SEC Info - O-I Glass, Inc./DE, et al. - ‘8-K’ for 12/13/19

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O-I Glass, Inc./DE, et al. – ‘8-K’ for 12/13/19 – ‘EX-10.2’

On: Thursday, 12/19/19, at 4:57pm ET · For: 12/13/19 · Accession #: 1104659-19-74413 · File #s: 1-09576, 33-13061-01

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

12/19/19  O-I Glass, Inc./DE                8-K:1,9    12/13/19   13:2.4M                                   Toppan Merrill/FA
          Owens-Illinois Group Inc

Current Report — Form 8-K — Sect. 13 / 15(d) – SEA’34
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report                                      HTML     52K 
 2: EX-10.1     Material Contract                                   HTML   1.08M 
 3: EX-10.2     Material Contract                                   HTML    112K 
 9: R1          Cover                                               HTML     55K 
12: XML         IDEA XML File -- Filing Summary                      XML     13K 
11: XML         XBRL Instance -- tm1926551-1_8k_htm                  XML     23K 
13: EXCEL       IDEA Workbook of Financial Reports                  XLSX      6K 
 5: EX-101.DEF  XBRL Definitions -- oi-20191213_def                  XML     73K 
 6: EX-101.LAB  XBRL Labels -- oi-20191213_lab                       XML    102K 
 7: EX-101.PRE  XBRL Presentations -- oi-20191213_pre                XML     70K 
 4: EX-101.SCH  XBRL Schema -- oi-20191213                           XSD     14K 
 8: JSON        XBRL Instance as JSON Data -- MetaLinks               27±    36K 
10: ZIP         XBRL Zipped Folder -- 0001104659-19-074413-xbrl      Zip    270K

‘EX-10.2’ — Material Contract

This Exhibit is an HTML Document rendered as filed. [ Alternative Formats ]

Exhibit 10.2

AMENDMENT NO. 2 TO THE THIRD AMENDED AND RESTATED CREDIT AGREEMENT AND SYNDICATED FACILITY AGREEMENT

AMENDMENT NO. 2 dated as of December 19, 2019 (this “Amendment”), in respect of the Third Amended and Restated Credit Agreement and Syndicated Facility Agreement dated as of June 25, 2019 (as amended by that certain Amendment No. 1 to the Third Amended and Restated Credit Agreement and Syndicated Facility Agreement, dated as of December 13, 2019) and as may be further amended, restated, amended and restated, modified or supplemented from time to time, the “Credit Agreement”), among Owens-Brockway Glass Container Inc., a Delaware corporation, O-I Operations (Australia) Pty Limited, ABN 94 004 230 326, a limited liability company incorporated under the laws of Australia, OI European Group B.V., a private company with limited liability organized under the laws of the Netherlands with its registered offices (statutaire zetel) in Schiedam, the Netherlands and registered under number 24291478, O-I Europe Sàrl, a Swiss Société à responsabilité limitée (limited liability corporation), O-I Canada Corp., a Nova Scotia company, O-I Operations (NZ) Ltd., a limited liability company incorporated under the laws of New Zealand, Glass International OISPV, S.A.P.I. de C.V., S.O.F.O.M., E.N.R., a sociedad anónima promotora de inversión de capital variable, sociedad financiera de objeto múltiple, entidad no regulada, organized under the laws of Mexico (each of the foregoing a “Borrower”), Owens-Illinois Group, Inc., a Delaware corporation (the “Company”), Owens-Illinois General Inc., a Delaware corporation (“Borrowers’ Agent”), the Lenders and Issuing Lenders from time to time party thereto, Deutsche Bank AG New York Branch, as Administrative Agent (“Administrative Agent”) for the Lenders and Deutsche Bank AG New York Branch, as Collateral Agent.

WHEREAS, pursuant to Section 12.1 of the Credit Agreement, the Borrowers, Borrowers’ Agent, Company, the Administrative Agent and the Lenders party hereto desire to amend the Credit Agreement as set forth below;

NOW, THEREFORE, the parties hereto agree as follows:

Section 1. Defined Terms; References. Unless otherwise specifically defined herein, each term used herein which is defined in the Credit Agreement has the meaning assigned to such term in the Credit Agreement. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Credit Agreement shall, after the Second Amendment Effective Date (as defined below), refer to the Credit Agreement as amended hereby. This Amendment is a Loan Document.

Section 2. Amendment to Credit Agreement.

