EXHIBIT 4.2
EXECUTION COPY
STONE CONTAINER CORPORATION,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
Indenture
Dated as of June 26, 2002
8-3/8% Senior Notes due 2012
CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
------------ ------------------
Section 310(a)(1) 7.10
(a)(2) 7.10
(b) 7.03; 7.08
Section 311(a) 7.03
(b) 7.03
Section 312(a) 2.04
(b) 10.02
(c) 10.02
Section 313(a) 7.06
(b)(2) 7.07
(c) 7.05; 7.06; 10.02
(d) 7.06
Section 314(a) 7.05; 10.02
(a)(4) 4.17; 10.02
(c)(1) 10.03
(c)(2) 10.03
(e) 4.17; 10.04
Section 315(a) 7.02
(b) 7.05; 10.02
(c) 7.02
(d) 7.02
(e) 6.11
Section 316(a)(1)(A) 6.05
(a)(1)(B) 6.04
(b) 6.07
(c) 9.03
Section 317(a)(1) 6.08
(a)(2) 6.09
(b) 2.05
Section 318(a) 10.01
(c) 10.01
Note: The Cross-Reference Table shall not for any purpose be deemed to be a part
of the
Indenture
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions................................................................................1
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act.........................................26
SECTION 1.03. Rules of Construction.....................................................................26
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating...........................................................................26
SECTION 2.02. Restrictive Legends.......................................................................28
SECTION 2.03. Execution, Authentication and Denominations...............................................29
SECTION 2.04. Registrar and Paying Agent................................................................32
SECTION 2.05. Paying Agent to Hold Money in Trust.......................................................33
SECTION 2.06. Transfer and Exchange.....................................................................33
SECTION 2.07. Book-Entry Provisions for Global Notes....................................................34
SECTION 2.08. Special Transfer Provisions...............................................................35
SECTION 2.09. Replacement Notes.........................................................................38
SECTION 2.10. Outstanding Notes.........................................................................38
SECTION 2.11. Temporary Notes...........................................................................39
SECTION 2.12. Cancellation..............................................................................39
SECTION 2.13. CUSIP Numbers.............................................................................39
SECTION 2.14. Defaulted Interest........................................................................40
ARTICLE THREE
REDEMPTION
SECTION 3.01. Applicability.............................................................................40
SECTION 3.02. Notices to Trustee........................................................................40
SECTION 3.03. Selection of Notes to Be Redeemed.........................................................40
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SECTION 3.04. Notice of Redemption......................................................................41
SECTION 3.05. Effect of Notice of Redemption............................................................42
SECTION 3.06. Deposit of Redemption Price...............................................................42
SECTION 3.07. Payment of Notes Called for Redemption....................................................42
SECTION 3.08. Notes Redeemed in Part....................................................................42
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes..........................................................................42
SECTION 4.02. Maintenance of Office or Agency...........................................................43
SECTION 4.03. Limitation on Indebtedness................................................................43
SECTION 4.04. Limitation on Restricted Payments.........................................................46
SECTION 4.05. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries...49
SECTION 4.06. Limitation on the Issuance and Sale of Capital Stock of Restricted Subsidiaries...........51
SECTION 4.07. Limitation on Issuances of Guarantees by Restricted Subsidiaries..........................51
SECTION 4.08. Limitation on Transactions with Stockholders and Affiliates...............................52
SECTION 4.09. Limitation on Liens.......................................................................54
SECTION 4.10. Limitation on Sale-Leaseback Transactions.................................................55
SECTION 4.11. Limitation on Asset Sales.................................................................55
SECTION 4.12. Repurchase of Notes upon a Change of Control..............................................57
SECTION 4.13. Existence.................................................................................57
SECTION 4.14. Payment of Taxes and Other Claims.........................................................57
SECTION 4.15. Maintenance of Properties and Insurance...................................................57
SECTION 4.16. Notice of Defaults........................................................................58
SECTION 4.17. Compliance Certificates...................................................................58
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SECTION 4.18. Commission Reports and Reports to Holders.................................................59
SECTION 4.19. Waiver of Stay, Extension or Usury Laws...................................................59
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc...............................................................59
SECTION 5.02. Successor Substituted.....................................................................61
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.........................................................................61
SECTION 6.02. Acceleration..............................................................................62
SECTION 6.03. Other Remedies............................................................................63
SECTION 6.04. Waiver of Past Defaults...................................................................63
SECTION 6.05. Control by Majority.......................................................................64
SECTION 6.06. Limitation on Suits.......................................................................64
SECTION 6.07. Rights of Holders to Receive Payment......................................................64
SECTION 6.08. Collection Suit by Trustee................................................................64
SECTION 6.09. Trustee May File Proofs of Claim..........................................................65
SECTION 6.10. Priorities................................................................................65
SECTION 6.11. Undertaking for Costs.....................................................................65
SECTION 6.12. Restoration of Rights and Remedies........................................................66
SECTION 6.13. Rights and Remedies Cumulative............................................................66
SECTION 6.14. Delay or Omission Not Waiver..............................................................66
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General...................................................................................66
SECTION 7.02. Certain Rights of Trustee.................................................................66
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SECTION 7.03. Individual Rights of Trustee..............................................................68
SECTION 7.04. Trustee's Disclaimer......................................................................68
SECTION 7.05. Notice of Default.........................................................................68
SECTION 7.06. Reports by Trustee to Holders.............................................................68
SECTION 7.07. Compensation and Indemnity................................................................68
SECTION 7.08. Replacement of Trustee....................................................................69
SECTION 7.09. Successor Trustee by ▇▇▇▇▇▇, Etc..........................................................70
SECTION 7.10. Eligibility...............................................................................71
SECTION 7.11. Money Held in Trust.......................................................................71
ARTICLE EIGHT
DISCHARGE OF
INDENTURE
SECTION 8.01. Termination of Company's Obligations......................................................71
SECTION 8.02. Defeasance and Discharge of
Indenture.....................................................72
SECTION 8.03. Defeasance of Certain Obligations.........................................................74
SECTION 8.04. Application of Trust Money................................................................75
SECTION 8.05. Repayment to Company......................................................................76
SECTION 8.06. Reinstatement.............................................................................76
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders................................................................76
SECTION 9.02. With Consent of Holders...................................................................77
SECTION 9.03. Revocation and Effect of Consent..........................................................78
SECTION 9.04. Notation on or Exchange of Notes..........................................................79
SECTION 9.05. Trustee to Sign Amendments, Etc...........................................................79
SECTION 9.06. Conformity with Trust
Indenture Act.......................................................79
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ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. Trust
Indenture Act of 1939..............................................................79
SECTION 10.02. Notices..................................................................................79
SECTION 10.03. Certificate and Opinion as to Conditions Precedent.......................................80
SECTION 10.04. Statements Required in Certificate or Opinion............................................81
SECTION 10.05. Rules by Trustee, Paying Agent or Registrar..............................................81
SECTION 10.06. Payment Date Other Than a Business Day...................................................81
SECTION 10.07. Governing Law............................................................................81
SECTION 10.08. No Adverse Interpretation of Other Agreements............................................81
SECTION 10.09. No Recourse Against Others...............................................................82
SECTION 10.10. Successors...............................................................................82
SECTION 10.11. Duplicate Originals......................................................................82
SECTION 10.12. Separability.............................................................................82
SECTION 10.13. Table of Contents, ▇▇▇▇▇▇▇▇, Etc.........................................................82
EXHIBIT A Form of Trustee's Certificate of Authentication.....................................................A-1
EXHIBIT B Form of Certificate.................................................................................B-2
EXHIBIT C Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Non QIB Accredited Investors..................................................C-1
EXHIBIT D Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S..................................................................D-1
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INDENTURE, dated as of June 26, 2002, between
STONE CONTAINER
CORPORATION, a Delaware corporation (the "COMPANY"), and THE BANK OF
NEW YORK, a
New York banking corporation, as trustee (the "TRUSTEE").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured notes
(herein called the "NOTES") to be issued in one or more series as in this
Indenture provided. All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act of 1939, as amended, that are required to be a part
of and to govern indentures qualified under the Trust Indenture Act of 1939, as
amended.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes or of a series thereof, as
follows.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person or any of its
Restricted Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with or into
the Company or any of its Restricted Subsidiaries or is assumed in connection
with an Asset Acquisition by the Company or a Restricted Subsidiary of the
Company and in each case whether or not Incurred by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such acquisition, merger or consolidation (other
than Indebtedness Incurred as consideration in, or to provide all or any of the
funds utilized to consummate, the transaction or series of related transactions
pursuant to which such Person became a Restricted Subsidiary of the Company);
PROVIDED that Indebtedness of such Person which is redeemed, defeased, retired
or otherwise repaid at the time of or immediately upon consummation of the
transactions by which such Person becomes a Restricted Subsidiary or such Asset
Acquisition shall not be Acquired Indebtedness.
"ADJUSTED CONSOLIDATED NET INCOME" means, for any period, the
aggregate net income (or loss) of the Company and its Restricted Subsidiaries on
a consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP; PROVIDED that the following items shall be
excluded in computing Adjusted Consolidated Net Income (without duplication):
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(i) the net income of any Person that is not a Restricted
Subsidiary, except to the extent of the amount of dividends or other
distributions actually paid to the Company or any of its Restricted
Subsidiaries by such Person during such period;
(ii) the net income (or loss) of any Person accrued prior to the
date it becomes a Restricted Subsidiary or is merged into or consolidated
with the Company or any of its Restricted Subsidiaries or all or
substantially all of the property and assets of such Person are acquired by
the Company or any of its Restricted Subsidiaries;
(iii) the net income of any Restricted Subsidiary to the extent that
the declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of such net income is not at the time permitted by
the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary;
(iv) any gains or losses (on an after-tax basis) attributable to
Asset Sales;
(v) solely for purposes of calculating the amount of Restricted
Payments that may be made pursuant to clause (C) of the first paragraph of
SECTION 4.04, any amount paid or accrued as dividends on Preferred Stock of
the Company or its Parent owned by Persons other than the Company and any
of its Restricted Subsidiaries;
(vi) all extraordinary gains and extraordinary losses; and
(vii) the cumulative effect of a change in accounting principles.
"ADJUSTED CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of
assets of the Company and its Restricted Subsidiaries (less applicable
depreciation, amortization and other valuation reserves), except to the extent
resulting from write-ups of capital assets (excluding write-ups in connection
with accounting for acquisitions in conformity with GAAP), after deducting
therefrom (i) all current liabilities of the Company and its Restricted
Subsidiaries (excluding intercompany items) and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent quarterly or annual
consolidated balance sheet of the Company and its Restricted Subsidiaries,
prepared in conformity with GAAP.
"AFFILIATE" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"AGENT" means any Registrar, Co-Registrar, Paying Agent or
authenticating agent.
"AGENT MEMBERS" has the meaning provided in SECTION 2.07(a).
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"ASSET ACQUISITION" means (i) an investment by the Company or any of
its Restricted Subsidiaries in any other Person pursuant to which such Person
shall become a Restricted Subsidiary or shall be merged into or consolidated
with the Company or any of its Restricted Subsidiaries; PROVIDED that such
Person's primary business is related, ancillary or complementary to the
businesses of SSCC and its Restricted Subsidiaries on the date of such
investment, except to the extent as would not be material to the Company and its
Restricted Subsidiaries taken as a whole or (ii) an acquisition by the Company
or any of its Restricted Subsidiaries of the property and assets of any Person
other than the Company or any of its Restricted Subsidiaries that constitute
substantially all of a division or line of business of such Person; PROVIDED
that the property and assets acquired are related, ancillary or complementary to
the businesses of the Company and its Restricted Subsidiaries on the date of
such acquisition, except to the extent as would not be material to the Company
and its Restricted Subsidiaries taken as a whole.
"ASSET DISPOSITION" means the sale or other disposition by the Company
or any of its Restricted Subsidiaries (other than to the Company or another
Restricted Subsidiary) of (i) all or substantially all of the Capital Stock of
any Restricted Subsidiary or (ii) all or substantially all of the assets that
constitute a division or line of business of the Company or any of its
Restricted Subsidiaries.
"ASSET SALE" means any sale, transfer or other disposition (including
by way of merger, consolidation or sale-leaseback transaction) in one
transaction or a series of related transactions by the Company or any of its
Restricted Subsidiaries to any Person other than the Company or any of its
Restricted Subsidiaries of (i) all or any of the Capital Stock of any Restricted
Subsidiary, (ii) all or substantially all of the property and assets of an
operating unit or business of the Company or any of its Restricted Subsidiaries
or (iii) any other property and assets (other than the Capital Stock or other
Investment in an Unrestricted Subsidiary) of the Company or any of its
Restricted Subsidiaries outside the ordinary course of business of the Company
or such Restricted Subsidiary and, in each case, that is not governed by SECTION
5.01; PROVIDED that "Asset Sale" shall not include (a) sales or other
dispositions of inventory, receivables (and related assets of the type specified
in the definition of "Qualified Securitization Transaction") and other current
assets, (b) sales, transfers or other dispositions of assets constituting a
Restricted Payment permitted to be made under SECTION 4.04, the making of a
Permitted Investment or the liquidation of cash equivalents, (c) the sale,
transfer or other disposition of all of substantially all of the assets of the
Company as permitted under and in accordance with the provisions of SECTION
5.01, (d) any sale or other disposition of obsolete or worn out assets or assets
no longer used or useful in the business of the Company or any of its Restricted
Subsidiaries, (e) sales or other dispositions of assets for consideration at
least equal to the fair market value of the assets sold or disposed of, to the
extent that the consideration received would satisfy clause (B) of SECTION 4.11,
(f) any single transaction or series of related transactions that involves
assets having a fair market value of less than $10.0 million and (g) the MBI
Transaction.
"AVERAGE LIFE" means, at any date of determination with respect to any
debt security, the quotient obtained by dividing (i) the sum of the products of
(a) the number of years from such date of determination to the dates of each
successive scheduled principal payment of
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such debt security and (b) the amount of such principal payment by (ii) the sum
of all such principal payments.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or
any committee of such Board of Directors duly authorized to act under this
Indenture.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification.
"BOX PLANT FINANCING" means the Company's 8.45% mortgage notes due
September 1, 2007 secured by the real property and improvements comprising
certain of the Company's corrugated container plants.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of
New York, or in the city of the Corporate
Trust Office of the Trustee, are authorized by law to close.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether outstanding on the
Closing Date or issued thereafter, including, without limitation, all Common
Stock and Preferred Stock.
"CAPITALIZED LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person.
"CAPITALIZED LEASE OBLIGATIONS" means the discounted present value of
the rental obligations under a Capitalized Lease.
