EXHIBIT 4.1
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▇▇▇▇▇-▇▇▇▇▇▇▇▇ GLASS CONTAINER INC.
ISSUER
AND
THE GUARANTORS SET FORTH IN ANNEX A ATTACHED HERETO
--------------------------------
INDENTURE
DATED AS OF JANUARY 24, 2002
---------------------------------
U.S. BANK NATIONAL ASSOCIATION
TRUSTEE
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TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE.....................................................1
Section 1.01. Certain Definitions...................................................................1
Section 1.02. Other Definitions....................................................................10
Section 1.03. Incorporation by Reference of Trust Indenture Act....................................11
Section 1.04. Rules of Construction................................................................11
ARTICLE 2. THE SECURITIES................................................................................11
Section 2.01. Unlimited in Amount, Issuable in Series, Form and Dating.............................11
Section 2.02. Execution and Authentication.........................................................14
Section 2.03. Registrar and Paying Agent...........................................................15
Section 2.04. Paying Agent to Hold Money in Trust..................................................15
Section 2.05. Holder Lists.........................................................................16
Section 2.06. Transfer and Exchange................................................................16
Section 2.07. Replacement Securities...............................................................28
Section 2.08. Outstanding Securities...............................................................28
Section 2.09. Temporary Securities.................................................................29
Section 2.10. Cancellation.........................................................................29
Section 2.11. Defaulted Interest...................................................................29
Section 2.12. Special Record Dates.................................................................30
Section 2.13. CUSIP and ISIN Numbers...............................................................30
ARTICLE 3. REDEMPTION....................................................................................31
Section 3.01. Notices to Trustee...................................................................31
Section 3.02. Selection of Securities to Be Redeemed...............................................31
Section 3.03. Notice of Redemption.................................................................32
Section 3.04. Effect of Notice of Redemption.......................................................32
Section 3.05. Deposit of Redemption Price..........................................................33
Section 3.06. Securities Redeemed in Part..........................................................33
ARTICLE 4. COVENANTS.....................................................................................33
Section 4.01. Payment of Securities................................................................33
Section 4.02. Maintenance of Office or Agency......................................................33
Section 4.03. Commission Reports...................................................................34
Section 4.04. Compliance Certificate...............................................................35
Section 4.05. Taxes................................................................................35
Section 4.06. Stay, Extension and Usury Laws.......................................................35
Section 4.07. Corporate Existence..................................................................35
Section 4.08. Calculation of Original Issue Discount...............................................36
ARTICLE 5. SUCCESSORS....................................................................................36
Section 5.01. When Company May Merge, etc..........................................................36
Section 5.02. Successor Corporation Substituted....................................................36
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PAGE
ARTICLE 6. DEFAULTS AND REMEDIES.........................................................................37
Section 6.01. Events of Default....................................................................37
Section 6.02. Acceleration.........................................................................39
Section 6.03. Other Remedies.......................................................................39
Section 6.04. Waiver of Past Defaults..............................................................40
Section 6.05. Control by Majority..................................................................40
Section 6.06. Limitation on Suits..................................................................40
Section 6.07. Rights of Holders to Receive Payment.................................................41
Section 6.08. Collection Suit by Trustee...........................................................41
Section 6.09. Trustee May File Proofs of Claim.....................................................41
Section 6.10. Priorities...........................................................................42
Section 6.11. Undertaking for Costs................................................................42
ARTICLE 7. TRUSTEE.......................................................................................43
Section 7.01. Duties of Trustee....................................................................43
Section 7.02. Rights of Trustee....................................................................44
Section 7.03. Individual Rights of Trustee.........................................................45
Section 7.04. Trustee's Disclaimer.................................................................45
Section 7.05. Notice of Defaults...................................................................45
Section 7.06. Reports by Trustee to Holders........................................................45
Section 7.07. Compensation and Indemnity...........................................................46
Section 7.08. Replacement of Trustee...............................................................46
Section 7.09. Successor Trustee by Merger, Etc.....................................................48
Section 7.10. Eligibility; Disqualification........................................................48
Section 7.11. Preferential Collection of Claims Against Company....................................48
ARTICLE 8. SATISFACTION AND DISCHARGE; DEFEASANCE........................................................48
Section 8.01. Satisfaction and Discharge of Indenture..............................................48
Section 8.02. Application of Trust Funds; Indemnification..........................................49
Section 8.03. Legal Defeasance of Securities of Any Series.........................................50
Section 8.04. Covenant Defeasance..................................................................52
Section 8.05. Repayment to Company.................................................................53
ARTICLE 9. SUPPLEMENTS, AMENDMENTS AND WAIVERS...........................................................53
Section 9.01. Without Consent of Holders...........................................................53
Section 9.02. With Consent of Holders..............................................................54
Section 9.03. Revocation and Effect of Consents....................................................56
Section 9.04. Notation on or Exchange of Securities................................................56
Section 9.05. Trustee to Sign Amendments, Etc......................................................56
ARTICLE 10. GUARANTEE....................................................................................56
Section 10.01. Guarantee............................................................................56
Section 10.02. Limitation on Liability..............................................................58
Section 10.03. Execution and Delivery of Guarantee..................................................58
Section 10.04. Successors and Assigns...............................................................59
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Section 10.05. No Waiver............................................................................59
Section 10.06. Right of Contribution................................................................59
Section 10.07. No Subrogation.......................................................................59
Section 10.08. Additional Guarantors; Reinstatement of Guarantees...................................60
Section 10.09. Modification.........................................................................60
Section 10.10. Release of Guarantor.................................................................60
Section 10.11. Merger, Consolidation and Sale of Assets of a Guarantor..............................61
ARTICLE 11. COLLATERAL AND SECURITY......................................................................61
Section 11.01. Collateral Documents.................................................................61
Section 11.02. Opinions.............................................................................62
Section 11.03. Release and Substitution of Collateral; Amendment of Collateral Documents............62
Section 11.04. Certificates of the Company..........................................................63
Section 11.05. Authorization of Actions to be Taken by the Trustee Under the Collateral Documents...63
Section 11.06. Authorization of Receipt of Funds by the Trustee Under the Collateral Documents......64
ARTICLE 12. MISCELLANEOUS................................................................................64
Section 12.01. Indenture Subject to Trust Indenture Act.............................................64
Section 12.02. Notices..............................................................................64
Section 12.03. Communication by Holders with Other Holders..........................................65
Section 12.04. Certificate and Opinion as to Conditions Precedent...................................65
Section 12.05. Statements Required in Certificate or Opinion........................................66
Section 12.06. Rules by Trustee and Agents..........................................................66
Section 12.07. Legal Holidays.......................................................................66
Section 12.08. No Recourse Against Others...........................................................66
Section 12.09. Counterparts.........................................................................67
Section 12.10. Governing Law........................................................................67
Section 12.11. Severability.........................................................................67
Section 12.12. Effect of Headings, Table of Contents, Etc...........................................67
Section 12.13. Successors and Assigns...............................................................67
Section 12.14. No Interpretation of Other Agreements................................................67
iii
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
310(a)(1).......................................................................7.09; 7.10
(a)(2).............................................................................7.10
(a)(3).............................................................................N.A.
(a)(4).............................................................................N.A.
(a)(5).............................................................................7.10
(b)....................................................................7.03, 7.08; 7.10
(c)................................................................................N.A.
311(a)................................................................................7.11
(b)................................................................................7.11
(c)................................................................................N.A.
312(a)................................................................................2.05
(b)...............................................................................12.03
(c)...............................................................................12.03
313(a)................................................................................7.06
(b)................................................................................7.06
(c).........................................................................7.06; 12.02
(d)................................................................................7.06
314(a)................................................................................4.03
(b)(1)............................................................................11.02
(c)(1)............................................................................12.04
(c)(2)............................................................................12.04
(c)(3).............................................................................N.A.
(d)........................................................................11.03, 11.04
(d)(1) ...........................................................................11.03
(e)...............................................................................12.05
(f)................................................................................N.A.
315(a)...................................................................7.01(b)(ii); 7.02
(b)...................................................................7.02; 7.05; 12.02
(c).......................................................................7.01(a); 7.02
(d).......................................................................7.01(d); 7.02
(e)................................................................................6.11
316(a)(last sentence).................................................................2.08
(a)(1)(A)..........................................................................6.05
(a)(1)(B)..........................................................................6.04
(a)(2).............................................................................N.A.
(b)................................................................................6.07
(c)..........................................................................2.12; 9.03
317(a)(1).............................................................................6.08
(a)(2).............................................................................6.09
(b)................................................................................2.04
318(a)...............................................................................12.01
(b)................................................................................N.A.
(c)...............................................................................12.01
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N.A. means not applicable.
* THIS CROSS-REFERENCE TABLE IS NOT PART OF THIS
INDENTURE.
iv
INDENTURE dated as of January 24, 2002 among ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass
Container Inc., a Delaware corporation (the "COMPANY"), the Guarantors (as
defined herein) and U.S. Bank National Association, a national banking
association, as Trustee (the "TRUSTEE").
The Company and the Guarantors have duly authorized the execution
and delivery of this
Indenture to provide for the issuance from time to time of
the Company's debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "SECURITIES"), as herein provided, up to such
principal amount as may from time to time be authorized in or pursuant to one or
more resolutions of the Board of Directors or by supplemental indenture.
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the Holders of each series of the
Securities:
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. CERTAIN DEFINITIONS.
"144A GLOBAL SECURITY" means a Global Security bearing the Global
Security Legend and the Private Placement Legend and deposited with or on behalf
of, and registered in the name of, the Depositary or its nominee that will be
issued in a denomination equal to the outstanding principal amount of the
Securities of a series sold in reliance on Rule 144A.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control," as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise. For purposes of this definition, the
terms "controlling," "controlled by" and "under common control with" shall have
correlative meanings.
"AGENT" means any Registrar, Paying Agent, authenticating agent
or co-Registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Security, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"BOARD RESOLUTION" means (1) with respect to a corporation, a
copy of a resolution certified by the Secretary or an Assistant Secretary of the
Corporation to have been duly adopted by the Board of Directors or pursuant to
authorization by the Board of Directors and (2) with respect to any other
Person, a copy of a resolution or similar authorization certified by the
secretary or assistant secretary or a Person serving such a similar function to
have been duly adopted by the board, committee or Person serving a similar
function as a board of directors and in each case to be in full force and effect
on the date of such certification (and delivered to the Trustee, if
appropriate).
"BOARD OF DIRECTORS" means: (1) with respect to a corporation,
the board of directors of the corporation; (2) with respect to a partnership,
the Board of Directors of the general partner of the partnership; and (3) with
respect to any other Person, the board or committee of such Person serving a
similar function.
"BROKER-DEALER" means any broker or dealer registered with the
Commission under the Exchange Act.
"BUSINESS DAYS" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in
New York City,
New York or Toledo, Ohio are authorized or obligated by law or executive order
to close.
"CAPITAL LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at that time be required to be capitalized on a balance sheet in
accordance with GAAP.
"CAPITAL STOCK" means: (1) in the case of a corporation,
corporate stock; (2) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock; (3) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited); and (4) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CLEARSTREAM" means Clearstream Banking, S.A.
"COLLATERAL" means all of the property from time to time in which
Liens are purported to be granted to secure the Securities of a series or
Guarantees of such Securities pursuant to the Collateral Documents.
"COLLATERAL AGENT" shall have the meaning given to it in the
Credit Agreement.
"COLLATERAL DOCUMENTS" means, collectively, the Intercreditor
Agreement, the Pledge Agreement and the Security Agreement, each as in effect on
January 24, 2002 and as amended, amended and restated, modified, renewed,
replaced or restructured from time to time and the Mortgages each as in effect
on January 24, 2002 and any additional Mortgages created from time to time, and
as amended, amended and restated, modified, renewed or replaced from time to
time.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means the party named as such above until a successor
replaces it pursuant to this Indenture and thereafter means the successor.
"COMPANY ORDER" means a written order signed in the name of the
Company by two Officers, one of whom must be the Company's principal executive
officer, principal financial officer or principal accounting officer.
2
"CORPORATE TRUST OFFICE" shall mean the corporate trust office of
the Trustee, which shall initially be U.S. Bank National Association, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Corporate Trust Administration and such
office of the Trustee located in the Borough of Manhattan, the City of
New York
or such other address as to which the Trustee may give notice to the Company.
"CREDIT AGREEMENT" means that certain Secured Credit Agreement,
dated as of April 23, 2001, by and among the Borrowers named therein, OI Group
and ▇▇▇▇▇-Illinois General, Inc., as Borrower's Agent, Deutsche Banc Alex. ▇▇▇▇▇
and Banc of America Securities, LLC, as Joint Lead Arrangers and Joint Book
Managers, Deutsche Bank AG, London Branch, as UK Administrative Agent, Bankers
Trust Company, as Administrative Agent, and the other Agents and the other
Lenders named therein, including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith, and in
each case as amended, amended and restated, modified, renewed, refunded,
replaced, substituted or refinanced or otherwise restructured (including but not
limited to, the inclusion of additional borrowers thereunder) from time to time.
"DEFAULT" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
"DEFINITIVE SECURITY" means a certificated Security of a series
registered in the name of the Holder thereof and issued in accordance with
Section 2.06 hereof, except that such Security shall not bear the Global
Security Legend and shall not have a "Schedule of Exchanges of Interests in the
Global Security" attached thereto.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depositary for such series by the Company,
which Depositary shall be a clearing agency registered under the Exchange Act;
and if at any time there is more than one such person, "DEPOSITARY" as used with
respect to the Securities of any series shall mean the Depositary with respect
to the Securities of such series.
"DOMESTIC SUBSIDIARY" means any Restricted Subsidiary of OI Group
other than a Foreign Subsidiary.
"EQUITY INTERESTS" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"EUROCLEAR" means Euroclear Bank S.A./N.V., as operator of the
Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time.
"EXCHANGE OFFER" has the meaning set forth in the Registration
Rights Agreement.
3
"EXCHANGE OFFER REGISTRATION STATEMENT" means, with respect to
any series of Initial Securities, the exchange offer registration statement as
defined in the Registrations Rights Agreement.
"EXCHANGE SECURITIES" means the Securities issued in exchange for
the Initial Securities of a series in an Exchange Offer pursuant to Section
2.06(f).
"FAIR MARKET VALUE" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length transaction, for cash,
between a willing seller and a willing and able buyer, neither of whom is under
pressure or compulsion to complete the transaction.
"FOREIGN SUBSIDIARY" means any Restricted Subsidiary of OI Group
which is organized under the laws of a jurisdiction other than the United States
of America or any State thereof.
"GAAP" means with respect to Securities of a series 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 have been
approved by a significant segment of the accounting profession, which are in
effect as of January 24, 2002.
"GLOBAL SECURITY" means a Security issued to evidence all or a
part of any series of Securities that is executed by the Company and
authenticated and delivered by the Trustee to a Depositary or pursuant to such
Depositary's instructions, all in accordance with this Indenture and pursuant to
Section 2.01, which shall be registered as to principal and interest in the name
of such Depositary or its nominee.
"GLOBAL SECURITY LEGEND" means the legend set forth in Section
2.06(g)(ii) which is required to be placed on all Global Securities issued under
this Indenture.
