to such acceleration),
and Administrative Agent shall return to the applicable Loan Party any amounts
held by Administrative Agent pursuant to the immediately preceding paragraph as
cash collateral in the L/C Collateral Account in respect of amounts described
in clause (z) above; but such action shall not affect any subsequent Event of
Default or Potential Event of Default or impair any right consequent thereon.


 


Anything contained in this Agreement to the contrary
notwithstanding, after the occurrence of an Event of Default and the
acceleration of the maturity of any Loans and the amounts referred to in
clauses (y) and (z) above, all payments relating to such Loans and such
amounts shall be made to Administrative Agent for the account of Lenders and
all amounts received by Administrative Agent which are to be applied to the
payment of the Obligations in respect of such Loans and amounts shall be
distributed to Lenders in such a manner that each Lender receives the same
proportionate share of such amounts based on the ratio of the aggregate amounts
due to such Lender in respect of such Loans or amounts, as applicable, to the
aggregate amounts due to all Lenders in respect of such Loans or such amounts,
as applicable.  Notwithstanding the
foregoing, no proceeds arising from the sale, collection from or other
realization upon all or any part of the Excluded Securities Collateral (as
defined in the Security Agreement) shall be applied to repayment of the Tranche
D Loans unless and until all other Loans then outstanding shall have been paid
in full and an amount equal to the maximum amount which may be drawn under all
outstanding letters of Credit shall have been deposited in the L/C Collateral
Account.


 


SECTION
8


 


AGENTS


 


8.1          Appointments


 


DB is hereby appointed Administrative Agent hereunder
by each Lender and each Lender hereby authorizes Administrative Agent to act
hereunder and under the other instruments and agreements referred to herein
(including without limitation the Guaranties, the Collateral Documents and the
Intercreditor Agreement) as its agent hereunder and thereunder, and DB agrees
to act as such upon the express conditions contained in this Section 8, the
Guaranties, the Collateral Documents and the Intercreditor Agreement.  BofA and Scotia Capital are hereby appointed
Tranche A1 and B1 Co-Syndication Agents hereunder by each Lender and each of
BofA and Scotia Capital agrees to act as such upon the express conditions
contained in this Section 8.  CGMI and
BAS are hereby appointed Tranche C and D Syndication Agents hereunder by each
Tranche C Lender and CGMI and BAS agree to act as such upon the express
conditions contained in this Section 8. 
Deutsche Bank AG, London Branch, is hereby appointed UK Administrative
Agent hereunder by each Lender and each Lender hereby authorizes UK
Administrative Agent to act hereunder and under the other instruments and
agreements referred


 


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to herein as its
agent hereunder and thereunder, and Deutsche Bank AG, London Branch, agrees to
act as such upon the express conditions contained in this Section 8.  The provisions of this Section 8 are solely
for the benefit of Agents and Lenders, and no Borrower shall have any rights as
a third party beneficiary of any of the provisions hereof (except with respect
to the provisions relating solely to consent rights set forth in
subsection 8.6).  In performing
their functions and duties under this Agreement, Agents shall act solely as
agents of Lenders (except in connection with the exercise of consent rights
pursuant to subsection 10.7A) and do not assume and shall not be deemed to
have assumed any obligation towards or relationship of agency or trust with or
for Company or any of its Subsidiaries. 
None of the Tranche A1 and B1 Co-Syndication Agents, Tranche C and D
Syndication Agents or any Lenders named as Joint Lead Arrangers or Lead Book
Managers hereunder shall have no duties or any liability under this Agreement
to any Person, other than as Lenders hereunder.


 


8.2          Powers; General Immunity


 


A.    Duties Specified. 
Each Lender irrevocably authorizes Administrative Agent to take such
action on such Lender’s behalf and to exercise such powers hereunder and under
the other instruments and agreements referred to herein (including without
limitation the Guaranties, the Collateral Documents and the Intercreditor
Agreement) as are specifically delegated to Administrative Agent by the terms
hereof and thereof, together with such powers as are reasonably incidental
thereto.  Administrative Agent shall have
only those duties and responsibilities which are expressly specified in this
Agreement, the Guaranties, the Collateral Documents and the Intercreditor
Agreement and may perform such duties by or through its agents or employees.  Each of the Tranche A1 and B1 Co-Syndication
Agents and the Tranche C and D Syndication Agents shall have no powers or
duties hereunder except as expressly specified in this Agreement.  The title of “Senior Managing Agents” and
“Co-Documentation Agents” provided to certain Lenders in the introductory
paragraph to this Agreement is honorary only and does not impose any duty or
obligation on such Lenders.  The duties
of Agents shall be mechanical and administrative in nature; Agents shall not have
by reason of this Agreement a fiduciary relationship in respect of any Lender;
and nothing in this Agreement, expressed or implied, is intended to or shall be
so construed as to impose upon Agents any obligations in respect of this
Agreement or the other instruments and agreements referred to herein except as
expressly set forth herein or therein.


 


B.    No Responsibility for Certain Matters.  Agents shall not be responsible to any
Lender for the execution, effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Agreement, the Guaranties, the Collateral
Documents, the Intercreditor Agreement or any Notes issued hereunder, or for
any representations, warranties, recitals or statements made herein or therein
or made in any written or oral statement or in any financial or other
statements, instruments, reports, certificates or any other documents in
connection herewith or therewith furnished or made by Administrative Agent to
Lenders or by or on behalf of any Borrower to Administrative Agent or any
Lender or be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained herein or therein or as to the use of the proceeds of the Loans or
the use of Letters of Credit or of the existence or possible existence of any
Event of Default or Potential Event of Default.  Anything contained in this Agreement to the contrary
notwithstanding, Administrative Agent shall have no any liability arising from (i)
confirmations of the amount of outstanding


 


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Loans or the Letter of Credit Usage or the component
amounts thereof or (ii) failure for any reason whatsoever to deliver a Loan
Limitation Notice or notice thereof to any Lender pursuant to subsection 2.1E(v)
in connection with any Offshore Revolving Loan requested by any Offshore
Borrower hereunder.


 


C.    Exculpatory Provisions. 
Neither Agents nor any of their respective officers, directors,
employees or agents shall be liable to Lenders for any action taken or omitted
hereunder or in connection herewith (including without limitation any act or
omission under the Guaranties, the Collateral Documents or the Intercreditor
Agreement) unless caused by its or their gross negligence or willful misconduct.  If Administrative Agent shall request
instructions from Lenders with respect to any act or action (including the
failure to take an action) in connection with this Agreement, or the other
instruments and agreements referred to herein, Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until
Administrative Agent, shall have received instructions from Requisite
Lenders.  Without prejudice to the
generality of the foregoing, (i) Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any communication,
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper person or persons, and shall be
entitled to rely and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and (ii) no Lender
shall have any right of action whatsoever against Administrative Agent as a
result of Administrative Agent acting or (where so instructed) refraining from
acting under this Agreement or the other instruments and agreements referred to
herein in accordance with the instructions of Requisite Lenders.  Administrative Agent shall be entitled to
refrain from exercising any power, discretion or authority vested in it under
this Agreement or the other instruments and agreements referred to herein
unless and until it has obtained the instructions of Requisite Lenders.


 


D.    Agents Entitled to Act as Lender.  The agency hereby created shall in no way
impair or affect any of the rights and powers of, or impose any duties or
obligations upon, any Agent in its individual capacity as a Lender hereunder.  With respect to its participation in the
Loans and Letters of Credit, each Agent shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
performing the duties and functions delegated to it hereunder and the term
“Lender” or “Lenders” or any similar term shall, unless the context clearly
otherwise indicates, include each Agent in its individual capacity.  Each Agent and each of its Affiliates may
accept deposits from, lend money to and generally engage in any kind of
banking, trust, financial advisory or other business with any Borrower or any
Affiliate of any Borrower as if it were not performing the duties specified
herein, and may accept fees and other consideration from any Borrower for
services in connection with this Agreement and otherwise without having to
account for the same to Lenders.


 


8.3          Representations and Warranties; No
Responsibility for Appraisal of Creditworthiness


 


Each Lender represents and warrants that it has made
its own independent investigation of the financial condition and affairs of
Company and the Borrowers in connection with the making of the Loans, the
extensions of credit under the Domestic Overdraft Account and the Offshore
Overdraft Accounts (in the case of Administrative Agent and each Lender that


 


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is an Offshore
Overdraft Account Provider) and the issuance of Letters of Credit hereunder and
such Lender’s purchasing of participations in such Loans, the Domestic
Overdraft Account, the Offshore Overdraft Accounts or such Letters of Credit
and has made and shall continue to make its own appraisal of the
creditworthiness of Company and the Borrowers. 
No Agent shall have any duty or responsibility either initially or on a
continuing basis to make any such investigation or any such appraisal on behalf
of Lenders or to provide any Lender with any credit or other information with
respect thereto whether coming into its possession before the making of the
Loans or the issuance of the Letters of Credit or any time or times thereafter
and no Agent shall have any further responsibility with respect to the accuracy
of or the completeness of the information provided to Lenders.


 


8.4          Right to Indemnity


 


Each Lender severally agrees to indemnify each Agent,
proportionately to its Pro Rata Share as in effect on the date on which
indemnification is sought hereunder, to the extent such Agent shall not have
been reimbursed by Borrowers, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against such Agent in performing its duties hereunder
or in any way relating to or arising out of this Agreement or the other
instruments and agreements referred to herein; provided that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent’s gross negligence or willful misconduct.  If any indemnity furnished to an Agent for
any purpose shall, in the opinion of such Agent, be insufficient or become impaired,
such Agent may call for additional indemnity and cease, or not commence, to do
the acts indemnified against until such additional indemnity is furnished.