"CHANGE OF CONTROL" means such time as (i) a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) other
than SSCC or JS Group becomes the ultimate "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of
the Voting Stock of the Company on a fully diluted basis, including, without
limitation, by way of an acquisition of all or substantially all of the assets
of the Company; or (ii) individuals who on the Closing Date constitute the Board
of Directors (together with any new directors whose election by the Board of
Directors or whose nomination by the Board of Directors for election by the
Company's stockholders was approved by a vote of at least a majority of the
members of the Board of Directors then in office who either were members of the
Board of Directors on the Closing Date or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the members of the Board of Directors then in office; PROVIDED,
HOWEVER, that the consummation of the JSC Transaction shall not constitute a
"Change of Control".
"CLOSING DATE" means the date on which the initial Notes are
originally issued under this Indenture.
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"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body performing
such duties at such time.
"COMMITTEE OF THE BOARD" means a committee of the Board of Directors
of SSCC consisting of independent directors of SSCC for the purpose of reviewing
and approving certain transactions involving affiliates and other related
parties.
"COMMODITY AGREEMENTS" means, in respect of a Person, any futures or
forward contract, commodity swap agreement, commodity option agreement or other
similar agreement or arrangement designed to protect such Person against
fluctuations in commodity prices.
"COMMON STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's equity, other than Preferred Stock of
such Person, whether outstanding on the Closing Date or issued thereafter,
including, without limitation, all series and classes of such common stock.
"COMPANY" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article Five of this
Indenture and thereafter means the successor.
"COMPANY ORDER" means a written request or order signed in the name of
the Company by two Officers.
"CONTINENTAL GUARANTY" means the Guaranty dated as of October 7, 1983
between The Continental Group, Inc. and the Company, as amended and restated,
supplemented or otherwise modified from time to time.
"CONSOLIDATED EBITDA" means, for any period, Adjusted Consolidated Net
Income for such period plus, to the extent such amount was deducted in
calculating such Adjusted Consolidated Net Income: (i) Consolidated Interest
Expense, (ii) income taxes (other than income taxes (either positive or
negative) attributable to extraordinary and non-recurring gains or losses or
sales of assets), (iii) depreciation and depletion expense, (iv) amortization
expense, (v) restructuring charges, (vi) non-recurring fees and expenses
incurred in connection with the consummation of any acquisition in an aggregate
amount not to exceed 5% of the total consideration for such acquisition; and
(vii) all other non-cash items reducing Adjusted Consolidated Net Income (other
than items that will require cash payments and for which an accrual or reserve
is, or is required by GAAP to be, made), less all non-cash items increasing
Adjusted Consolidated Net Income other than accrual of revenue in the ordinary
course of business, all as determined on a consolidated basis for the Company
and its Restricted Subsidiaries in conformity with GAAP; PROVIDED that, if any
Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary, Consolidated
EBITDA shall be reduced (to the extent not otherwise reduced in accordance with
GAAP) by an amount equal to (A) the amount of the Adjusted Consolidated Net
Income attributable to such Restricted Subsidiary multiplied by
5
(B) the percentage ownership interest in the income of such Restricted
Subsidiary not owned on the last day of such period by the Company or any of its
Restricted Subsidiaries.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the aggregate
amount of interest in respect of Indebtedness (including, without limitation,
amortization of original issue discount on any Indebtedness and the interest
portion of any deferred payment obligation, calculated in accordance with the
effective interest method of accounting; all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers' acceptance
financing; the net costs associated with Interest Rate Agreements (provided that
if Interest Rate Agreements result in net benefits rather than costs, such
benefits shall be credited in determining Consolidated Interest Expense unless,
pursuant to GAAP, such net benefits are otherwise reflected in Consolidated Net
Income); and Indebtedness that is Guaranteed or secured by the Company or any of
its Restricted Subsidiaries) and all but the principal component of rentals in
respect of Capitalized Lease Obligations paid, accrued or scheduled to be paid
or to be accrued by the Company and its Restricted Subsidiaries during such
period; EXCLUDING, HOWEVER, (i) any amount of such interest of any Restricted
Subsidiary if the net income of such Restricted Subsidiary is excluded in the
calculation of Adjusted Consolidated Net Income pursuant to clause (iii) of the
definition thereof (but only in the same proportion as the net income of such
Restricted Subsidiary is excluded from the calculation of Adjusted Consolidated
Net Income pursuant to clause (iii) of the definition thereof) and (ii) any
premiums, fees and expenses (and any amortization thereof) payable in connection
with the offering of the Notes, all as determined on a consolidated basis
(without taking into account Unrestricted Subsidiaries) in conformity with GAAP.
"CONSOLIDATED NET WORTH" means, at any date of determination,
stockholders' equity as set forth on the most recently available quarterly or
annual consolidated balance sheet of the Company and its Restricted Subsidiaries
(which shall be as of a date not more than 90 days prior to the date of such
computation, and which shall not take into account Unrestricted Subsidiaries),
less any amounts attributable to Disqualified Stock or any equity security
convertible into or exchangeable for Indebtedness, the cost of treasury stock
and the principal amount of any promissory notes receivable from the sale of the
Capital Stock of the Company or any of its Restricted Subsidiaries, each item to
be determined in conformity with GAAP (excluding the effects of foreign currency
exchange adjustments under Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 52).
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇;
Attention: Corporate Trust Administration.
"CREDIT AGREEMENTS" means (i) the Amended and Restated Credit
Agreement dated as of March 31, 2000 by and among the Company, the financial
institutions party thereto, The Chase Manhattan Bank and Bankers Trust Company,
as Agents, and Bankers Trust Company, as Administrative Agent, Collateral Agent
and Facing Agent and as Swingline Lender, together with all agreements,
instruments and documents executed or delivered pursuant thereto or in
connection therewith (including, without limitation, any promissory notes,
Guarantees and security documents) (the "Stone Credit Agreement") and (ii) the
Credit
6
Agreement dated as of May 31, 2000 by and among the Company, St. Laurent
Paperboard Inc., the financial institutions party thereto, The Chase Manhattan
Bank, as an Agent, Bankers Trust Company, as Administrative Agent, Collateral
Agent and Facing Agent, and Deutsche Bank Canada, as Canadian Administrative
Agent, together with all agreements, instruments and documents executed or
delivered pursuant thereto or in connection therewith (including, without
limitation, any promissory notes, Guarantees and security documents) (the "Stone
Canada Credit Agreement"), in each case, as such agreements, instruments and
documents may be amended (including, without limitation any amendment and
restatement thereof), supplemented, extended, renewed, replaced or otherwise
modified from time to time, including, without limitation, any agreement
increasing the amount of, extending the maturity of, refinancing (in whole or in
part) or otherwise restructuring (including, but not limited to, by the
inclusion of additional borrowers or guarantors thereof or by the addition of
collateral or other credit enhancement to support the obligations thereunder)
all or any portion of the Indebtedness under such agreement or any successor
agreement or agreements.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement.
"DEFAULT" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"DEPOSITARY" means The Depository Trust Company, its nominees, and
their respective successors.
"DESIGNATED NONCASH CONSIDERATION" means any non-cash consideration
received by the Company or one of its Restricted Subsidiaries in connection with
an Asset Sale that is designated as Designated Noncash Consideration pursuant to
an Officers' Certificate executed by the principal executive officer or the
principal financial officer of the Company or such Restricted Subsidiary. Such
Officers' Certificate shall state the basis of such valuation, which shall be a
report of a nationally recognized investment banking firm with respect to the
receipt in one or a series of related transactions of Designated Noncash
Consideration with a fair market value in excess of $50 million. A particular
item of Designated Noncash Consideration shall no longer be considered to be
outstanding when it has been sold for cash or redeemed or paid in full in the
case of non-cash consideration in the form of promissory notes or equity.
"DISQUALIFIED STOCK" means any class or series of Capital Stock of any
Person that by its terms or otherwise is (i) required to be redeemed prior to
the Stated Maturity of any outstanding Notes, (ii) redeemable at the option of
the holder of such class or series of Capital Stock at any time prior to the
Stated Maturity of any outstanding Notes or (iii) convertible into or
exchangeable for Capital Stock referred to in clause (i) or (ii) above or
Indebtedness having a scheduled maturity prior to the Stated Maturity of any
outstanding Notes; PROVIDED that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require such Person to repurchase or redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of control" occurring prior to the
Stated Maturity of any outstanding Notes shall not constitute Disqualified Stock
if the "asset sale" or "change of control" provisions applicable to such Capital
Stock are no more favorable to the holders of such Capital Stock than the
provisions contained in SECTION 4.11 and SECTION 4.12 and such Capital
7
Stock specifically provides that such Person will not repurchase or redeem any
such stock pursuant to such provision prior to the Company's repurchase of such
Notes as are required to be repurchased pursuant to SECTION 4.11 and SECTION
4.12.
"EVENT OF DEFAULT" has the meaning provided in SECTION 6.01.
"EXCESS PROCEEDS" has the meaning provided in SECTION 4.11.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE NOTES" means, with respect to a series of Notes, any
securities of the Company containing terms identical to the Notes of such series
(except that such Exchange Notes shall be registered under the Securities Act)
that are issued and exchanged for the Notes pursuant to the Registration Rights
Agreement or any other registration rights agreement and this Indenture.
"EXISTING BORROWER" means any borrower under the Credit Agreements or
the JSC Credit Agreement on the Closing Date.
"EXISTING GUARANTOR" means any guarantor under the Credit Agreements
or the JSC Credit Agreement on the Closing Date.
"FIRST MORTGAGE NOTES" means the Company's 10-3/4% First Mortgage
Notes that were due in 2002 and paid in full in 2001, issued pursuant to the
Indenture that was dated as of October 12, 1994, between the Company and Norwest
Bank, Minnesota, National Association, as trustee, as amended, restated,
supplemented or otherwise modified from time to time.
"FOREIGN SUBSIDIARY" means any Subsidiary of the Company organized
outside of the United States.
"GAAP" means generally accepted accounting principles in the United
States of America, including, without limitation, those 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 approved by a significant segment of the accounting profession,
as in effect from to time. All ratios and computations (other than EBITDA or pro
forma computations) contained or referred to in this Indenture shall be computed
in conformity with GAAP applied on a consistent basis, except that calculations
made for purposes of determining compliance with the terms of the covenants and
with other provisions of this Indenture shall be made without giving effect to
(i) the amortization of any expenses incurred in connection with the offering of
any of the Notes and (ii) except as otherwise provided, the amortization of any
amounts required or permitted by Accounting Principles Board Opinion Nos. 16 and
17.
"GLOBAL NOTES" has the meaning provided in SECTION 2.01.
"GUARANTEE" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and, without limiting the
8
generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness of such other Person (whether
arising by virtue of partnership arrangements, or by agreements to keep-well, to
purchase assets, goods, securities or services (unless such purchase
arrangements are on arm's-length terms and are entered into in the ordinary
course of business), to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of assuring in any
other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
PROVIDED that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"GUARANTEED INDEBTEDNESS" has the meaning provided in SECTION 4.07.
"GUARANTOR" means each direct or indirect Subsidiary of the Company
that has executed and delivered a Subsidiary Guarantee.
"HOLDER" or "NOTEHOLDER" means the registered holder of any Note.
"INCUR" means, with respect to any Indebtedness, to incur, create,
issue, assume, Guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including an "Incurrence" of Acquired Indebtedness; PROVIDED that
(i) neither the accrual of interest nor the accretion of original issue discount
shall be considered an Incurrence of Indebtedness, (ii) any amendment,
restatement, supplement, modification or waiver of any document pursuant to
which Indebtedness was previously Incurred shall only be deemed to be an
Incurrence of Indebtedness if and to the extent such amendment, restatement,
supplement, modification or waiver increases the outstanding principal amount
thereof (or, with respect to revolving lines of credit, revolving receivables
purchases or other similar arrangements, increases the amount of commitments
therefor), and (iii) the amount of Indebtedness Incurred with respect to
revolving lines of credit, revolving receivables purchases and other similar
arrangements shall be the amount of commitments therefor measured on the date of
the granting of such commitments by the lender.
"INDEBTEDNESS" means, with respect to any Person at any date of
determination (without duplication):
(i) all indebtedness of such Person for borrowed money;
(ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments (other than, in the case of the Company
and its Restricted Subsidiaries, any non-negotiable notes of the Company or
its Restricted Subsidiaries issued to its insurance carriers in lieu of
maintenance of policy reserves in connection with workers' compensation and
liability insurance programs of the Company or its Restricted
Subsidiaries);
(iii) all obligations of such Person in respect of letters of credit
or other similar instruments (including reimbursement obligations with
respect thereto, but excluding obligations with respect to letters of
credit (including trade letters of credit) securing obligations (other than
obligations described in (i) or (ii) above or (v), (vi) or (vii) below)
9
entered into in the ordinary course of business of such Person to the
extent such letters of credit are not drawn upon or, if drawn upon, to the
extent such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement);
(iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services, which purchase price is due more
than six months after the date of placing such property in service or
taking delivery and title thereto or the completion of such services,
except Trade Payables;
(v) all Capitalized Lease Obligations;
(vi) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by such
Person; PROVIDED that the amount of such Indebtedness shall be the lesser
of (A) the fair market value of such asset at such date of determination
and (B) the amount of such Indebtedness;
(vii) all Indebtedness of other Persons Guaranteed by such Person to
the extent such Indebtedness is Guaranteed by such Person; and
(viii) to the extent not otherwise included in this definition,
obligations under Currency Agreements and Interest Rate Agreements.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and, with respect to contingent obligations, the maximum liability, upon
the occurrence of the contingency giving rise to the obligation, PROVIDED (A)
that the amount outstanding at any time of any Indebtedness issued with original
issue discount is the face amount of such Indebtedness less the remaining
unamortized portion of the original issue discount of such Indebtedness as
determined in conformity with GAAP, (B) that money borrowed and set aside at the
time of the Incurrence of any Indebtedness in order to prefund the payment of
the interest on such Indebtedness shall not be deemed to be "Indebtedness", (C)
that Indebtedness shall not include any liability for federal, state, local or
other taxes and (D) the amount of Indebtedness under any revolving line of
credit, revolving receivables purchases or other similar arrangements shall be
the amount of commitments therefor measured as of the date of incurrence of such
commitments. Notwithstanding the foregoing, "Indebtedness" shall not include
unsecured indebtedness of the Company and its Restricted Subsidiaries incurred
to finance insurance premiums of the Company and its Restricted Subsidiaries, to
the extent customary in the Company's industry.