(a) Amendments to Section 9.1 (Total Leverage Ratio):

Effective as of the Second Amendment Effective Date, Section 9.1 of the Credit Agreement is hereby amended by deleting such section in its entirety and inserting the following in lieu thereof:

9.1 Total Leverage Ratio: Each Loan Party will not permit the Total Leverage Ratio as of the last day of any Fiscal Quarter (other than a Trigger Quarter and the following three (3) succeeding Fiscal Quarters as provided below) to exceed the ratio set forth below opposite the last day of such Fiscal Quarter.

Fiscal Quarter Ending		Ratio

June 30, 2019 through (and including) March 31, 2021		5.00:1.00

June 30, 2021 and September 30, 2021		4.75:1.00

December 31, 2021 and thereafter		4.50:1.00

Notwithstanding anything to the contrary contained herein, at Company’s election (which shall be evidenced by delivery of a written notice by Borrowers’ Agent to Administrative Agent), if (x) in any Fiscal Quarter ending December 31, 2021 and thereafter, an Acquisition or series of related Acquisitions, or (y) in any Test Period, any other Acquisitions, in each case of the foregoing clauses (x) and (y), permitted by Section 8.3 with total consideration (including any Indebtedness assumed in connection therewith), in excess of $250,000,000 for any such individual Acquisition or series of related Acquisitions, or in the aggregate for any other Acquisitions in a Test Period, is consummated by Company or any of its Restricted Subsidiaries (the Fiscal Quarter in which any such individual Acquisition or series of related Acquisitions is consummated, or the Fiscal Quarter in which any other Acquisition occurs that results in the total consideration for all Acquisitions in a Test Period exceeding $250,000,000, a “Trigger Quarter”), each Loan Party will not permit the Total Leverage Ratio for any Test Period to exceed 5.00:1.00 for such Fiscal Quarter and for the next three (3) succeeding Fiscal Quarters; provided, further, that (a) following the occurrence of a Trigger Quarter, no subsequent Trigger Quarter shall be deemed to have occurred or to exist for any reason unless the Total Leverage Ratio is less than or equal to 4.50:1.00 as of the end of any Fiscal Quarter following the occurrence of such initial Trigger Quarter, and (b) Company may not make an election pursuant to this paragraph unless at the time of such election the Total Leverage Ratio is equal to or less than 4.50:1.00. For the avoidance of doubt, in no event shall the Fiscal Quarters ending June 30, 2019, through (and including) September 30, 2021 be Trigger Quarters or be deemed to be Trigger Quarters for purposes of this Agreement (including, without limitation, for purposes of Sections 8.3(xi) or 8.5(v)).

Section 3. Representations and Warranties. Each Loan Party party hereto hereby represents and warrants that, immediately prior to and immediately after giving effect to this Amendment:

(a) the execution, delivery and performance by it of this Amendment does not (i) violate any provision of law applicable to it, the Organic Documents of it, or any order, judgment or decree of any court or other agency of government binding on it, (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 it, (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 it or (iv) require any approval of stockholders or any approval or consent of any Person under any material Contractual Obligation of it, other than those approvals and consents which have been obtained; and

C: 2

(b) it has all requisite organizational power and authority to enter into this Amendment and the execution, delivery and performance by it of this Amendment has been duly authorized by all necessary organizational action by it. Each Loan Party party hereto has duly executed and delivered this Amendment, and this Amendment and each other Loan Document to which it is a party constitutes the legally valid and binding obligations of it, enforceable against it 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; and

(c) each of the representations and warranties set forth in the Credit Agreement and in the other Loan Documents is true and correct in all material respects on and as of the Second Amendment Effective Date (both immediately before and after giving effect to this Amendment) (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such date); and

(d) no Unmatured Event of Default and no Event of Default shall have occurred and be continuing.

Section 4. Effectiveness. This Amendment shall become effective on the date (the “Second Amendment Effective Date”) when each of the following conditions shall have been satisfied or waived:

(a) the Administrative Agent shall have received from each Loan Party party hereto, the Administrative Agent and the Lenders constituting the Requisite Lenders either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;

(b) each of the representations and warranties set forth in the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the Second Amendment Effective Date (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such date);

(c) at the time of the Second Amendment Effective Date and immediately after giving effect to this Amendment, no Unmatured Event of Default or Event of Default shall exist;

(d) the Administrative Agent shall have received an Officer’s Certificate of the Company, dated as of the Second Amendment Effective Date, certifying compliance with the requirements set forth in preceding clauses (b) and (c) of this Section 4;