 


8.5          Registered Persons Treated as Owners


 


Administrative Agent may deem and treat the Persons
listed as Lenders in the Register as the owners of the corresponding Loans
listed therein for all purposes hereof unless and until an Assignment and
Acceptance effecting the assignment or transfer thereof shall have been
accepted by Administrative Agent and recorded in the Register as provided in
subsection 10.2B(ii).  Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is listed in the Register as a Lender shall
be conclusive and binding on any subsequent holder, transferee or assignee of
the corresponding Loan.


 


8.6          Successor Agents and Domestic
Overdraft Account Provider


 


(i)            Administrative Agent or UK
Administrative Agent may resign at any time by giving 30 days’ prior written notice
thereof to Lenders and Borrowers’ Agent, and Administrative Agent or UK
Administrative Agent may be removed at any time with or without cause by an
instrument or concurrent instruments in writing delivered to Borrowers’ Agent
and Administrative Agent and signed by Requisite Lenders.  Upon any such notice of resignation or any
such removal, Requisite Lenders shall have the right, upon five days’ notice to
Company and Borrowers’ Agent, to appoint a successor Administrative Agent or UK
Administrative Agent, as


 


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applicable;
provided that so long as no Event of Default shall have occurred and be
continuing such appointment shall be subject to the consent of Borrowers’
Agent, which consent shall not be unreasonably withheld.  Upon the acceptance of any appointment as an
Administrative Agent or UK Administrative Agent hereunder by a successor
Administrative Agent or UK Administrative Agent, that successor Administrative
Agent or UK Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring or removed
Administrative Agent or UK Administrative Agent as applicable, and the retiring
or removed Administrative Agent or UK Administrative Agent shall be discharged
from its duties and obligations as Administrative Agent or UK Administrative
Agent under this Agreement.  After any
retiring or removed Administrative Agent’s or UK Administrative Agent’s resignation
or removal hereunder as Administrative Agent or UK Administrative Agent, the
provisions of this Section 8 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent or UK
Administrative Agent under this Agreement.


 


(ii)           Any resignation or removal of
Administrative Agent pursuant to this subsection 8.6 shall also constitute
the resignation or removal of Administrative Agent as the provider of the
Domestic Overdraft Account and as Collateral Agent, and any successor
Administrative Agent appointed pursuant to this subsection 8.6 shall, upon
its acceptance of, and as a condition to, such appointment, become the
successor provider of the Domestic Overdraft Account and Collateral Agent for
all purposes hereunder.  In such event
(a) Domestic Borrowers shall repay in full the Domestic Overdraft Amount and
all other amounts owing to the retiring or removed Administrative Agent under
the Overdraft Agreement, and (b) Borrowers and the retiring or removed
Administrative Agent shall terminate the Domestic Overdraft Agreement to which
they are a party and Company and the successor Administrative Agent shall enter
into a successor Domestic Overdraft Agreement.


 


8.7          Intercreditor Agreement, Subsidiary
Guaranty and Collateral Documents


 


Each Lender hereby authorizes Collateral Agent to
enter into the Intercreditor Agreement (including, without limitation the
amendment thereof in the form of Exhibit XVII attached hereto) on behalf
of and for the benefit of that Lender, and agrees to be bound by the terms of the
Intercreditor Agreement.  Each Lender
with French Tranche C1 Term Loan Exposure or French Tranche C2 Term Loan
Exposure hereby authorizes Collateral Agent to enter into the amendments to or
replacements of the Existing BSN Intercreditor Agreements on behalf of and for
the benefit of that Lender, and agrees to be bound by the terms of
agreements.  Each Lender hereby
authorizes Collateral Agent to enter into the Guaranties, the Intercreditor
Agreement, and each Collateral Document, and to take all action contemplated by
the Guaranties, the Intercreditor Agreement, and the Collateral Documents; provided
that Collateral Agent shall not enter into or consent to any amendment,
modification, termination or waiver of any provision contained in the
Intercreditor Agreement without the prior consent of the Requisite
Lenders.  Upon the proposed sale, transfer or other
disposition of any Collateral by Company or any of its Subsidiaries in
accordance with this Agreement for which Company or such Subsidiary desires to
obtain a security interest release from Collateral Agent, Company or such
Subsidiary shall deliver an Officer’s Certificate (x) stating that the
Collateral subject to such disposition is being sold, transferred or otherwise
disposed of in compliance with the terms of this Agreement and (y) specifying
the Collateral being sold, transferred or otherwise disposed of in the proposed


 


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transaction.  Upon the receipt of such Officer’s
Certificate, the Collateral Agent is authorized, at Borrower’s expense, so long
as Collateral Agent has no reason to believe that the Officer’s Certificate so
delivered with respect to such sale is not true and correct, to execute and
deliver such releases of its security interest in such Collateral which is to
be so sold, transferred or disposed of, as may be reasonably requested by
Company or such Subsidiary.  If
Requisite Lenders, or if required, all Lenders, consent to the release or
reconveyance of any of the Collateral, the Collateral Agent is authorized to,
at Borrowers’ expense, release, and to execute and deliver any necessary
releases of its security interest in such Collateral in connection therewith
and all such reconveyances or transfers shall be without recourse to the Collateral
Agent or the Lenders and without representation or warranty of any kind.  Each Lender agrees that no Lender
shall have any right individually to seek to enforce the Guaranties or to
realize upon the security granted by any Collateral Document, it being
understood and agreed that such rights and remedies may be exercised by
Collateral Agent for the benefit of Lenders and the parties to the
Intercreditor Agreement upon the terms of the Collateral Documents and the
Intercreditor Agreement.


 


SECTION
9


 


COMPANY
GUARANTY


 


9.1          Guaranty


 


Company hereby irrevocably and unconditionally
guaranties the due and punctual payment of all Obligations of all Borrowers
hereunder, all obligations and liabilities under Interest Rate Agreements by
and between Company or any of its Subsidiaries and Lenders or Affiliates of
Lenders (“Interest Rate Obligations”)
and all Currency Agreements by and between Company or any of its Subsidiaries
and Lenders or Affiliates of Lenders (“Currency
Obligations”) and any Other Permitted Credit Exposure, when the same
shall become due, whether at stated maturity, by required payment, declaration,
demand or otherwise (including amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code),
and agrees to pay any and all costs and expenses (including reasonable fees and
disbursements of counsel and allocated costs of internal counsel) incurred by
Collateral Agent, Agents or Lenders or their Affiliates party to such Other
Lender Guarantied Obligations (each, a “Guarantied
Party” and collectively, the “Guarantied
Parties”) in enforcing or preserving any rights under this Guaranty
(all such obligations collectively, the “Guarantied Obligations”); provided, that,
in order to enjoy the benefit of the foregoing guaranty any such Lender or
Affiliate thereof party to any such Other Permitted Credit Exposure, Interest
Rate Obligations or Currency Obligations shall execute and deliver to
Collateral Agent, during such time as such Lender is a Lender under this
Agreement, an acknowledgment to the Intercreditor Agreement agreeing to be
bound thereby and acknowledged by Borrowers’ Agent.  Any Lender or Affiliate thereof obtaining the benefit of the
foregoing guaranty with respect to Other Permitted Credit Exposure, Interest
Rate Obligations or Currency Obligations shall remain a Guarantied Party
hereunder with respect to such Other Permitted Credit Exposure, Interest Rate
Obligations or Currency Obligations only for so long as such Lender remains a
Lender under this Agreement.


 


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9.2          Waivers


 


A.    Company agrees that the Guarantied Obligations may be extended or
renewed, in whole or in part, without notice or further assent from it, and
that Company will remain bound upon this Guaranty notwithstanding any
extension, renewal or other alteration of any Guarantied Obligation.


 


B.    Company waives presentation of, demand of, and protest of any
Guarantied Obligation and also waives notice of protest for nonpayment.  The obligations of Company under this
Guaranty shall not be affected by:


 


(i)            the failure of any Guarantied Party
or any other Person to assert any claim or demand or to enforce any right or
remedy against Company, any Borrower or any Subsidiary under the provisions of
this Agreement, any other Loan Document, any Interest Rate Agreement, any
Currency Agreement or any document relating to Other Permitted Credit Exposure
or any other agreement or otherwise,


 


(ii)           any extension or renewal of any
provision of any thereof,


 


(iii)          any rescission, waiver, amendment or
modification of any of the terms or provisions of this Agreement, any other
Loan Document, any Interest Rate Agreement, any Currency Agreement or any
document relating to Other Permitted Credit Exposure or any instrument or
agreement executed pursuant hereto or thereto,


 


(iv)          the failure to perfect any security
interest in, or the release of, any of the security held by any Guarantied
Party, Collateral Agent, any Agent or any other Person for any of the
Guarantied Obligations, or


 


(v)           the failure of any Guarantied Party
or any other Person to exercise any right or remedy against any Borrower or any
Guarantor of any of the Guarantied Obligations.


 


C.    Company further agrees that this Guaranty constitutes a guaranty
of payment when due and not of collection and waives any right to require that
any resort be had by any Guarantied Party or any other Person to any
of the security held for payment of any of the Guarantied Obligations or
to any balance of any deposit account or credit on the books of any Guarantied
Party or any other Person in favor of a Borrower or any other Person.