"INDENTURE" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the terms of particular series of
Notes established as contemplated by SECTION 2.03; PROVIDED, HOWEVER, that, if
at any time more than one Person is acting as Trustee under this instrument,
"Indenture" shall mean, with respect to any one or more series of Notes for
which such Person is Trustee, this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
10
hereof and shall include the terms of particular series of Notes for which such
Person is Trustee established as contemplated by SECTION 2.03, exclusive,
however, of any provisions or terms which relate solely to other series of Notes
for which such Person is not Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after
such Person had become such Trustee but to which such Person, as such Trustee,
was not a party.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"INTEREST COVERAGE RATIO" means, on any Transaction Date, the ratio of
(i) the aggregate amount of Consolidated EBITDA for the then most recent four
fiscal quarters for which financial information in respect thereof is available
immediately prior to such Transaction Date (the "Four Quarter Period") to (ii)
the aggregate Consolidated Interest Expense during such Four Quarter Period. In
making the foregoing calculation, (A) PRO FORMA effect shall be given to any
Indebtedness Incurred or repaid (including any Indebtedness irrevocably called
for redemption) during the period (the "Reference Period") commencing on the
first day of the Four Quarter Period and ending on the Transaction Date (other
than Indebtedness Incurred or repaid under a revolving credit or similar
arrangement to the extent of the commitment thereunder or under any predecessor
revolving credit or similar arrangement) in effect on the last day of such Four
Quarter Period), in each case as if such Indebtedness had been Incurred or
repaid on the first day of such Reference Period; (B) Consolidated Interest
Expense attributable to interest on any Indebtedness (whether existing or being
Incurred) computed on a PRO FORMA basis and bearing a floating interest rate
shall be computed as if the rate in effect on the Transaction Date (taking into
account any Interest Rate Agreement applicable to such Indebtedness if such
Interest Rate Agreement has a remaining term in excess of 12 months or, if
shorter, at least equal to the remaining term of such Indebtedness) had been the
applicable rate for the entire period; (C) PRO FORMA effect shall be given to
Asset Dispositions and Asset Acquisitions (including giving PRO FORMA effect to
the application of proceeds of any Asset Disposition and to those cost savings
that senior management of the Company reasonably expects to realize within 12
months of the consummation of any acquisition or disposition) that occur during
such Reference Period as if they had occurred and such proceeds had been applied
on the first day of such Reference Period; and (D) PRO FORMA effect shall be
given to asset dispositions and asset acquisitions (including giving PRO FORMA
effect to the application of proceeds of any asset disposition) that have been
made by any Person that has become a Restricted Subsidiary or has been merged
with or into the Company or any Restricted Subsidiary during such Reference
Period and that would have constituted Asset Dispositions or Asset Acquisitions
had such transactions occurred when such Person was a Restricted Subsidiary as
if such asset dispositions or asset acquisitions were Asset Dispositions or
Asset Acquisitions that occurred on the first day of such Reference Period;
PROVIDED that to the extent that clause (C) or (D) of this sentence requires
that PRO FORMA effect be given to an Asset Acquisition or Asset Disposition,
such PRO FORMA calculation shall be based upon the four full fiscal quarters
immediately preceding the Transaction Date of the Person, or division or line of
business of the Person, that is acquired or disposed for which financial
information is available.
"INTEREST PAYMENT DATE", when used with respect to any Note, means the
stated Maturity of an installment of interest on such Note.
11
"INTEREST RATE AGREEMENT" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement, option or future contract or other
similar agreement or arrangement.
"INVESTMENT" in any Person means any direct or indirect advance, loan
or other extension of credit (including, without limitation, by way of Guarantee
or similar arrangement; but excluding advances to customers in the ordinary
course of business that are, in conformity with GAAP, recorded as accounts
receivable on the balance sheet of the Company or its Restricted Subsidiaries)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, bonds, notes,
debentures or other similar instruments issued by, such Person and shall include
(i) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary and
(ii) the retention of the Capital Stock or any other Investment by the Company
or any of its Restricted Subsidiaries, of (or in) any Person that has ceased to
be a Subsidiary, including, without limitation, by reason of any transaction
permitted by clause (iii) of SECTION 4.06. For purposes of the definition of
"Unrestricted Subsidiary" and SECTION 4.04,
(1) "INVESTMENT" shall include the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market value of
the net assets of any Subsidiary of the Company at the time that such
Subsidiary is designated an Unrestricted Subsidiary; PROVIDED, HOWEVER,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary,
the Company shall be deemed to continue to have a permanent "Investment" in
an Unrestricted Subsidiary in an amount (if positive) equal to:
(A) the Company's "Investment" in such Subsidiary at the time
of such redesignation less
(B) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net
assets of such Subsidiary at the time of such resignation;
(2) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its fair market value at the time of such transfer, in
each case as determined in good faith by the senior management of the
Company; and
(3) the amount of any Investment shall be the original cost as of
the date of determination of such Investment plus the cost of all
additional Investments by the Company or any of its Restricted
Subsidiaries, without any adjustments for increases or decreases in value
or write-ups, write-downs or write-offs with respect to such investments,
reduced by the payment of dividends or distributions (including tax sharing
payments) in connection with such Investment, the net proceeds of any
disposition of such investment or any other amounts received in respect of
such Investment; PROVIDED, HOWEVER, that no such dividends, distributions,
proceeds or receipt shall reduce the amount of any Investment if it would
be included in Adjusted Consolidated Net Income
12
and PROVIDED, FURTHER, that the amount of any Investment shall be deemed
not to be less than zero.
"JSC" means Jefferson Smurfit Corporation (U.S.), a Delaware
corporation.
"JSC CREDIT AGREEMENT" means the Second Amended and Restated Credit
Agreement dated as of April 27, 2001 by and among SSCC, JSCE, JSC, the financial
institutions party thereto, Bankers Trust Company and The Chase Manhattan Bank,
as Senior Managing Agents, The Chase Manhattan Bank, as Administrative Agent,
Collateral Agent and Swingline Lender, and the Managing Agents and Fronting
Banks party thereto, together with all agreements, instruments and documents
executed or delivered pursuant thereto or in connection therewith (including,
without limitation, any promissory notes, Guarantees and security documents), as
such agreements, instruments and documents may be amended (including, without
limitation, any amendment and restatement thereof), supplemented, extended,
renewed, replaced or otherwise modified from time to time, including, without
limitation, any agreement increasing the amount of, extending the maturity of,
refinancing (in whole or in part) or otherwise restructuring (including, but not
limited to, by the inclusion of additional borrowers or guarantors thereof or by
the addition of collateral or other credit enhancement to support the
obligations thereunder) all or any portion of the Indebtedness under such
agreement or any successor agreement or agreements.
"JSCE" means JSCE, Inc., a Delaware corporation.
"JSC INDENTURE" means the Indenture dated as of April 15, 1993 by and
among NationsBank of Georgia, National Association, as trustee, JSC (as
successor to Container Corporation of America), as Issuer, and JSCE (as
successor to Jefferson Smurfit Corporation (U.S.)), as Guarantor, pursuant to
which JSC issued its 9-3/4 % Senior Notes due 2003, together with all
agreements, instruments and documents executed or delivered pursuant thereto or
in connection therewith (including, without limitation, any promissory notes and
Guarantees), as such agreements, instruments and documents may be amended
(including, without limitation, any amendment and restatement thereof),
supplemented, extended, renewed, replaced or otherwise modified from time to
time, including, without limitation, any agreement increasing the amount of,
extending the maturity of, refinancing (in whole or in part) or otherwise
restructuring (including, but not limited to, by the inclusion of additional
borrowers or guarantors thereof or by the addition of collateral or other credit
enhancement to support the obligations thereunder) all or any portion of the
Indebtedness under such agreement or any successor agreement or agreements.
"JSC TRANSACTION" means any (i) consolidation or merger of the Company
or any of its Restricted Subsidiaries with or into JSC or of JSC with or into
the Company or any of its Restricted Subsidiaries, (ii) any Investment by the
Company or any of its Restricted Subsidiaries into JSC pursuant to which JSC
shall become a Restricted Subsidiary, or (iii) any transaction which results in
JSCE owning directly 100% of the capital stock of the Company and its
Subsidiaries and JSC and its Subsidiaries, so long as 75% of the senior secured
Indebtedness of JSCE and its Subsidiaries is PARI PASSU with the Notes and each
Subsidiary of JSCE that Guarantees such senior secured debt executes and
delivers a Subsidiary Guarantee; PROVIDED that
13
(A) such transaction meets the requirements of SECTION 5.01 and (B) the Company
delivers to the Trustee an Officers Certificate stating that JSC has material
assets on a consolidated basis.
"JSC TRANSACTION DATE" means the date on which the JSC Transaction is
consummated.
"JS GROUP" means Jefferson Smurfit Group plc, a public corporation
organized under the laws of the Republic of Ireland.
"LIEN" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, without limitation, any conditional sale
or other title retention agreement or lease in the nature thereof or any
agreement to give any security interest).
"MBI TRANSACTION" means the acquisition by the Company or any
Restricted Subsidiary (including, without limitation, by means of a contribution
from SSCC) of the remaining 50% of the equity interests of Smurfit-MBI, a
limited partnership formed under the laws of the Province of Ontario, in
exchange for assets or capital stock of any of the Company's Foreign
Subsidiaries having a fair market value in the aggregate of less than $200
million.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"NET CASH PROCEEDS" means, (a) with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of cash or cash equivalents, including
payments in respect of deferred payment obligations (to the extent corresponding
to the principal, but not interest, component thereof) when received in the form
of cash or cash equivalents and proceeds from the conversion of other property
received when converted to cash or cash equivalents, net of (i) brokerage
commissions and other fees and expenses (including fees and expenses of counsel
and investment bankers) related to such Asset Sale, (ii) provisions for all
taxes (whether or not such taxes will actually be paid or are payable) as a
result of such Asset Sale without regard to the consolidated results of
operations of the Company and its Restricted Subsidiaries, taken as a whole,
(iii) payments made to repay Indebtedness or any other obligation outstanding at
the time of such Asset Sale that either (A) is secured by a Lien on the property
or assets sold or (B) is required to be paid as a result of such sale, (iv) all
distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Sale and (v)
appropriate amounts to be provided by the Company or any Restricted Subsidiary
as a reserve against any liabilities associated with such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as determined
in conformity with GAAP and (b) with respect to any issuance or sale of Capital
Stock, the proceeds of such issuance or sale in the form of cash or cash
equivalents, including payments in respect of deferred payment obligations (to
the extent corresponding to the principal, but not interest, component thereof)
when received in the form of cash or cash equivalents and proceeds from the
conversion of other property received when converted to cash or cash
equivalents, net of attorney's fees, accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage, consultant and
other fees and expenses incurred in connection with such issuance or sale and
net of taxes paid or payable as a result thereof.
14
"NON-U.S. PERSON" means a person who is not a "U.S. person" (as
defined in Regulation S).
"NOTES" has the meaning stated in the first recital of this Indenture
and more particularly means any Notes authenticated and delivered under this
Indenture; PROVIDED, HOWEVER, that if at any time there is more than one person
acting as Trustee under this Indenture "Notes" with respect to this Indenture as
to which such Person is Trustee shall have the meaning stated in the first
recital of this Indenture and shall more particularly mean Notes authenticated
and delivered under this Indenture, exclusive, however, of Notes of any series
as to which such Person is not Trustee.
"OFFER TO PURCHASE" means an offer to purchase Notes by the Company
from the Holders commenced by mailing a notice to the Trustee for distribution
to each Holder stating:
(i) the Section of this Indenture pursuant to which the offer is
being made and that all Notes validly tendered will be accepted for payment
on a pro rata basis;
(ii) the purchase price and the date of purchase (which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date
such notice is mailed) (the "PAYMENT DATE");
(iii) that any Note not tendered will continue to accrue interest
pursuant to its terms;
(iv) that, unless the Company defaults in the payment of the
purchase price, any Note accepted for payment pursuant to the Offer to
Purchase shall cease to accrue interest on and after the Payment Date;
(v) that Holders electing to have a Note purchased pursuant to the
Offer to Purchase will be required to surrender the Note, together with the
form entitled "Option of the Holder to Elect Purchase" on the reverse side
of the Note completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day immediately
preceding the Payment Date;
(vi) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the
third Business Day immediately preceding the Payment Date, a facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Notes delivered for purchase and a statement that such ▇▇▇▇▇▇ is
withdrawing his election to have such Notes purchased; and
(vii) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered; PROVIDED that each Note purchased and each new Note
issued shall be in a principal amount of $1,000 or integral multiples
thereof.
On the Payment Date, the Company shall (i) accept for payment on a pro
rata basis Notes or portions thereof tendered pursuant to an Offer to Purchase;
(ii) deposit with the Paying Agent money sufficient to pay the purchase price of
all Notes or portions thereof so
15
accepted; and (iii) deliver, or cause to be delivered, to the Trustee all Notes
or portions thereof so accepted together with an Officers' Certificate
specifying the Notes or portions thereof accepted for payment by the Company.
The Paying Agent shall promptly mail to the Holders of Notes so accepted payment
in an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail to such Holders a new Note equal in principal amount to
any unpurchased portion of the Note surrendered; PROVIDED that each Note
purchased and each new Note issued shall be in a principal amount of $1,000 or
integral multiples thereof. The Company will publicly announce the results of an
Offer to Purchase as soon as practicable after the Payment Date. The Trustee
shall act as the Paying Agent for an Offer to Purchase. The Company will comply
with Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable,
in the event that the Company is required to repurchase Notes pursuant to an
Offer to Purchase.
"OFFICER" means, with respect to the Company, the Chairman or Vice
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President or the Chief Financial Officer, the Treasurer or any Assistant
Treasurer, or the Secretary or any Assistant Secretary.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers.
Each Officers' Certificate (other than certificates provided pursuant to TIA
Section 314(a)(4)) shall include the statements provided for in TIA Section
314(e).
"OFFSHORE GLOBAL NOTE" has the meaning provided in SECTION 2.01.
"OFFSHORE PHYSICAL NOTES" has the meaning provided in SECTION 2.01.
"OPINION OF COUNSEL" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, that meets the requirements
of SECTION 10.04. Each such Opinion of Counsel shall include the statements
provided for in TIA Section 314(e).
"PARENT" means any entity owning beneficially, directly or indirectly,
100% of the voting stock of the Company.
"PAYING AGENT" has the meaning provided in SECTION 2.04, except that,
for the purposes of Article Eight, the Paying Agent shall not be the Company or
a Subsidiary of the Company or an Affiliate of any of them. The term "Paying
Agent" includes any additional Paying Agent.
"PAYMENT DATE" has the meaning provided in the definition of Offer to
Purchase.