"GOVERNMENT SECURITIES" means direct obligations of, or
obligations guaranteed by, the United States of America, and the payment for
which the United States pledges its full faith and credit.
"GUARANTEE" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business, direct
or indirect, in any manner including, without limitation, through letters of
credit or reimbursement agreements in respect thereof, of all or any part of any
Indebtedness.
"GUARANTORS" means: (1) OI Group; (2) each direct or indirect
Domestic Subsidiary of OI Group (other than the Company) that guarantees the
Credit Agreement as of the date of this Indenture; and (3) each future direct or
indirect Domestic Subsidiary of OI Group that guarantees the Credit Agreement
and executes a Guarantee of any series of Securities in accordance with the
provisions of this Indenture; and their respective successors and assigns.
4
"HEDGING OBLIGATIONS" means, with respect to any specified
Person, the obligations of such Person under: (1) interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements and other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates; (2) currency exchange swap agreements, currency exchange cap
agreements, currency exchange collar agreements and other agreements or
arrangements designed to protect such Person against fluctuations in currency
values; and (3) commodity swap agreements; commodity cap agreements, commodity
collar agreements and other agreements or arrangements designed to protect such
Person against fluctuations in commodity prices.
"HOLDER" means a Person in whose name a Security is registered on
the Registrar's books.
"INDEBTEDNESS" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent, in respect of: (1)
borrowed money; (2) evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof); (3)
banker's acceptances; (4) representing Capital Lease Obligations; (5) the
balance deferred and unpaid of the purchase price of any property, except any
such balance that constitutes an accrued liability or trade payable; or (6)
representing any Hedging Obligations, if and to the extent any of the preceding
items (other than letters of credit and Hedging Obligations) would appear as a
liability upon a balance sheet of the specified Person prepared in accordance
with GAAP. In addition, the term "INDEBTEDNESS" includes the lesser of the Fair
Market Value on the date of incurrence of any asset of the specified Person
subject to a Lien securing the Indebtedness of others and the amount of such
Indebtedness secured and, to the extent not otherwise included, the Guarantee by
the specified Person of any indebtedness of any other Person. The amount of any
Indebtedness outstanding as of any date shall be: (1) the accreted value
thereof, in the case of any Indebtedness issued with original issue discount;
and (2) the principal amount thereof, in the case of any other Indebtedness.
"INDENTURE" means this Indenture, as amended or supplemented from
time to time.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial
interest in a Global Security through a Participant.
"INITIAL SECURITIES" means Securities of a series issued pursuant
to Section 2.02 hereof, in each case for so long as such securities constitute
"restricted securities" as such term is defined in Rule 144(a)(3) under the
Securities Act; PROVIDED that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Security
constitutes such a restricted security.
"INTERCOMPANY INDEBTEDNESS" means any Indebtedness of OI Group or
any Subsidiary of OI Group which, in the case of OI Group, is owing to OI Inc.
or any Subsidiary of OI Group and, in the case of any Subsidiary of OI Group, is
owing to OI Group or any other Subsidiary of OI Group.
5
"INTERCREDITOR ACKNOWLEDGMENT" means the acknowledgment in the
form attached to the Intercreditor Agreement as executed by the Trustee and
acknowledged by ▇▇▇▇▇-Illinois General Inc. as Borrowers' Agent and delivered to
the Collateral Agent.
"INTERCREDITOR AGREEMENT" means the intercreditor agreement,
dated as of April 23, 2001, by and among Bankers Trust Company, as
administrative agent for the lenders party to the Credit Agreement, Bankers
Trust Company, as Collateral Agent and any other parties thereto, as amended,
amended and restated or otherwise modified from time to time.
"INTEREST" when used with respect to an Original Issue Discount
Security that by its terms bears interest only after maturity, means interest
payable after maturity.
"ISSUE DATE" means the date on which the Securities of a
particular series were originally issued under the Indenture.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be
prepared by the Company and sent to all Holders of a series of Securities for
use by such Holders in connection with an Exchange Offer for such Securities.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any
lease in the nature thereof, any agreement to give a security interest in and
any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction.
"LIQUIDATED DAMAGES" means all liquidated damages then owing
pursuant to the Registration Rights Agreement.
"MATURITY" when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"MORTGAGES" means mortgages as defined under the Credit Agreement
securing real property in the United States of America.
"NON-RECOURSE DEBT" means Indebtedness: (1) as to which neither
OI Group nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or
otherwise, or (c) constitutes the lender; (2) no default with respect to which
(including any rights that the Holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit upon notice, lapse of
time or both any Holder of any other Indebtedness of OI Group or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated maturity;
and (3) as to which the lenders have been notified in writing that they will not
have any recourse to the stock or assets of OI Group or any of its Restricted
Subsidiaries.
6
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICER" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, any Executive or Senior Vice President, any Vice-President, the
Treasurer, the Controller, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two
Officers, one of whom must be the Chief Executive Officer, the President, the
Chief Financial Officer, the Treasurer or the principal accounting officer of
the Company.
"OI GROUP" means ▇▇▇▇▇-Illinois Group, Inc., a Delaware
corporation.
"OI INC." means ▇▇▇▇▇-Illinois, Inc., a Delaware corporation.
"OPINION OF COUNSEL" means a written opinion from legal counsel
who is reasonably acceptable to the Trustee. The counsel may be an employee of
or counsel to the Company or the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which
provides that an amount less than its principal amount is due and payable upon
acceleration after an Event of Default.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"PLEDGE AGREEMENT" means the Pledge Agreement, dated as of April
23, 2001, between OI Group, OI Packaging, and Bankers Trust Company, as
Collateral Agent, as amended, amended and restated or otherwise modified from
time to time.
"PRINCIPAL" of a Security means the principal amount due on the
Maturity of the Security plus the premium, if any, on the Security.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.06(g)(i) to be placed on all Securities issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
7
"REGISTRATION RIGHTS AGREEMENT" means, with respect to a series
of Initial Securities, the registration rights agreement entered into by the
Company with respect to such series of Securities.
"REGULATION S" means Regulation S promulgated under the
Securities Act.
"REGULATION S GLOBAL SECURITY" means a Regulation S Temporary
Global Security or Regulation S Permanent Global Security, as appropriate.
"REGULATION S PERMANENT GLOBAL SECURITY" means a permanent Global
Security bearing the Global Security Legend and the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding principal amount
of the applicable Regulation S Temporary Global Security upon expiration of the
Restricted Period.
"REGULATION S TEMPORARY GLOBAL SECURITY" means a temporary Global
Security bearing the Global Security Legend, the Private Placement Legend and
the Regulation S Temporary Global Security Legend and deposited with or on
behalf of and registered in the name of the Depositary or its nominee, issued in
a denomination equal to the outstanding principal amount of the Securities of a
series initially sold in reliance on Rule 903 of Regulation S.
"REGULATION S TEMPORARY GLOBAL SECURITY LEGEND" means the legend
set forth in Section 2.06(g)(iii) to be placed on all Regulation S Temporary
Global Securities issued under this Indenture except where otherwise permitted
by the provisions of this Indenture.
"RESTRICTED DEFINITIVE SECURITY" means a Definitive Security
bearing the Private Placement Legend.
"RESTRICTED GLOBAL SECURITY" means a Global Security bearing the
Private Placement Legend.
"RESTRICTED PERIOD" means, with respect to Securities of any
series, the 40-day restricted period as defined in Regulation S.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated under the Securities Act.
"SECURITIES" means the securities authenticated and delivered
under this Indenture from time to time.
8
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time.
"SECURITY AGREEMENT" means the Security Agreement, dated as of
April 23, 2001, entered into by and among OI Group, each of the direct and
indirect subsidiaries of OI Group signatory thereto, each additional grantor
that may become a party thereof, and Bankers Trust Company, as Collateral Agent
as amended, amended and restated, or otherwise modified from time to time.
"SHELF REGISTRATION STATEMENT" means, with respect to any series
of Initial Securities, the shelf registration statement as defined in the
Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Restricted Subsidiary of OI
Group that would be a "significant subsidiary" as defined in Article I, Rule
1-02 of Regulation S-X promulgated pursuant to the Securities Act, as such
Regulation is in effect as of the date of this Indenture.
"STATED MATURITY" means, with respect to any installment of
interest or Principal on any series of Indebtedness, the date on which such
payment of interest or Principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or Principal prior
to the date originally scheduled for the payment thereof.
"SUBSIDIARY" means, with respect to any specified Person: (1) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock 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
such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and (2) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or one or more
Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939, as amended from time
to time, and as in effect on the date of execution of this Indenture; PROVIDED,
HOWEVER, that in the event the TIA is amended after such date, "TIA" means, to
the extent required by such amendment, the Trust Indenture Act, as so amended.
"TRUSTEE" means the party named as such above until a successor
becomes such pursuant to this Indenture and thereafter means or includes each
party who is then a trustee hereunder, and if at any time there is more than one
such party, "TRUSTEE" as used with respect to the Securities of any series means
the Trustee with respect to Securities of that series. If Trustees with respect
to different series of Securities are trustees under this Indenture, nothing
herein shall constitute the Trustees co-trustees of the same trust, and each
Trustee shall be the trustee of a trust separate and apart from any trust
administered by any other Trustee with respect to a different series of
Securities.
"TRUST OFFICER" means the Chairman of the Board, the President or
any other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
9
"UNRESTRICTED DEFINITIVE SECURITIES" means one or more Definitive
Securities that do not bear and are not required to bear the Private Placement
Legend.
"UNRESTRICTED GLOBAL SECURITY" means a permanent Global Security
that bears the Global Security Legend and that has the "Schedule of Exchanges of
Interests in the Global Security" attached hereto, and that is deposited with or
on behalf of and registered in the name of the Depositary, representing a series
of Securities that do not and are not required to bear the Private Placement
Legend.
"UNRESTRICTED SECURITIES" means one or more Unrestricted Global
Securities and/or Unrestricted Definitive Securities, including, without
limitation, the Exchange Securities.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of OI Group that
is designated by the Board of Directors as an Unrestricted Subsidiary pursuant
to a Board Resolution, but only to the extent that such Subsidiary: (1) has no
Indebtedness other than Non-Recourse Debt; (2) is not party to any agreement,
contract, arrangement or understanding with OI Group or any Restricted
Subsidiary of OI Group unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to OI Group or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of OI Group; (3) is a Person with respect to which
neither OI Group nor any of its Restricted Subsidiaries has any direct or
indirect obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause such Person
to achieve any specified levels of operating results; (4) has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness of
OI Group or any of its Restricted Subsidiaries; and (5) has at least one
director on its Board of Directors that is not a director or executive officer
of OI Group or any of its Restricted Subsidiaries and has at least one executive
officer that is not a director or executive officer of OI Group or any of its
Restricted Subsidiaries. Any designation of a Restricted Subsidiary of OI Group
as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with
the Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions.
SECTION 1.02. OTHER DEFINITIONS.
TERM DEFINED IN SECTION
"Additional Securities" 2.01
"Bankruptcy Law" 6.01
"Custodian" 6.01
"Event of Default" 6.01
"Legal Holiday" 12.07
"Obligations" 10.01
"Paying Agent" 2.03
"Payment Default" 6.01
"Place of Payment" 2.01
"redemption price" 3.03
"Registrar" 2.03
10
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"INDENTURE SECURITIES" means the Securities.
"INDENTURE HOLDER" means a Holder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the Securities means the Company and any successor
obligor on the Securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the
plural include the singular; and
(v) provisions apply to successive events and
transactions.
ARTICLE 2.
THE SECURITIES
SECTION 2.01. UNLIMITED IN AMOUNT, ISSUABLE IN SERIES, FORM AND DATING.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution or an Officers' Certificate pursuant to authority granted
under a Board Resolution or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
11
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other
Securities);
(b) any limit upon the aggregate principal amount of Securities of
the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to this Article 2);
(c) the price or prices (expressed as a percentage of the aggregate
Principal amount thereof) at which the Securities of the series
shall be issued;
(d) the date or dates on which the principal of the Securities of the
series is payable;
(e) the rate or rates that may be fixed or variable at which the
Securities of the series shall bear interest, if any, or the
manner in which such rate or rates shall be determined, the date
or dates from which such interest shall accrue, the interest
payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is
payable;
(f) the place or places where the principal of and any interest on
Securities of the series shall be payable, if other than as
provided herein;
(g) the price or prices at which (if any), the period or periods
within which (if any) and the terms and conditions upon which (if
other than as provided herein) Securities of the series may be
redeemed, in whole or in part, at the option, or as an
obligation, of the Company;
(h) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series, in whole or in part, pursuant to
any sinking fund or analogous provisions or at the option of a
Holder thereof and the price or prices at which and the period
and periods within which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid
pursuant to such obligation;
(i) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be
issuable;
(j) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.02;
(k) any addition to or change in the covenants set forth in Article 4
that applies to Securities of the series;
(l) any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
(m) the Trustee for the series of Securities;
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(n) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms
and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other
individual Securities, and the Depositary for such Global
Security and Securities;
(o) any addition to or change in the provisions set forth in Article
10 that applies to Securities of that series;
(p) any addition to or change in the provisions set forth in Article
11 that applies to Securities of that series;
(q) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, but which may
modify or delete any provision of this Indenture with respect to
such series; PROVIDED, HOWEVER, that no such term may modify or
delete any provision hereof if imposed by the TIA; AND PROVIDED,
FURTHER, that any modification or deletion of the rights, duties
or immunities of the Trustee hereunder shall have been consented
to in writing by the Trustee).
All Securities of any series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution or Officers' Certificate or in any such indenture
supplemental hereto.
The Company may issue additional Securities of a particular
series after Securities of that series have been issued ("ADDITIONAL
SECURITIES"). The Securities of a particular series together with any Additional
Securities of that series would be treated as a single series for all purposes
under the Indenture, including without limitation, waivers, amendments,
redemptions and offers to the purchase.
The Principal of and any interest on the Securities of a series
shall be payable at the office or agency of the Company designated in the form
of Security for the series (each such place herein called the "PLACE OF
PAYMENT"); PROVIDED, however, that payment of interest may be made at the option
of the Company by check mailed to the address of the Person entitled thereto as
such address shall appear in the register of Securities referred to in Section
2.03.
GLOBAL AND DEFINITIVE SECURITIES. Securities of a series may be
issued as Global Securities or as Definitive Securities and shall be in such
form from time to time established by or pursuant to a Board Resolution or
Officers' Certificate, or established by one or more indentures supplemental
hereto. Each Global Security shall represent such of the outstanding Securities
of a series as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of such outstanding Securities of that
series from time to time endorsed thereon and that the aggregate principal
amount of outstanding Securities represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Security to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Securities represented
thereby shall be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06.