 


D.    The obligations of Company under this Section 9 shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise of any of the Guarantied Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of any
of the Guarantied Obligations, the discharge of any Borrower or any other
guarantor from any of the Guarantied Obligations in a bankruptcy or similar
proceeding, or otherwise (including due to any expropriation, confiscation,
nationalization or requisition by any Government Authority).  Without limiting the generality of the
foregoing, the obligations of Company under this Section 9 shall not be
discharged or impaired or otherwise affected by the failure of any Guarantied
Party,


 


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Collateral Agent, any Agent or any other Person to
assert any claim or demand or to enforce any remedy under this Agreement, any
other Loan Document, any Interest Rate Agreement, any Currency Agreement or any
document relating to Other Permitted Credit Exposure or any other agreement, by
any waiver or modification of any hereof or thereof, by any default, or any
other act or thing or omission or delay to do any other act or thing which may
or might in any manner or to any extent vary the risk of Company or which would
otherwise operate as a discharge of Company as a matter of law or equity.


 


E.     Company further agrees that this Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of, interest on or any other amount with respect to
any Guarantied Obligation is rescinded or must otherwise be restored by any
Guarantied Party, Collateral Agent, any Agent or any other Person upon the
bankruptcy or reorganization of Company, any other Person or otherwise.


 


9.3          Payment


 


Company further agrees, in furtherance of the
foregoing and not in limitation of any other right which any Guarantied Party,
Collateral Agent, any Agent or any other Person may have at law or in
equity against Company by virtue hereof, upon the failure of any Borrower to
pay any of the Guarantied Obligations when and as the same shall become due,
whether by required prepayment, declaration or otherwise (including amounts
which would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code), Company will forthwith pay, or
cause to be paid, in cash, to Collateral Agent for the ratable benefit of
Guarantied Parties, an amount equal to the sum of the unpaid principal amount
of such Guarantied Obligations then due as aforesaid, accrued and unpaid
interest on such Guarantied Obligations (including, without limitation,
interest which, but for the filing of a petition in a bankruptcy,
reorganization or other similar proceeding with respect to any Borrower, would
have accrued on such Guarantied Obligations) and all other Guarantied
Obligations then owed to Guarantied Parties as aforesaid.  All such payments shall be applied promptly
from time to time by Collateral Agent:


 


First, to the payment of the costs
and expenses of any collection or other realization under this Guaranty,
including reasonable compensation to Collateral Agent and its agents and counsel,
and all expenses, liabilities and advances made or incurred by Collateral Agent
in connection therewith;


 


Second, (i) upon and during the
effectiveness of the Intercreditor Agreement, to the payment of the Guarantied
Obligations as provided in Section 3 of the Intercreditor Agreement and
(ii) except as set forth in clause (i), to the payment of the Guarantied
Obligations for the ratable benefit of the holders thereof; and


 


Third, after payment in full of all
Guarantied Obligations, to the payment to Company, or its successors or
assigns, or to whomsoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct, of any surplus then remaining from
such payments.


 


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9.4          Waiver of Subrogation, Etc.


 


Company hereby waives any claim, right or remedy,
direct or indirect, that it now has or may hereafter have against any Borrower
or any of its assets in connection with this Section 9 or the performance by
Company of its obligations hereunder, in each case whether such claim, right or
remedy arises in equity, under contract, by statute, under common law or
otherwise and including without limitation (a) any right of subrogation,
reimbursement or indemnification that Company now has or may hereafter have
against any Borrower or Subsidiary thereof, (b) any right to enforce, or to
participate in, any claim, right or remedy that Collateral Agent or any other
Guarantied Party now has or may hereafter have against any Borrower or a Subsidiary
thereof, and (c) any benefit of, and any right to participate in, any
collateral or security now or hereafter held by Collateral Agent or any other
Guarantied Party.  In addition, until
the Guarantied Obligations shall have been paid in full and the Commitments
shall have terminated and all Letters of Credit shall have expired or been
cancelled, Company shall withhold exercise of any right of contribution it may
have against any other guarantor of the Guarantied Obligations as a result of
any payment hereunder.  Company further
agrees that, to the extent the waiver of its rights of subrogation,
reimbursement, indemnification and contribution as set forth herein is found by
a court of competent jurisdiction to be void or voidable for any reason, any
such rights of subrogation, reimbursement or indemnification Company may have
against any Borrower thereof or against any collateral or security, and any
such rights of contribution Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights Collateral Agent or
any Guarantied Party may have against any Borrower or other guarantor, to all
right, title and interest Collateral Agent or any Guarantied Party may have in
any such collateral or security, and to any right Collateral Agent or any
Guarantied Party may have against such other guarantor.  If any amount shall be paid to Company on
account of any such subrogation, reimbursement, indemnification or contribution
rights at any time when all Guarantied Obligations shall not have been paid in
full, such amount shall be held in trust for Collateral Agent on behalf of
Guarantied Parties and shall forthwith be paid over to Collateral Agent for the
benefit of Guarantied Parties to be credited and applied against the Guarantied
Obligations, whether matured or unmatured, in accordance with the terms hereof.


 


Collateral Agent has been appointed to act on behalf
of Guarantied Parties hereunder by Lenders for their benefit and, by their
acceptance of the benefits hereof, the holders of any Other Lender Guarantied
Obligations.  Except as otherwise
provided in the next succeeding paragraph, Collateral Agent shall be obligated,
and shall have the right hereunder, to make demands, to give notices, to
exercise or refrain from exercising any rights, and to take or refrain from
taking any action, solely in accordance with this Guaranty and this Agreement;
provided that, except as otherwise provided in the Intercreditor Agreement,
Collateral Agent shall exercise, or refrain from exercising, any remedies
hereunder in accordance with the instructions of Requisite Lenders.  In furtherance of the foregoing provisions
of this paragraph, each holder of Other Lender Guarantied Obligations, by its
acceptance of the benefits hereof, agrees that it shall have no right
individually to enforce this Section 9, it being understood and agreed by such
holder that all rights and remedies hereunder may be exercised solely by
Collateral Agent for the benefit of the Guarantied Parties in accordance with
the terms of this paragraph and that all decisions of the Requisite Lenders
shall be binding on such holders.


 


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Anything contained in this Guaranty to the contrary
notwithstanding, upon and during the effectiveness of the Intercreditor
Agreement no Guarantied Party shall be entitled to take any action whatsoever
to enforce any term or provision of this Guaranty except through the Collateral
Agent in accordance with the terms of the Intercreditor Agreement.


 


9.5          Termination


 


At such time as all Obligations have been paid in full
and all Commitments have terminated and all Letters of Credit have expired or
have been cancelled, the provisions of this shall be of no further force and
effect as to any Other Lender Guarantied Obligations guaranteed hereby unless
an Event of Default described in subsection 7.6 or subsection 7.7
shall then be continuing.


 


9.6          Security


 


The obligations of Company under this Section 9 are
secured pursuant to the Pledge Agreement and the Security Agreement.


 


SECTION
10


 


MISCELLANEOUS


 


10.1        Representation of Lenders


 


Each Lender hereby represents that it will make each
Loan hereunder for its own account in the ordinary course of its business and
without a view to distribution of such Loans within the meaning of the
Securities Act or the Exchange Act or other federal securities laws; provided,
however, that, subject to subsection 10.2, the disposition of the
Notes or other evidences of Indebtedness held by that Lender shall at all times
be within its exclusive control.


 


10.2        Assignments and Participations in Loans,
Notes and Letters of Credit


 


A.    General.  Each
Lender shall, subject to the provisions of this subsection 10.2, have the
right at any time to (i) sell, assign, transfer or negotiate to any
Eligible Assignee, or (ii) sell participations to any Person in, all or
any part of any Loan or Loans made by it or its Commitments or its Letters of
Credit or participations therein or any other interest herein or in any other
Obligations owed to it; provided that no such assignment or
participation shall, without the consent of Company, require any Borrower to
file a registration statement with the Securities and Exchange Commission or
any foreign securities exchange or apply to qualify such assignment or
participation of the Loans, Letters of Credit or participations therein or the
other Obligations under the securities laws of any state.  No such sale, assignment, transfer or
negotiation of the Term Loan or Term Loan Commitment or participation therein
by a Lender shall require a ratable sale, assignment, transfer or negotiation
of the Revolving Loans or Revolving Loan Commitment of such Lender, and no such
sale, assignment, transfer or negotiation of the Revolving Loans or Revolving
Loan Commitment or participation therein by a Lender shall require a ratable
sale, assignment, transfer or negotiation of the Term Loan or Term Loan
Commitment of such Lender.  Except as
otherwise provided in this subsection 10.2, no Lender shall, as between
any Borrower and such Lender, be relieved of any of its obligations


 


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hereunder as a result of any sale, assignment,
transfer or negotiation of, or any granting of participations in, all or any
part of the Loans, Commitments, Letters of Credit or participations therein or
the other Obligations owed to such Lender.