"PERMITTED INVESTMENT" means:
(i) an Investment in the Company or a Restricted Subsidiary or a
Person which will, upon the making of such Investment, become a Restricted
Subsidiary or be merged or consolidated with or into, or transfer or convey
all or substantially all its assets to, the Company or a Restricted
Subsidiary; PROVIDED that such person's primary business is related,
ancillary or complementary to the businesses of SSCC and its Restricted
Subsidiaries on the date of such Investment, except to the extent as would
not be material to the Company and its Restricted Subsidiaries taken as a
whole;
16
(ii) Temporary Cash Investments;
(iii) payroll, travel and similar advances or loans to cover matters
that are expected at the time of such advances or loans ultimately to be
treated as expenses in accordance with GAAP;
(iv) stock, obligations or securities received in settlement of
debts created in the ordinary course of business and owing to the Company
or any Restricted Subsidiary pursuant to a work-out or similar arrangement
or proceeding or in satisfaction of judgments or pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of
a debtor;
(v) an Investment in an Unrestricted Subsidiary consisting solely
of an Investment in another Unrestricted Subsidiary;
(vi) Interest Rate Agreements, Commodity Agreements and Currency
Agreements designed solely to protect the Company or its Restricted
Subsidiaries against fluctuations in interest rates, commodity prices or
foreign currency exchange rates;
(vii) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with SECTION 4.11;
(viii) loans and advances to employees and officers of the Company
and its Restricted Subsidiaries in the ordinary course of business;
(ix) loans, guarantees of loans and advances to directors or
consultants of the Company or a Restricted Subsidiary of the Company not to
exceed $5.0 million in the aggregate outstanding at any time;
(x) receivables owing to the Company or any Restricted Subsidiary
if created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; PROVIDED, HOWEVER,
that such trade terms may include such concessionary trade terms as the
Company or any such Restricted Subsidiary deems reasonable under the
circumstances;
(xi) endorsements of negotiable instruments and documents in the
ordinary course of business;
(xii) Investments of the Company and its Restricted Subsidiaries in
existence on the Closing Date and Investments of JSC and its Subsidiaries
as of the JSC Transaction Date;
(xiii) Investments of a Person or any of its Subsidiaries existing at
the time such Person becomes a Restricted Subsidiary of the Company or at
the time such person merges or consolidates with the Company or any of its
Restricted Subsidiaries, in either case in compliance with this Indenture,
provided that such Investments were not made by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such merger or consolidation; and
17
(xiv) any Investment by the Company or a Restricted Subsidiary in a
Receivables Subsidiary or any Investment by a Receivables Subsidiary in any
other Person in connection with a Qualified Securitization Transaction;
PROVIDED that any Investment in a Receivables Subsidiary is in the form of
a Purchase Money Note or an equity interest.
"PERMITTED LIENS" means:
(i) Liens for taxes, assessments, governmental charges or claims
that are being contested in good faith by appropriate legal proceedings
promptly instituted and diligently conducted and for which a reserve or
other appropriate provision, if any, as shall be required in conformity
with GAAP shall have been made;
(ii) statutory and common law Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other similar
Liens (including maritime Liens) arising in the ordinary course of business
and with respect to amounts not yet delinquent or being contested in good
faith by appropriate legal proceedings promptly instituted and diligently
conducted and for which a reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have been made;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security;
(iv) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory or regulatory obligations, bankers'
acceptances, surety and appeal bonds, government contracts, performance and
return-of-money bonds and other obligations of a similar nature incurred in
the ordinary course of business (exclusive of obligations for the payment
of borrowed money);
(v) easements, rights-of-way, municipal and zoning ordinances and
similar charges, encumbrances, title defects or other irregularities that
do not materially interfere with the ordinary course of business of the
Company or any of its Restricted Subsidiaries;
(vi) Liens (including extensions and renewals thereof) upon real or
personal property acquired after the Closing Date; PROVIDED that (a) such
Lien is created solely for the purpose of securing Indebtedness Incurred,
in accordance with SECTION 4.03, to finance the cost (including the cost of
improvement or construction) of the item of property or assets subject
thereto and such Lien is created prior to, at the time of or within six
months after the later of the acquisition, the completion of construction
or the commencement of full operation of such property, (b) the principal
amount of the Indebtedness secured by such Lien does not exceed 100% of
such cost and (c) any such Lien shall not extend to or cover any property
or assets other than such item of property or assets and any improvements
on such item;
(vii) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Company and its
Restricted Subsidiaries, taken as a whole;
18
(viii) Liens encumbering property or assets under construction
arising from progress or partial payments by a customer of the Company or
its Restricted Subsidiaries relating to such property or assets;
(ix) any interest or title of a lessor in the property subject to
any Capitalized Lease or operating lease;
(x) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
(xi) Liens on property of, or on shares of Capital Stock or
Indebtedness of, any Person existing at the time such Person becomes, or
becomes a part of, any Restricted Subsidiary; PROVIDED that such Liens do
not extend to or cover any property or assets of the Company or any
Restricted Subsidiary other than the property or assets acquired;
(xii) Liens in favor of the Company or any Restricted Subsidiary;
(xiii) Liens arising from the rendering of a final judgment or order
against the Company or any Restricted Subsidiary that does not give rise to
an Event of Default;
(xiv) Liens securing reimbursement obligations with respect to
letters of credit that encumber documents and other property relating to
such letters of credit and the products and proceeds thereof;
(xv) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(xvi) Liens encumbering customary initial deposits and margin
deposits, and other Liens that are within the general parameters customary
in the industry and incurred in the ordinary course of business, in each
case, securing Indebtedness under Interest Rate Agreements, Commodity
Agreements and Currency Agreements and forward contracts, options, future
contracts, futures options or similar agreements or arrangements designed
solely to protect the Company or any of its Restricted Subsidiaries from
fluctuations in interest rates, currencies or the price of commodities;
(xvii) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
the Company or any of its Restricted Subsidiaries in the ordinary course of
business;
(xviii) Liens on shares of Capital Stock of any Unrestricted
Subsidiary to secure Indebtedness of such Unrestricted Subsidiary;
(xix) Liens on or sales of receivables;
(xx) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed (a) $50 million prior to the JSC Transaction
or (b) $100 million following the consummation of the JSC Transaction, in
each case at any one time outstanding; and
19
(xxi) Liens on assets of a Receivables Subsidiary incurred in
connection with a Qualified Securitization Transaction.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"PHYSICAL NOTES" has the meaning provided in SECTION 2.01.
"PREFERRED STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference equity,
whether outstanding on the Closing Date or issued thereafter, including, without
limitation, all series and classes of such preferred or preference stock.
"PRINCIPAL" of a debt security, including the Notes, means the
principal amount due on the Stated Maturity as shown on such debt security.
"PRIVATE PLACEMENT LEGEND" means the legend initially set forth on the
Notes in the form set forth in SECTION 2.02.
"PUBLIC EQUITY OFFERING" means an underwritten primary public offering
of Common Stock of the Company pursuant to an effective registration statement
under the Securities Act.
A "PUBLIC MARKET" shall be deemed to exist if (i) a Public Equity
Offering has been consummated and (ii) at least 15% of the total issued and
outstanding Common Stock of the Company has been distributed by means of an
effective registration statement under the Securities Act or sales pursuant to
Rule 144 under the Securities Act.
"PURCHASE MONEY NOTE" means a promissory note evidencing a line of
credit, which may be irrevocable, from, or evidencing other Indebtedness owed
to, the Company or any of its Restricted Subsidiaries in connection with a
Qualified Securitization Transaction, which note shall be repaid from cash
available to the maker of such note, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors in
respect of interest, principal and other amounts owing to such investors and
amounts paid in connection with the purchase of newly generated receivables.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"QUALIFIED SECURITIZATION TRANSACTION" means any transaction or series
of transactions entered into by the Company or any of its Restricted
Subsidiaries pursuant to which the Company or any of its Restricted Subsidiaries
sells, conveys or otherwise transfers to:
(1) a Receivables Subsidiary (in the case of a transfer by the
Company or any of its Restricted Subsidiaries; and
(2) any other Person (in the case of a transfer by a Receivables
Subsidiary),
20
or grants a security interest in, any accounts receivable, and any assets
related thereto including, without limitation, all collateral securing such
accounts receivable, all contracts and all guarantees or other obligations in
respect of such accounts receivable, proceeds of such accounts receivable and
other assets that are customarily transferred, or in respect of which security
interests are customarily granted, in connection with securitization
transactions involving accounts receivable.
"RECEIVABLES SUBSIDIARY" means a Wholly Owned Subsidiary of the
Company that engages in no activities other than in connection with the
financing of accounts receivable and that is designated (provided that no such
designation shall be required for any Receivables Subsidiary in existence prior
to the Closing Date) by the Board of Directors (as provided below) as a
Receivables Subsidiary:
(i) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which (a) is Guaranteed by the Company or any
Restricted Subsidiary of the Company (excluding Guarantees of obligations
and contingent obligations (other than the principal of, and interest on,
Indebtedness) pursuant to representations, warranties, covenants and
indemnities entered into in the ordinary course of business in connection
with a Qualified Securitization Transaction), (b) is recourse to or
obligates the Company or any Restricted Subsidiary of the Company in any
way other than pursuant to representations, warranties, covenants and
indemnities entered into in the ordinary course of business in connection
with a Qualified Securitization Transaction or (c) subjects any property or
asset of the Company or any Restricted Subsidiary of the Company, directly
or indirectly, contingently or otherwise, to the satisfaction thereof,
other than pursuant to representations, warranties, covenants and
indemnities entered into in the ordinary course of business in connection
with a Qualified Securitization Transaction;
(ii) with which neither the Company nor any Restricted Subsidiary
of the Company has any material contract, agreement, arrangement or
understanding (except in connection with a Purchase Money Note or Qualified
Securitization Transaction) other than on terms no less favorable to the
Company or such Restricted Subsidiary than those that might be obtained at
the time from Persons who are not Affiliates of the Company, other than
fees payable in the ordinary course of business in connection with
servicing accounts receivable; and
(iii) with which neither the Company nor any Restricted Subsidiary
of the Company has any obligation to maintain or preserve such Restricted
Subsidiary's financial condition or cause such Restricted Subsidiary to
achieve certain levels of operating results.
Any such designation after the Closing Date by the Board of Directors
shall be evidenced to the Trustee by filing with the Trustee a Board Resolution
giving effect to such designation and an officers' certificate certifying, to
the knowledge and belief of such officer after consulting with counsel that such
designation complied with the foregoing conditions.
"REDEMPTION DATE" means, when used with respect to any Note to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
21
"REDEMPTION PRICE" means, when used with respect to any Note to be
redeemed, the price at which such Note is to be redeemed pursuant to this
Indenture.
"REGISTRAR" has the meaning provided in SECTION 2.04.
"REGISTRATION" has the meaning provided in SECTION 4.18.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated June 19, 2002, between the Company and Deutsche Bank Securities
Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc., Banc of America Securities LLC, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., Banc One Capital Markets,
Inc., BNY Capital Markets, Inc., Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇ - Grantchester,
Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Scotia Capital (USA),
Inc. and ▇▇ ▇▇▇▇▇ Securities Corporation and certain permitted assigns specified
therein, as amended, restated, supplemented or otherwise modified from time to
time.
"REGISTRATION STATEMENT" means the Registration Statement as defined
and described in the Registration Rights Agreement or any other registration
rights agreement providing for the registration of any Notes under the
Securities Act.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date of Notes of or within any series means the date specified for that purpose
as contemplated by SECTION 2.03.
"REGULATION S" means Regulation S under the Securities Act.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means
any vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any trust officer or assistant trust officer or any other
officer of the Trustee in its corporate trust department customarily performing
functions similar to those performed by any of the above-designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"RESTRICTED PAYMENTS" has the meaning provided in SECTION 4.04.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"RULE 144A" means Rule 144A under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY REGISTER" has the meaning provided in SECTION 2.04.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
22
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, and its successors.
"SIGNIFICANT SUBSIDIARY" means, at any date of determination, any
Restricted Subsidiary that, together with its Subsidiaries, (i) for the most
recent fiscal year of the Company, accounted for more than 10% of the
consolidated revenues of the Company and its Restricted Subsidiaries or (ii) as
of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Company and its Restricted Subsidiaries, all as set
forth on the most recently available consolidated financial statements of the
Company for such fiscal year.
"SSCC" means Smurfit-
Stone Container Corporation, a Delaware
corporation.
"SSCC PREFERRED STOCK" means SSCC's 7% Series A Cumulative
Exchangeable Redeemable Convertible Preferred Stock, par value $0.01 per share.
"STATED MATURITY" means, (i) with respect to any debt security, the
date specified in such debt security as the fixed date on which the final
installment of principal of such debt security is due and payable and (ii) with
respect to any scheduled installment of principal of or interest on any debt
security, the date specified in such debt security as the fixed date on which
such installment is due and payable.
"STONE CANADA" means Smurfit-Stone Container Canada Inc., a company
amalgamated pursuant to the Canadian Business Corporations Act and may in the
future be continued as a corporation under the laws of New Brunswick.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the voting power
of the outstanding Voting Stock is owned, directly or indirectly, by such Person
and one or more other Subsidiaries of such Person.
"SUBSIDIARY GUARANTEE" has the meaning provided in SECTION 4.07.
"TEMPORARY CASH INVESTMENT" means any of the following:
(i) direct obligations of the United States of America or any
agency thereof or obligations fully and unconditionally guaranteed by the
United States of America or the federal government of Canada or any agency
or instrumentality thereof;
(ii) time deposit accounts, certificates of deposit and money
market deposits maturing within one year of the date of acquisition thereof
issued by a bank or trust company which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $500 million (or the
foreign currency equivalent thereof) and has outstanding debt which is
rated "A" (or such similar equivalent rating) or higher by at least one
nationally recognized statistical rating organization (as defined in Rule
436 under the Securities Act) or any money-market fund sponsored by a
registered broker dealer or mutual fund distributor;
23
(iii) repurchase obligations with a term of not more than 30 days
for underlying securities of the types described in clause (i) above
entered into with a bank or trust company meeting the qualifications
described in clause (ii) above;
(iv) commercial paper, maturing not more than 270 days after the
date of acquisition, issued by a corporation (other than an Affiliate of
the Company) with a rating at the time as of which any investment therein
is made of "P-1" (or higher) according to ▇▇▇▇▇'▇ or "A-1" (or higher)
according to S&P (or equivalent rating in the case of a Permitted
Investment made by a Foreign Subsidiary);
(v) securities with maturities of one year or less from the date
of acquisition issued or fully and unconditionally guaranteed by any state,
commonwealth or territory of the United States of America or the federal
government of Canada, or by any political subdivision or taxing authority
thereof, and rated at least "A" by S&P or ▇▇▇▇▇'▇;
(vi) demand deposits with any bank or trust company; and
(vii) in the case of Foreign Subsidiaries, short term investments
comparable to the foregoing.