13
TEMPORARY GLOBAL SECURITIES. Securities of a series offered and
sold in reliance on Regulation S shall be issued initially in the form of the
Regulation S Temporary Global Security, which shall be deposited on behalf of
the purchasers of the Securities represented thereby with the Trustee, at its
Corporate Trust Office, as custodian for the Depositary, and registered in the
name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Clearstream, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
Restricted Period shall terminate upon the receipt by the Trustee of (i) a
written certificate from the Depositary, together with copies of certificates
from Euroclear and Clearstream certifying that they have received certification
of non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Security (except to the extent of
any beneficial owners thereof who acquired an interest therein during the
Restricted Period pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial ownership interest in
a 144A Global Security bearing a Private Placement Legend, all as contemplated
by Section 2.06(a)(ii)), and (ii) an Officers' Certificate from the Company.
Following the termination of the Restricted Period, beneficial interests in the
Regulation S Temporary Global Security shall be exchanged for beneficial
interests in Regulation S Permanent Global Securities pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation S Permanent
Global Securities, the Trustee shall cancel the Regulation S Temporary Global
Security. The aggregate principal amount of the Regulation S Temporary Global
Security and the Regulation S Permanent Global Securities may from time to time
be increased or decreased by adjustments made on the records of the Trustee and
the Depositary or its nominee, as the case may be, in connection with transfers
of interest as hereinafter provided.
EUROCLEAR AND CLEARSTREAM PROCEDURES APPLICABLE. The provisions
of the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream" and "Customer Handbook" of Clearstream shall be applicable to
transfers of beneficial interests in the Regulation S Temporary Global Security
and the Regulation S Permanent Global Securities that are held by Participants
through Euroclear or Clearstream.
Prior to the delivery of a Security to the Trustee for
authentication in any form approved by or pursuant to a Board Resolution or
Officers' Certificate, the Company shall deliver to the Trustee the Board
Resolution or Officers' Certificate by or pursuant to which such form of
Security has been approved, which Board Resolution or Officers' Certificate
shall have attached thereto a true and correct copy of the form of Security that
has been approved by or pursuant thereto.
The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Security shall be dated the
date of its authentication.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by manual
or facsimile signature.
14
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue upon
a Company Order.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Securities
of a particular series may be presented for registration of transfer or for
exchange (the "REGISTRAR") and an office or agency where Securities of that
series may be presented for payment (a "PAYING AGENT"). The Registrar for a
particular series of Securities shall keep a register of the Securities of that
series and of their transfer and exchange. The Company may appoint one or more
co-Registrars and one or more additional paying agents for each series of
Securities. The term "PAYING AGENT" includes any additional paying agent. The
Company may change any Paying Agent, Registrar or co-Registrar without prior
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar or Paying Agent for
any series of Securities, the Trustee shall act as such. The Company or any of
its Affiliates may act as Paying Agent, Registrar or co-Registrar.
The Company hereby appoints the Trustee as the initial Registrar
and Paying Agent for each series of Securities unless another Registrar or
Paying Agent, as the case may be, is appointed prior to the time Securities of
that series are first issued.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
Whenever the Company has one or more Paying Agents it shall,
prior to each due date of the Principal of or interest on, any Securities,
deposit with a Paying Agent a sum sufficient to pay the Principal or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such Principal or interest, and (unless such Paying Agent is the
Trustee) the Company shall promptly notify the Trustee of its action or failure
so to act.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that such Paying Agent shall hold in trust for the
benefit of the Holders of the particular series for which it is acting, or the
Trustee, all money held by the Paying Agent for the payment of Principal or
interest on the Securities of such series, and that such Paying Agent shall
notify
15
the Trustee of any Default by the Company or any other obligor of the series of
Securities in making any such payment and at any time during the continuance of
any such Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent. If the Company or an
Affiliate acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders of the particular series for which it is
acting all money held by it as Paying Agent. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee. Upon so doing, the
Paying Agent (if other than the Company or an Affiliate of the Company) shall
have no further liability for such money. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee shall serve as Paying Agent for
the Securities.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders, separately by series, and shall otherwise comply with TIA Section
312(a). If the Trustee is not the Registrar, the Company shall furnish to the
Trustee at least seven Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Holders, separately by series, relating to such interest payment date or
request, as the case may be.
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. A Global Security may
not be transferred as a whole except by the Depositary to a
nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary. Global Securities of any
series will not be exchanged by the Company for Definitive
Securities unless (i) the Company delivers to the Trustee notice
from the Depositary that it is unwilling or unable to continue to
act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act and, in either case, a
successor Depositary is not appointed by the Company within 120
days after the date of such notice from the Depositary; (ii) the
Company in its sole discretion determines that the Global
Securities of such series (in whole but not in part) should be
exchanged for Definitive Securities and delivers a written notice
to such effect to the Trustee (PROVIDED that in no event shall
the Regulation S Temporary Global Security be exchanged by the
Company for Definitive Securities prior to (x) the expiration of
the Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B) under the
Securities Act; or (iii) an Event of Default shall have occurred
and be continuing with respect to the Securities and the Trustee
has received a request from DTC or any Holder to issue Definitive
Securities. Upon the occurrence of any of the preceding events in
(i), (ii) or (iii) above, Definitive Securities shall be issued
in such names as the Depositary shall instruct the Trustee.
Global Securities also may be exchanged or replaced, in whole or
in part, as PROVIDED in Sections 2.07 and 2.09. Every Security
authenticated and delivered in exchange for, or in lieu of, a
Global
16
Security or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.09, shall be authenticated and delivered in the
form of, and shall be, a Global Security. A Global Security may
not be exchanged for another Security other than as PROVIDED in
this Section 2.06(a), however, beneficial interests in a Global
Security may be transferred and exchanged as provided in Section
2.06(b), (c) or (f).
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN GLOBAL
SECURITIES. The transfer and exchange of beneficial interests in
the Global Securities shall be effected through the Depositary,
in accordance with the provisions of this Indenture and the
Applicable Procedures. Beneficial interests in the Restricted
Global Securities shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by
the Securities Act. Transfers of beneficial interests in the
Global Securities also shall require compliance with either
subparagraph (i) or (ii) below, as applicable, as well as one or
more of the other following subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL
SECURITY. Beneficial interests in any Restricted Global Security
may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global
Security in accordance with the transfer restrictions set forth
in the Private Placement Legend; PROVIDED, however, that prior to
the expiration of the Restricted Period, transfers of beneficial
interests in the Temporary Regulation S Global Security may not
be made to a U.S. Person or for the account or benefit of a U.S.
Person (other than an initial purchaser). Beneficial interests in
any Unrestricted Global Security may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in
an Unrestricted Global Security. No written orders or
instructions shall be required to be delivered to the Registrar
to effect the transfers described in this Section 2.06(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL
INTERESTS IN GLOBAL SECURITIES. In connection with all transfers
and exchanges of beneficial interests in any Global Security that
is not subject to Section 2.06(b)(i) above, the transferor of
such beneficial interest must deliver to the Registrar (1) a
written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures
directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Security in an amount equal
to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be
credited with such increase. Upon consummation of an Exchange
Offer for a series of Global Securities in accordance with
Section 2.06(f), the requirements of this Section 2.06(b)(ii)
shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of
Transmittal delivered by the holder of such beneficial interests
in the Restricted Global Securities. Upon satisfaction of all of
the requirements for transfer or exchange of beneficial interests
in Global Securities contained in this Indenture and the
Securities of a series or otherwise applicable
17
under the Securities Act, the Trustee shall adjust the Principal
amount of the relevant Global Security(s) pursuant to Section
2.06(h).
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER
RESTRICTED GLOBAL SECURITY. A beneficial interest in any
Restricted Global Security may be transferred to a Person who
takes delivery thereof in the form of a beneficial interest in
another Restricted Global Security if the transfer complies with
the requirements of Section 2.06(b)(ii) above and the Registrar
receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in a 144A Global Security, then the
transferor must deliver a certificate in the form of Exhibit
A hereto, including the certifications in item (1) thereof;
and
(B) if the transferee will take delivery in the form
of a beneficial interest in a Regulation S Temporary Global
Security or a Regulation S Global Security, then the
transferor must deliver a certificate in the form of Exhibit
A hereto, including the certifications in item (2) thereof.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL SECURITY FOR BENEFICIAL INTERESTS IN AN
UNRESTRICTED GLOBAL SECURITY. A beneficial interest in any
Restricted Global Security may be exchanged by any holder thereof
for a beneficial interest in an Unrestricted Global Security or
transferred to a Person who takes delivery thereof in the form of
a beneficial interest in an Unrestricted Global Security if the
exchange or transfer complies with the requirements of Section
2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of the beneficial interest
to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the
distribution of the Exchange Securities or (3) a Person who
is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in
a Restricted Global Security proposes to exchange such
beneficial
18
interest for a beneficial interest in an Unrestricted
Global Security, a certificate from such holder in the
form of Exhibit B hereto, including the certifications
in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in
a Restricted Global Security proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Security, a certificate from such
holder in the form of Exhibit A hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or
(D) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of a Company Order in
accordance with Section 2.02, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Security cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Security.
(c) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN GLOBAL
SECURITIES FOR DEFINITIVE SECURITIES. A beneficial interest in a
Global Security may not be exchanged for a Definitive Security
except under the circumstances described in Section 2.06(a). A
beneficial interest in a Global Security may not be transferred
to a Person who takes delivery thereof in the form of a
Definitive Security except under the circumstances described in
Section 2.06(a).
(d) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES FOR BENEFICIAL
INTERESTS IN GLOBAL SECURITIES.
(i) RESTRICTED DEFINITIVE SECURITIES TO BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL SECURITIES. If any Holder of a
Restricted Definitive Security proposes to exchange such Security
for a beneficial interest in a Restricted Global Security or to
transfer such Restricted Definitive Securities to a Person who
takes delivery thereof in the form of a beneficial interest in a
Restricted Global Security, then, upon receipt by the Registrar
of the following documentation:
(A) if the Holder of such Restricted Definitive
Security proposes to exchange such Security for a beneficial
interest in a Restricted
19
Global Security, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in item
(2)(a) thereof;
(B) if such Restricted Definitive Security is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit A hereto,
including the certifications in item (1) thereof;
(C) if such Restricted Definitive Security is being
transferred to a Non-U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904, a certificate to
the effect set forth in Exhibit A hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Security is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit A
hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Security is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit A hereto,
including the certifications in item (3)(b) thereof, or
(F) if such Restricted Definitive Security is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit A hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Security, and
increase or cause to be increased the aggregate principal amount of,
in the case of clause (A) above, the appropriate Restricted Global
Security, in the case of clause (B) above, the 144A Global Security,
and in the case of clause (C) above, the Regulation S Global Security.
(ii) RESTRICTED DEFINITIVE SECURITIES TO BENEFICIAL
INTERESTS IN UNRESTRICTED GLOBAL SECURITIES. A Holder of a
Restricted Definitive Security may exchange such Security for a
beneficial interest in an Unrestricted Global Security or
transfer such Restricted Definitive Security to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the
distribution of the Exchange Securities or (3) a Person who
is an affiliate (as defined in Rule 144) of the Company;
20
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Securities
proposes to exchange such Securities for a beneficial
interest in the Unrestricted Global Security, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (1)(b)
thereof; or
(2) if the Holder of such Definitive Securities
proposes to transfer such Securities to a Person who
shall take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Security, a
certificate from such Holder in the form of Exhibit A
hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are
no longer required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Securities and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Security.
(iii) UNRESTRICTED DEFINITIVE SECURITIES TO BENEFICIAL
INTERESTS IN UNRESTRICTED GLOBAL SECURITIES. A Holder of an
Unrestricted Definitive Security may exchange such Security for a
beneficial interest in an Unrestricted Global Security or
transfer such Definitive Securities to a Person who takes
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee shall
cancel the applicable Unrestricted Definitive Security and
increase or cause to be increased the aggregate Principal amount
of one of the Unrestricted Global Securities.
If any such exchange or transfer from a Definitive Security to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of a Company Order in
accordance with Section 2.02, the Trustee shall authenticate one or more
21
Unrestricted Global Securities in an aggregate Principal amount equal to the
Principal amount of Definitive Securities so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES FOR DEFINITIVE
SECURITIES. Upon request by a Holder of Definitive Securities and
such Holder's compliance with the provisions of this Section
2.06(e), the Registrar shall register the transfer or exchange of
Definitive Securities. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the
Registrar the Definitive Securities duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly
authorized in writing. In addition, the requesting Holder shall
provide any additional certifications, documents and information,
as applicable, required pursuant to the following provisions of
this Section 2.06(e).
(i) RESTRICTED DEFINITIVE SECURITIES TO RESTRICTED
DEFINITIVE SECURITIES. Any Restricted Definitive Security may be
transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Security
if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule
144A, then the transferor must deliver a certificate in the
form of Exhibit A hereto, including the certifications in
item (1) thereof,
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate
in the form of Exhibit A hereto, including the
certifications in item (2) thereof, and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the
Securities Act, then the transferor must deliver a
certificate in the form of Exhibit A hereto, including the
certifications, certificates and Opinion of Counsel required
by item (3)(d) thereof, if applicable.
(ii) RESTRICTED DEFINITIVE SECURITIES TO UNRESTRICTED
DEFINITIVE SECURITIES. Any Restricted Definitive Security may be
exchanged by the Holder thereof for an Unrestricted Definitive
Security or transferred to a Person or Persons who take delivery
thereof in the form of an Unrestricted Definitive Security if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the
distribution of the Exchange Securities or (3) a Person who
is an affiliate (as defined in Rule 144) of the Company;
22
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Securities proposes to exchange such Securities for an
Unrestricted Definitive Security, a certificate from
such Holder in the form of Exhibit B hereto, including
the certifications in item (1)(c) thereof; or
(2) if the Holder of such Restricted Definitive
Securities proposes to transfer such Securities to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Security, a certificate from
such Holder in the form of Exhibit A hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) UNRESTRICTED DEFINITIVE SECURITIES TO UNRESTRICTED
DEFINITIVE SECURITIES. A Holder of Unrestricted Definitive
Securities may transfer such Securities to a Person who takes
delivery thereof in the form of an Unrestricted Definitive
Security. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Definitive
Securities pursuant to the instructions from the Holder thereof.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer with
respect to a series of Initial Securities in accordance with the
Registration Rights Agreement, the Company shall issue and, upon
receipt of a Company Order in accordance with Section 2.02, the
Trustee shall, authenticate (i) one or more Unrestricted Global
Securities in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted
Global Securities tendered for acceptance by Persons that certify
in the applicable Letters of Transmittal that (x) they are not
broker-dealers, (y) they are not participating in a distribution
of the Exchange Securities and (z) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in
the Exchange Offer and (ii) Definitive Securities in an aggregate
principal amount equal to the principal amount of the
23
Restricted Definitive Securities accepted for exchange in the
Exchange Offer. Concurrently with the issuance of such
Securities, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Securities to be
reduced accordingly, and the Company shall execute and the
Trustee shall authenticate and deliver to the Persons designated
by the Holders of Definitive Securities so accepted Definitive
Securities in the appropriate Principal amount.
(g) LEGENDS. The following legends shall appear on the face of all
Global Securities and Definitive Securities issued under this
Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture.
(i) PRIVATE PLACEMENT LEGEND.