 


B.    Assignments.


 


(i)            Amounts and Terms of Assignments.  Each Loan, Commitment, Letter of Credit or
participation therein or other Obligation may (a) be assigned in any
amount (of a constant and not a varying percentage) to another Lender, or to an
Affiliate or Related Fund of the assigning Lender or another Lender, with the
giving of notice to Borrowers’ Agent and Administrative Agent; provided  that,
if such Related Fund is not a Lender, such assignment shall be in an amount not
less than $1,000,000 in the case of a Term Loan and $2,500,000 in the case of a
Revolving Loan Commitment, Letter of Credit or participation therein or other
Obligation or (b) be assigned in an amount (of a constant and not a
varying percentage) of not less than $1,000,000 in the case of a Term Loan and
$2,500,000 in the case of a Revolving Loan Commitment, Letter of Credit or
participation therein or other Obligation (or such lesser amount (X) as shall
constitute the aggregate amount of all Loans, Commitments, Letters of Credit or
participations therein and other Obligations of the assigning Lender or (Y) so
long as, after giving effect to such assignment and any other assignments concurrently
being made to the assignee, such assignee receives not less than $1,000,000 of
Term Loans, or $2,500,000 of Revolving Loans, Commitments, or other Obligations
assigned to it) to any other Eligible Assignee with the giving of notice to
Borrowers’ Agent and Administrative Agent and, if no Event of Default shall
have occurred and be continuing, with the consent of Borrowers’ Agent and
Administrative Agent, in the case of an assignment made by a Lender other than
Administrative Agent, or with the consent of Borrowers’ Agent, in the case of
an assignment made by Administrative Agent (which consent of Borrowers’ Agent
and Administrative Agent shall not be unreasonably withheld, withdrawn, delayed
or denied; provided that the inability of an Eligible Assignee to
satisfy the requirements set forth in subsection 2.7C(iv) of this
Agreement, if applicable, shall constitute reasonable grounds for withholding
such consent); and provided  further, however, that any
assignment in accordance with clause (b) either after the occurrence and during
the continuation of an Event of Default or if required by applicable law or if
made to or from Administrative Agent within 20 days after the Second
Restatement Date as part of the primary syndication of the Loans and Commitments
shall not require the consent of the Borrowers’ Agent or the Company.  To the extent of any such assignment in
accordance with either clause (a) or (b) above, the assigning Lender shall be
relieved of its obligations with respect to its Loans, Commitments, Letters of
Credit or participations therein or other Obligations or the portion thereof so
assigned.  The parties to each such
assignment shall execute and deliver to Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance,
together with, with respect to assignments which occur following the Second
Restatement Date, a processing and recordation fee of $3,500 payable to
Administrative Agent (except in the case of an assignment in which an affiliate
of CGMI is assignor or assignee) and such certificates, documents or other
evidence, if any, with respect to United States federal income tax withholding
and foreign tax withholding matters as the assignee under such Assignment and
Acceptance may be required to deliver to Administrative Agent pursuant to


 


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subsection 2.7C(iv).  Upon such execution, delivery and
acceptance, from and after the effective date specified in such Assignment and
Acceptance, (y) the assignee thereunder shall be a party hereto and a
“Lender” hereunder to the extent of the portion of any such Commitment so
assigned hereunder and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, shall have
the rights and obligations of a Lender hereunder, including, without
limitation, the obligation in subsection 10.20 to maintain the
confidentiality of all non-public information received by it pursuant to this
Agreement and (z) the assigning Lender thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations (except as otherwise provided in subsection 10.11) under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender’s rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto); provided
that, if the assignee of the assigning Lender is an Affiliate of such Lender,
such assignee shall not be entitled to receive any greater amount pursuant to
subsections 2.6E or 2.7 than the assigning Lender would have been entitled
to receive in respect of the amount of the assignment effected by such
assigning Lender to such Affiliate had no such assignment occurred.  The Commitments hereunder shall be modified
to reflect the Commitments of such assignee and any remaining Commitments of
such assigning Lender and, if any such assignment occurs after the issuance of
a Note to the assigning Lender hereunder, if requested pursuant to
subsection 2.1G(iv), new Notes shall, upon surrender of the assigning
Lender’s Note, be issued upon request to the assignee and to the assigning
Lender, substantially in the form of Exhibit IV-A, Exhibit IV-B, Exhibit
IV-C, Exhibit IV-D, Exhibit IV-C1, Exhibit IV-C2, Exhibit
IV-C3, Exhibit V, or Exhibit VI annexed hereto, as the case
may be, with appropriate insertions, to reflect the new Commitments and/or
outstanding Loans, as the case may be, of the assignee and the assigning
Lender.  In the event that a Lender
assigns the full amount of its Term Loans and Revolving Loans, its Revolving
Loan Commitments and its other Obligations and such Lender has an Offshore
Revolving Loan Commitment, any outstanding Offshore Revolving Loans at the time
of such assignment, such Lender must also assign the full amount of such
Offshore Revolving Loans to an Eligible Assignee and the full amount of such
Offshore Revolving Loan Commitment in accordance with the terms of this
paragraph.


 


(ii)           Acceptance by Administrative
Agent; Recordation in Register. 
Subject to the requirements of subsection 10.2B(i) with respect to
assignments of Offshore Revolving Loan Commitments, upon its receipt of an
Assignment and Acceptance executed by an assigning Lender and an assignee
representing that it is an Eligible Assignee, together with the processing and
recordation fee referred to in subsection 10.2B(i) and any certificates,
documents or other evidence with respect to United States federal income tax
withholding and foreign tax withholding matters that such assignee may be
required to deliver to Administrative Agent pursuant to
subsection 2.7C(iv), Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit X
hereto and if Administrative Agent and Company have consented to the assignment
evidenced thereby (in each case to the extent such consent is required pursuant
to subsection 10.2B(i)), (a) accept such Assignment and Acceptance by
executing a counterpart thereof as provided therein


 


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(which acceptance shall evidence any required consent
of Administrative Agent to such assignment), (b) record the information
contained therein in the Register, and (c) give prompt notice thereof to
Company.  Administrative Agent shall
maintain a copy of each Assignment and Acceptance delivered to and accepted by
it as provided in this subsection 10.2B(ii).


 


C.    Participations. 
The holder of any participation, other than an Affiliate of the Lender
granting such participation, shall not be entitled to require such Lender to
take or omit to take any action hereunder except action directly affecting
(i) the extension of the regularly scheduled maturity of any portion of
the principal amount of or interest on any Loan allocated to such
participation; and (ii) a reduction of the principal amount of or the rate
of interest payable on any Loan or payments due in repayment of draws under
Letters of Credit allocated to such participation and all amounts payable by
each Borrower hereunder shall be determined as if such Lender had not sold such
participation.  A Lender which has sold
a participation in its Loans or Commitments shall require the holder of such
participation to agree in writing to comply with the provisions of
subsection 10.20 and if a Lender desires to give any prospective
participant a copy of any non-public information obtained by Lenders pursuant
to the requirements of this Agreement which has been identified as such by any
Borrower, such Lender shall require such prospective participant to agree to
hold such information in accordance with such prospective participant’s customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices prior to its delivery of such
material to such prospective participant. 
Each Borrower hereby acknowledges and agrees that, only for purposes of
subsections 2.6E, 2.7, 10.5 and 10.6, any participation will give rise to a
direct obligation of such Borrower to the participant and the participant shall
be considered to be a “Lender”; provided that no participant shall be
entitled to receive any greater amount pursuant to subsections 2.6E or 2.7 than
the transferor Lender would have been entitled to receive in respect of the
amount of the participation effected by such transferor Lender to such
participant had no such participation occurred, unless such participation
resulted from the CAM Exchange.


 


D.    Assignments to Federal Reserve Banks.  In addition to the assignments and
participations permitted under the foregoing provisions of this
subsection 10.2, any Lender may assign and pledge all or any portion of
its Loans, the other Obligations owed to such Lender, and its Notes to any
Federal Reserve Bank as collateral security pursuant to Regulation A of
the Board of Governors of the Federal Reserve System and any operating circular
issued by such Federal Reserve Bank; and any Lender that is a fund that invests
in bank loans may without the consent of or notice to the Administrative Agent
or any Borrower, pledge all or any portion of its rights under this Agreement
and the other Loan Documents (including, without limitation, the Notes held by
it) to any trustee for, or any other representative of, holders of obligations
owed, or securities issued, by such fund, as security for such obligations or
securities; provided that any foreclosure or similar action by such
trustee shall be subject to the provisions of this subsection concerning
assignments; provided that (i) no Lender shall, as between any
Borrower, and such Lender, be relieved of any of its obligations hereunder as a
result of any such assignment and pledge and (ii) in no event shall such
Federal Reserve Bank be considered to be a “Lender” or be entitled to require
the assigning Lender to take or omit to take any action hereunder.


 


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E.     Successor Offshore Overdraft Providers.  Any Offshore Overdraft Account Provider may
resign at any time by giving 30 days’ prior written notice thereof to the
Lenders, the relevant Offshore Borrower and Administrative Agent.  Upon (i) any such notice of resignation,
upon five days notice to Lenders and Administrative Agent, or (ii) an
assignment by such Offshore Overdraft Account Provider of all of its Offshore
Revolving Loan Commitment, such Offshore Borrower shall have the right to
appoint a Lender with respect to Offshore Revolving Loans as successor Offshore
Overdraft Account Provider with respect to the Applicable Currency; provided
that such appointment shall be subject to the consent of Agents, which consent
shall not be unreasonably withheld. 
Upon the acceptance of any such appointment as an Offshore Overdraft
Account Provider hereunder by a successor Offshore Overdraft Account Provider,
the relevant Offshore Borrower shall repay in full the relevant Offshore
Overdraft Amount and all other amounts owing to the resigning Offshore
Overdraft Account Provider under the relevant Offshore Overdraft Agreement, and
such Borrower and the resigning Offshore Overdraft Account Provider shall
terminate such Offshore Overdraft Agreement and the successor Offshore Overdraft
Account Provider shall enter into a successor Offshore Overdraft Agreement.


