Exhibit 4.2
SUPPLEMENTAL INDENTURE
▇▇▇▇▇-ILLINOIS, INC.,
as Issuer
AND
THE GUARANTORS NAMED HEREIN,
as Guarantors
AND
THE BANK OF NEW YORK,
as Trustee
Dated as of May 9, 1997
Supplemental to the Indenture, dated as of
December 15, 1991, relating to the Issuer's
11% Senior Debentures due 2003
SUPPLEMENTAL INDENTURE, dated as of May 9, 1997, by and among
▇▇▇▇▇-ILLINOIS, INC., a Delaware corporation (hereinafter called the
"Company"), as issuer, the guarantors listed as acknowledging the terms hereof
(hereinafter called the "Guarantors"), and THE BANK OF NEW YORK, as trustee
(hereinafter called the "Trustee"), under the Indenture, dated as of December
15, 1991 (the "Indenture"), by and among the Company, the Guarantor and the
Trustee relating to the Company's 11% Senior Debentures due 2003 (the
"Securities").
RECITALS OF THE COMPANY
The Company has implemented a refinancing plan designed to reduce
interest expense, reduce the amount and extend the maturities of the Company's
outstanding long-term debt, improve financial flexibility and increase share
owners' equity.
As part of the refinancing plan, the Company is making a cash tender
offer (the "Offer") to purchase the Securities and is soliciting consents (the
"Solicitation") to the amendments to the Indenture (the "Amendments") (all as
described in the Offer to Purchase and Consent Solicitation, dated April 25,
1997 (the "Offer to Purchase and Consent Solicitation")).
In accordance with Section 9.02 of the Indenture, the Holders of at
least a majority in principal amount of the outstanding Securities have
consented to such Amendments.
The Board of Directors of the Company has duly authorized the execution
and delivery of this Supplemental Indenture. In addition, the Company has
delivered an Opinion of Counsel to the Trustee pursuant to Section 9.05 of the
Indenture and has done all other things necessary to make this Supplemental
Indenture a valid agreement of the Company in accordance with the terms hereof
and of the Indenture.
This Supplemental Indenture is effective as of the date upon which the
conditions set forth in Section 1.09 hereof are satisfied and the Amendments
effected by this Supplemental Indenture will become operative on the date the
Securities are accepted for payment by the Company pursuant to the Offer.
WHEREFORE, each party agrees as follows for the benefit of the other
party and for the equal or ratable benefit of the Holders of the Securities,
as follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
For all purposes of the Indenture and this Supplemental Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to the Indenture and this Supplemental Indenture as a
whole and not to any particular Article, Section or subdivision; and
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(b) certain capitalized terms used but not defined herein shall have
the meanings assigned to them in the Indenture.
Section 1.02. Governing Law.
This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
Section 1.03. Successors.
All agreements of the Company in this Supplemental Indenture shall bind
its successors. All agreements of the Trustee in this Supplemental Indenture
shall bind its successors.
Section 1.04. Duplicate Originals.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 1.05. Separability.
In case any provision in this Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 1.06. Table of Contents, Headings, Etc.
The Article and Section headings and the Table of Contents of this
Supplemental Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms and provisions hereof. Except as expressly provided herein
and notwithstanding the elimination of certain Sections of the Indenture as
set forth in Article Two hereof, all references to Sections in the Indenture
shall remain unchanged.
Section 1.07. Benefits of Supplemental Indenture.
Nothing in this Supplemental Indenture, express or implied, shall give
to any person, other than the parties hereto and their successors hereunder,
any Paying Agent and the Holders, any benefit or any legal or equitable right,
remedy or claim under this Supplemental Indenture.
Section 1.08. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or accuracy of
this Supplemental Indenture.
Section 1.09. Effectiveness.
This Supplemental Indenture shall take effect on the date (the
Effective Date") that each of the following conditions shall have been
satisfied or waived:
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(a) each of the parties hereto shall have executed and delivered this
Supplemental Indenture; and
(b) the Trustee shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
Counsel to the Company, dated the Effective Date, pursuant to Section 9.05 of
the Indenture;
provided, however, that the Amendments set forth in Article Two hereof shall
take effect only upon and simultaneously with, and shall have no force and
effect prior to, the acceptance for purchase and payment of the Securities
tendered pursuant to the Offer.
ARTICLE 2.
THE AMENDMENTS
Section 2.01. Amendments.