"TIA" or "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939
(15 U.S. Code Sections 77aaa-77bbbb), as in effect on the date this Indenture
was executed, except as provided in SECTION 9.06.
"TRADE PAYABLES" means, with respect to any Person, any accounts
payable or any other indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person or any of its Subsidiaries arising
in the ordinary course of business in connection with the acquisition of goods
or services.
"TRANSACTION DATE" means, with respect to the Incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
"TRUSTEE" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article Seven of this Indenture and thereafter means such successor.
"UNITED STATES BANKRUPTCY CODE" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"UNRESTRICTED SUBSIDIARY" means (i) any Unrestricted Subsidiary (as
defined in the JSC Indenture) of JSC on the date of the JSC Transaction, (ii)
any Subsidiary of the Company that at the time of determination shall be
designated an Unrestricted Subsidiary by the Board of Directors in the manner
provided below; and (iii) any Subsidiary of an Unrestricted Subsidiary. The
Board of Directors may designate any Restricted Subsidiary (including any newly
acquired or newly formed Subsidiary of the Company) to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, the
24
Company or any Restricted Subsidiary; PROVIDED that (A) any Guarantee by the
Company or any Restricted Subsidiary of any Indebtedness of the Subsidiary being
so designated shall be deemed an "Incurrence" of such Indebtedness and an
"Investment" by the Company or such Restricted Subsidiary (or both, if
applicable) at the time of such designation; (B) either (I) the Subsidiary to be
so designated has total assets of $1,000 or less or (II) if such Subsidiary has
assets greater than $1,000, such designation would be permitted under SECTION
4.04 and (C) if applicable, the Incurrence of Indebtedness and the Investment
referred to in clause (A) of this proviso would be permitted under SECTION 4.03
and SECTION 4.04. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; PROVIDED that (i) no Default or Event
of Default shall have occurred and be continuing at the time of or after giving
effect to such designation and (ii) all Liens and Indebtedness of such
Unrestricted Subsidiary outstanding immediately after such designation would, if
Incurred at such time, have been permitted to be Incurred (and shall be deemed
to have been Incurred) for all purposes of this Indenture. Any such designation
by the Board of Directors shall be evidenced to the Trustee by promptly filing
with the Trustee a copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. GLOBAL NOTES" has the meaning provided in SECTION 2.01.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the Stated Maturity of the Notes, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt; PROVIDED that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
"U.S. PHYSICAL NOTES" means the Notes issued in the form of permanent
certificated Notes in registered form to Institutional Accredited Investors
which are not QIBs (excluding Non-U.S. Persons) who purchased Notes pursuant to
Regulation D of the Securities Act.
"VOTING STOCK" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"WHOLLY OWNED" means, with respect to any Subsidiary of any Person,
the ownership of all of the outstanding Capital Stock of such Subsidiary (other
than any director's qualifying shares or Investments by foreign nationals
mandated by applicable law) by such Person or one or more Wholly Owned
Subsidiaries of such Person.
25
SECTION 1.02. 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 Notes;
"indenture security holder" means a Holder or a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. 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 words in the
plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(vii) all ratios and computations based on GAAP contained in this
Indenture shall be computed in accordance with the definition of GAAP set
forth in SECTION 1.01; and
(viii) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated.
ARTICLE TWO
THE NOTES
SECTION 2.01. FORM AND DATING. The Notes of each series shall be
substantially in the forms as shall be established by or pursuant to a Board
Resolution or in one
26
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Notes as
evidenced by their execution of the Notes. If the forms of Notes of any series
are established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by SECTION 2.03 for the
authentication and delivery of such Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note.
The Trustee's certificate of authentication shall be substantially in
the form annexed hereto as EXHIBIT A.
Notes of or within a series offered and sold in reliance on Rule 144A
shall be issued initially in the form of one or more permanent global Notes in
registered form (the "U.S. GLOBAL NOTES") registered in the name of the nominee
of the Depositary, deposited with the Trustee, as custodian for the Depositary,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the U.S. Global Notes of or within a
series may from time to time be increased or decreased by adjustments made on
the records of the Trustee, as custodian for the Depositary or its nominee, in
accordance with the instructions given by the Holder thereof, as hereinafter
provided.
Notes of or within a series offered and sold in offshore transactions
in reliance on Regulation S shall be issued initially in the form of one or more
permanent global Notes in registered form (the "OFFSHORE GLOBAL NOTES"),
registered in the name of the nominee of the Depositary, deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Offshore Global Notes of or within a series may from time to time
be increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Notes of or within a series issued pursuant to SECTION 2.07 in
exchange for interests in the Offshore Global Notes shall be in the form of
permanent certificated Notes in registered form (the "OFFSHORE PHYSICAL NOTES").
The Offshore Physical Notes and U.S. Physical Notes of or within a
series are sometimes collectively herein referred to as the "PHYSICAL NOTES."
The U.S. Global Notes and the Offshore Global Notes of or within a series are
sometimes referred to herein as the "GLOBAL NOTES."
The definitive Notes of or within a series shall be typed, printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Notes of or within a series may be listed, all as
determined by the Officers executing such Notes, as evidenced by their execution
of such Notes.
27
SECTION 2.02. RESTRICTIVE LEGENDS. Unless and until a Note is
exchanged for an Exchange Note or sold in connection with an effective
Registration Statement pursuant to the Registration Rights Agreement or any
other registration rights agreement, (i) the U.S. Global Notes and U.S. Physical
Notes shall bear the legend set forth below on the face thereof and (ii) the
Offshore Physical Notes and Offshore Global Notes shall bear the legend set
forth below on the face thereof until at least the 41st day after the initial
issuance date of such Note and receipt by the Company and the Trustee of a
certificate substantially in the form of EXHIBIT B hereto.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD
REFERRED TO UNDER RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE
DATE OF TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE)
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED
TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
28
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
Each Global Note, whether or not an Exchange Note, shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, 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 IN SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.08 OF THE INDENTURE.
SECTION 2.03. EXECUTION, AUTHENTICATION AND DENOMINATIONS. Subject to
Article Four and applicable law, the aggregate principal amount of Notes of any
series which may be authenticated and delivered under this Indenture is
unlimited.
The Notes may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to the provisions of this Section,
set forth in, or determined in the manner provided in, an Officers' Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Notes of any series, any or all of the following, as applicable
(each of which (except for the matters set forth in clauses (1) and (9) below),
if so provided, may be determined
29
from time to time by the Company with respect to unissued Notes of the series
and set forth in such Notes of the series when issued from time to time):
(1) the title of the Notes of the series (which shall distinguish
the Notes of the series from all other series of Notes);
(2) the dates on which the principal of the Notes of the series is
payable;
(3) the rate at which the Notes of the series shall bear interest,
the date from which such interest shall accrue, the Interest Payment Dates
on which such interest shall be payable and the Regular Record Date for the
interest payable on any Notes on any Interest Payment Date and the basis
upon which interest shall be calculated if other than on the basis of a
360-day year of twelve 30-day months;
(4) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of
New York, where the principal of (and
premium, if any) and interest, if any, on Notes of the series shall be
payable, where any Notes of the series may be surrendered for registration
of transfer, where Notes of the series may be surrendered for exchange,
where Notes of the series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable and, if different
than the location specified in SECTION 10.02, the place or places where
notices or demands to or upon the Company in respect of the Notes of the
series and this Indenture may be served;
(5) the period or periods within which, the price or prices at
which and other terms and conditions upon which Notes of the series may be
redeemed, in whole or in part, at the option of the Company, if the Company
is to have that option;
(6) the obligation, if any, of the Company to redeem, repay or
purchase Notes of the series at the option of a Holder thereof, and the
period or periods within which, the price or prices at which, and other
terms and conditions upon which Notes of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(7) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(8) provisions, if any, granting special rights to the Holders of
Notes of the series upon the occurrence of such events as may be specified;
(9) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to Notes of the
series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein; and
(10) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which
terms shall not be inconsistent with the requirements of the Trust
Indenture Act or the provisions of this Indenture).
30
All Notes of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
Board Resolution (subject to this Section) and set forth in such Officers'
Certificate or in any such indenture supplemental hereto. Not all Notes of any
one series need be issued at the same time, and, unless otherwise provided, a
series may be reopened for issuances of additional Notes of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Notes shall be executed by two Officers of the Company. The
signature of these Officers on the Notes may be by facsimile or manual signature
in the name and on behalf of the Company.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee or authenticating agent authenticates the Note, the Note
shall be valid nevertheless.
A Note shall not be valid until the Trustee or authenticating agent
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
At any time and from time to time after the execution of this
Indenture, the Trustee or an authenticating agent shall upon receipt of a
Company Order authenticate for original issue Notes in the aggregate principal
amount specified in such Company Order; PROVIDED that the Trustee shall be
entitled to receive an Officers' Certificate and an Opinion of Counsel of the
Company in connection with such authentication of Notes. Such Company Order
shall specify the amount of Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated and, in case of an issuance of
Notes at any time following the Closing Date, shall certify that such issuance
is in compliance with Article Four. Such Opinion of Counsel shall be to the
effect that:
1. that the form of such Notes has been established by a
supplemental indenture or by or pursuant to a resolution of the Board
of Directors in conformity with the provisions of this Indenture;
2. that the terms of such Notes have been established in
accordance with the provisions of this Indenture;
3. that such Notes, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles; and
4. that the execution and delivery by the Company of such Notes
will not contravene any provisions of applicable federal or
New York
law.
31
The Trustee shall have the right to decline to authenticate and
deliver any Notes under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith shall determine that such action would expose the Trustee to personal
liability to existing Holders.
The Trustee may appoint an authenticating agent to authenticate Notes.
An authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such authenticating agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 in principal amount and any integral
multiple thereof.
SECTION 2.04. REGISTRAR AND PAYING AGENT. The Company shall maintain
an office or agency where Notes of each series may be presented for registration
of transfer or for exchange (the "REGISTRAR"), an office or agency where Notes
may be presented for payment (the "PAYING AGENT") and an office or agency where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served, which shall be in the Borough of Manhattan, The City of
New York. The Company shall cause the Registrar to keep a register of the Notes
of each series and of their transfer and exchange (the "SECURITY REGISTER"). The
Security Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. The Company may have one
or more co-Registrars and one or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such Agent
and any change in the address of such Agent. If the Company fails to maintain a
Registrar, Paying Agent and/or agent for service of notices and demands, the
Trustee shall act as such Registrar, Paying Agent and/or agent for service of
notices and demands. The Company may remove any Agent upon written notice to
such Agent and the Trustee; PROVIDED that no such removal shall become effective
until (i) the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency agreement entered into by the Company and
such successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company, any
Subsidiary of the Company, or any Affiliate of any of them may act as Paying
Agent, Registrar or co-Registrar, and/or agent for service of notice and
demands.
The Company initially appoints the Trustee as Registrar, Paying Agent,
authenticating agent and agent for service of notice and demands. 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 and shall otherwise
comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee as of each Regular Record Date and at such other
times as the Trustee may reasonably request the names and addresses of Holders
as they
32
appear in the Security Register, including the aggregate principal amount of
Notes held by each Holder.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST. Not later than
11:00 a.m. (
New York City time) each due date of the principal, premium, if any,
and interest on Notes of any series, the Company shall deposit with the Paying
Agent money in immediately available funds sufficient to pay such principal,
premium, if any, and interest so becoming due. 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 or the Trustee all money held
by the Paying Agent for the payment of principal of, premium, if any, and
interest on such Notes (whether such money has been paid to it by the Company or
any other obligor on such Notes), and such Paying Agent shall promptly notify
the Trustee of any default by the Company (or any other obligor on such Notes)
in making any such payment. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee and account for any funds disbursed,
and the Trustee may at any time during the continuance of any payment default,
upon written request to a Paying Agent, require such Paying Agent to pay all
money held by it to the Trustee and to account for any funds disbursed. Upon
doing so, the Paying Agent shall have no further liability for the money so paid
over to the Trustee. If the Company or any Subsidiary of the Company or any
Affiliate of any of them acts as Paying Agent, it will, on or before each due
date of any principal of, premium, if any, or interest on such Notes, segregate
and hold in a separate trust fund for the benefit of the Holders a sum of money
sufficient to pay such principal, premium, if any, or interest so becoming due
until such sum of money shall be paid to such Holders or otherwise disposed of
as provided in this Indenture, and will promptly notify the Trustee of its
action or failure to act.
SECTION 2.06. TRANSFER AND EXCHANGE. The Notes are issuable only in
registered form. A Holder may transfer a Note only by written application to the
Registrar stating the name of the proposed transferee and otherwise complying
with the terms of this Indenture. No such transfer shall be effected until, and
such transferee shall succeed to the rights of a Holder only upon, final
acceptance and registration of the transfer by the Registrar in the Security
Register. Prior to the registration of any transfer by a Holder as provided
herein, the Company, the Trustee, and any agent of the Company shall treat the
person in whose name the Note is registered as the owner thereof for all
purposes whether or not the Note shall be overdue, and neither the Company, the
Trustee, nor any such agent shall be affected by notice to the contrary.
Furthermore, any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent) and that ownership of a beneficial interest in the
Note shall be required to be reflected in a book entry. When Notes are presented
to the Registrar or a co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Notes of other authorized
denominations (including an exchange of Notes for Exchange Notes), the Registrar
shall register the transfer or make the exchange as requested if its
requirements for such transactions are met (including that such Notes are duly
endorsed or accompanied by a written instrument of transfer in form satisfactory
to the Trustee and Registrar duly executed by the Holder thereof or by an
attorney who is authorized in writing to act on behalf of the Holder); PROVIDED
that no exchanges of Notes for Exchange Notes shall occur until a Registration
Statement shall have been declared effective by the Commission and that any
Notes that are exchanged for Exchange Notes shall be cancelled
33
by the Trustee. To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Notes at the Registrar's
request. No service charge shall be made for any registration of transfer or
exchange or redemption of the Notes of any series, 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 taxes or
other similar governmental charge payable upon exchanges pursuant to SECTION
2.11, 3.08 or 9.04).
The Registrar shall not be required (i) to issue, register the
transfer of or exchange any Note of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Notes of such series selected for redemption under SECTION 3.03
and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part.
SECTION 2.07. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES. (a) The U.S.
Global Notes and Offshore Global Notes initially shall (i) be registered in the
name of the Depositary for such Global Notes or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear
legends as set forth in SECTION 2.02.