 


F.     Information.  Each
Lender may furnish any information concerning Company and its Subsidiaries in
the possession of that Lender from time to time to assignees and participants
(including prospective assignees and participants), subject to
subsection 10.20.


 


G.    Replacement of Post-Restatement Date Lender.  At any time the Moody’s rating or the
S&P rating for any Post-Restatement Date Lender (as defined below) is lower
than Baa3 or BBB-, respectively:


 


(i)            if Company’s long term unsecured
debt rating is Ba2 or higher from Moody’s and BB or higher from S&P, then
Company may (but shall not be obligated to) obtain a commitment from another
Lender or Lenders or an Eligible Assignee or Eligible Assignees to become a
Lender or Lenders for all purposes under this Agreement (in the case of any
such Eligible Assignee) and to assume all obligations of such Post-Restatement
Date Lender hereunder; and


 


(ii)           if Company’s long term unsecured debt
rating is lower than Ba2 from Moody’s or lower than BB from S&P, and
Requisite Lenders have elected to replace such Post-Restatement Date Lender,
then Requisite Lenders or Company (with the consent of Requisite Lenders) may
obtain a commitment from another Lender or Lenders or an Eligible Assignee or
Eligible Assignees to become a Lender or Lenders for all purposes under this
Agreement (in the case of any such Eligible Assignee) and to assume all
obligations of such Post-Restatement Date Lender hereunder.


 


In the event the commitment referred to in clause (i)
or (ii) above to assume all obligations of the relevant Post-Restatement Date
Lender is obtained in accordance with such clause, the relevant
Post-Restatement Date Lender (1) shall assign all of its Loans, its Commitments
and its other obligations to such other Lender or Lenders or Eligible Assignee
or Eligible Assignees, at par, pursuant to the provisions of
subsection 10.2B; provided that, such replacement shall not be
effective until (x) the applicable Borrower has paid or caused to be paid
to such Post-Restatement Date Lender all principal, interest, fees and other
amounts then due and owing to


 


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such Post-Restatement Date Lender hereunder through
such date of replacement (including any amounts payable under
subsection 2.6B) (and each Borrower hereby agrees to pay such amounts with
respect to the relevant Loans, Commitments and other Obligations),
(y) Company has paid to Administrative Agent the processing and
recordation fee required to be paid by subsection 10.2B(i) (and Company hereby agrees to pay such amounts), and
(z) all of the requirements for such assignment contained in
subsection 10.2B, including, without limitation, the receipt by Administrative
Agent of an executed Assignment and Acceptance and other supporting documents,
have been fulfilled, and (2) shall be obligated to use its best efforts to
cause the foregoing replacement to occur. 
For purposes of this subsection 10.2G, “Post-Restatement Date Lender” means
any Lender having Revolving Loan Exposure which is neither a Lender on the
Second Restatement Date nor an Affiliate of any Lender party to this Agreement
on the Second Restatement Date.


 


10.3        Expenses


 


Whether or not the transactions contemplated hereby
shall be consummated, each Domestic Borrower jointly and severally agrees to
promptly pay (i) all the actual and reasonable costs and expenses of
Arrangers and Agents and their counsel in connection with the syndication of
the Commitments and all the actual and reasonable costs and expenses of
preparation of this Agreement and the other Loan Documents and all the costs of
furnishing all opinions by counsel for the Loan Parties (including without
limitation any opinions requested by Lenders as to any legal matters arising
hereunder), and of each Loan Party’s performance of and compliance with all
agreements and conditions contained herein on their part to be performed or
complied with; (ii) the reasonable fees, expenses and disbursements of
counsel to Agents (including allocated costs of internal counsel) in connection
with the negotiation, preparation, execution and administration of this
Agreement, the other Loan Documents, the Letters of Credit and the Loans
hereunder, and any amendments and waivers hereto or thereto; and
(iii) after the occurrence of an Event of Default, all costs and expenses
(including reasonable attorneys’ fees, including allocated costs of internal
counsel, and costs of settlement) incurred by any Lender in enforcing any
Obligations of or in collecting any payments due from any Borrower hereunder or
under the Notes or any of the other Loan Documents by reason of such Event of
Default or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a “work-out” or of
any insolvency or bankruptcy proceedings.


 


10.4        Indemnity


 


In addition to the payment of expenses pursuant to
subsection 10.3, whether or not the transactions contemplated hereby shall
be consummated, each Domestic Borrower jointly and severally agrees to
indemnify, pay and hold Agents and Lenders and the officers, directors,
employees, agents, trustees and affiliates of Agents and Lenders (collectively
called the “Indemnitees”) harmless from and against, any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs, expenses and disbursements of any kind or nature
whatsoever (including, without limitation, the reasonable fees and disbursements
of counsel for such Indemnitees in connection with any investigative,
administrative or judicial proceeding commenced or threatened, whether or not
such Indemnitee shall be designated a party thereto), which may be imposed on,
incurred by, or asserted against that Indemnitee, in any manner relating to or
arising out of this Agreement or the other Loan Documents, Lenders’


 


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agreement to make
the Loans or the use or intended use of the proceeds of the Loans or the
issuance of Letters of Credit hereunder and Lenders’ agreement to purchase
participations therein as provided for herein or the use or intended use of the
Letters of Credit or the honoring of overdrafts under the Domestic Overdraft
Agreement or the purchase of participations by Lenders in the Domestic
Overdraft Amount or in the Offshore Overdraft Amounts (the “indemnified
liabilities”); provided that no Domestic Borrower shall have
any obligation to an Indemnitee hereunder with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of that
Indemnitee.  Each Domestic Borrower,
jointly and severally, also agrees to indemnify and hold harmless the
Indemnitees from any claim, demand or liability for broker’s or finder’s fees
alleged to have been incurred in connection with any transactions contemplated
by this Agreement and any expenses, including reasonable legal fees, arising in
connection with any such claim, demand or liability.  To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, each Domestic Borrower shall contribute
the maximum portion which it is permitted to pay and satisfy under applicable
law, to the payment and satisfaction of all indemnified liabilities incurred by
the Indemnitees or any of them.


 


10.5        Set Off


 


For so long as any of the Obligations are secured by
one or more Real Property Assets located in the State of California, each
Lender agrees not to charge or offset any amount owed to it by any Loan Party
against any of the accounts, property or assets of any Loan Party without the
prior written consent of Collateral Agent. 
Subject to the foregoing sentence, in addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, but in all cases subject to subsection 0, upon the occurrence and
during the continuance of any Event of Default, each Lender is hereby authorized
by Company and each Borrower at any time or from time to time, without notice
to Company or such Borrower, or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, Indebtedness
evidenced by certificates of deposit, whether matured or unmatured but not
including trust accounts and in whatever currency denominated) and any other
Indebtedness at any time held or owing by that Lender or any Affiliate thereof
to or for the credit or the account of Company or such Borrower against and on
account of the obligations and liabilities of Company or such Borrower to that
Lender under this Agreement, the Notes, the Domestic Overdraft Agreement, the
Offshore Overdraft Agreements and the Letters of Credit, including, but not
limited to, all claims of any nature or description arising out of or connected
with this Agreement, the Letters of Credit or the Notes or the other Loan
Documents, irrespective of whether or not (a) that Lender shall have made
any demand hereunder or (b) that Lender shall have declared the principal
of and the interest on the Loans and Notes, any obligations of Company or such
Borrower in respect of the Letters of Credit and other amounts due hereunder to
be due and payable as permitted by Section 7 and although said obligations and
liabilities, or any of them, may be contingent or unmatured.


 


10.6        Ratable Sharing


 


Lenders hereby agree among themselves that if any of
them shall, through the exercise of any right of counterclaim, setoff, banker’s
lien or otherwise (other than a voluntary


 


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prepayment of
Loans, a mandatory prepayment of Loans, a scheduled repayment of Loans, a
payment made under Section 2.10, or a payment made with proceeds of Excluded
Securities Collateral (as defined in the Security Agreement) in accordance with
the last sentence of Section 7, in each case made and applied in accordance
with this Agreement) or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal and interest then due with
respect to the Loans owed to that Lender, the amount then due to that Lender
with respect to the Domestic Overdraft Amount or any Offshore Overdraft Amount
or any Letter of Credit or Offshore Revolving Loan or any participation
therein, or any fees or commissions payable hereunder or under the other Loan Documents
(collectively, the “Aggregate Amounts Due” to such Lender)
which is greater than the proportion received by any other Lender in respect to
the Aggregate Amounts Due to such other Lender, then the Lender receiving such
proportionately greater payment shall (y) notify each other Lender and
Administrative Agent of such receipt and (z) purchase participations
(which it shall be deemed to have done simultaneously upon the receipt of such
payment) in the Aggregate Amounts Due to the other Lenders so that all
such recoveries of Aggregate Amounts Due shall be shared by the Lenders in
proportion to the Aggregate Amounts Due them; provided that if all or
part of such proportionately greater payment received by such purchasing Lender
is thereafter recovered from such Lender, those purchases shall be rescinded
and the purchase prices paid for such participations shall be returned to that
Lender to the extent of such recovery, but without interest.  Company and each Borrower expressly consent
to the foregoing arrangement and agrees that any holder of a participation so
purchased and any other subsequent holder of a participation in any Loan or
Letter of Credit or the Domestic Overdraft Amount or any Offshore Overdraft
Amount otherwise acquired may exercise any and all rights of banker’s lien,
setoff or counterclaim with respect to any and all monies owing by Company or
such Borrower to that holder as fully as if that holder were a holder of such a
Loan or Letter of Credit or the Domestic Overdraft Amount or any Offshore
Overdraft Amount in the amount of the participation held by that holder.