(1) Except as permitted by subparagraph (B) below, each Global
Security and each Definitive Security (and all Securities issued
in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
THIS SECURITY AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY, THE
GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY AND THE
GUARANTEES ENDORSED HEREON, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS SECURITY AND THE GUARANTEES ENDORSED HEREON (OR ANY PREDECESSOR
OF THIS SECURITY AND THE GUARANTEES ENDORSED HEREON) (THE "RESALE
RESTRICTION TERMINATION DATE"), ONLY (A) TO THE COMPANY, OI GROUP OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES AND THE
GUARANTEES ENDORSED THEREON ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT,
24
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER (1) PURSUANT TO CLAUSE (D) PRIOR TO THE END OF
THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO
THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM, AND (2) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT
A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
BY ACCEPTANCE OF THIS SECURITY, EACH HOLDER HEREOF WILL BE DEEMED TO
HAVE REPRESENTED AND WARRANTED THAT EITHER (A) NO PORTION OF THE ASSETS
USED BY SUCH HOLDER TO ACQUIRE THE SECURITY CONSTITUTES ASSETS OF ANY
EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A PLAN SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ANY OTHER PLAN OR ARRANGEMENT THAT IS SUBJECT TO ANY FEDERAL,
STATE, LOCAL, NON-UNITED STATES OR OTHER LAWS OR REGULATIONS THAT ARE
SIMILAR TO THE PROVISIONS OF ERISA OR THE CODE ("SIMILAR LAWS"), OR AN
ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE "PLAN ASSETS"
OF SUCH PLANS AND ARRANGEMENTS OR (B) THE PURCHASE AND HOLDING OF THE
SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR VIOLATION UNDER ANY
APPLICABLE SIMILAR LAWS.
(2) Notwithstanding the foregoing, any Global Security or Definitive
Security issued pursuant to subparagraph (b)(iv), (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) of this Section 2.06 or any
Global Security or Definitive Security initially issued by the
Company pursuant to an effective registration statement under the
Securities Act (and all Securities issued in exchange therefor or
substitution thereof) shall not bear the Private Placement
Legend.
(ii) GLOBAL SECURITY LEGEND. Each Global Security shall bear
a legend in substantially the following form:
"THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN
THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS
GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.06(a)
25
OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE INDENTURE AND
(IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) ("DTC")
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN."
(iii) REGULATION S TEMPORARY GLOBAL SECURITY LEGEND. The
Regulation S Temporary Global Security shall bear a legend in
substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION
S TEMPORARY GLOBAL SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF
INTEREST HEREON."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL SECURITIES. At such time
as all beneficial interests in a particular Global Security have
been exchanged for Definitive Securities or a particular Global
Security has been redeemed, repurchased or canceled in whole and
not in part, each such Global Security shall be returned to or
retained and canceled by the Trustee in accordance with Section
2.10. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for or transferred to
a Person who will take delivery thereof in the form of a
beneficial interest in another Global Security or for Definitive
Securities, the principal amount of Securities represented by
such Global Security shall be reduced accordingly and an
endorsement shall be made on such Global Security by the Trustee
or by the Depositary at the direction of the Trustee to
26
reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global
Security, such other Global Security shall be increased
accordingly and an endorsement shall be made on such Global
Security by the Trustee or by the Depositary at the direction of
the Trustee to reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) Where Securities of a series are presented to the
Registrar or a co-Registrar with a request to register a transfer
or to exchange them for an equal principal amount of Securities
of the same series of other authorized denominations, the
Registrar shall register the transfer or make the exchange if its
requirements for such transactions are met. To permit
registrations of transfers and exchanges, the Company shall issue
and the Trustee shall authenticate Global Securities and
Definitive Securities at the Registrar's request.
(ii) No service charge shall be made for any registration
of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such
transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.09, 3.06 or 9.04).
(iii) All Global Securities and Definitive Securities
issued upon any registration of transfer or exchange of Global
Securities or Definitive Securities shall be the valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Global
Securities or Definitive Securities surrendered upon such
registration of transfer or exchange.
(iv) The Company and the Registrar shall not be required
(A) to issue, to register the transfer of or to exchange any
Securities during a period beginning at the opening of business
15 days before the day of any selection of Securities of that
series for redemption under Section 3.02 and ending at the close
of business on the day of selection, (B) to register the transfer
of or to exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security
being redeemed in part or (c) to register the transfer of or to
exchange a Security between a record date and the next succeeding
Interest Payment Date.
(v) Prior to due presentment for the registration of a
transfer of any Security, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Security is
registered as the absolute owner of such Security for the purpose
of receiving payment of Principal of and interest on such
Securities and for all other purposes, and none of the Trustee,
any Agent or the Company shall be affected by notice to the
contrary.
27
(vi) The Trustee shall authenticate Global Securities and
Definitive Securities in accordance with the provisions of
Section 2.02.
(vii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to
this Section 2.06 to effect a registration of transfer or
exchange may be submitted by facsimile.
(viii) Each Holder of a Security agrees to indemnify the
Company and the Trustee against any liability that may result
from the transfer, exchange or assignment of such Holder's
Security in violation of any provision of this Indenture and/or
applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine or inquire as
to compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any
Security (including any transfers between or among Depositary Participants or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
SECTION 2.07. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security of the same series if the Company's and the Trustee's
requirements are met. The Trustee or the Company may require an indemnity bond
to be furnished which is sufficient in the judgment of both to protect the
Company, the Trustee, and any Agent from any loss which any of them may suffer
if a Security is replaced. The Company may charge such Holder for its expenses
in replacing a Security.
Every replacement Security is an obligation of the Company and
shall be entitled to all the benefit of this Indenture equally and
proportionately with any and all other Securities of the same series.
SECTION 2.08. OUTSTANDING SECURITIES.
The Securities of any series outstanding at any time are all the
Securities of that series authenticated by the Trustee, except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section 2.08 as not outstanding. Except as set forth in the final paragraph
of this Section 2.08, a Security does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
28
If Securities are considered paid under Section 4.01, they cease
to be outstanding and interest on them ceases to accrue.
For each series of Original Issue Discount Securities, the
principal amount of such Securities that shall be deemed to be outstanding and
used to determine whether the necessary Holders have given any request, demand,
authorization, direction, notice, consent or waiver shall be the principal
amount of such Securities that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of such determination. When
requested by the Trustee, the Company shall advise the Trustee of such amount,
showing its computations in reasonable detail.
In determining whether the Holders of the required principal
amount of Securities of any series have concurred in any direction, waiver or
consent, Securities owned by the Company, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, shall be considered as though not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities as to which a
Trust Officer of the Trustee has actual knowledge are so owned shall be so
disregarded.
SECTION 2.09. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities upon a
written order of the Company signed by two Officers of the Company. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities.
Holders of temporary securities shall be entitled to all of the
benefits of this Indenture.
SECTION 2.10. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration of
transfer, exchange, payment, replacement or cancellation and the Trustee shall
destroy cancelled securities and provide a certificate of destruction to the
Company. The Company may not issue new Securities to replace Securities that it
has paid or that have been delivered to the Trustee for cancellation.
SECTION 2.11. DEFAULTED INTEREST.
If the Company fails to make a payment of interest on any series
of Securities, it shall pay such defaulted interest plus (to the extent lawful)
any interest payable on the defaulted interest, in any lawful manner. It may
elect to pay such defaulted interest, plus any such interest payable on it, to
the Persons who are Holders of such Securities on which the interest is due on a
subsequent special record date, which special record date shall be fixed in the
following manner.
29
The Company shall notify the Trustee in writing of the amount of defaulted
interest proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money in the currency or currency unit in which the
Securities of such series are payable, equal to the aggregate amount proposed to
be paid in respect of such defaulted interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such defaulted interest. Thereupon the Company shall fix a
special record date for the payment of such defaulted interest which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment. The Company shall cause notice of the proposed payment of such
defaulted interest and the special record date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at the
address as it appears in the register of Securities referred to in Section 2.03,
not less than 10 days prior to such special record date. Notice of the proposed
payment of such defaulted interest and the special record date therefor having
been so mailed, defaulted interest shall be paid to the Persons in whose names
the Securities of such series are registered at the close of business on such
special record date.
SECTION 2.12. SPECIAL RECORD DATES.
(a) The Company may, but shall not be obligated to, set a record date
for the purpose of determining the identity of Holders entitled
to consent to any supplement, amendment or waiver permitted by
this Indenture. If a record date is fixed, the Holders of
Securities of that series outstanding on such record date, and no
other Holders, shall be entitled to consent to such supplement,
amendment or waiver or revoke any consent previously given,
whether or not such Holders remain Holders after such record
date. No consent shall be valid or effective for more than 90
days after such record date unless consents from Holders of the
principal amount of Securities of that series required hereunder
for such amendment or waiver to be effective shall have also been
given and not revoked within such 90-day period.
(b) The Company may, but shall not be obligated to, fix any day as a
record date for the purpose of determining the Holders of any
series of Securities entitled to join in the giving or making of
any notice of Default, any declaration of acceleration, any
request to institute proceedings or any other similar direction.
If a record date is fixed, the Holders of Securities of that
series outstanding on such record date, and no other Holders,
shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such
record date; PROVIDED, HOWEVER, that no such action shall be
effective hereunder unless taken on or prior to the date 90 days
after such record date.
(c) The Company, in the event of defaulted interest, shall set a
special record date in accordance with Section 2.11.
SECTION 2.13. CUSIP AND ISIN NUMBERS.
The Company in issuing any series of Securities may use "CUSIP"
or "ISIN" numbers or both numbers, and, if so used, the Trustee shall use such
"CUSIP" or "ISIN"
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numbers or both numbers in notices as a convenience to Holders; PROVIDED that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on such Securities or as contained in any
notice and that reliance may be placed only on the other identification numbers
printed on such Securities, and any such action relating to such notice shall
not be affected by any defect in or omission of such numbers in such notice. The
Company shall promptly notify the Trustee of any change in the "CUSIP" or "ISIN"
numbers.
ARTICLE 3.
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities of any series pursuant
to any optional redemption or change of control provisions thereof, it shall
notify the Trustee of the redemption date and the principal amount of Securities
of that series to be redeemed.
The Company shall give the notice provided for in this Section at
least 45 days before the redemption date (unless a shorter notice period shall
be satisfactory to the Trustee), which notice shall specify the provisions of
such Security pursuant to which the Company elects to redeem such Securities.
If the Company elects to reduce the principal amount of
Securities of any series to be redeemed pursuant to mandatory redemption
provisions thereof, it shall notify the Trustee of the amount of, and the basis
for, any such reduction. If the Company elects to credit against any such
mandatory redemption Securities it has not previously delivered to the Trustee
for cancellation, it shall deliver such Securities with such notice.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of any series of Securities are to be redeemed
at any time, the Trustee shall select Securities for redemption as follows:
(1) if the Securities are listed, in compliance with the
requirements of the principal national securities exchange
on which the Securities are listed; or
(2) if the Securities are not so listed, on a pro rata basis, by
lot or by such method as the Trustee shall deem fair and
appropriate.
Except as otherwise provided as to any particular series of
Securities, Securities and portions thereof that the Trustee selects shall be in
amounts of more than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly in writing of the
Securities or portions of Securities to be called for redemption.
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SECTION 3.03. NOTICE OF REDEMPTION.
Except as otherwise provided as to any particular series of
Securities, at least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption to each Holder whose Securities
are to be redeemed at the address of such Holder as it appears in the Register
of Securities referred to in Section 2.03. Notices of redemption shall not be
conditional.
If any Security is to be redeemed in part only, the notice of
redemption that relates to that Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in principal amount
equal to the unredeemed portion of the original Security shall be issued in the
name of the Holder thereof upon cancellation of the original Security.
The notice shall identify the Securities of the series to be
redeemed and shall state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the terms of the
Securities of the series to be redeemed, plus accrued interest,
if any, to the date fixed for redemption (the "REDEMPTION
PRICE");
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after
the redemption date, upon surrender of such Security, a new
Security or Securities in principal amount equal to the
unredeemed portion shall be issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in payment of the redemption
price, interest on Securities called for redemption ceases to
accrue on and after the redemption date; and
(7) the CUSIP number or ISIN number, if any, of the Securities to be
redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense. The notice mailed in the
manner herein provided shall be conclusively presumed to have been duly given
whether or not the Holder receives such notice. In any case, failure to give
such notice by mail or any defect in the notice of the Holder of any Security
shall not affect the validity of the proceeding for the redemption of any other
Security.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03, Securities called for redemption become due on the date fixed for
redemption. Upon surrender to the
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Paying Agent, such Securities shall be paid at the redemption price. On and
after the redemption date, interest ceases to accrue on the Securities or
portions of them called for redemption.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before 10:00 a.m.
New York City time on the redemption
date, the Company shall deposit with the Paying Agent (or, if the Company or any
Affiliate is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of all Securities called for redemption
on that date other than Securities that have previously been delivered by the
Company to the Trustee for cancellation. The Paying Agent shall return to the
Company any money not required for that purpose.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder at the
expense of the Company a new Security of same series equal in principal amount
to the unredeemed portion of the Security surrendered.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay or cause to be paid the Principal of and
interest on the Securities on the dates and in the manner provided in this
Indenture and the Securities. Principal and interest shall be considered paid on
the date due if the Paying Agent, if other than the Company or an Affiliate,
holds as of 10:00 a.m. Eastern Time on that date immediately available funds
designated for and sufficient to pay all Principal and interest then due. The
Company shall pay Liquidated Damages, if any, in the same manner on the dates
and in the amounts set forth in the Registration Rights Agreement.
To the extent lawful, the Company shall pay interest on overdue
Principal and overdue installments of interest at the rate per annum borne by
the applicable series of Securities.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, The City
of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee or Registrar) where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee. The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
PROVIDED,
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HOWEVER, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of
New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency. The Company hereby
designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.03.
SECTION 4.03. COMMISSION REPORTS.
Whether or not required by the Commission, so long as any series
of Securities are outstanding, OI Group shall furnish to the Holders of any
series of Securities, within the time periods specified in the Commission's
rules and regulations:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on
Forms 10-Q and 10-K if OI Group were required to file such
Forms, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and, with
respect to the annual information only, a report on the
annual financial statements by OI Group's certified
independent accountants; and
(2) all current reports that would be required to be filed with
the Commission on Form 8-K if OI Group were required to file
such reports.
In addition, whether or not required by the Commission, OI Group
shall file a copy of all of the information and reports referred to in clauses
(1) and (2) above with the Commission for public availability within the time
periods specified in the Commission's rules and regulations (unless the
Commission shall not accept such a filing) and make such information available
to securities analysts and prospective investors upon request. In addition, for
so long as any Securities of a series remain outstanding, the Company and the
Guarantors of the Securities of that series shall furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
OI Group shall deliver to the Trustee within 15 days after it
files them with the Commission copies of the annual reports and of the
information, documents, and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) that OI
Group is required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act; PROVIDED, HOWEVER, the Company shall not be required to
deliver to the Trustee any materials for which OI Group has sought and received
confidential treatment by the Commission. OI Group also shall comply with the
other provisions of TIA Section 314(a).