Members of, or participants in, the Depositary ("AGENT MEMBERS") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under such
Global Note, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Note.
(b) Transfers of a Global Note shall be limited to transfers of
such Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in Global Notes may be
transferred in accordance with the rules and procedures of the Depositary and
the provisions of SECTION 2.08. In addition, U.S. Physical Notes and Offshore
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in the U.S. Global Notes or the Offshore Global
Notes, as the case may be, if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the U.S. Global Notes or the
Offshore Global Notes, as the case may be, and a successor depositary is not
appointed by the Company within 90 days of such notice, (ii) an Event of Default
has occurred and is continuing and the Registrar has received a request from the
Depositary or (iii) in accordance with the rules and procedures of the
Depositary and the provisions of SECTION 2.08.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in another
Global Note will, upon transfer, cease to be an interest in such Global Note and
become an interest in such other Global Note and, accordingly, will thereafter
be subject to all transfer restrictions, if any, and other
34
procedures applicable to beneficial interests in such other Global Note for as
long as it remains such an interest.
(d) In connection with any transfer of a portion of the beneficial
interests in a Global Note to beneficial owners pursuant to paragraph (b) of
this SECTION 2.07, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of such Global Note in an amount equal to
the principal amount of the beneficial interest in such Global Note to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more U.S. Physical Notes or Offshore Physical Notes, as the
case may be, of like tenor and amount.
(e) In connection with the transfer of the U.S. Global Notes or
the Offshore Global Notes, in whole, to beneficial owners pursuant to paragraph
(b) of this SECTION 2.07, the U.S. Global Notes or Offshore Global Notes, as the
case may be, shall be deemed to be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall authenticate and deliver,
to each beneficial owner identified by the Depositary in exchange for its
beneficial interest in the U.S. Global Notes or Offshore Global Notes, as the
case may be, an equal aggregate principal amount of U.S. Physical Notes or
Offshore Physical Notes, as the case may be, of authorized denominations.
(f) Any U.S. Physical Note delivered in exchange for an interest
in the U.S. Global Notes pursuant to paragraph (b), (d) or (e) of this SECTION
2.07 shall, except as otherwise provided by paragraph (e) of SECTION 2.08, bear
the legend regarding transfer restrictions applicable to the U.S. Physical Note
set forth in SECTION 2.02.
(g) Any Offshore Physical Note delivered in exchange for an
interest in the Offshore Global Notes pursuant to paragraph (b), (d) or (e) of
this SECTION 2.07 shall, except as otherwise provided by paragraph (e) of
SECTION 2.08, bear the legend regarding transfer restrictions applicable to
Offshore Physical Notes set forth in SECTION 2.02.
(h) The registered holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
SECTION 2.08. SPECIAL TRANSFER PROVISIONS. Unless and until a Note of
a particular series is exchanged for an Exchange Note or sold in connection with
an effective Registration Statement pursuant to the Registration Rights
Agreement or any other registration rights agreement, the following provisions
shall apply:
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Note to any Institutional Accredited Investor which is
not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Note, whether
or not such Note bears the Private Placement Legend, if (x) the requested
transfer is after the time period referred to in Rule 144(k) under the
Securities Act or (y) the proposed transferee has delivered to the
Registrar (A) a certificate substantially in the form of EXHIBIT C
35
hereto and (B) if the aggregate principal amount of the Notes being
transferred is less than $100,000, an opinion of counsel acceptable to the
Company that such transfer is in compliance with the Securities Act.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Notes, upon receipt by the Registrar
of (x) the documents, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the U.S. Global Notes in an
amount equal to the principal amount of the beneficial interest in the U.S.
Global Notes to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more U.S. Physical Notes of
like tenor and amount.
(b) TRANSFERS TO QIBS. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note to a QIB
(excluding Non-U.S. Persons):
(i) If the Note to be transferred consists of (x) either Offshore
Physical Notes prior to the removal of the Private Placement Legend or U.S.
Physical Notes, the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the box provided for
on the form of Note stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the Note for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A or (y) an
interest in the U.S. Global Notes, the transfer of such interest may be
effected only through the book entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the Note to
be transferred consists of U.S. Physical Notes, upon receipt by the
Registrar of the documents referred to in paragraph (i) above and
instructions given in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of U.S. Global Notes in an amount
equal to the principal amount of the U.S. Physical Notes to be transferred,
and the Trustee shall cancel the U.S. Physical Notes so transferred.
(c) TRANSFERS OF INTERESTS IN THE OFFSHORE GLOBAL NOTES OR
OFFSHORE PHYSICAL NOTES. The following provisions shall apply with respect to
any transfer of interests in Offshore Global Notes or Offshore Physical Notes:
36
(i) prior to the removal of the Private Placement Legend from the
Offshore Global Notes or Offshore Physical Notes pursuant to SECTION 2.02,
the Registrar shall refuse to register such transfer unless such transfer
complies with SECTION 2.08(b) or SECTION 2.08(d), as the case may be, and
(ii) after such removal, the Registrar shall register the transfer
of any such Note without requiring any additional certification.
(d) TRANSFERS TO NON-U.S. PERSONS AT ANY TIME. The following
provisions shall apply with respect to any transfer of a Note to a Non-U.S.
Person:
(i) The Registrar shall register any proposed transfer to any
Non-U.S. Person if the Note to be transferred is a U.S. Physical Note or an
interest in U.S. Global Notes, upon receipt of a certificate substantially
in the form of EXHIBIT D hereto from the proposed transferor.
(ii) (a) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Notes, upon receipt by the Registrar
of (x) the documents, if any, required by paragraph (ii) and (y)
instructions in accordance with the Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the U.S. Global Notes in an
amount equal to the principal amount of the beneficial interest in the U.S.
Global Notes to be transferred, and (b) if the proposed transferee is an
Agent Member, upon receipt by the Registrar of instructions given in
accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount of the Offshore Global Notes in an amount equal to
the principal amount of the U.S. Physical Notes or the U.S. Global Notes,
as the case may be, to be transferred, and the Trustee shall cancel the
Physical Note, if any, so transferred or decrease the amount of the U.S.
Global Notes.
(e) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless (i) the Private Placement Legend is no longer required by SECTION 2.02,
(ii) the circumstances contemplated by paragraph (a)(i)(x) of this SECTION 2.08
exist or (iii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
(f) GENERAL. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture. The Registrar shall not register a transfer of any Note unless such
transfer complies with the restrictions on transfer of such Note set forth in
this Indenture. In connection with any transfer of Notes, each Holder agrees by
its acceptance of the Notes to furnish the Registrar or the Company such
certifications, legal opinions or other
37
information as either of them may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act; PROVIDED that
the Registrar shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency of any such
certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to SECTION 2.07 or this SECTION 2.08.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
Each Holder of a Note agrees to indemnify the Trustee against any
liability that may result from the transfer, exchange or assignment of such
▇▇▇▇▇▇'s Note 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 Note (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Note) 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 2.09. REPLACEMENT NOTES. If a mutilated Note of any series is
surrendered to the Trustee or if the Holder claims that the Note has been lost,
destroyed or wrongfully taken, then, in the absence of notice to the Company or
the Trustee that such Note has been acquired by a bona fide purchaser, the
Company shall issue and the Trustee shall authenticate a replacement Note of the
same series of like tenor and principal amount and bearing a number not
contemporaneously outstanding; PROVIDED that the requirements of this SECTION
2.09 are met. An indemnity bond must be furnished that is sufficient in the
judgment of both the Trustee and the Company to protect the Company, the Trustee
or any Agent from any loss that any of them may suffer if a Note is replaced.
The Company may charge such Holder for its expenses and the expenses of the
Trustee in replacing a Note. In case any such mutilated, lost, destroyed or
wrongfully taken Note has become or is about to become due and payable, the
Company in its discretion may pay such Note instead of issuing a new Note in
replacement thereof.
Every replacement Note is an additional obligation of the Company and
shall be entitled to the benefits of this Indenture.
SECTION 2.10. OUTSTANDING NOTES. Notes outstanding of any series at
any time are all Notes of such series that have been authenticated by the
Trustee except for those cancelled by it, those paid pursuant to SECTION 2.09,
those delivered to it for cancellation and those described in this SECTION 2.10
as not outstanding.
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If a Note of any series is replaced pursuant to SECTION 2.09, it
ceases to be outstanding unless and until the Trustee and the Company receive
proof satisfactory to them that the replaced Note is held by a BONA FIDE
purchaser.
If the Paying Agent (other than the Company or an Affiliate of the
Company) holds on the maturity date money sufficient to pay Notes payable on
that date, then on and after that date such Notes cease to be outstanding and
interest on them shall cease to accrue.
A Note does not cease to be outstanding because the Company or one of
its Affiliates holds such Note, PROVIDED, HOWEVER, that in determining whether
the Holders of the requisite principal amount of the outstanding Notes have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by the Company or any other obligor upon the Notes or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which a Responsible Officer of
the Trustee has actual knowledge to be so owned shall be so disregarded. Notes
so owned which have been pledged in good faith may be regarded as outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Notes and that the pledgee is not the Company or
any other obligor upon the Notes or any Affiliate of the Company or of such
other obligor.
SECTION 2.11. TEMPORARY NOTES. Until definitive Notes of any series
are ready for delivery, the Company may prepare and execute and the Trustee
shall authenticate temporary Notes of such series. Temporary Notes shall be
substantially in the form of definitive Notes of such series but may have
insertions, substitutions, omissions and other variations determined to be
appropriate by the Officers executing the temporary Notes, as evidenced by their
execution of such temporary Notes. If temporary Notes are issued, the Company
will cause definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for such purpose pursuant to SECTION 4.02, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall be
entitled to the same benefits under this Indenture as definitive Notes.
SECTION 2.12. CANCELLATION. The Company at any time may deliver to the
Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold. The Registrar and the
Paying Agent shall forward to the Trustee any Notes surrendered to them for
transfer, exchange or payment. The Trustee shall cancel all Notes surrendered
for transfer, exchange, payment or cancellation and shall dispose of them in
accordance with its normal procedures.
SECTION 2.13. CUSIP NUMBERS. The Company in issuing the Notes of any
series may use "CUSIP", "CINS" or "ISIN" numbers (if then generally in use), and
the Company
39
and the Trustee shall use CUSIP, CINS or ISIN numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders; PROVIDED that any
such notice shall state that no representation is made as to the correctness of
such numbers either as printed on the Notes or as contained in any notice of
redemption or exchange and that reliance may be placed only on the other
identification numbers printed on the Notes. The Company shall promptly notify
the Trustee of any change in "CUSIP", "CINS" or "ISIN" numbers for the Notes of
any series.
SECTION 2.14. DEFAULTED INTEREST. If the Company defaults in a payment
of interest on the Notes of any series, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest, to the Persons who are Holders of the Notes of such series
on a subsequent special record date. A special record date, as used in this
SECTION 2.14 with respect to the payment of any defaulted interest, shall mean
the 15th day next preceding the date fixed by the Company for the payment of
defaulted interest, whether or not such day is a Business Day. At least 15 days
before the subsequent special record date, the Company shall mail to each Holder
and to the Trustee a notice that states the subsequent special record date, the
payment date and the amount of defaulted interest to be paid.
ARTICLE THREE
REDEMPTION
SECTION 3.01. APPLICABILITY. Notes of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with the terms of
such Notes and (except as otherwise specified as contemplated by SECTION 2.03
for Notes of any Series) in accordance with this Article.
SECTION 3.02. NOTICES TO TRUSTEE. If the Company elects to redeem
Notes of any series pursuant to SECTION 3.01, it shall notify the Trustee in
writing of the Redemption Date and the principal amount of Notes of that series
to be redeemed and the clause of such Note pursuant to which redemption shall
occur.
The Company shall give each notice provided for in this SECTION 3.02
at least 45 days before the Redemption Date (unless a shorter period shall be
satisfactory to the Trustee).
SECTION 3.03. SELECTION OF NOTES TO BE REDEEMED. If less than all of
the Notes of any series are to be redeemed at any time, the Trustee shall select
the Notes of that series to be redeemed in compliance with the requirements of
the principal national securities exchange, if any, on which the Notes of that
series are listed or, if the Notes of that series are not listed on a national
securities exchange or automated quotation system, on a pro rata basis, by lot
or by such other method as the Trustee in its sole discretion shall deem fair
and appropriate; PROVIDED that no Note of $1,000 in principal amount or less
shall be redeemed in part.
The Trustee shall make the selection from the Notes of that series
outstanding and not previously called for redemption. Notes in denominations of
$1,000 in principal amount may only be redeemed in whole. The Trustee may select
for redemption portions (equal to $1,000 in principal amount or any integral
multiple thereof) of Notes that have denominations larger than
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$1,000 in principal amount. Provisions of this Indenture that apply to Notes
called for redemption also apply to portions of Notes called for redemption. The
Trustee shall notify the Company and the Registrar promptly in writing of the
Notes or portions of Notes to be called for redemption.
SECTION 3.04. NOTICE OF REDEMPTION. With respect to any redemption of
Notes pursuant to SECTION 3.01, at least 30 days but not more than 60 days
before a Redemption Date, the Company shall mail, or cause to be mailed, a
notice of redemption by first-class mail to each Holder whose Notes are to be
redeemed.
The notice shall identify the Notes of any series (including CUSIP,
CINS or ISIN numbers) to be redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to the
Paying Agent in order to collect the Redemption Price;
(v) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date and the only remaining right of the Holders is to
receive payment of the Redemption Price plus accrued interest to the
Redemption Date upon surrender of the Notes to the Paying Agent;
(vi) that, if any Note is being redeemed in part, the portion of
the principal amount (equal to $1,000 in principal amount or any integral
multiple thereof) of such Note to be redeemed and that, on and after the
Redemption Date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion thereof will be reissued;
and
(vii) that, if any Note contains a CUSIP, CINS or ISIN number as
provided in SECTION 2.13, no representation is being made as to the
correctness of the CUSIP, CINS or ISIN number either as printed on the
Notes or as contained in the notice of redemption and that reliance may be
placed only on the other identification numbers printed on the Notes.
At the Company's request (which request may be revoked by the Company
at any time prior to the time at which the Trustee shall have given such notice
to the Holders), made in writing to the Trustee at least 45 days (or such
shorter period as shall be satisfactory to the Trustee) before a Redemption
Date, the Trustee shall give the notice of redemption in the name and at the
expense of the Company. If, however, the Company gives such notice to the
Holders, the Company shall concurrently deliver to the Trustee an Officers'
Certificate stating that such notice has been given.