The Indenture is hereby amended as follows:
(a) The definitions of the following terms are hereby eliminated in
their entirety from Section 1.01 of the Indenture:
(1) "Accelerated Indebtedness";
(2) "Acquired Indebtedness";
(3) "Adjusted Consolidated Net Worth";
(4) "Consolidated Cash Flow Available for Fixed Charges";
(5) "Consolidated Fixed Charge Ratio";
(6) "Consolidated Fixed Charges";
(7) "Consolidated Interest Expense";
(8) "Consolidated Net Income";
(9) "Consolidated Net Operating Income";
(10) "Debenture Indenture";
(11) "Debentures";
(12) "Debt Securities";
(13) "Debt Securities Indentures";
(14) "Domestic Subsidiary";
(15) "Effective Time";
(16) "Foreign Subsidiary";
(17) "Indenture Trustees";
(18) "Interest Expense";
(19) "Junior Debenture Indenture";
(20) "Junior Debentures";
(21) "Junior Discount Debenture Indenture";
(22) "Junior Discount Debentures";
(23) "Management Investors";
(24) "Material Subsidiary";
(25) "Merger";
(26) "Merger Agreement";
(27) "Old ▇▇▇▇▇-Illinois";
(28) "Permitted Liens";
(29) "Public Debentures"; and
(30) "Tender Offer."
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(b) Section 4.03 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.03. [Intentionally omitted]."
(c) Section 4.04 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.04. [Intentionally omitted]."
(d) Section 4.05 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.05. [Intentionally omitted]."
(e) Section 4.06 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.06. [Intentionally omitted]."
(f) Section 4.08 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.08. [Intentionally omitted]."
(g) Section 4.13 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.13. [Intentionally omitted]."
(h) Section 4.14 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.14. [Intentionally omitted]."
(i) Section 4.16 of the Indenture is hereby eliminated in its entirety
and replaced with the words: "SECTION 4.16. [Intentionally omitted]."
(j) Section 5.01 of the Indenture is hereby amended to state, in its
entirety, the following:
"SECTION 5.01 When Company May Merge, Etc.
The Company may not consolidate with, merge with or into, or
transfer all or substantially all of its assets (as an entirety or
substantially an entirety in one transaction or a series of related
transactions), to any person (except a wholly owned Subsidiary of the
Company with a positive Consolidated Net Worth, provided that in
connection with any merger of the Company with a wholly owned
Subsidiary of the Company, no consideration (other than common stock in
the surviving corporation or the Company) shall be issued or distributed
to the stockholders of the Company) or permit any party to merge with or
into it, unless:
(1) the Company shall be the continuing person, or the person (if
other than the Company) formed by such consolidation or into which the
Company is merged or to which the properties and assets of the Company
are transferred shall be a corporation organized and existing under the
laws of the United States or any State thereof or the District of
Columbia and shall expressly assume, by a supplemental indenture,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of the Company under the Securities and
this Indenture and shall further expressly assume the obligations of the
Company under the Company Pledge Agreement, and the obligations of the
Guarantor under this Indenture shall remain in full force and effect;
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(2) immediately before and immediately after giving effect to
such transaction, no Event of Default and no Default shall have occurred
and be continuing; and
(3) [Intentionally omitted].
(4) [Intentionally omitted].
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture comply
with this Section 5.01 and that all conditions precedent herein provided
for relating to such transaction have been complied with."
(k) Section 6.01 of the Indenture is hereby amended to state, in its
entirety, the following:
"SECTION 6.01. Events of Default.
An "Event of Default" occurs with respect to the Securities if:
(1) the Company defaults in the payment of interest on the Securities
when the same becomes due and payable and the default continues for a period
of 30 days;
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Securities when the same becomes due and
payable at maturity, upon acceleration, redemption or otherwise;
(3) the Company fails to comply in any respect with any of its other
agreements contained in the Securities, the Company Pledge Agreement, for so
long as the Securities are secured thereunder, or this Indenture, Group fails
to comply in any respect with any of its agreements contained in its initial
Guaranty or this Indenture, or, after the date on which the Additional
Guaranties and Pledges are granted and for so long as the Securities are
secured or guaranteed thereunder, as applicable, Group fails to comply in any
respect with any of its agreements contained in the Group Exchange Guaranty or
any Subsidiary fails to comply in any respect with any of its agreements
contained in a Subsidiary Pledge Agreement or any Subsidiary Guaranty to which
it is a party and, in any case, the default continues for the period and after
the notice specified below;
(4) [Intentionally omitted].
(5) [Intentionally omitted].
(6) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against it in
an involuntary case or proceeding,
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(C) consents to the appointment of a Custodian of it for all
or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is unable to pay its debts as the same become
due; or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case
or proceeding,
(B) appoints a Custodian of the Company for all or substantially
all of its properties, or
(C) orders the liquidation of the Company,
and in each case the order or decree remains unstayed and in effect for 60
days.