 


10.7        Amendments and Waivers


 


A.    Except as set forth in subsections 2.1A(iv), no amendment,
modification, termination or waiver of any provision of this Agreement or of
the Notes, and no consent to any departure by Company or any Borrower
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; provided that no such amendment, modification,
termination, waiver or consent shall, without the consent of each Lender (with
Obligations directly affected in the case of the following clause (i)):  (i) extend the scheduled final maturity
of any Loan or Note beyond the Tranche A1 Term Loan Maturity Date, the Tranche
B1 Term Loan Maturity Date or the Revolving Loan Commitment Termination Date,
as the case may be, or extend the stated expiration date of any Letter of
Credit beyond the Revolving Loan Commitment Termination Date or the date for
reimbursement of any amount drawn thereunder beyond the Revolving Loan
Commitment Termination Date, or reduce the rate of interest (other than any
waiver of any increase in the interest rate applicable to any of the Loans
pursuant to subsection 2.2E) or fees in respect of the Revolving Loan
Commitments, the Loans or the Letters of Credit, or extend or waive the time of
payment of interest or fees in respect thereof, or reduce or forgive the
principal amount of any of the Obligations (including any Obligation to
reimburse the amount of any drawing honored under any Letter of Credit),
(ii) amend, modify, terminate or waive any provision of this
subsection 10.7 or any other provision of this Agreement expressly


 


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requiring the approval or concurrence of all Lenders,
(iii) reduce the percentage specified in the definition of Requisite
Lenders or change the definitions of “Pro
Rata Share” (it being understood that, with respect to the
Additional Term Loans and, with the consent of Requisite Lenders (determined
before giving effect to the proposed action), with respect to other
Indebtedness, additional extensions of credit pursuant to this Agreement may be
included in determining what constitutes Requisite Lenders and in determining
the Pro Rata Shares of Lenders, in each case on substantially the same basis as
the Revolving Loan Commitments and the Revolving Loans or the Term Loan
Commitments and the Term Loans are included in such determinations on the First
Restatement Date), (iv) release Company from the Company Guaranty, (v) release
all or substantially all of the Collateral or (vi) permit any Interest Period
for any Eurodollar Rate Loan to exceed nine months; provided, further,
that no such amendment, modification, termination, waiver or consent shall (1)
increase the Term Loan Commitment or the Revolving Loan Commitment of any
Lender over the amount thereof then in effect without the consent of such
Lender (it being understood that (A) amendments, modifications or waivers of
conditions precedent, covenants, Potential Events of Default or Events of
Default, mandatory reductions in the Revolving Loan Commitments or of mandatory
prepayments of Term Loans or Revolving Loans, shall not constitute an increase
of the Term Loan Commitment or the Revolving Loan Commitment of any Lender and
(B) an increase in the available portion of the Revolving Loan Commitment of
any Lender shall not constitute an increase in the Revolving Loan Commitment of
such Lender); (2) amend, modify, terminate or waive any provision of
subsection 2.1B or any other provision of this Agreement relating to the
Domestic Overdraft Account or the Domestic Overdraft Amount (including any
provision relating to the repayment of the Domestic Overdraft Amount with the
proceeds of Revolving Loans or relating to the obligations of Lenders to
purchase participations in the Domestic Overdraft Amount) without the consent
of Administrative Agent; (3) amend, modify, terminate or waive any
provision of this Agreement relating to the obligations of Lenders to purchase
participations in Letters of Credit without the written concurrence of
Administrative Agent and each other Issuing Lender which has a Letter of Credit
then outstanding or which has not been reimbursed for a drawing under a Letter
of Credit issued by it; or (4) amend, modify, terminate or waive any
provision of Section 8 applicable to any Agent without the consent of such
Agent.  In addition, no amendment,
modification, termination or waiver of (a) any provision of subsection 2.4 that
has the effect of changing any interim scheduled payments, voluntary or
mandatory prepayments, or Commitment reductions applicable to a Class in a
manner that disproportionately disadvantages such Class relative to any other
Class shall be effective without the written concurrence of Requisite Class
Lenders of such affected Class (it being understood and agreed that any
amendment, modification, termination or waiver of any such provision which
postpones or reduces any interim scheduled payment, voluntary or mandatory
prepayment, or Commitment reduction from those set forth in subsection 2.4 with
respect to one Class but not any other Class shall be deemed to
disproportionately disadvantage such one Class but not to disproportionately
disadvantage any such other Class for purposes of this sentence) and (b) any
provision of subsection 2.10 that disproportionately disadvantages any Class
relative to any other Class shall be effective with out the written concurrence
of Requisite Class Lenders of such disproportionately disadvantaged Class.


 


B.    If, in connection with any proposed amendment, modification,
termination, waiver or consent relating to any of the provisions of this
Agreement or the Notes as described in any of clauses (i) through (vi) of the
first proviso to subsection 10.7A the consent of Requisite


 


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Lenders is obtained but the consent of one or more of
the other Lenders whose consent is also required is not obtained, then Company
shall have the right, so long as all such non-consenting Lenders whose
individual consent is required are treated as described in either clause (i) or
(ii) below, to (i) replace each such non-consenting Lender with one or more
Replacement Lenders (as defined in subsection 10.7C) pursuant to subsection 10.7C
so long as at the time of such replacement each such Replacement Lender
consents to the proposed amendment, modification, termination, waiver or
consent and/or (ii) terminate each such non-consenting Lender’s Commitments and
repay in full its outstanding Loans, together with accrued and unpaid interest,
fees and other amounts owing to such Lender, in accordance with
subsection 2.4B(i); provided that unless the Commitments that are
terminated and the Loans that are repaid pursuant to the preceding clause (ii)
are immediately replaced in full at such time through the addition of new
Lenders or the increase of the Commitments and/or outstanding Loans of existing
Lenders (who in each case must specifically consent thereto), then in the case
of any action pursuant to the preceding clause (ii), Requisite Lenders
(determined before giving effect to the proposed action) shall specifically
consent thereto; provided  further that Company shall not have the
right to terminate any such non-consenting Lender’s Commitments and repay in
full its outstanding Loans pursuant to clause (ii) of this
subsection 10.7B if, immediately after the termination of such Lender’s
Revolving Loan Commitment, the Total Utilization of Revolving Loan Commitments
would exceed the Revolving Loan Commitments then in effect; provided  still
further that Company shall not have the right to replace a Lender solely
as a result of the exercise of such Lender’s rights (and the withholding of any
required consent by such Lender) pursuant to the “provided, further”
clause in subsection 10.7A.


 


C.    (i)  In
the event of certain refusals by any Lender, as provided in
subsection 10.7B, to consent to certain proposed amendments,
modifications, terminations, waivers or consents with respect to this Agreement
which have been approved by Requisite Lenders, Borrowers may, so long as no
Potential Event of Default or Event of Default exists, upon five Business Days’
written notice to Administrative Agent (which notice Administrative Agent shall
promptly transmit to each Lender) repay all Loans, together with accrued and
unpaid interest, fees and other amounts owing to such Lender (a “Replaced Lender”) in accordance with, and
subject to the requirements of, subsection 10.7B so long as (i) in the
case of the repayment of Loans of any Lender pursuant to this
subsection 10.7C, the Commitments of such Lender are terminated
concurrently with such repayment (at which time Schedule A shall be
deemed modified to reflect the changed Commitments) and (ii) in the case of the
repayment of Loans of any Lender the consents required by Section 10.7B in
connection with the repayment pursuant to this subsection 10.7C have been
obtained.


 


(ii)           At the time of any replacement
pursuant to this subsection 10.7C, the lender replacing such Replaced
Lender (the “Replacement Lender”)
shall enter into one or more assignment agreements, in form and substance
satisfactory to Administrative Agent, pursuant to which the Replacement Lender
shall acquire the Commitments and outstanding Loans of, and participations in
the Domestic Overdraft Amount and Letters of Credit by, the Replaced Lender
and, in connection therewith, shall pay to (x) the Replaced Lender in respect
thereof an amount equal to the sum of (A) an amount equal to the principal of,
and all accrued interest on, all outstanding Loans of the Replaced Lender, (B)
an amount equal to all unpaid drawings with respect to Letters of Credit that
have been funded by (and not reimbursed to) such


 


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Replaced Lender,
together with all then unpaid interest with respect thereto at such time, and
(C) an amount equal to all accrued, but theretofore unpaid, fees owing to the
Replaced Lender and (y) the appropriate Issuing Lender an amount equal to such
Replaced Lender’s Pro Rata Share of any unpaid drawing with respect to Letters
of Credit (which at such time remains an unpaid drawing), to the extent such
amount was not theretofore funded by such Replaced Lender;


 


(iii)          All obligations of any Borrower owing
to the Replaced Lender (excluding those specifically described in clause (ii)
above in respect of which the assignment purchase price has been, or is
concurrently being, paid, but including, however, any amounts that would have
been payable by a Borrower pursuant to subsection 2.6E if such Borrower
had directly prepaid the Loans of such Replaced Lender) shall be paid in full
by such Borrower to such Replaced Lender concurrently with such replacement;
and


 


(iv)          Upon the execution of the respective
assignment documentation, the payment of amounts referred to in clauses (ii)
and (iii) above and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of the appropriate Note or Notes executed by the applicable
Borrowers, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder, except with
respect to Borrowers’ obligations regarding indemnification provisions under
this Agreement, which shall survive for the benefit of such Replaced Lender.  Notwithstanding anything to the contrary
contained above, no Issuing Lender may be replaced hereunder at any time while
it has Letters of Credit outstanding hereunder unless arrangements satisfactory
to such Issuing Lender (including the furnishing of a standby letter of credit
in form and substance, and issued by an issuer, satisfactory to such Issuing
Lender or the furnishing of cash collateral in amounts and pursuant to
arrangements satisfactory to such Issuing Lender) have been made with respect
to such outstanding Letters of Credit.