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's or the
Guarantors' compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
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SECTION 4.04. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, an Officers' Certificate stating
that in the course of the performance by the signers of their duties as officers
of the Company, they would normally have knowledge of any failure by the Company
to comply with all conditions, or default by the Company with respect to any
covenants, under this Indenture, and further stating whether or not they have
knowledge of any such failure or default and, if so, specifying each such
failure or default and the nature thereof. For purposes of this Section, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided for in this Indenture.
The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto.
SECTION 4.05. TAXES.
The Company shall pay prior to delinquency, all material taxes,
assessments, and governmental levies except as contested in good faith by
appropriate proceedings.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law has been enacted.
SECTION 4.07. CORPORATE EXISTENCE.
Subject to Article 5, OI Group shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Subsidiaries, in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Subsidiary and (ii) the rights
(charter and statutory), licenses and franchises of OI Group and its
Subsidiaries; PROVIDED, HOWEVER, that OI Group shall not be required to preserve
any such right, license or franchise, or the corporate, partnership or other
existence of any of its Subsidiaries, if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of OI Group and its Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders.
35
SECTION 4.08. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
If, as of the end of any fiscal year of the Company, the Company
has any outstanding Original Issue Discount Securities under this Indenture, the
Company shall file with the Trustee promptly following the end of such fiscal
year (i) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on such Original Issue
Discount Securities as of the end of such year and (ii) such other specific
information relating to such original issue discount as may then be required
under the Internal Revenue Code of 1986, as amended from time to time.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate or merge with or into (whether
or not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions to any Person unless:
(1) the Company is the surviving corporation or the Person formed by
or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a
corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia;
(2) the Person formed by or assuming any such consolidation or merger
(if other than the Company) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition
shall have been made assumes by supplemental indenture all the
obligations of the Company under the Securities and this
Indenture; and
(3) immediately prior to and after giving effect to the transaction
no Default or Event of Default shall have occurred and be
continuing.
The Company shall deliver to the Trustee on or prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any transfer by the Company
(other than by lease) of all or substantially all of the assets of the Company
in accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein. In the event of any
such
36
transfer, the predecessor Company shall be released and discharged from all
liabilities and obligations in respect of the Securities and the Indenture, and
the predecessor Company may be dissolved, wound up or liquidated at any time
thereafter.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs with respect to Securities of any
particular series if, unless in the establishing Board Resolution, Officers'
Certificate or supplemental indenture hereto, it is provided that such series
shall not have the benefit of said Event of Default:
(1) the Company defaults in the payment of interest on, or Liquidated
Damages, if any, with respect to, any Security of that series
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
Securities of that series when the same becomes due and payable
at maturity, upon redemption or otherwise;
(3) failure by OI Group or any of its Restricted Subsidiaries for 60
days after notice to comply with any of the other agreements in
this Indenture, any series of Securities, the Guarantees of any
Securities of that series (with respect to any Guarantor) and the
Collateral Documents (with respect to any Restricted Subsidiary
which has pledged assets or property to secure its obligations
under this Indenture and any series of Securities);
(4) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by OI Group or any Restricted
Subsidiary (or the payment of which is guaranteed by OI Group or
any of its Restricted Subsidiaries) whether such Indebtedness or
Guarantee now exists, or is created after the date of this
Indenture, if that default:
(a) is caused by a failure to pay principal of, or interest on
such Indebtedness prior to the expiration of the grace
period provided in such Indebtedness on the date of such
default (a "PAYMENT DEFAULT"); or
(b) results in the acceleration of such Indebtedness prior to
its express maturity; PROVIDED, that an Event of Default
shall not be deemed to occur with respect to any such
accelerated Indebtedness which is repaid or prepaid within
20 Business Days after such declaration;
and, in any individual case, the principal amount of any such
Indebtedness is equal to or in excess of $50.0 million, or such
Indebtedness together with the principal amount of any other such
Indebtedness under which there has been a
37
Payment Default or the maturity of which has been so accelerated,
aggregates $100.0 million or more;
(5) any final judgment or order for payment of money in excess of
$50.0 million in any individual case and $100.0 million in the
aggregate at any time shall be rendered against OI Group or any
of its Restricted Subsidiaries and such judgment shall not have
been paid, discharged or stayed for a period of 60 days;
(6) except as permitted by this Indenture or the Collateral
Documents, any Guarantee of any Security of that series shall be
held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall
deny or disaffirm its obligations under its Guarantee of any
Security of that series;
(7) the Company, OI Group or any Significant Subsidiary of OI Group
pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case;
(b) consents to the entry of an order for relief against it in
an involuntary case;
(c) consents to the appointment of a Custodian of it or for all
or substantially all of its property;
(d) makes a general assignment for the benefit of its creditors;
or
(e) admits in writing its inability generally to pay its debts
as the same become due;
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief against the Company, OI Group or any
Significant Subsidiary of OI Group in an involuntary case;
(b) appoints a Custodian of the Company, OI Group or any
Significant Subsidiary of OI Group or for all or
substantially all of such entity's property; or
(c) orders the liquidation of the Company, OI Group or any
Significant Subsidiary of OI Group;
and the order or decree remains unstayed and in effect for 60
days;
(9) except as permitted by the Collateral Documents, any amendments
thereto and the provisions of this Indenture, any of the
Collateral Documents ceases to be in full force and effect or
ceases to be effective, in all material respects, to create the
Lien
38
purported to be created in the Collateral in favor of the holders
of any Securities of that series for 60 days after notice; and
(10) any other Event of Default provided with respect to Securities of
that series which is specified in a Board Resolution, Officers'
Certificate or supplemental indenture establishing that series of
Securities;
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Pursuant to Section 4.04, forthwith upon becoming aware of any
Default or Event of Default, the Company shall deliver to the Trustee an
Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto
SECTION 6.02. ACCELERATION.
If an Event of Default with respect to Securities of any series
other than an Event of Default specified in clauses (7) and (8) of Section 6.01,
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of at least 25% in principal amount of the then outstanding Securities of that
series by notice to the Company and the Trustee, may declare the unpaid
Principal (or, in the case of Original Issue Discount Securities, such lesser
amount as may be provided for in such Securities) of and any accrued and unpaid
interest on all the Securities of that series to be due and payable immediately.
Upon such declaration the Principal (or such lesser amount) and interest shall
be due and payable immediately. If an Event of Default specified in clause (7)
or (8) of Section 6.01 occurs, all outstanding Securities shall become and be
due and payable immediately without any declaration, act or notice. The Holders
of a majority in principal amount of the then outstanding Securities of that
series by notice to the Trustee may, on behalf of the Holders of all of the
Securities of that series, rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default with respect to that series have been cured or waived except
nonpayment of Principal (or such lesser amount) or interest that has become due
solely because of the acceleration.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may pursue any available remedy to collect
the payment of Principal or interest on the Securities of that series or to
enforce the performance of any provision of the Securities of that series or
this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
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SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Section 9.02, the Holders of a majority in principal
amount of the then outstanding Securities of any series, by notice to the
Trustee, may waive an existing Default or Event of Default with respect to that
series and its consequences under this Indenture except a continuing Default or
Event of Default in the payment of interest or Liquidated Damages on, or the
Principal of any Security of that series (PROVIDED, HOWEVER, that the Holders of
a majority in principal amount of the outstanding Securities of any series may
rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration).
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then
outstanding Securities of any series may direct the time, method and place of
conducting any proceeding for any remedy with respect to that series available
to the Trustee or exercising any trust or power conferred on it. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that is unduly prejudicial to the rights of another Holder of
Securities of that series, or that may involve the Trustee in personal
liability. The Trustee may take any other action which it deems proper that is
not inconsistent with any such direction.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of Securities of any series may not pursue a remedy with
respect to this Indenture, the Securities of any series, any Guarantee of
Securities or any Collateral Documents, if any, unless:
(a) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to that series;
(b) the Holders of at least 25% in principal amount of the then
outstanding Securities of that series make a written request to
the Trustee to pursue the remedy;
(c) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expense;
(d) the Trustee does not comply with the request within 30 days after
receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 30-day period the Holders of a majority in principal
amount of the then outstanding Securities of that series do not
give the Trustee a direction inconsistent with the request.
The Trustee may withhold from Holders notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of Principal or interest or Liquidated Damages) if it determines
that withholding notice is in the interest of such Holders.
40
No Holder of any series of Securities may use this Indenture to
prejudice the rights of another Holder of Securities of that series or to obtain
a preference or priority over another Holder of Securities of that series.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Security to receive payment of Principal of and interest, if
any, on the Security, on or after the respective due dates expressed in the
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
the Holder; PROVIDED that a Holder shall not have the right to institute any
such suit for the enforcement of payment if and to the extent that the
institution or prosecution thereof or the entry of judgment therein would, under
applicable law, result in the surrender, impairment, waiver or loss of the Lien
of this Indenture upon any property subject to such Lien.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(1) or (2) occurs
and is continuing with respect to Securities of any series, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount of Principal (or such portion of the Principal as
may be specified as due upon acceleration at that time in the terms of that
series of Securities) and interest, if any, remaining unpaid on the Securities
of that series then outstanding, together with (to the extent lawful) interest
on overdue Principal and interest, and such further amount as shall be
sufficient to cover the costs and, to the extent lawful, expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and any other amounts due the Trustee under
Section 7.07.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the Holders allowed in any judicial proceedings relative to the
Company (or any other obligor on the Securities), its creditors or its property
and shall be entitled to and empowered to collect and receive any money or other
property payable or deliverable on any such claims and to distribute the same,
and any custodian in any such judicial proceedings is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing contained herein shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
41
SECTION 6.10. PRIORITIES.
If the Trustee collects any money with respect to Securities of
any series pursuant to this Article (including without limitation any amounts
received in accordance with the terms of the Intercreditor Agreement), it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07, including payment of all
compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders for amounts due and unpaid on the Securities
of such series for Principal and interest, ratably,
without preference or priority of any kind, according
to the amounts due and payable on the Securities of
such series for Principal and interest, respectively;
and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct; PROVIDED, however, that in
the case of amounts received from the distribution of
payments pursuant to the Intercreditor Agreement or any
other proceeds of Collateral securing any series of
Securities, such amounts shall not be distributed to
the Company but shall rather be held by the Trustee, in
trust, for subsequent application in accordance with
the Securities of such series and this Indenture to the
payment of Principal of and interest on the Securities
upon the earlier to occur of (i) any scheduled or
mandatory payment of Principal, optional redemption or
payment of accrued interest on the Securities of such
series, in any such case as directed in writing by the
Company, and (ii) the acceleration of the maturity of
the Securities of that series pursuant to Section 6.02
(including an acceleration by reason of an Event of
Default specified in Section 6.01 (7) or (8)). Until so
applied, such payments shall be held in a separate
account, in trust, by the Trustee or invested by the
Trustee at the written direction of the Company. At
such time as no Securities of any series remain
outstanding, any excess money held by the Trustee shall
be paid to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders of Securities of any series pursuant to this Section. The
Trustee shall notify the Company in writing reasonably in advance of any such
record date and payment date.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good
42
faith of the claims or defense made by the party litigant. This Section does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a
suit by Holders of more than 10% in principal amount of the then outstanding
Securities of any series.
ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default known to the
Trustee:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture or the TIA and the
Trustee need perform only those duties that are
specifically set forth in this Indenture or the TIA and no
others, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated
therein).
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer of the Trustee,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b) and (c) of this Section.
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(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee
may refuse to perform any duty or exercise any right or power
unless it receives security and indemnity satisfactory to it
against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with
the Company. Absent written instruction from the Company, the
Trustee shall not be required to invest any such money. Money
held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to TIA Section 315(a) through (d):
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The
Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, or both. The
Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officers' Certificate or
Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or
within its rights or powers under this Indenture, unless the
Trustee's conduct constitutes negligence.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(f) The Trustee may consult with counsel of its selection and may
rely upon the advice of such counsel or any Opinion of Counsel.
(g) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust Officer of the Trustee has actual
knowledge thereof or unless written notice of any event that is
in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references
the Securities generally or the Securities of a particular
series, as the case may be, and this Indenture.
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(h) Except with respect to Sections 4.03 and 4.04, the Trustee shall
have no duty to inquire as to the performance of the Company with
respect to the covenants contained in Article Four.
(i) Delivery of reports, information and documents to the Trustee
under Article 4 (other than the delivery of Officers'
Certificates pursuant to Section 4.04) is for informational
purposes only and the Trustees' receipt of the foregoing shall
not constitute constructive notice of any information contained
therein or determinable from information contained therein,
including the Company's compliance with any of their covenants
hereunder (as to which the Trustee is entitled to rely
conclusively on Officers' Certificates).
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to TIA
Sections 310(b) and 311.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its certificate of
authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default with respect to the Securities
of any series occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to all Holders of Securities of that series a notice of the
Default or Event of Default within 60 days after it occurs. Except in the case
of a Default or Event of Default in payment on any such Security, the Trustee
may withhold the notice if and so long as a committee of its Trust Officers in
good faith determines that withholding the notice is in the interests of such
Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after May 15 in each year, the Trustee with
respect to any series of Securities shall mail to Holders of Securities of that
series as provided in TIA Section 313(c) a brief report dated as of such May 15
that complies with TIA Section 313(a) (if such report is required by TIA Section
313(a)). The Trustee shall also comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Holders shall
be mailed to the Company and filed with the Commission and each stock exchange
on which any of the Securities are listed, as required by TIA Section 313(d).
The Company shall notify the Trustee when the Securities are listed on any stock
exchange.
45
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed upon in writing for its services hereunder. The
Company shall reimburse the Trustee upon written request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and out-of-pocket expenses of the Trustee's agents and
counsel.
The Company shall indemnify each of the Trustee or any
predecessor Trustee for any loss, liability, damage, claims or expenses,
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee) incurred by it, without negligence or bad faith on its
part, in connection with the administration of this Indenture and its duties
hereunder. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee in its capacity as Trustee, except money or property
held in trust to pay Principal and interest on particular Securities. Such lien
shall survive the satisfaction and discharge of this Indenture.
If the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(4) or (5) occurs, the expenses and the
compensation for the services shall be intended to constitute expenses of
administration under any applicable Bankruptcy Law.
This Section 7.07 shall survive the termination of this
Indenture.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee with respect to one or
more or all series of Securities and appointment of a successor Trustee shall
become effective only upon the successor Trustee's acceptance of appointment as
provided in this Section.
The Trustee may resign with respect to one or more or all series
of Securities by 30 days notice to the Company in writing. The Holders of a
majority in principal amount of the then outstanding Securities of any series
may remove the Trustee as to that series by so notifying the Trustee in writing
and may appoint a successor Trustee with the Company's consent. The Company may
remove the Trustee with respect to one or more or all series of Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
46
(4) the Trustee becomes incapable of acting.
If, as to any series of Securities, the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, the
Company shall promptly appoint a successor Trustee for that series. Within one
year after the successor Trustee with respect to any series takes office, the
Holders of a majority in principal amount of the then outstanding Securities of
that series may appoint a successor Trustee to replace the successor Trustee
appointed by the Company. If a successor Trustee as to a particular series does
not take office within 60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of at least 10% in principal
amount of the then outstanding Securities of that series may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 with respect to
any series, any Holder of Securities of that series who satisfies the
requirements of TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for that series.