The term "Bankruptcy Law" means Title 11 of the United States Code or
any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator or
similar official under Bankruptcy Law.
In the case of any Event of Default pursuant to the provisions of this
Section 6.01 occurring by reason of any willful action (or inaction) taken (or
not taken) by or on behalf of the Company with the intention of avoiding
payment of the premium which the Company would have had to pay if the Company
then had elected to redeem the Securities pursuant to paragraph 5 of the
Securities, an equivalent premium shall also become and be immediately due and
payable to the extent permitted by law, anything contained in this Indenture
or in the Securities to the contrary notwithstanding.
A Default under clause (3) is not an Event of Default until the Trustee
notifies the Company in writing, or the Holders of at least 50% of the
principal amount of the Securities outstanding notify the Company and the
Trustee in writing, of the Default and the Company does not cure the Default
within 30 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default." Such notice shall be given by the Trustee if so requested in
writing by the Holders of 50% of the principal amount of the Securities then
outstanding."
(l) Section 6.02 of the Indenture is hereby amended to state, in its
entirety, the following:
"SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.01(6) or (7)) occurs and is continuing, the Trustee or the Holders
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of at least 50% of the principal amount of the Securities then outstanding, by
written notice to the Company (and to the Trustee if such notice is given by
the Holders), may, and the Trustee at the request of such Holders shall,
declare all unpaid principal of, premium, if any, and accrued interest on the
Securities to be due and payable, as specified below. Upon a declaration of
acceleration, such principal, premium, if any, and accrued interest shall be
due and payable. If an Event of Default specified in Section 6.01(6) or (7)
occurs, all unpaid principal of, premium, if any, and accrued interest on the
Securities then outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder. The Holders of at least a majority in principal amount of the
Securities by notice to the Trustee may rescind an acceleration and its
consequences if (i) all existing Events of Default, other than the nonpayment
of the principal of, premium, if any, and interest on the Securities which
have become due solely by such declaration of acceleration, have been cured or
waived, and (ii) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction."
(m) Section 8.01 of the Indenture is hereby amended to state, in its
entirety, the following:
"SECTION 8.01. Termination of Company's Obligations.
Except as otherwise provided in this Section 8.01 the Company may
terminate its obligations under the Securities and this Indenture, and the
obligations of each Guarantor shall terminate, if:
(a) all Securities previously authenticated and delivered (other than
destroyed, lost or stolen Securities which have been replaced or Securities
which are paid pursuant to Section 4.01 or Securities for whose payment money
or securities has theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.03) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder; or
(b) (1) the Securities mature within one year or all of them are to
be called for redemption within one year under arrangements satisfactory
to the Trustee for giving the notice of redemption; and
(2) the Company irrevocably deposits in trust with the Trustee
during such one-year period, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust
funds solely for the benefit of the Holders for that purpose, money or
Government Securities (as defined in clause (c)(1) below) sufficient (in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee), without consideration of any reinvestment of such
interest, to pay principal and interest on the Securities to maturity or
redemption, as the case may be, and to pay all other sums payable by
it hereunder; or
(c) (1) the Company has irrevocably deposited or caused to be
deposited with the Trustee or Paying Agent and conveyed all right,
title and interest for the benefit of the Holders, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the
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Trustee, as trust funds in trust solely for the benefit of the Holders
for that purpose, money or direct non-callable obligations of, or
non-callable obligations guarantied by, the United States of America for
the payment of which guaranty or obligation the full faith and credit of
the United States is pledged ("Government Securities") maturing as to
principal and interest in such amounts and at such times as are
sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee), without consideration of any
reinvestment of such interest, to pay principal of, premium, if any, and
interest on the outstanding Securities to redemption or maturity,
provided that the Trustee or Paying Agent shall have been irrevocably
instructed to apply such money or the proceeds of such Government
Securities to the payment of said principal, premium, if any, and
interest with respect to the Securities;
(2) no Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit;
(3) the Company shall have delivered to the Trustee either (A) a
ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Securities will not
recognize income, gains or loss for Federal income tax purposes as a