 


D.    Administrative Agent may, but shall have no obligation to, with
the concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender.  Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given. 
No notice to or demand on Company or any Borrower in any case shall
entitle Company or any Borrower to any other or further notice or demand in
similar or other circumstances.  Any
amendment, modification, termination, waiver or consent effected in accordance
with this subsection 10.7 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by Company or any Borrower, on
such Company and such Borrower.


 


10.7A     Additional Amendment and Waiver Matters.  In addition to the matters set forth in
Section 10.7, no amendment, modification, termination, waiver or consent shall,
without the consent of each Lender directly affected thereby, extend the final
maturity date of any Tranche C Term Loans beyond the Tranche C Term Loan
Maturity Date or extend the final maturity of any Tranche D Term Loans beyond
the Tranche D Term Loan Maturity Date or permit an interest period with respect
to any Euro LIBOR Loan to exceed nine months. 
Further, (i) the proviso at the end of subsection 6.1(xiv) (under
Section 6A) may not be amended,


 


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modified or waived
without the consent of Requisite Class Lenders for the Class of Lenders having
Tranche D Term Loan Exposure and (ii) the final proviso at the end of
subsection 6.7(v) (under Section 6A) may not be amended, modified or waived
without the consent of (a) Requisite Class Lenders for the Class of Lenders having
Domestic Tranche C Term Loan Exposure and (b) Requisite Class Lenders for the
Class of Lenders having Tranche D Term Loan Exposure.


 


10.8        Independence of Covenants


 


All covenants hereunder shall be given independent
effect so that if a particular action or condition is not permitted by any of
such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default or Potential Event of Default if such action
is taken or condition exists.


 


10.9        Change in Accounting Principles, Fiscal
Year or Tax Laws


 


If (i) any changes in accounting principles and
policies from those used in the preparation of the financial statements
referred to in subsection 4.3 hereafter occasioned by the promulgation of
rules, regulations, pronouncements and opinions by or required by the Financial
Accounting Standards Board or the American Institute of Certified Public
Accountants (or successors thereto or agencies with similar
functions) would result in a change in the method of calculation of
financial covenants, standards or terms found in Section 1, Section 5 and
Section 6 hereof (other than changes in such principles and policies relating
to impairment or charge-offs of the value of assets acquired prior to December
31, 2002, which changes shall be disregarded for purposes of such
calculations), (ii) there is any change in Company’s or Holdings’ Fiscal
Quarter or Fiscal Year, or (iii) there is a material change in federal tax
laws which materially affects Company’s ability to comply with the financial
covenants, standards or terms found in Section 1, Section 5 and Section 6
hereof, the parties hereto agree to enter into negotiations in order to amend
such provisions (in accordance with subsection 10.7) so as to equitably
reflect such changes with the desired result that the criteria for evaluating
Company’s financial condition shall be the same after such changes as if such
changes had not been made.


 


10.10      Notices


 


Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, telecopied, telexed or sent by United
States mail or by courier service and shall be deemed to have been given when
delivered in person or by courier service, by receipt of telecopy or telex or
when received through the United States mail, registered or certified, with
postage prepaid and properly addressed; provided that notices to Administrative
Agent or any Borrower shall not be effective until received.  For the purposes hereof, the addresses of
the parties hereto (until notice of a change thereof is delivered as provided
in this subsection 10.10) shall be as set forth under each party’s
name on the signature pages hereof or in the applicable Assignment and
Acceptance.  All notices to any Borrower
provided for hereunder shall be copied concurrently to Borrowers’ Agent.


 


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10.11      Survival of Warranties and Certain
Agreements


 


A.    All agreements, representations and warranties made herein shall
survive the execution and delivery of this Agreement, the making of the Loans
hereunder, the execution and delivery of the Notes and the issuance of the Letters
of Credit.


 


B.    Notwithstanding anything in this Agreement or implied by law to
the contrary, the agreements of Company and each Borrower set forth in
subsections 2.6E, 2.7, 10.3, 10.4 and 10.21 and the agreements of Lenders set
forth in subsections 8.2C, 8.4, 10.5, 10.6 and 10.20 shall survive the payment
of the Loans, the Notes, the Offshore Overdraft Amounts and the Domestic
Overdraft Amount, the cancellation or expiration of the Letters of Credit and
the termination of this Agreement.


 


10.12      Failure or Indulgence Not Waiver; Remedies
Cumulative


 


No failure or delay on the part of Administrative
Agent or any Lender in the exercise of any power, right or privilege hereunder
or under the other Loan Documents shall impair such power, right or privilege
or be construed to be a waiver of any default or acquiescence therein, nor
shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or
privilege.  All rights and remedies
existing under this Agreement or the other Loan Documents are cumulative to and
not exclusive of, any rights or remedies otherwise available.


 


10.13      Severability


 


In case any provision in or obligation under this
Agreement or the Notes shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.


 


10.14      Obligations Several; Independent Nature of
Lenders’ Rights


 


The obligation of each Lender hereunder is several,
and no Lender shall be responsible for the obligation or commitment of any
other Lender hereunder.  Nothing
contained in this Agreement and no action taken by Lenders pursuant hereto
shall be deemed to constitute Lenders to be a partnership, an association, a
joint venture or any other kind of entity. 
The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt, and each Lender shall, subject to Section 7, be
entitled to protect and enforce its rights arising out of this Agreement and it
shall not be necessary for any other Lender to be joined as an additional party
in any proceeding for such purpose.


 


10.15      Headings


 


Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.


 


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10.16      Applicable Law


 


THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.  EACH LETTER OF CREDIT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OR RULES
DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE
DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICES FOR DOCUMENTARY CREDITS (1993
REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500 OR ANY
SUCCESSOR PUBLICATIONS (THE “UNIFORM CUSTOMS”) AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.


 


10.17      Successors and Assigns


 


This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns of Lenders.  Neither the rights or obligations of Company
or any Borrower under the Loan Documents nor any interest therein may be
assigned without the written consent of all Lenders, except as provided in
subsection 10.7.  Lenders’ rights
of assignment are subject to subsection 10.2.


 


10.18      Consent to Jurisdiction and Service of
Process


 


ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY OR ANY BORROWER ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS THEREUNDER,
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE
STATE, COUNTY AND CITY OF NEW YORK.  BY
EXECUTING AND DELIVERING THIS AGREEMENT, COMPANY AND EACH BORROWER, FOR ITSELF
AND IN CONNECTION WITH ITS PROPERTIES, EACH IRREVOCABLY


 


(I)            ACCEPTS
GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH
COURTS;


 


(II)           WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS;


 


(III)         AGREES
THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO COMPANY OR
SUCH BORROWER AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 10.10;


 


(IV)         AGREES
THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL
JURISDICTION OVER


 


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COMPANY OR SUCH BORROWER IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT;


 


(V)          AGREES
THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO BRING PROCEEDINGS AGAINST SUCH BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION; AND


 


(VI)         AGREES
THAT THE PROVISIONS OF THIS SUBSECTION 10.18 RELATING TO JURISDICTION AND VENUE
SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW
YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.


 


10.19      Waiver of Jury Trial


 


EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION
OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED.  The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including without
limitation contract claims, tort claims, breach of duty claims and all other
common law and statutory claims.  Each
party hereto acknowledges that this waiver is a material inducement to enter
into a business relationship, that each has already relied on this waiver in
entering into this Agreement, and that each will continue to rely on this waiver
in their related future dealings.  Each
party hereto further warrants and represents that it has reviewed this waiver
with its legal counsel and that it knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER.  In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.


 


10.20      Confidentiality


 


Lenders shall hold all non-public information obtained
prior to or after the execution of this Agreement (including pursuant to the
requirements of this Agreement or any other Loan Document) which has been
identified as such by Company or any of its Subsidiaries in accordance with
their customary procedures for handling confidential information of this nature
and in accordance with safe and sound banking practices and in any event (i)
subject to subsection 10.2, may make disclosure reasonably required by any
bona fide transferee or participant in connection with the contemplated
transfer of any Commitment, any Loan, any Letter of Credit or any participation
therein; (ii) may make disclosure as required or requested by


 


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any governmental
agency or representative thereof or pursuant to legal process, provided
that, unless specifically prohibited by applicable law or court order, each
Lender shall notify Company of any request by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to
disclosure of such information; and (iii) may make disclosure to their
respective advisors and Affiliates in connection herewith, provided that
each such Affiliate is advised of and agrees in writing to be bound by the
provisions of this subsection 10.20; and further  provided
that in no event shall any Lender be obligated or required to return any
materials furnished by Company or any of its Subsidiaries.  Each Lender’s obligations under this
subsection 10.20 shall survive the termination of this Agreement and any
release of such Lender’s obligations under this Agreement pursuant to
subsection 10.2B(i); and provided, further, that, subject to the
applicable Lender’s compliance with this subsection 10.20, no Lender shall
be liable for any damages arising from the use by others of non-public
information or other materials obtained through internet, Intralinks or similar
information transmission systems in connection with the Loan Documents and the
transactions contemplated thereunder.