A successor Trustee as to any series of Securities shall deliver
a written acceptance of its appointment to the retiring Trustee and to the
Company. Immediately after that, the retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee (subject to the lien
provided for in Section 7.07), the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture as to that series.
The successor Trustee shall mail a notice of its succession to the Holders of
Securities of that series.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring trustee.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and that (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
shall contain such provisions as shall be necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary
or desirable to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; PROVIDED, HOWEVER, that nothing herein or in
such supplemental Indenture shall constitute such Trustee co-trustees of the
same trust and that each such Trustee shall be trustee of a trust hereunder
separate and apart from any trust hereunder administered by any other such
Trustee.
Upon the execution and delivery of such supplemental Indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each
47
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee as to any series of Securities consolidates,
merges or converts into, or transfers all or substantially all of its corporate
trust business to, another corporation, the successor corporation without any
further act shall be the successor Trustee as to that series; PROVIDED that such
corporation shall be eligible under this Article 7 and TIA Section 310(a).
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
Each series of Securities shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee as
to any series of Securities shall always have a combined capital and surplus of
at least $25,000,000 as set forth in its most recent published annual report of
condition. The Trustee is subject to TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein. If the Trustee acquires any conflicting interest as defined in the TIA
it shall eliminate such conflict within 90 days, apply to the Commission for
permission to continue or resign.
ARTICLE 8.
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.01. SATISFACTION AND DISCHARGE OF INDENTURE.
The provisions of this Indenture shall upon Company Order cease
to be of further effect (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to a
particular series of Securities; when
(a) either:
(i) all Securities of that series that have been authenticated
and delivered (except lost, stolen or destroyed Securities
that have been replaced or paid and Securities of that
series for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company)
have been delivered to the Trustee for cancellation; or
(ii) all Securities of that series that have not been delivered
to the Trustee for cancellation have become due and payable
by reason of the making of a
48
notice of redemption or otherwise or will become due and
payable within one year and the Company or any Guarantor has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust solely for the benefit of
the Holders of the Securities of that series, cash in U.S.
dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient
without consideration of any reinvestment of interest, to
pay and discharge the entire indebtedness on the Securities
of that series not delivered to the Trustee for cancellation
for Principal and Liquidated Damages, if any, and accrued
interest to the date of Maturity;
(b) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result
of such deposit and such deposit will not result in a breach or
violation of, or constitute a default under, any other instrument
to which the Company or any Guarantor is a party or by which the
Company or any Guarantor is bound;
(c) the Company or any Guarantor has paid or caused to be paid all
sums payable by it under this Indenture relating to that series
of Securities;
(d) the Company has delivered irrevocable instructions to the Trustee
under this Indenture to apply the deposited money toward the
payment of such Securities of that series at Maturity; and
(e) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such series of
Securities have complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07, and, if money
shall have been deposited with the Trustee pursuant to clause (a)(ii) of this
Section or if money or obligations shall have been deposited with or received by
the Trustee pursuant to Section 8.03, the obligations of the Trustee under
Sections 8.02 and 8.05 shall survive.
SECTION 8.02. APPLICATION OF TRUST FUNDS; INDEMNIFICATION.
(a) Subject to the provisions of Section 8.05, all money
deposited with the Trustee pursuant to Section 8.01, all money and Government
Securities deposited with the Trustee pursuant to Section 8.03 or 8.04 and all
money received by the Trustee in respect of Government Securities deposited with
the Trustee pursuant to Section 8.03 or 8.04, shall be held in trust and applied
by it, in accordance with the provisions of the Securities and this Indenture,
to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
persons entitled thereto, of the Principal and interest for whose payment such
money has been deposited with or received by the Trustee or to make mandatory
sinking fund payments or analogous payments as contemplated by Sections 8.03 and
8.04.
49
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against Government
Securities deposited pursuant to Sections 8.03 or 8.04 or the interest and
principal received in respect of such obligations other than any payable by or
on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to
time upon Company Order any Government Securities or money held by it as
provided in Sections 8.03 or 8.04 that, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, are then in excess of
the amount thereof which then would have been required to be deposited for the
purpose for which such Government Securities or money were deposited or
received. This provision shall not authorize the sale by the Trustee of any
Government Securities held under this Indenture.
SECTION 8.03. LEGAL DEFEASANCE OF SECURITIES OF ANY SERIES.
Unless this Section 8.03 is otherwise specified to be
inapplicable to Securities of any series, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the outstanding Securities of
any such series on the 91st day after the date of the deposit referred to in
subparagraph (d) hereof, the provisions of this Indenture, as it relates to such
outstanding Securities of such series, shall no longer be in effect and any
Guarantees of such Securities shall terminate (and the Trustee, at the expense
of the Company, shall, upon Company Order, execute proper instruments
acknowledging the same), except as to:
(a) the rights of Holders of outstanding Securities of such series to
receive, from the trust funds described in subparagraph (l) of
the proviso hereto, (i) payment of the Principal of or interest
and Liquidated Damages, if any, on the outstanding Securities of
such series at Maturity thereof and (ii) the benefit of any
mandatory sinking fund payments applicable to the Securities of
such series on the day on which such payments are due and payable
in accordance with the terms of this Indenture and the Securities
of such series;
(b) the Company's obligations with respect to such Securities of such
series under Sections 2.03, 2.06, 2.07 and 2.09;
(c) the rights, powers, trust and immunities of the Trustee hereunder
and the duties of the Trustee under Section 8.02 and the duty of
the Trustee to authenticate Securities of such series issued on
registration of transfer of exchange and the Company's and the
Guarantors' obligation in connection therewith; and
(d) the provisions of this Section 8.03;
PROVIDED that, the following conditions shall have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust for the
benefit of the Holders of the Securities of such series, cash in
U.S. Dollars, non-callable Government Securities or a combination
thereof in such amounts as will be sufficient, in the opinion of
a
50
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge the Principal (including mandatory
sinking fund or analogous payments) of and interest and
Liquidated Damages, if any, on all outstanding Securities of such
series on the Stated Maturity or on the applicable redemption
date, as the case may be, and the Company must specify whether
the Securities are being defeased to Stated Maturity or to a
particular redemption date;
(2) the Company shall have delivered to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee confirming that (a)
the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or (b) since the date of
execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the Securities of such series shall not
recognize income, gain or loss for Federal income tax purposes as
a result of such deposit, defeasance and discharge and shall 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
deposit, defeasance and discharge under this Section 8.03 had not
occurred;
(3) no Default or Event of Default shall have occurred and be
continuing either: (a) on the date of such deposit (other than a
Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit); or (b) insofar as Events of
Default from bankruptcy or insolvency events are concerned, at
any time in the period ending on the 91st day after the date of
deposit;
(4) such defeasance pursuant to this Section 8.03 shall not result in
a breach or violation of, or constitute a default under any
material agreement or instrument to which OI Group or the Company
or any of their Restricted Subsidiaries are a party or by which
OI Group or the Company or any of such Restricted Subsidiaries
are bound;
(5) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that, assuming no intervening bankruptcy of
the Company or any Guarantor between the date of deposit and the
91st day following the deposit and assuming that no Holder is an
"insider" of the Company under applicable bankruptcy law, after
the 91st day following the deposit, the trust funds shall not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally;
(6) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders of any series of
Securities over the other creditors of the Company with the
intent of defeating, hindering, delaying or defrauding creditors
of the Company or others; and
51
(7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance
contemplated by this Section have been complied with.
SECTION 8.04. COVENANT DEFEASANCE.
Unless this Section 8.04 is otherwise inapplicable to Securities
of any series, on and after the 91st day after the date of the deposit referred
to in subparagraph (a) hereof, the Company may omit to comply with any term,
provision or condition set forth under Sections 4.03, 4.04, 4.05, 4.06, 4.07 and
4.08 and 5.01 as well as any additional covenants contained in a supplemental
indenture hereto for a particular series of Securities or a Board Resolution or
an Officers' Certificate delivered pursuant to Section 2.01 (and the failure to
comply with any such provisions shall not constitute a Default or Event of
Default under Section 6.01), with respect to the Securities of such series,
PROVIDED that the following conditions shall have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust for the
benefit of the Holders of the Securities of such series, cash in
U.S. Dollars, non-callable Government Securities or a combination
thereof in such amounts as will be sufficient, in the opinion of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge the Principal (including mandatory
sinking fund or analogous payments) of and interest and
Liquidated Damages, if any, on all outstanding Securities of such
series on the Stated Maturity or on the applicable redemption
date, as the case may be, and the Company must specify whether
the Securities are being defeased to Stated Maturity or to a
particular redemption date;
(2) the Company shall have delivered to the Trustee an Opinion of
Counsel confirming that Holders of the Securities of such series
shall not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance and shall be
subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
deposit and defeasance under this Section 8.04 had not occurred;
(3) no Default or Event of Default shall have occurred and be
continuing either: (a) on the date of such deposit (other than a
Default or Event of Default resulting from the borrowing of funds
to be applied to such deposit); or (b) or insofar as Events of
Default from bankruptcy or insolvency events are concerned, at
any time in the period ending on the 91st day after the date of
deposit;
(4) such defeasance pursuant to this Section 8.04 shall not result in
a breach or violation of, or constitute a default under any
material agreement or instrument to which OI Group or the Company
or any of their Restricted Subsidiaries are a party or by which
OI Group or the Company or any of such Restricted Subsidiaries
are bound;
52
(5) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that, assuming no intervening bankruptcy of
the Company or any Guarantor between the date of deposit and the
91st day following the deposit and assuming that no Holder is an
"insider" of the Company under applicable bankruptcy law, after
the 91st day following the deposit, the trust funds shall not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally;
(6) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders of any series of
Securities over the other creditors of the Company with the
intent of defeating, hindering, delaying or defrauding creditors
of the Company or others; and
(7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
defeasance contemplated by this Section have been complied with.
SECTION 8.05. REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall pay to the Company upon
the Company's request any money held by them for the payment of Principal or
interest that remains unclaimed for two years after the date upon which such
payment shall have become due. After payment to the Company, Holders entitled to
the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person.
ARTICLE 9.
SUPPLEMENTS, AMENDMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company, the Guarantors and the Trustee as to any series of
Securities may supplement or amend this Indenture, the Securities or, the
Guarantees of the Securities of a series or the Collateral Documents without
notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(3) to comply with Article 5;
(4) to provide for the assumption of the Company's obligations to the
Holders of Securities of a series by OI Inc.;
(5) to provide for assumption of any Guarantor's obligations in the
case of a merger or consolidation or sale of all or substantially
all of such Guarantor's assets;
53
(6) to make any change that would provide any additional rights or
benefits to the Holders of any series of Securities or that does
not adversely affect the legal rights under this Indenture, the
Guarantees or the Collateral Documents of any such Holder
(including, but not limited to, adding a Guarantor under this
Indenture and adding additional collateral for the benefit of the
Holders);
(7) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA;
(8) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities,
PROVIDED, HOWEVER, that any such addition, change or elimination
(A) shall neither (i) apply to any Security of any series created
prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such
provision or (B) shall become effective only when there is no
outstanding Security of any series created prior to the execution
of such supplemental indenture and entitled to the benefit of
such provision; or
(9) to establish additional series of Securities as permitted by
Section 2.01.
SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.07, the Company, the Guarantors and the
Trustee as to any series of Securities may amend or supplement this Indenture,
the Securities of that series or the Guarantees of the Securities with the
consent of the Holders of a majority in principal amount of the then outstanding
Securities (including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for, Securities of a series) of
each series affected by the amendment or supplement, with each such series
voting as a separate class and the Holders of a majority in principal amount of
the then outstanding Securities of any series may also waive any existing
Default or compliance with any provision of this Indenture, the Securities of a
series or the Guarantees of such securities (including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Securities of a series); PROVIDED, HOWEVER, that without the consent
of each Holder affected, an amendment or waiver may not:
(1) reduce the percentage of the principal amount of Securities whose
Holders must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the Stated Maturity of any
Security or alter the provisions, or waive any payment, with
respect to the redemption of any Securities;
(3) reduce the rate of or change the time for payment of interest on
any Security;
(4) waive a Default or Event of Default in the payment of Principal
of, or interest or Liquidated Damages, if any, on any Security
(except a rescission of acceleration of such Security by the
Holders of at least a majority in aggregate principal
54
amount of that series of Securities and a waiver of the payment
default that resulted from such acceleration);
(5) make any Security payable in money other than that stated in the
Security (including defaulted interest);
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Securities
to receive payments of Principal of or interest or Liquidated
Damages, if any, on such Securities;
(7) release any Guarantor from any of its obligations under its
Guarantee, this Indenture or any Collateral Document, except in
accordance with the terms of the Guarantee, this Indenture and
any Collateral Document;
(8) impair the right to institute suit for the enforcement of any
payment on or with respect to the Securities, the Guarantees of
such Securities or the Collateral Documents;
(9) amend or modify any of the provisions of this Indenture or any
Guarantee of a series of Securities in a manner material and
adverse to the Holders of such Securities except (a) in
accordance with the terms of this Indenture or such Guarantee or
(b) as permitted by Section 9.01;
(10) amend or modify any of the provisions of the Collateral Documents
except (a) in accordance with the terms of such documents or (b)
as permitted by Section 9.01;
(11) make any change to this Section 9.02; or
(12) reduce the principal amount of Original Issue Discount Securities
payable upon acceleration of the maturity thereof;
An amendment or waiver under this Section 9.02 that waives,
changes or eliminates any covenant or other provision of this Indenture that has
expressly been included solely for the benefit of one or more particular series
of Securities, or that modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After any amendment under this Indenture becomes effective, the
Company shall mail to the Holders a notice briefly describing such any
amendment. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture or waiver. The Company shall mail supplemental
indentures to Holders upon request.
55
Amendments to the Collateral Documents shall be made in
accordance with their terms.
SECTION 9.03. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it
by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security; PROVIDED, HOWEVER, that unless a record date shall have
been established pursuant to Section 2.12(a), any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of a Security if the
Trustee receives the notice of revocation before the date on which the amendment
or waiver becomes effective. An amendment or waiver shall become effective on
receipt by the Trustee of consents from the Holders of the requisite percentage
principal amount of the outstanding Securities of any series, and thereafter
shall bind every Holder of Securities of that series.
SECTION 9.04. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment or waiver changes the terms of a Security: (a)
the Trustee may require the Holder of the Security to deliver it to the Trustee,
the Trustee may, at the written direction of the Company and at the Company's
expense, place an appropriate notation on the Security about the changed terms
and return it to the Holder and the Trustee may place an appropriate notation on
any Security thereafter authenticated; or (b) if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms.
SECTION 9.05. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall receive an Opinion of Counsel stating that the
execution of any amendment or waiver proposed pursuant to this Article is
authorized or permitted by this Indenture. Subject to the preceding sentence,
the Trustee shall sign such amendment or waiver. The Trustee may, but shall not
be obligated to, execute any such amendment, supplement or waiver that affects
the Trustee's own rights, duties, liabilities or immunities under this
Indenture.
ARTICLE 10.
GUARANTEE
SECTION 10.01. GUARANTEE.