result of the Company's exercise of its option under this Section
8.01(c) and will be subject to Federal income tax on the same amount and
in the same manner and at the same times as would have been the case if
such option had not been exercised or (B) an Opinion of Counsel to
the same effect as the ruling described in clause (A) accompanied by a
ruling to that effect published by the Internal Revenue Service, unless
there has been a change in the applicable Federal income tax law since
the date of this Indenture such that a ruling from the Internal Revenue
Service is no longer required;
(4) the Company has paid or caused to be paid all sums then
payable by the Company hereunder and under the Securities; and
(5) the Company has delivered to the Trustee an Officers '
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the foregoing clause (c), prior to the end of the
passage of 90 days following the deposit of trust funds, none of the Company's
obligations under this Indenture shall be discharged. With respect to the
foregoing clause (b), and subsequent to the end of such 90-day period with
respect to the foregoing clause (c), the Company's obligations and, to the
extent applicable, each Guarantor's obligations, in Sections 2.02, 2.03, 2.04,
2.05, 2.06, 2.11, 4.01, 4.02,7.06, 7.07, 8.03 and 8.04, the initial Guaranty
by Group, the Company Pledge Agreement, and, after the date on which the
Additional Guaranties and Pledges are granted and for so long as the
Securities are guarantied and secured thereunder, any Subsidiary Pledge
Agreement, the Group Exchange Guaranty, and any Subsidiary Guaranty shall
survive until the Securities are no longer outstanding. Thereafter, only the
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Company's obligations and, to the extent applicable, Group's obligations, in
Sections 7.06, 8.03 and 8.04 shall survive. If and when a ruling from the
Internal Revenue Service or Opinion of Counsel referred to in clause (3) above
is able to be provided specifically without regard to, and not in reliance
upon, the continuance of the Company's obligations under Section 4.01, then
the Company's and each Guarantor's (to the extent applicable) obligations
under such Section 4.01 and Section 10.01, the Company Pledge Agreement and,
after the date on which the Additional Guaranties and Pledges are granted and
not previously released, any Subsidiary Pledge Agreement, the Group Exchange
Guaranty, and any Subsidiary Guaranty shall cease upon delivery to the Trustee
of such ruling or Opinion of Counsel and compliance with the other conditions
precedent provided for herein relating to the satisfaction and discharge of
this Indenture.
After any such irrevocable deposit the Trustee upon request shall
acknowledge in writing the discharge of the Company's and each Guarantor's
obligations under the Securities, the Company Pledge Agreement, any Subsidiary
Pledge Agreement, if applicable, each Guaranty and this Indenture except for
those surviving obligations specified above."
ARTICLE 3.
ENDORSEMENT AND CHANGE OF FORM OF SECURITIES
Section 3.01. Notice to Securityholders.
After the Amendments become effective, the Company shall mail to Holders
a notice briefly describing such Amendments.
Section 3.02. Notation on Securities.
(a) Securities authenticated and delivered after the effectiveness of
this Supplemental Indenture shall bear the following notation:
"The Company and the Trustee have entered into a Supplemental
Indenture, dated as of May 9, 1997, which (i) amended and/or
eliminated certain restrictive covenants contained in Articles IV
and V of the Indenture; (ii) amended certain provisions with
respect to defaults and remedies contained in Article VI of the
Indenture and (iii) amended certain provisions contained in
Article VIII of the Indenture. Reference is hereby made to such
Supplemental Indenture, copies of which are on file with The Bank
of New York, Trustee."
The Trustee may require holders of Securities authenticated and
delivered prior to the effectiveness of this Supplemental Indenture to deliver
such Securities to the Trustee so that the Trustee may place the
aforementioned notation on such Securities.
(b) If the Company or the Trustee so determines, the Company, in
exchange for the Securities, shall issue and the Trustee shall authenticate
new securities that reflect the changed terms.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
▇▇▇▇▇-ILLINOIS, INC.,
Issuer
BY: /s/▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President and
Director of Corporate
Strategy and Treasurer
THE BANK OF NEW YORK,
Trustee
BY: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
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EACH GUARANTOR hereby acknowledges and consents to the terms and
provisions of this Supplemental Indenture.
▇▇▇▇▇-ILLINOIS GROUP, INC.
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, Inc.
OI Closure FTS Inc.
OI Plastic Products FTS Inc.
O-I Health Care Holding Corp.
OI General FTS Inc.
OI General Finance Inc.
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc.
OI ▇▇▇▇ STS Inc.
▇▇▇▇▇-Illinois Closure Inc.
Specialty Packaging Licensing Company
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Plastic Products Inc.
▇▇▇▇▇-Illinois Prescription Products Inc.
▇▇▇▇▇-Illinois Labels Inc.
▇▇▇▇▇-Illinois General Inc.
OI Castalia STS Inc.
OI Levis Park STS Inc.
OI AID STS Inc.
BY: /s/▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Treasurer
of each of the foregoing
Guarantors
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