(e) the Administrative Agent shall have received (i) either (x) a copy of the certificate or articles of incorporation or equivalent organizational document, including all amendments thereto, of each Loan Party party hereto, and in the case of Loan Parties organized in the United States of America, certified as of a recent date by the Secretary of State of the state of its organization or (y) confirmation from such Loan Party that there has been no change to such organizational documents since last delivered to the Administrative Agent, (ii) a certificate of a Secretary or Responsible Officer of each Loan Party (or any director or officer of any Loan Party that is not organized under the laws of any State of the United States of America or the District of Columbia) party hereto dated the Second Amendment Effective Date and certifying (A) that (x) attached thereto is a true and complete copy of the by-laws, operating agreement or similar governing document of such Loan Party as in effect on the Second Amendment Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below or (y) there has been no change or amendment to such governing documents since last delivered to the Administrative Agent, (B) that (x) attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of this Second Amendment and that such resolutions have not been modified, rescinded or amended and are in full force and effect or (y) there has been no change to such resolutions since last delivered to the Administrative Agent in connection with the Credit Agreement or First Amendment and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) to the extent not previously delivered to the Administrative Agent in connection with the Credit Agreement, as to the incumbency and specimen signature of each officer executing this Second Amendment or any other document delivered in connection herewith on behalf of such Loan Party; and (iii) to the extent not previously delivered to the Administrative Agent in connection with the Credit Agreement, a certificate of another officer as to the incumbency and specimen signature of the Secretary or the Responsible Officer (or other director or officer, as applicable) executing the certificate pursuant to clause (ii) above;

(f) the Company shall have paid to the Administrative Agent, for the ratable account of each Lender that has executed and delivered to the Administrative Agent a signature page to this Amendment prior to 5:00 p.m. (New York time) on December 18, 2019, a fee in an amount equal to 0.05% of each such Lender’s outstanding Term Loans and/or Revolving Commitments immediately prior to giving effect to this Amendment (the “Consent Fee”), which Consent Fee shall be earned, due and payable by wire transfer in immediately available funds on the Second Amendment Effective Date, and, once paid, shall be non-refundable; and

(g) all reasonably incurred and documented costs, fees, expenses (including, without limitation, legal fees and expenses) and other compensation payable to (i) the Administrative Agent pursuant to Section 12.4 of the Credit Agreement and (ii) to Wells Fargo Securities, LLC, pursuant to that certain Engagement Letter dated as of December 3, 2019 by and among Wells Fargo Securities, LLC, the Company and Owens-Brockway, in each case, on or before the Second Amendment Effective Date, to the extent invoiced at least three business days prior to the Second Amendment Effective Date unless otherwise agreed, shall have been paid to the extent earned.

Section 5. Confirmation of Guarantees and Security Interests. By signing this Second Amendment, the Loan Parties party hereto hereby confirm that the obligations of the Loan Parties under the Credit Agreement as modified or supplemented hereby and the other Loan Documents to which such Loan Parties are party (i) are entitled to the benefits of the guarantees and the security interests set forth or created in the Guarantee Agreements, the Collateral Documents and the other Loan Documents, as applicable, (ii) constitute “Obligations”, “U.S. Obligations”, “Foreign Obligations” and “Guarantied Obligations” or other similar term for purposes of the Credit Agreement, the Guarantee Agreements, the Collateral Documents and all other Loan Documents, as applicable, (iii) notwithstanding the effectiveness of the terms hereof, the Guarantee Agreements, the Collateral Documents and the other Loan Documents, as applicable, are, and shall continue to be, in full force and effect and are hereby ratified and confirmed in all respects. Each Loan Party party hereto ratifies and confirms that all Liens granted, conveyed, or assigned to the Administrative Agent or the Collateral Agent by such Person pursuant to any Loan Document to which it is a party remain in full force and effect, are not released or reduced, and continue to secure full payment and performance of the Obligations.

Section 6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Section 7. Counterparts. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Amendment by facsimile transmission or other electronic transmission shall be as effective as delivery of a manually signed counterpart of this Amendment.

Section 8. Miscellaneous. This Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of any Lender or the Administrative Agent under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances.

[SIGNATURE PAGES FOLLOW]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

OWENS-ILLINOIS GROUP, INC.

By:	/s/ *Anand Patel*
	Name:	Anand Patel
	Title:	Treasurer

OWENS-BROCKWAY GLASS CONTAINER INC.

By:	/s/ *Anand Patel*
	Name:	Anand Patel
	Title:	Vice President and Treasurer

O-I CANADA CORP.

By:	/s/ *Anand Patel*
	Name:	Anand Patel
	Title:	Treasurer

OI EUROPEAN GROUP B.V.

By:	/s/ *Anand Patel*
	Name:	Scott Gedris
	Title:	Attorney-in-Fact

OWENS-ILLINOIS GENERAL INC.
as Borrowers’ Agent

By:	/s/ *Anand Patel*
	Name:	Anand Patel
	Title:	Treasurer