Subject to the provisions of this Article 10, the Guarantors
hereby, jointly and severally, unconditionally and irrevocably, guarantee to
each Holder and to the Trustee and its successors and assigns (a) the due and
punctual payment of Principal of, interest on and Liquidated Damages, if any,
with respect to the Securities of any series to which this Article 10 is
applicable when due, whether at Stated Maturity, by acceleration, by redemption
or otherwise, and all other monetary obligations of the Company under this
Indenture (including obligations to the Trustee) with respect to such Securities
and (b) the due and punctual performance within applicable grace periods of all
other obligations of the Company under this Indenture with
56
respect to such Securities (all the foregoing being hereinafter collectively
called the "OBLIGATIONS"). The Guarantors further agree that the Obligations may
be extended or renewed, in whole or in part, without notice or further assent
from the Guarantors, and that the Guarantors will remain bound under this
Article 10 notwithstanding any extension or renewal of any Obligation.
The Guarantors waive presentation to, demand of, payment from and
protest to the Company of any of the Obligations and also waive notice of
protest for nonpayment. The Guarantors waive notice of any default under the
Securities of such series to which this Article 10 is applicable or the
Obligations with respect thereto. The obligations of the Guarantors under this
Section 10.01 shall not be affected by (a) the failure of any Holder or the
Trustee to assert any claim or demand or to enforce any right or remedy against
the Company or any other Person under this Indenture, the Securities of such
series or any other agreement or otherwise; (b) any extension or renewal of any
Obligation; (c) any rescission, waiver, amendment, modification or supplement of
any of the terms or provisions of this Indenture (other than this Article 10),
the Securities of such series or any other agreement, unless such rescission,
waiver, amendment, modification or supplement expressly affects the obligations
of any Guarantor under this Section 10.01; (d) the release of any security held
by any Holder or the Trustee for the Obligations or any of them; (e) the failure
of any Holder or Trustee to exercise any right or remedy against any other
guarantor of the Obligations; or (f) any change in the ownership of the Company.
The Guarantors further agree that their Guarantees herein
constitute a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waive any right to require that any resort be had
by any Holder or the Trustee to any security held for payment of the
Obligations.
Except as set forth in this Indenture, the obligations of the
Guarantors hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense, setoff, counterclaim, recoupment or termination whatsoever or by reason
of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, except as set forth
in this Indenture, the obligations of the Guarantors herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder or the
Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Securities of any applicable series or any other agreement, by
any waiver or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations with respect to such
Securities, or by 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
the Guarantors or would otherwise operate as a discharge of the Guarantors as a
matter of law or equity.
The Guarantors further agree that their Guarantees herein shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation with respect to such Securities
is rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise, unless such Guarantee
has been released in accordance with Section 10.10.
57
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has or may have at law or in equity
against the Guarantors by virtue hereof, upon the failure of the Company to pay
any Obligation with respect to such Securities when and as the same shall become
due, whether at Stated Maturity, by acceleration, by redemption or otherwise, or
to perform or comply with any other Obligation with respect to such Securities,
the Guarantors hereby promise to and will, upon receipt of written demand by the
Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the
Trustee an amount equal to the sum of (i) the unpaid Principal amount of such
Obligations, (ii) accrued and unpaid interest on such Obligations (but only to
the extent not prohibited by law) and (iii) all other monetary Obligations of
the Company to the Holders of such Securities and the Trustee.
The Guarantors agree that, as between the Guarantors, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity of
the Obligations guaranteed hereby may be accelerated as provided in Article 6
for the purposes of the Guarantee herein, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such Obligations as provided in Article 6, such Obligations (whether or not due
and payable) shall forthwith become due and payable by the Guarantors for the
purposes of this Section.
The Guarantors also agree to pay any and all costs and expenses
(including reasonable attorneys' fees and expenses) incurred by the Trustee or
any Holder in enforcing any rights under this Section.
SECTION 10.02. LIMITATION ON LIABILITY.
Any term or provision of this Indenture to the contrary
notwithstanding, the obligations of each Guarantor are limited to the maximum
amount as will result in the Obligations of such Guarantor under the Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under federal or
state law.
SECTION 10.03. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee set forth in Section 10.01, each
Guarantor hereby agrees that a notation of such Guarantee substantially in the
form included in Exhibit C shall be endorsed by an Officer of such Guarantor on
each Security authenticated and delivered by the Trustee to which this Article
10 is applicable and that this Indenture shall be executed on behalf of such
Guarantor by its President, any Executive or Senior Vice President, Treasurer,
Assistant Treasurer or one of its Vice Presidents. Further, the Company shall
cause all future Guarantors to execute a supplemental indenture.
Each Guarantor hereby agrees that its Guarantee set forth in
Section 10.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Security to which this Article 10 is applicable a notation of
such Guarantee.
If an Officer whose signature is on this Indenture or on the
Guarantee no longer holds that office at the time the Trustee authenticates the
Security on which a Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
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The delivery of any Security to which this Article 10 is
applicable by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantee set forth in this Indenture on behalf
of the Guarantors.
SECTION 10.04. SUCCESSORS AND ASSIGNS.
This Article 10 shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Securities shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.
SECTION 10.05. NO WAIVER.
Neither a failure nor a delay on the part of either the Trustee
or the Holders in exercising any right, power or privilege under this Article 10
shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise of any right, power or privilege.
The rights, remedies and benefits of the Trustee and the Holders herein
expressly specified are cumulative and not exclusive of any other rights,
remedies or benefits which either may have under this Article 10 at law, in
equity, by statute or otherwise.
SECTION 10.06. RIGHT OF CONTRIBUTION.
Each Guarantor hereby agrees that to the extent that a Guarantor
shall have paid more than its proportionate share of any payment made hereunder,
such Guarantor shall be entitled to seek and receive contribution from and
against any other Guarantor hereunder who has not paid its proportionate share
of such payment. Each Guarantor's right of contribution shall be subject to the
terms and conditions of Section 10.07. The provisions of this Section shall in
no respect limit the obligations and liabilities of any Guarantor to the Trustee
and the Holders and each Guarantor shall remain liable to the Trustee and the
Holders for the full amount guaranteed by such Guarantor hereunder.
SECTION 10.07. NO SUBROGATION.
Notwithstanding any payment or payments made by any of the
Guarantors hereunder, no Guarantor shall be entitled to be subrogated to any of
the rights of the Trustee or any Holder against the Company or any other
Guarantor or any collateral security or guarantee or right of offset held by the
Trustee or any Holder for the payment of the Obligations, nor shall any
Guarantor seek or be entitled to seek any contribution or reimbursement from the
Company or any other Guarantor in respect of payments made by such Guarantor
hereunder, until all amounts owing to the Trustee and the Holders by the Company
on account of the Obligations are paid in full. If any amount shall be paid to
any Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the Trustee and the Holders, segregated from other funds
of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be
turned over to the Trustee in the exact form received by such Guarantor (duly
indorsed by such Guarantor to the Trustee, if required), to be applied against
the Obligations.
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SECTION 10.08. ADDITIONAL GUARANTORS; REINSTATEMENT OF GUARANTEES.
Until such time as all Guarantees by the Guarantors under this
Indenture shall have been released in accordance with Section 10.10, OI Group
shall cause each Domestic Subsidiary of OI Group or any of its Domestic
Subsidiaries that guarantees the Company's Indebtedness under the Credit
Agreement, including the reinstatement or renewal of a Guarantee of Indebtedness
under the Credit Agreement previously released under the Credit Agreement, to
execute and deliver a supplement to this Indenture providing that such Domestic
Subsidiary will be a Guarantor hereunder within 10 Business Days of the date on
which it executes a guarantee under the Credit Agreement; PROVIDED that all
Subsidiaries that have properly been designated as Unrestricted Subsidiaries in
accordance with this Indenture (i) shall not be required to execute or maintain
a Guarantee and (ii) shall be released from all Obligations under any Guarantee,
in each case for so long as they continue to constitute Unrestricted
Subsidiaries. Domestic Subsidiaries that are Guarantors on the date any such
supplement is executed by an additional Domestic Subsidiary shall not be
required to become parties to such supplement and hereby agree to the execution
and delivery by any additional Domestic Subsidiary of any such supplement.
SECTION 10.09. MODIFICATION.
No modification, amendment or waiver of any provision of this
Article 10, nor the consent to any departure by the Guarantors therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Trustee, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given; it being understood that the
release of the Guarantees of Guarantors pursuant to Section 10.10 shall not be
an amendment or waiver of any provision of this Article 10 and shall not require
any action on the part of the Trustee. No notice to or demand on the Guarantors
in any case shall entitle the Guarantors to any other or further notice or
demand in the same, similar or other circumstances.
SECTION 10.10. RELEASE OF GUARANTOR.
(a) A Guarantor shall be automatically released without any action on
the part of the Trustee of the Holders from its obligations under
this Indenture and Guarantee if OI Group properly designates any
Restricted Subsidiary that is a Guarantor as an Unrestricted
Subsidiary.
(b) Upon the release of a Guarantee by a Domestic Subsidiary under
the Credit Agreement, the Guarantee of such Domestic Subsidiary
under this Indenture will be released and discharged at such time
and the Trustee shall execute an appropriate instrument
evidencing such release. If any such Domestic Subsidiary
thereafter guarantees obligations under the Credit Agreement (or
any released Guarantee under the Credit Agreement is reinstated
or renewed), then such Domestic Subsidiary will guarantee the
Securities in accordance with this Article 10.
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SECTION 10.11. MERGER, CONSOLIDATION AND SALE OF ASSETS OF A GUARANTOR.
A Guarantor may not sell or otherwise dispose of all or
substantially of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another Person, other
than the Company or another Guarantor, unless:
(1) immediately after giving effect to that transaction, no Event of
Default shall have occurred and be continuing; and
(2) the Person acquiring the property in any such sale or disposition
or the Person formed by or surviving any such consolidation or
merger is organized or existing under the laws of the United
States, any state thereof or the District of Columbia and assumes
all the obligations of that Guarantor under this Indenture, its
Guarantee, the Collateral Documents and the Registration Rights
Agreement pursuant to a supplemental indenture satisfactory to
the Trustee; and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, sale, lease or merger complies with the foregoing
clauses (1) and (2).
Notwithstanding the foregoing, each Guarantor may consolidate
with or merge into or sell its assets to the Company or another Guarantor.
ARTICLE 11.
COLLATERAL AND SECURITY
SECTION 11.01. COLLATERAL DOCUMENTS.
The due and punctual payment of the Principal of, and interest
and Liquidated Damages, if any, on the Securities of a series and the Guarantees
thereof when and as the same shall be due and payable, whether on an interest
payment date, at maturity, by acceleration, repurchase, redemption or otherwise,
interest on the overdue Principal of and interest (to the extent permitted by
law), if any, on the Securities of such series and the Guarantees thereof and
performance of all other obligations under this Indenture, including, without
limitation, the obligations of the Company set forth in Section 7.07 herein, and
the Securities of such series and the Guarantees thereof, shall be secured as
provided in the Collateral Documents. The Trustee, the Company and each
Guarantor hereby agree that the Collateral Agent shall hold the Collateral in
trust on a PARI PASSU basis with the Indebtedness of the Company under the
Credit Agreement, related documents and liabilities owing to lenders or
affiliates of lenders party to the Credit Agreement and in connection with
interest rate and currency agreements and certain other Indebtedness permitted
by the Credit Agreement, in each case subject and pursuant to the terms of the
Collateral Documents.
Each Holder, by its acceptance of any Security and the Guarantees
thereof to which this Article is applicable, consents and agrees to the terms of
the Collateral Documents (including, without limitation, the provisions
providing for foreclosure and release of Collateral) as the same may be in
effect or may be amended from time to time in accordance with their
61
terms and authorizes and directs (i) the Collateral Agent, with respect to each
of the Collateral Documents to which it is a party and (ii) the Trustee, with
respect to the Collateral Documents and the Intercreditor Acknowledgment, to
perform their respective obligations and exercise their respective rights
thereunder in accordance therewith.
The Trustee and each Holder, by accepting the Securities and the
Guarantees thereof, acknowledges that, as more fully set forth in the Collateral
Documents, the Collateral as now or hereafter constituted shall be held on a
PARI PASSU basis for the benefit of all the senior secured creditors under the
Collateral Documents, including, without limitation, the lenders under the
Credit Agreement and that the lien of this Indenture and the Collateral
Documents in respect of the Trustee and the Holders is subject to and qualified
and limited in all respects by the Collateral Documents and actions that may be
taken thereunder.
As amongst the Holders of any Security and the Guarantees thereof
to which this Article is applicable, the Collateral as now or hereafter
constituted shall be held on a PARI PASSU basis for the benefit of the Holders
without preference, priority or distinction of any thereof over any other by
reason of difference in time of issuance, sale or otherwise, as security for the
Securities and the Guarantees thereof.
SECTION 11.02. OPINIONS.
Promptly after the qualification of this Indenture under the TIA,
the Company shall deliver the opinion(s) required by Section 314(b)(1) of the
TIA. Subsequent to the execution and delivery of this Indenture, to the extent
required by the TIA, the Company shall furnish to the Trustee on or before each
anniversary of the date of qualification of this Indenture under the TIA, an
Opinion of Counsel, dated as of such date, stating either that (i) in the
opinion of such counsel, all action has been taken with respect to any filing,
re-filing, recording or re-recording with respect to the Collateral as is
necessary to maintain the Lien on the Collateral in favor of the Holders or (ii)
in the opinion of such counsel, that no such action is necessary to maintain
such Lien.
SECTION 11.03. RELEASE AND SUBSTITUTION OF COLLATERAL; AMENDMENT OF COLLATERAL
DOCUMENTS.
The parties hereto hereby agree and acknowledge that the
Collateral may be released by the Collateral Agent at any time in accordance
with the provisions of the Collateral Documents and, if applicable, the Credit
Agreement or upon the termination of the Credit Agreement and, in any such case,
the Collateral so released shall automatically be released as Collateral for the
Securities and the Guarantees thereof without any action on the part of the
Trustee or the Holders. When the obligations under the Credit Agreement have
been paid in full, when the collateral under the Collateral Documents no longer
secures the obligations under the Credit Agreement and upon election of the
applicable grantors or pledgors, or when OI Inc. and OI Group achieve the
investment grade ratings specified in the Credit Agreement and the Collateral
Agent acknowledges such ratings, each of the Collateral Documents may be
terminated and the Collateral securing the Securities and the Guarantees
thereunder, released. The Collateral Documents provide that upon release of a
Guarantee under this Indenture, the security interest in the assets of that
Guarantor securing the Securities and the Guarantees of the Securities will be
released simultaneously. Under the indemnification provisions contained in
62
the Intercreditor Agreement, any pro rata payments due to the Collateral Agent
from the Holders of the Securities will be deducted from their portion of the
proceeds from the Collateral prior to the distribution of such proceeds. The
amount of indebtedness secured under the Collateral Documents may be increased
without the consent of the Trustee or the Holders of the Securities.