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SECTION 3.05. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is mailed, Notes called for redemption become due and payable on the
Redemption Date and at the Redemption Price. Upon surrender of any Notes to the
Paying Agent, such Notes shall be paid at the Redemption Price, plus accrued
interest, if any, to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed, whether
or not the Holder receives the notice. In any event, failure to give such
notice, or any defect therein, shall not affect the validity of the proceedings
for the redemption of Notes held by Holders to whom such notice was properly
given.
SECTION 3.06. DEPOSIT OF REDEMPTION PRICE. On or prior to 11:00 a.m.,
New York City time, on any Redemption Date, the Company shall deposit with the
Paying Agent (or, if the Company is acting as its own Paying Agent, shall
segregate and hold in trust as provided in SECTION 2.05) money sufficient to pay
the Redemption Price of and accrued interest on all Notes to be redeemed on that
date other than Notes or portions thereof called for redemption on that date
that have been delivered by the Company to the Trustee for cancellation.
SECTION 3.07. PAYMENT OF NOTES CALLED FOR REDEMPTION. If notice of
redemption has been given in the manner provided above, the Notes or portion of
Notes specified in such notice to be redeemed shall become due and payable on
the Redemption Date at the Redemption Price stated therein, together with
accrued interest to such Redemption Date, and on and after such date (unless the
Company shall default in the payment of such Notes at the Redemption Price and
accrued interest to the Redemption Date, in which case the principal, until
paid, shall bear interest from the Redemption Date at the rate prescribed in the
Notes), such Notes shall cease to accrue interest. Upon surrender of any Note
for redemption in accordance with a notice of redemption, such Note shall be
paid and redeemed by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; PROVIDED that installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders registered as such at the close of business on the relevant Regular
Record Date.
SECTION 3.08. NOTES REDEEMED IN PART. Upon surrender of any Note that
is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder without service charge, a new Note equal
in principal amount to the unredeemed portion of such surrendered Note.
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF NOTES. The Company shall pay the principal
of, premium, if any, and interest on the Notes of any series on the dates and in
the manner provided in the Notes of that series and this Indenture. An
installment of principal, premium, if any, or interest shall be considered paid
on the date due if the Trustee or Paying Agent (other than the Company, a
Subsidiary of the Company, or any Affiliate of any of them) holds on that date
money designated for and sufficient to pay the installment. If the Company or
any Subsidiary of the Company or any Affiliate of any of them acts as Paying
Agent, an installment of principal, premium, if any, or interest shall be
considered paid on the due date if the entity acting as Paying
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Agent complies with the last sentence of SECTION 2.05. As provided in SECTION
6.09, upon any bankruptcy or reorganization procedure relative to the Company,
the Trustee shall serve as the Paying Agent, if any, for the Notes.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
the rate per annum specified in the Notes.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in the Borough of Manhattan, The City of
New York, an office or agency
where Notes of one or more series may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Notes of those series and this
Indenture may be served. The Company will 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
address of the Trustee set forth in SECTION 10.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; PROVIDED 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 initially designates the Corporate Trust Office of
the Trustee as such office of the Company in accordance with SECTION 2.04.
SECTION 4.03. LIMITATION ON INDEBTEDNESS. (a) The Company will not,
and will not permit any of its Restricted Subsidiaries to, Incur any
Indebtedness (other than the Notes and Indebtedness existing on the Closing
Date) PROVIDED that the Company may Incur Indebtedness if, after giving effect
to the Incurrence of such Indebtedness and the receipt and application of the
proceeds therefrom, the Interest Coverage Ratio would be greater than 1.75:1.
Notwithstanding the foregoing, the Company and any Restricted
Subsidiary (except as specified below) may Incur each and all of the following:
(i) Indebtedness of the Company, any Foreign Subsidiary, any
Existing Borrower and any Guarantor outstanding at any time in an aggregate
principal amount (together with refinancings thereof) not to exceed the
amount of the commitments under the Credit Agreements as of January 25,
2001 (being the closing date of the offering by the Company of its 9.25%
Senior Notes due 2008 and 9.75% Senior Notes due 2011) PLUS $125 million,
less any amount of such Indebtedness permanently repaid as provided under
SECTION 4.11;
(ii) Indebtedness owed (A) to the Company or (B) to any Restricted
Subsidiary; PROVIDED that any event which results in any such Restricted
Subsidiary
43
ceasing to be a Restricted Subsidiary or any subsequent transfer of such
Indebtedness (other than to the Company or another Restricted Subsidiary)
shall be deemed, in each case, to constitute an Incurrence of such
Indebtedness not permitted by this clause (ii);
(iii) Indebtedness (other than Indebtedness Incurred under clauses
(xi) and (xiii) below) issued in exchange for, or the net proceeds of which
are used to refinance or refund, then outstanding Indebtedness and any
refinancings thereof in an amount not to exceed the amount so refinanced or
refunded (plus premiums, accrued interest, fees and expenses); PROVIDED
that Indebtedness the proceeds of which are used to refinance or refund the
Notes or Indebtedness that is PARI PASSU with, or subordinated in right of
payment to, the Notes shall only be permitted under this clause (iii) if in
case the Indebtedness to be refinanced is subordinated in right of payment
to the Notes, such new Indebtedness, by its terms or by the terms of any
agreement or instrument pursuant to which such new Indebtedness is issued
or remains outstanding, is expressly made subordinate in right of payment
to the Notes at least to the extent that the Indebtedness to be refinanced
is subordinated to the Notes and such new Indebtedness, determined as of
the date of Incurrence of such new Indebtedness, does not mature prior to
the Stated Maturity of the Indebtedness to be refinanced or refunded (or,
if earlier, the Stated Maturity of the Notes), and the Average Life of such
new Indebtedness is at least equal to the remaining Average Life of the
Indebtedness to be refinanced or refunded (or, if less, the remaining
Average Life of the Notes); and PROVIDED FURTHER that in no event may
Indebtedness of the Company be refinanced by means of any Indebtedness of
any Restricted Subsidiary other than any Foreign Subsidiary pursuant to
this clause (iii); and PROVIDED FURTHER that if proceeds of revolving lines
of credit are used to repurchase, redeem or refinance any Indebtedness, the
Company or any Restricted Subsidiary may Incur Indebtedness otherwise
meeting the requirements of this clause (iii) to repay such revolving lines
of credit;
(iv) Indebtedness (A) in respect of performance, surety or appeal
bonds, letters of credit, bankers acceptances provided in the ordinary
course of business, (B) under Currency Agreements, Commodity Agreements and
Interest Rate Agreements; PROVIDED that such agreements (a) are designed
solely to protect the Company or its Restricted Subsidiaries against
fluctuations in foreign currency exchange rates or interest rates or
commodity prices and (b) do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in foreign
currency exchange rates or interest rates or commodity prices or by reason
of fees, indemnities and compensation payable thereunder; and (C) arising
from agreements providing for indemnification, adjustment of purchase price
or similar obligations, or from Guarantees or letters of credit, surety
bonds or performance bonds securing any obligations of the Company or any
of its Restricted Subsidiaries pursuant to such agreements, in any case
Incurred in connection with the disposition of any business, assets or
Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by
any Person acquiring all or any portion of such business, assets or
Restricted Subsidiary for the purpose of financing such acquisition);
44
(v) Indebtedness of the Company, to the extent the net proceeds
thereof are promptly (A) used to purchase Notes tendered in an Offer to
Purchase made as a result of a Change in Control or (B) deposited to
defease the Notes as set forth in Article Eight;
(vi) Guarantees by the Company or any Restricted Subsidiary of
Indebtedness of the Company or a Restricted Subsidiary permitted to be
incurred under this Indenture provided the Guarantee of such Indebtedness
is permitted by and made in accordance with SECTION 4.07;
(vii) Indebtedness of the Company and its Foreign Subsidiaries (in
addition to Indebtedness permitted under clauses (i) through (vi) above) in
an aggregate principal amount outstanding at any time (together with
refinancings thereof) not to exceed $125 million, increasing to $175
million following the consummation of the JSC Transaction, less any amount
of such Indebtedness permanently repaid as provided under SECTION 4.11;
(viii) Acquired Indebtedness; PROVIDED that at the time of Incurrence
of such Indebtedness (1) the Company could Incur at least $1.00 of
Indebtedness under the first paragraph of clause (a) of this SECTION 4.03
or (2) the Interest Coverage Ratio, after giving effect to the Incurrence
of such Acquired Indebtedness, on a PRO FORMA basis, is no less than such
ratio prior to giving PRO FORMA effect to such Incurrence;
(ix) Indebtedness of JSC existing at the time of, or assumed in
connection with, the JSC Transaction, including the amount of available but
unused commitments under the JSC Credit Facility existing at such time PLUS
$100 million, PROVIDED, HOWEVER, that such Indebtedness is not Incurred in
contemplation of the JSC Transaction;
(x) Indebtedness Incurred by any Foreign Subsidiary; PROVIDED,
HOWEVER, that, immediately after giving effect to any such Incurrence, the
aggregate principal amount of all Indebtedness Incurred under this clause
(x) and then outstanding does not exceed the greater of (x) 60% of the book
value of the inventory of such Foreign Subsidiary and its Restricted
Subsidiaries and (y) 90% of the book value of the accounts receivable of
such Foreign Subsidiary and its Restricted Subsidiaries;
(xi) Indebtedness under industrial revenue bonds;
(xii) Indebtedness, including capital lease obligations, which the
Company or any of its Restricted Subsidiaries Incurs to finance the
acquisition, construction or improvement of fixed or capital assets, in an
aggregate principal amount not to exceed (i) $150 million (together with
refinancings thereof) in any calendar year, commencing with 2002, prior to
the JSC Transaction and (ii) $250 million (together with refinancings
thereof) in any calendar year following the consummation of the JSC
Transaction (on a PRO RATA basis for the calendar year during which such
transaction is consummated) (together with refinancings thereof);
(xiii) the incurrence by a Receivables Subsidiary of Indebtedness in
a Qualified Securitization Transaction that is without recourse (other than
pursuant to representations, warranties, covenants and indemnities entered
into in the ordinary course
45
of business in connection with a Qualified Securitization Transaction) to
the Company or to any Restricted Subsidiary of the Company or any of their
assets (other than such Receivables Subsidiary and its assets); and
(xiv) Guarantees with respect to bonds issued to support workers'
compensation and other similar obligations incurred by the Company or any
Restricted Subsidiary in the ordinary course of business.
(b) Notwithstanding any other provision of clause (a) of this
SECTION 4.03, the maximum amount of Indebtedness that the Company or a
Restricted Subsidiary may Incur pursuant to this SECTION 4.03 shall not be
deemed to be exceeded, with respect to any outstanding Indebtedness due solely
to the result of fluctuations in the exchange rates of currencies.
(c) For purposes of determining any particular amount of
Indebtedness under this SECTION 4.08, (1) Indebtedness Incurred under the Credit
Agreements on or prior to the Closing Date shall be treated as Incurred pursuant
to clause (i) of the second paragraph of this SECTION 4.03, (2) Guarantees,
Liens or obligations with respect to letters of credit supporting Indebtedness
otherwise included in the determination of such particular amount shall not be
included and (3) any Liens granted pursuant to the equal and ratable provisions
referred to in SECTION 4.09 shall not be treated as Indebtedness. For purposes
of determining compliance with this SECTION 4.03, in the event that an item of
Indebtedness meets the criteria of more than one of the types of Indebtedness
described in the above clauses (other than Indebtedness referred to in clause
(1) of the preceding sentence), the Company, in its sole discretion, shall
classify, and from time to time may reclassify, such item of Indebtedness and
only be required to include the amount and type of such Indebtedness in one of
such clauses.
SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS. The Company will not,
and will not permit any Restricted Subsidiary to, directly or indirectly, (i)
declare or pay any dividend or make any distribution on or with respect to its
Capital Stock (other than (x) dividends or distributions payable solely in
shares of its Capital Stock (other than Disqualified Stock) or in options,
warrants or other rights to acquire shares of such Capital Stock and (y) pro
rata dividends or distributions on Common Stock of Restricted Subsidiaries held
by minority stockholders) held by Persons other than the Company or any of its
Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for
value any shares of Capital Stock of (A) the Company or an Unrestricted
Subsidiary (including options, warrants or other rights to acquire such shares
of Capital Stock) held by any Person or (B) a Restricted Subsidiary (including
options, warrants or other rights to acquire such shares of Capital Stock) held
by any Affiliate of the Company (other than a Restricted Subsidiary) or any
holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of
the Company, (iii) make any voluntary or optional principal payment, or
voluntary or optional redemption, repurchase, defeasance, or other acquisition
or retirement for value, of Indebtedness of the Company that is subordinated in
right of payment to the Notes or (iv) make any Investment, other than a
Permitted Investment, in any other Person (such payments or any other actions
described in clauses (i) through (iv) above being collectively "RESTRICTED
PAYMENTS") if, at the time of, and after giving effect to, the proposed
Restricted Payment:
(A) a Default or Event of Default shall have occurred and be
continuing,
46
(B) the Company could not Incur at least $1.00 of Indebtedness
under the first paragraph of clause (a) of SECTION 4.03, or
(C) the aggregate amount of all Restricted Payments (the amount,
if other than in cash, to be determined in good faith by the Board of
Directors, whose determination shall be conclusive and evidenced by a Board
Resolution delivered to the Trustee) made after January 25, 2001 shall
exceed the sum of
(1) 50% of the aggregate amount of the Adjusted Consolidated
Net Income (or, if the Adjusted Consolidated Net Income is a loss,
minus 100% of the amount of such loss) (determined by excluding income
resulting from transfers of assets by the Company or a Restricted
Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative
basis during the period (taken as one accounting period) beginning on
the first day of the fiscal quarter immediately following January 25,
2001 and ending on the last day of the last fiscal quarter preceding
the Transaction Date PLUS
(2) the aggregate Net Cash Proceeds received by the Company
(or to the extent contributed to the Company, by the Company's Parent)
after January 25, 2001 from the issuance and sale permitted by this
Indenture of its or its Parent's Capital Stock (other than
Disqualified Stock) to a Person who is not a Subsidiary of the Company
or its Parent, including an issuance or sale permitted by this
Indenture of Indebtedness of the Company or its Parent for cash
subsequent to the Closing Date upon the conversion of such
Indebtedness into Capital Stock (other than Disqualified Stock) of the
Company or its Parent, or from the issuance to a Person who is not a
Subsidiary of the Company or its Parent of any options, warrants or
other rights to acquire Capital Stock of the Company or its Parent (in
each case, exclusive of any Disqualified Stock or any options,
warrants or other rights that are redeemable at the option of the
holder, or are required to be redeemed, prior to the Stated Maturity
of the Notes) PLUS
(3) an amount equal to the net reduction in Investments
(other than reductions in Permitted Investments) in any Person since
January 25, 2001 resulting from payments of interest on Indebtedness,
dividends, repayments of loans or advances, or other transfers of
assets, in each case to the Company or any Restricted Subsidiary or
from the Net Cash Proceeds from the sale of any such Investment
(except, in each case, to the extent any such payment or proceeds are
included in the calculation of Adjusted Consolidated Net Income), or
from redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the definition of
"Investments"), not to exceed, in each case, the amount of Investments
previously made by the Company or any Restricted Subsidiary in such
Person or Unrestricted Subsidiary PLUS
(4) after the date of the consummation of the JSC
Transaction, the amount of Restricted Payments that would have been
available to JSC under the JSC Indenture on the JSC Transaction Date.