 


10.21      Judgment Currency


 


A.    If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder in any currency (the “Original Currency”) into another currency
(the “Other Currency”), the
parties hereto agree, to the fullest extent permitted by law, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures Administrative Agent or a Lender could purchase the Original
Currency with such Other Currency in New York, New York on the Business Day
immediately preceding the day on which any such judgment, or any relevant part
thereof, is given.


 


B.    The obligations of Company and each Borrower in respect of any
sum due from it to any Agent or Lender hereunder shall, notwithstanding any
judgment in such Other Currency, be discharged only to the extent that on the
Business Day following receipt by such Agent or Lender of any sum adjudged to
be so due in such Other Currency such Agent or Lender may in accordance with
normal banking procedures purchase the Original Currency with such Other
Currency; if the Original Currency so purchased is less than the sum originally
due such Agent or Lender in the Original Currency, Company and such Borrower
agree, as a separate obligation and notwithstanding any such judgment, to
indemnify such Agent or Lender against such loss, and if the Original Currency
so purchased exceeds the sum originally due to such Agent or Lender in the
Original Currency, such Agent or Lender shall remit such excess to such
Borrower.


 


10.22      Additional Offshore Borrowers


 


The initial Offshore Borrowers hereunder shall be
United Glass, O-I Australia, ACI, O-I Canada, Avir and, from and after the BSN
Acquisition Closing Date, BSN.  From
time to time subsequent to the date hereof, Company may, with the consent of
Administrative Agent and Requisite Lenders, designate additional Australian
Subsidiaries as Australian Offshore Borrowers with respect to Australian
Revolving Loans (each such designated Australian Subsidiary being an “Additional
Offshore Borrower”), and any such Australian Subsidiary


 


215

















 


may become an
Australian Offshore Borrower by executing (i) a Borrowing Subsidiary Agreement
substantially in the form of Exhibit XVIII annexed hereto executed by
such Australian Subsidiary, Company and each other Borrower, (ii) Australian
Revolving Loan Notes as required by subsection 2.1G, (iii) security
documents required under subsection 5.9B, (iv) Mortgages as required by
subsection 5.10A, (v) a certificate executed by the secretary, an
assistant secretary or any director of such Subsidiary as to (a) the fact that
attached copies of such Subsidiary’s Organizational Documents are true and
correct copies thereof, (b) the fact that attached resolutions of the Governing
Body of such Subsidiary approving and authorizing the execution, delivery and
performance of the Borrowing Subsidiary Agreement and the Credit Agreement as
modified thereby are in full force and effect and have not been modified or
amended, (c) the fact that attached copies of powers of attorney, if any, are
true and correct copies thereof, and (d) the incumbency and signatures of
the officers of such Subsidiary executing the Borrowing Subsidiary Agreement
(and, if applicable, any powers of attorney authorizing other Persons to
execute such Borrowing Subsidiary Agreement), and (vi) such other
documents as Administrative Agent may reasonably request, all of the foregoing
to be satisfactory in form and substance to Administrative Agent and its
counsel.  Upon delivery of such executed
Borrowing Subsidiary Agreement by the other Borrowers, notice of which is
hereby waived by the Borrowers, and each of the other documents referred to in
the immediately preceding sentence, each such Additional Offshore Borrower
shall be an Australian Offshore Borrower and shall be as fully a party hereto
as if such Subsidiary were an original signatory hereto as an Offshore
Borrower.  Company and each Borrower
hereby expressly agrees that its Obligations arising hereunder or under the
other Loan Documents shall not be affected or diminished by the addition or
release of any Offshore Borrower hereunder.


 


10.23      Spanish Court Enforcement and Unilateral
Determination of Debt


 


For purposes of enforcement of any Offshore Collateral
Documents and Offshore Guaranties executed by a Loan Party organized under the
laws of Spain:


 


A.    Special
Loan Account. The
Collateral Agent shall open in its account books a special account for BSN in
which the following entries shall be made, as appropriate, in relation to the
French Tranche C1 Term Loans, the French Tranche C2 Term Loans and the French
Tranche C3 Term Loans:


 


DEBIT:


 


•              The sum drawn down by BSN by way
of principal.


 


•              The sum of the interest,
commissions, and any other items whatsoever due from BSN under the French
Tranche C1 Term Loans, the French Tranche C2 Term Loans and the French Tranche
C3 Term Loans.


 


CREDIT:


 


•              Payments made by BSN by way of
settlement or repayment of the above mentioned items.


 


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In this way the net balance owed by BSN under the French Tranche C1 Term
Loans, the French Tranche C2 Term Loans and the French Tranche C3 Term Loans
shall be known at all times.


 


B.    Unilateral
Determination of Debt.  In the case
of accelerated maturity of the French Tranche C1 Term Loans, the French Tranche
C2 Term Loans or the French Tranche C3 Term Loans or of total or partial
termination of such loans under this Agreement, the Collateral Agent shall
balance the accounts mentioned in subsection 10.23A in accordance with this
Agreement, BSN and Collateral Agent expressly agreeing that the clear, due and
demandable sum (in accordance with the provisions of Articles 571 and 572 of
Spanish Code of Civil Procedure 1/2000, of 7 January), for the purposes of
payment and processing of the enforcement of accelerated maturity or for the
purposes of judicial or extra-judicial claims, shall be the balance arising
from said balancing of accounts, duly certified by the Collateral Agent. BSN
shall be notified of the demandable sum arising from the aforementioned
balancing of accounts in accordance with Article 572.2 in fine of the
aforementioned Act.


 


The enforcing document shall
be a copy of the public deed formalising this Agreement,
issued with the formalities established in Article 517.2.5o of Spanish Code of
Civil Procedure 1/2000, of 7 January, which must be accompanied by the
following documents:


 


(i)            The certificate referred to in the first paragraph of
this subsection 10.23B, which details the balance of the account mentioned in
subsection 10.23A, arising from the balancing of accounts performed by the
Collateral Agent. In said certificate, the Notary must place on record that
he/she is acting at the request of the Collateral Agent and that the balancing
of BSN’s account has been carried out in the manner agreed by the Parties
herein.


 


(ii)           A statement detailing the debit and credit entries and
those relating to the application of interest which give rise to the specific
balance in respect of which court enforcement of accelerated maturity is
requested.


 


(iii)          The document which proves that BSN has been notified of the
amount due, in accordance with the terms of the first paragraph of this
subsection 10.23B.


 


10.24      Limitation on Offshore Borrower
Obligations


 


Notwithstanding anything herein to the contrary, no
provision of this Agreement shall render any Offshore Borrower liable for the
Obligations of Company or of any Domestic Borrower.


 


10.25      Counterparts;
Effectiveness


 


This Agreement and any amendments, waivers, consents,
or supplements hereto may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts,
together shall constitute but one and the same instrument.  This Agreement shall become effective upon
(a) the execution of a counterpart hereof by each Borrower, Company, Borrowers’
Agent, each Lender and each Agent (b) receipt by Borrowers’ Agent and


 


217

















 


Administrative
Agent of written or telephonic notification of such execution and authorization
of delivery thereof, and (c) satisfaction or waiver of all conditions set forth
in subsection 3.1.  Until such time as
the conditions described in clauses (a), (b) and (c) of the preceding sentence
are satisfied, the First Amended and Restated Agreement shall remain in full
force and effect as if this Agreement had never been executed and delivered.


 


218

















 


IN
WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.


 


	
   

  	
  OWENS-ILLINOIS GROUP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James W. Baehren

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James W. Baehren

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  OWENS-BROCKWAY GLASS CONTAINER INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James W. Baehren

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James W. Baehren

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  OI PLASTIC PRODUCTS FTS INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James W. Baehren

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James W. Baehren

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  UNITED GLASS LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James W. Baehren

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James W. Baehren

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  OWENS ILLINOIS (AUSTRALIA) PTY LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James W. Baehren

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James W. Baehren

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


S-1

















 


	
   

  	
  ACI OPERATIONS PTY LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James W. Baehren

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James W. Baehren

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  AZIENDE VETRARIE INDUSTRIALI RICCIARDI –

  AVIR S.P.A.,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James W. Baehren

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James W. Baehren

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  O-I CANADA CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James W. Baehren

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James W. Baehren

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  OWENS-ILLINOIS GENERAL, INC., as Borrowers’

  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James W. Baehren

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James W. Baehren

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


S-2

















 


	
  AGENTS
  AND LENDERS:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK TRUST COMPANY AMERICAS,

  
	
   

  	
  as a Lender and as Administrative Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Vicki Floyd

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Vicki Floyd

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Deutsche Bank Trust
  Company Americas

  
	
   

  	
   

  	
  31 West 52nd
  Street

  
	
   

  	
   

  	
  New York, New York
  10019

  
	
   

  	
   

  	
  Attention:  Mary Jo Jolly

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  With a
  copy to:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Deutsche Bank Trust
  Company Americas

  
	
   

  	
   

  	
  222 South Riverside
  Plaza

  
	
   

  	
   

  	
  MS CHI105-2900

  
	
   

  	
   

  	
  Chicago, Illinois  60606

  
	
   

  	
   

  	
  Attention: Marla Heller