For purposes of the TIA, the release of any Collateral from the
terms of the Collateral Documents will not be deemed to impair the security
under this Indenture in contravention of the provisions hereof or affect the
Lien of this Indenture or the Collateral Documents if and to the extent the
Collateral is released pursuant to the terms of the Collateral Documents and, if
applicable, the Credit Agreement or upon the termination of the Credit
Agreement. The Trustee and each Holder of Securities and the Guarantees thereof
to which this Article 11 is applicable acknowledge that a release of Collateral
in accordance with the terms of the Collateral Documents and, if applicable, the
Credit Agreement or upon the termination of the Credit Agreement, as the case
may be, will not be deemed for any purpose to be an impairment of the security
under this Indenture. To the extent applicable, the Company shall cause TIA
Section 314(d) relating to the release of property or securities from the Lien
of the Collateral Documents and relating to the substitution therefor of any
property or securities to be subjected to the Lien of the Collateral Documents
to be complied with.
The fair value of Collateral released from the Liens of the
Collateral Documents pursuant to the preceding paragraph shall not be considered
in determining whether the aggregate fair value of Collateral released from the
Liens of the Collateral Documents in any calendar year exceeds the 10% threshold
specified in Section 314(d)(l) of the TIA. It is expressly understood that
Section 11.04 and this Section 11.03 relate only to the Company's obligations
under the TIA and shall not restrict or otherwise affect the Company's and its
Subsidiaries' rights or abilities to release Collateral pursuant to the terms of
the Credit Agreement and the Collateral Documents or as otherwise permitted by
the lenders under the Credit Agreement.
SECTION 11.04. CERTIFICATES OF THE COMPANY.
The Company shall furnish to the Trustee prior to each proposed
release of Collateral all documents required by TIA Section 314(d), if any. The
Trustee may, to the extent permitted by Sections 7.01 and 7.02, accept as
conclusive evidence of compliance with the foregoing provisions the appropriate
statements contained in such documents. Promptly after the receipt of any such
documents, the Trustee shall execute an appropriate instrument evidencing such
release. Any certificate or opinion required by TIA Section 314(d), if
applicable, may be made by an Officer of the Company except in cases where TIA
Section 314(d) requires that such certificate or opinion be made by an
independent engineer, appraiser or other expert within the meaning of TIA
Section 314(d).
SECTION 11.05. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE
COLLATERAL DOCUMENTS.
The Trustee shall be the Representative (as such term is defined
in the Collateral Documents) on behalf of the Holders and shall act upon the
written direction of the Holders with regard to all voting, consent and other
rights granted to the Holders under the Collateral
63
Documents, if any. Subject to the provisions of the Collateral Documents and the
Intercreditor Acknowledgment, the Trustee may, in its sole discretion and
without the consent of the Holders, on behalf of the Holders, take all actions
it deems necessary or appropriate in order to (a) enforce any of its rights or
any of the rights of the Holders under the Collateral Documents and (b) receive
any and all amounts payable from the Collateral in respect of the obligations of
the Company and the Guarantors hereunder. Subject to the provisions of the
Collateral Documents and the Intercreditor Acknowledgment, the Trustee shall
have the power to institute and to maintain such suits and proceedings as it may
deem expedient to prevent any impairment of the Collateral by any acts that may
be unlawful or in violation of the Collateral Documents or this Indenture, and
such suits and proceedings as the Trustee may deem expedient to preserve or
protect its interest and the interests of the Holders in the Collateral
(including power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would
impair the security interest hereunder or be prejudicial to the interests of the
Holders or the Trustee).
SECTION 11.06. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
COLLATERAL DOCUMENTS.
The Trustee is authorized to receive any funds for the benefit of
the Holders distributed under the Collateral Documents, and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture and the Collateral Documents.
ARTICLE 12.
MISCELLANEOUS
SECTION 12.01. INDENTURE SUBJECT TO TRUST INDENTURE ACT.
This Indenture is subject to the provisions of the TIA that are
required to be part of this Indenture, and shall, to the extent applicable, be
governed by such provisions.
SECTION 12.02. NOTICES.
Any notice or communication is duly given if in writing and
delivered in person or sent by first-class mail (registered or certified, return
receipt requested), telecopier or overnight air courier guaranteeing next-day
delivery, addressed as follows:
If to the Company:
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc.
One ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Trustee:
U.S. Bank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next-day delivery.
Any notice or communication to a Holder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders. If the Company mails a
notice or communication to Holders, it shall mail a copy to the Trustee at the
same time.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied
with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
65
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the certificate
provided for in Section 4.04) shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with; PROVIDED,
HOWEVER, that with respect to matters of fact an Opinion of
Counsel may rely on an officer's certificate or certificates of
public officials.
SECTION 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee as to Securities of any series may make reasonable
rules for action by or at a meeting of Holders of Securities of that series. The
Registrar and any Paying Agent or Authenticating Agent may make reasonable rules
and set reasonable requirements for their functions.
SECTION 12.07. LEGAL HOLIDAYS.
A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which
banking institutions in
New York City,
New York or Toledo, Ohio, are not
required to be open. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 12.08. NO RECOURSE AGAINST OTHERS.
A past, present or future director, officer, employee,
incorporator or stockholder, as such, of the Company or any Guarantor, if any,
or any successor corporation shall not have any liability for any obligations of
the Company or any Guarantor, if any, under any series of Securities, this
Indenture or any Guarantee, if any, or for any claim based on, in respect of, or
by reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration of issuance of the Securities.
66
SECTION 12.09. COUNTERPARTS.
This Indenture may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 12.10. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of
New York.
SECTION 12.11. SEVERABILITY.
In case any provision in this Indenture or in the Securities
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 12.12. EFFECT OF HEADINGS, TABLE OF CONTENTS, ETC.
The Article and Section headings herein and the table of contents
are for convenience only and shall not affect the construction hereof.
SECTION 12.13. SUCCESSORS AND ASSIGNS.
All covenants and agreements of the Company in this Indenture and
the Securities shall bind its successors and assigns. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 12.14. NO INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
[SIGNATURE PAGES FOLLOW]
67
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed and all as of the date first above written.
▇▇▇▇▇-▇▇▇▇▇▇▇▇ GLASS CONTAINER INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
On behalf of each entity named on the
attached ANNEX A, in the capacity set forth
for such entity on such ANNEX A
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ANNEX A
TITLE OF OFFICER EXECUTING ON
NAME OF ENTITY BEHALF OF SUCH ENTITY
ACI America Holdings Inc. Vice President and Secretary
Anamed International, Inc. Vice President and Secretary
BriGam Medical, Inc. Vice President and Secretary
BriGam Ventures, Inc. Vice President and Secretary
BriGam, Inc. Vice President and Secretary
▇▇▇▇▇▇▇▇ Realty Corporation Vice President and Secretary
▇▇▇▇▇▇▇▇ Research, Inc. Vice President and Secretary
Continental PET Technologies, Inc. Vice President and Secretary
MARC Industries, Inc. Vice President and Secretary
▇▇▇▇▇▇▇ Medical Products, Incorporated Vice President and Secretary
NHW Auburn, LLC Vice President and Secretary
of its sole member
OB Cal South Inc. Vice President and Secretary
OI AID STS Inc. Vice President and Secretary
OI Auburn Inc. Vice President and Secretary
OI Australia Inc. Vice President and Secretary
OI Brazil Closure Inc. Vice President and Secretary
OI California Containers Inc. Vice President and Secretary
OI Castalia STS Inc. Vice President and Secretary
OI Consol STS Inc. Vice President and Secretary
OI Ecuador STS Inc. Vice President and Secretary
OI Europe & Asia Inc. Vice President and Secretary
ANNEX A-1
TITLE OF OFFICER EXECUTING ON
NAME OF ENTITY BEHALF OF SUCH ENTITY
OI General Finance Inc. Vice President and Secretary
OI General FTS Inc. Vice President and Secretary
O-I Health Care Holding Corp. Vice President and Secretary
O-I Holding Company, Inc. Vice President and Secretary
OI Hungary Inc. Vice President and Secretary
OI International Holdings Inc. Vice President and Secretary
OI Levis Park STS Inc. Vice President and Secretary
OI Medical Holdings Inc. Vice President and Secretary
OI Medical Inc. Vice President and Secretary
OI Peru STS Inc. Vice President and Secretary
OI Plastic Products FTS Inc. Vice President and Secretary
OI Poland Inc. Vice President and Secretary
OI Puerto Rico STS Inc. Vice President and Secretary
OI Regioplast STS Inc. Vice President and Secretary
OI Venezuela Plastic Products Inc. Vice President and Secretary
OIB Produvisa Inc. Vice President and Secretary
Overseas Finance Company Vice President and Secretary
▇▇▇▇▇-▇▇▇▇▇▇ Medical Company Vice President and Secretary
of each general partner
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Vice President and Secretary
Trading Company
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Packaging, Inc. Vice President and Secretary
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Plastic Products Inc. Vice President and Secretary
▇▇▇▇▇-Illinois Closure Inc. Vice President and Secretary
ANNEX A-2
TITLE OF OFFICER EXECUTING ON
NAME OF ENTITY BEHALF OF SUCH ENTITY
▇▇▇▇▇-Illinois General Inc. Vice President and Secretary
▇▇▇▇▇-Illinois Group, Inc. Vice President, Director of
Finance and Secretary
▇▇▇▇▇-Illinois Prescription Products Inc. Vice President and Secretary
▇▇▇▇▇-Illinois Specialty Products Puerto Vice President and Secretary
Rico, Inc.
Product Design & Engineering, Inc. Vice President and Secretary
Seagate, Inc. Vice President and Secretary
Seagate II, Inc. Vice President and Secretary
Seagate III, Inc. Vice President and Secretary
Specialty Packaging Licensing Company Vice President and Secretary
Universal Materials, Inc. Vice President and Secretary
ANNEX A-3
EXHIBIT A
FORM OF CERTIFICATE OF TRANSFER
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc.
One ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Re: [Title of Security]
(CUSIP/ISIN __________)
Reference is hereby made to the Indenture, dated as of January
24, 2002 (the "INDENTURE"), by and among ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc., as
issuer (the "COMPANY"), the Guarantors and U.S. Bank National Association, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
_______________ (the "TRANSFEROR") owns and proposes to transfer
the Security[ies] or interest in such Security[ies] specified in Annex A hereto,
in the principal amount of $______ in such Security[ies] or interests (the
"TRANSFER"), to __________ (the "TRANSFEREE"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN A
144A GLOBAL SECURITY OR A DEFINITIVE SECURITY PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "SECURITIES ACT"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Security is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Security for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting, the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Security will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Security
and/or the Definitive Security and in the Indenture and the Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN A
REGULATION S GLOBAL SECURITY OR A DEFINITIVE SECURITY PURSUANT TO REGULATION S.
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was
A-1
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an initial purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Security will be subject to the restrictions on Transfer enumerated
in the Private Placement Legend printed on the Regulation S Global Security
and/or the Definitive Security and in the Indenture and the Securities Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE GLOBAL SECURITY OR A DEFINITIVE SECURITY PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Securities and
Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) / / such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the Company or a
Subsidiary thereof;
or
(c) / / such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act.
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL SECURITY OR AN UNRESTRICTED DEFINITIVE SECURITY.
(a) / / CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Security will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Securities, on Restricted Definitive Securities and in the Indenture.
A-2
(b) / / CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Securities, on Restricted Definitive Securities and in the
Indenture.
(c) / / CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Security will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Securities or Restricted Definitive Securities and in the Indenture.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
----------------------------------------
[Insert Name of Transferor]
By:
-------------------------------------
Name:
Title:
Dated:
------------------------------
A-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / / 144A Global Security (CUSIP/ISIN ____), or
(ii) / / Regulation S Global Security (CUSIP/ISIN ____), or
(b) / / a Restricted Definitive Security.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / / 144A Global Security (CUSIP/ISIN ________), or
(ii) / / Regulation S Global Security (CUSIP/ISIN ________), or
(iii) / / Unrestricted Global Security (CUSIP/ISIN _______), or
(b) / / a Restricted Definitive Security; or
(c) / / an Unrestricted Definitive Security,
in accordance with the terms of the Indenture.
A-4
EXHIBIT B
FORM OF CERTIFICATE OF EXCHANGE
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc.
One ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Re: [Title of Security]
(CUSIP/ISIN __________)
Reference is hereby made to the Indenture, dated as of January
24, 2002 (the "INDENTURE"), by and among ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass Container Inc., as
issuer (the "COMPANY"), the Guarantors and U.S. Bank National Association, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
__________________ (the "OWNER") owns and proposes to exchange
the Security[ies] or interest in such Security[ies] specified herein, in the
principal amount of $__________ in such Security[ies] or interests (the
"EXCHANGE"). In connection with the Exchange,, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN
A RESTRICTED GLOBAL SECURITY FOR UNRESTRICTED DEFINITIVE SECURITIES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL SECURITY
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
SECURITY. In connection with the Exchange of the Owner's beneficial interest in
a Restricted Global Security for a beneficial interest in an Unrestricted Global
Security in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Global Securities and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the
"SECURITIES ACT"), (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Security is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY
TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In connection with
the Owner's Exchange of a Restricted Definitive Security for a beneficial
interest in an Unrestricted Global Security, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Securities and pursuant to and
in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest is
B-1
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY
TO UNRESTRICTED DEFINITIVE SECURITY. In connection with the Owner's Exchange of
a Restricted Definitive Security for an Unrestricted Definitive Security, the
Owner hereby certifies (i) the Unrestricted Definitive Security is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Security
is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES FOR RESTRICTED DEFINITIVE
SECURITIES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL SECURITIES
(a) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY
TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY. In connection with the
Exchange of the Owner's Restricted Definitive Security for a beneficial interest
in the [CHECK ONE] __144A Global Security, ___ Regulation S Global Security with
an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer and (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Securities and pursuant to and in accordance
with the Securities Act, and in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Security
and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
----------------------------------------
[Insert Name of Owner]
By:
-------------------------------------
Name:
Title:
Dated:
------------------------------
B-2
EXHIBIT C
FORM OF GUARANTEE
For value received, the undersigned (including any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of January 24, 2002, as such Indenture may
be supplemented or amended (the "INDENTURE") by and among ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Glass
Container Inc. (the "COMPANY"), the Guarantors listed on the signature pages
thereto and U.S. Bank National Association, as Trustee ("TRUSTEE"), (a) the due
and punctual payment of the Principal of and interest and Liquidated Damages on
the Securities (as defined in the Indenture), whether at Stated Maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue Principal and, to the extent permitted by law, interest, and the due
and punctual performance of all other obligations of the Company to the Holders
or the Trustee all in accordance with the terms of the Indenture and (b) in case
of any extension of time of payment or renewal of any Securities or any of such
other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
Stated Maturity, by acceleration or otherwise. The obligations of the
undersigned to the Holders of such Securities and to the Trustee pursuant to
this Guarantee and the Indenture are expressly set forth in Article 10 of the
Indenture and reference is hereby made to the Indenture for the precise terms of
this Guarantee.
The terms of the Indenture, including, without limitation,
Article 10 of the Indenture, are incorporated herein by reference. Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
unless otherwise indicated.
----------------------------------------
[Name of Guarantor]
By:
-------------------------------------
Name:
Title:
C-1