47
The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after the date of
declaration thereof if, at said date of declaration, such payment would
comply with the foregoing paragraph;
(ii) the redemption, repurchase, defeasance or other acquisition or
retirement for value of Indebtedness that is subordinated in right of
payment to the Notes including premium, if any, and accrued and unpaid
interest, with the proceeds of, or in exchange for, Indebtedness Incurred
under clause (iii) of the second paragraph of part (a) of SECTION 4.03;
(iii) the repurchase, redemption or other acquisition of Capital
Stock of the Company or an Unrestricted Subsidiary (or options, warrants or
other rights to acquire such Capital Stock) in exchange for, or out of the
proceeds of a substantially concurrent offering of, shares of Capital Stock
(other than Disqualified Stock) of the Company or its Parent (or options,
warrants or other rights to acquire such Capital Stock);
(iv) the making of any principal payment or the repurchase,
redemption, retirement, defeasance or other acquisition for value of
Indebtedness of the Company which is subordinated in right of payment to
the Notes in exchange for, or out of the proceeds of, a substantially
concurrent offering of, shares of the Capital Stock (other than
Disqualified Stock) of the Company or its Parent (or options, warrants or
other rights to acquire such Capital Stock);
(v) payments or distributions, to dissenting stockholders pursuant
to applicable law, pursuant to or in connection with a consolidation,
merger or transfer of assets that complies with the provisions of this
Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the property and assets of the Company;
(vi) Investments acquired as a capital contribution or in exchange
for, or Restricted Payments made out of, or exchanged for, the proceeds of
a substantially concurrent offering of, Capital Stock (other than
Disqualified Stock) of the Company or its Parent;
(vii) dividends, distribution or advances to SSCC to allow SSCC to
declare and pay dividends on SSCC's Preferred Stock, or the interest on the
subordinated notes into which it is convertible, in an amount not to exceed
$12 million in any calendar year;
(viii) other Restricted Payments in an aggregate amount not to exceed
$75 million, increasing to $150 million following the consummation of the
JSC Transaction;
(ix) the making of any principal payment or the repurchase,
redemption, retirement, defeasance or other acquisition for value of
Indebtedness of the Company required pursuant to SECTION 4.12 and SECTION
4.11 or any similar covenants contained in any instrument or agreement
governing the Indebtedness of the Company, provided that
48
the Company shall first have complied with its obligations, if any, under
SECTION 4.12 and 4.11 of this Indenture;
(x) payment of dividends, other distributions or other amounts by
the Company to its Parent in amounts required for its Parent to pay fees
required to maintain its existence and provide for all other operating
costs of its Parent, including, without limitation, in respect of director
fees and expenses, administrative, legal and accounting services provided
by third parties and other costs and expenses of being a public company,
including, all costs and expenses with respect to filings with the SEC, of
up to $5 million per fiscal year;
(xi) the purchase or acquisition of any minority interests of any
Subsidiary that is not Wholly Owned pursuant to stockholder or other
agreements in existence on the Closing Date; and
(xii) the making of Investments in Unrestricted Subsidiaries and
joint ventures in an aggregate amount not to exceed in any fiscal year (i)
$25 million or (ii) after the consummation of the JSC Transaction, $50
million,
PROVIDED that, except in the case of clauses (i) and (iii), no Default or Event
of Default shall have occurred and be continuing or occur as a consequence of
the actions or payments set forth therein.
Each Restricted Payment permitted pursuant to the preceding paragraph
(other than the Restricted Payment referred to in clauses (i), (ii), (vii), (x),
(xi) and (xii) thereof, an exchange of Capital Stock for Capital Stock or
Indebtedness referred to in clause (iii) or (iv) thereof and an Investment
acquired as a capital contribution or in exchange for Capital Stock referred to
in clause (vi) thereof), and the Net Cash Proceeds from any issuance of Capital
Stock referred to in clauses (iii) and (iv), shall be included in calculating
whether the conditions of clause (C) of the first paragraph of SECTION 4.04 have
been met with respect to any subsequent Restricted Payments. In the event the
proceeds of an issuance of Capital Stock of the Company are used for the
redemption, repurchase or other acquisition of the Notes, or Indebtedness that
is PARI PASSU with the Notes, then the Net Cash Proceeds of such issuance shall
be included in clause (C) of the first paragraph of this SECTION 4.04 only to
the extent such proceeds are not used for such redemption, repurchase or other
acquisition of Indebtedness.
Any Restricted Payments made other than in cash shall be valued at
fair market value. The amount of any Investment "outstanding" at any time shall
be deemed to be equal to the amount of such Investment on the date made, less
the return of capital to the Company and its Restricted Subsidiaries with
respect to such Investment (up to the amount of such Investment on the date
made).
SECTION 4.05. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES. The Company will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Restricted Subsidiary to (i) pay dividends or make any other
distributions permitted by applicable law on any Capital Stock of
49
such Restricted Subsidiary owned by the Company or any other Restricted
Subsidiary, (ii) pay any Indebtedness owed to the Company or any other
Restricted Subsidiary, (iii) make loans or advances to the Company or any other
Restricted Subsidiary or (iv) transfer any of its property or assets to the
Company or any other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances or
restrictions:
(i) existing on the Closing Date in the Credit Agreements, this
Indenture or any other agreements in effect on the Closing Date (and upon
consummation of the JSC Transaction, existing on the JSC Transaction Date
in the JSC Credit Agreement or any other agreements in effect on the JSC
Transaction Date under which JSC or any of its Subsidiaries is a party or
any of their assets are bound), and any extensions, refinancings, renewals
or replacements of any of the foregoing; PROVIDED that the encumbrances and
restrictions in any such extensions, refinancings, renewals or replacements
are not materially less favorable taken as a whole to the Holders than
those encumbrances or restrictions that are then in effect and that are
being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or assets
of such Person acquired by the Company or any Restricted Subsidiary,
existing at the time of such acquisition and not incurred in contemplation
thereof, which encumbrances or restrictions are not applicable to any
Person or the property or assets of any Person other than such Person or
the property or assets of such Person so acquired;
(iv) in the case of clause (iv) of the first paragraph of this
SECTION 4.05, (A) that restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is a lease, license,
conveyance or contract or similar property or asset, (B) existing by virtue
of any transfer of, agreement to transfer, option or right with respect to,
or Lien on, any property or assets of the Company or any Restricted
Subsidiary not otherwise prohibited by this Indenture or (C) arising or
agreed to in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the aggregate, detract
from the value of property or assets of the Company or any Restricted
Subsidiary in any manner material to the Company and its Restricted
Subsidiaries taken as a whole;
(v) with respect to a Restricted Subsidiary and imposed pursuant
to an agreement that has been entered into for the sale or disposition of
all or substantially all of the Capital Stock of, or property and assets
of, such Restricted Subsidiary;
(vi) customary provisions with respect to the disposition or
distribution of assets or property in joint venture agreements, assets sale
agreements, stock sale agreements and other similar agreements entered into
in the ordinary course of business;
(vii) any agreement or instrument governing Indebtedness (whether or
not outstanding) of any Foreign Subsidiary of the Company permitted to be
incurred pursuant to clause (x) under SECTION 4.03 so long as (1) such
agreement or instrument is not
50
applicable to any Person or the property or assets of any Person other than
such Foreign Subsidiary or the property or assets of such Foreign
Subsidiary and its Foreign Subsidiaries and (2) not more than 20% of such
Foreign Subsidiary's assets are located in the United States; and
(viii) any restriction in any agreement or instrument of a
Receivables Subsidiary governing a Qualified Securitization Transaction.
Nothing contained in this SECTION 4.05 shall prevent the Company or any
Restricted Subsidiary from (1) creating, incurring, assuming or suffering to
exist any Liens otherwise permitted by SECTION 4.09 or (2) restricting the sale
or other disposition of property or assets of the Company or any of its
Restricted Subsidiaries that secure Indebtedness of the Company or any of its
Restricted Subsidiaries.
SECTION 4.06. LIMITATION ON THE ISSUANCE AND SALE OF CAPITAL STOCK OF
RESTRICTED SUBSIDIARIES. The Company will not sell, and will not permit any
Restricted Subsidiary, directly or indirectly, to issue or sell, any shares of
Capital Stock of a Restricted Subsidiary (including options, warrants or other
rights to purchase shares of such Capital Stock) except:
(i) to the Company or a Wholly Owned Restricted Subsidiary;
(ii) issuances of director's qualifying shares or sales to foreign
nationals of shares of Capital Stock of Foreign Subsidiaries, to the extent
required by applicable law;
(iii) if, immediately after giving effect to such issuance or sale,
such Restricted Subsidiary would no longer constitute a Restricted
Subsidiary and any Investment in such Person remaining after giving effect
to such issuance or sale would have been permitted to be made under SECTION
4.04 if made on the date of such issuance or sale; or
(iv) the sale or issuance of Common Stock that is Qualified Capital
Stock of Restricted Subsidiaries, if the proceeds from such issuance and
sale are applied in accordance with SECTION 4.11.
SECTION 4.07. LIMITATION ON ISSUANCES OF GUARANTEES BY RESTRICTED
SUBSIDIARIES. The Company will not permit any Restricted Subsidiary, directly or
indirectly, to Guarantee any Indebtedness of the Company which is PARI PASSU
with or subordinate in right of payment to the Notes ("GUARANTEED
INDEBTEDNESS"), unless (i) such Restricted Subsidiary promptly executes and
delivers a supplemental indenture to this Indenture providing for a Guarantee (a
"SUBSIDIARY GUARANTEE") of payment of the Notes by such Restricted Subsidiary
and (ii) such Restricted Subsidiary waives and will not in any manner whatsoever
claim or take the benefit or advantage of, for so long as any Notes remain
outstanding under this Indenture, any rights of reimbursement, indemnity or
subrogation or any other rights against the Company or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Subsidiary Guarantee; PROVIDED that this paragraph shall not be applicable to
any Guarantee of any Restricted Subsidiary (1) in existence on the Closing Date
and any Guarantee of or by JSC or any of its Subsidiaries in existence on the
JSC Transaction Date, and any renewal, extension refinancing or replacement
thereof, (2) that existed at the time such Person became a Restricted
51
Subsidiary and was not Incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary, (3) of the Indebtedness Incurred under
the Credit Agreements or, from and after the JSC Transaction Date, under the JSC
Credit Agreement; PROVIDED that such Restricted Subsidiary is an Existing
Guarantor, a Foreign Subsidiary, a Guarantor or any other Restricted Subsidiary
other than a Significant Subsidiary, (4) any Guarantee arising under or in
connection with performance bonds, indemnity bonds, surety bonds or letters of
credit or bankers' acceptances or (5) any Guarantee of any Interest Rate
Agreements, Currency Agreement or Commodity Agreement. If the Guaranteed
Indebtedness is (A) PARI PASSU with the Notes, then the Guarantee of such
Guaranteed Indebtedness shall be PARI PASSU with, or subordinated to, the
Subsidiary Guarantee or (B) subordinated to the Notes, then the Guarantee of
such Guaranteed Indebtedness shall be subordinated to the Subsidiary Guarantee
at least to the extent that the Guaranteed Indebtedness is subordinated to the
Notes.
Notwithstanding the foregoing, any Subsidiary Guarantee by a
Restricted Subsidiary may provide by its terms that it shall be automatically
and unconditionally released and discharged upon (i) any sale, exchange or
transfer, to any Person not an Affiliate of the Company, of all of the Company's
and each Restricted Subsidiary's Capital Stock in, or all or substantially all
the assets of, such Restricted Subsidiary (which sale, exchange or transfer is
not prohibited by this Indenture) or (ii) the release or discharge of the
Guarantee which resulted in the creation of such Subsidiary Guarantee, except a
discharge or release by or as a result of payment under such Guarantee.
SECTION 4.08. LIMITATION ON TRANSACTIONS WITH STOCKHOLDERS AND
AFFILIATES. The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, enter into, renew or extend any transaction
(including, without limitation, the purchase, sale, lease or exchange of
property or assets, or the rendering of any service) with any holder (or any
Affiliate of such holder) of 5% or more of any class of Capital Stock of the
Company or with any Affiliate of the Company or any Restricted Subsidiary,
except upon fair and reasonable terms no less favorable to the Company or such
Restricted Subsidiary than could be obtained, at the time of such transaction
or, if such transaction is pursuant to a written agreement, at the time of the
execution of the agreement providing therefor, in a comparable arm's-length
transaction with a Person that is not such a holder or an Affiliate.
The foregoing limitation does not limit, and shall not apply to:
(i) transactions (A) approved by a majority of the Board of
Directors (and, if there are disinterested directors, a majority thereof)
or (B) for which the Company or a Restricted Subsidiary delivers to the
Trustee a written opinion of a nationally recognized investment banking
firm or a nationally recognized accounting firm stating that the
transaction is fair or, in the case of an opinion of a nationally
recognized accounting firm, reasonable or fair to the Company or such
Restricted Subsidiary from a financial point of view;
(ii) any transaction solely between the Company and any of its
Restricted Subsidiaries or solely between Restricted Subsidiaries;
52
(iii) the payment of reasonable and customary regular fees to
directors of the Company or any Restricted Subsidiary who are not employees
of the Company or any Restricted Subsidiary;
(iv) any payments or other transactions pursuant to any tax-sharing
agreement between the Company and any other Person with which the Company
files a consolidated tax return or with which the Company is part of a
consolidated group for tax purposes;
(v) any sale of shares of Capital Stock (other than Disqualified
Stock) of the Company;
(vi) any Restricted Payments not prohibited by SECTION 4.04;
(vii) any merger, consolidation or sale of assets permitted by
SECTION 5.01, including the JSC Transaction;
(viii) the MBI Transaction; PROVIDED that such transaction has been
approved by the Committee of the Board;
(ix) the existence of, or performance by the Company or any
Restricted Subsidiary under, any agreement in existence on the Closing Date
(and by JSC or any of its Subsidiaries under any agreement in existence on
the JSC Transaction Date) approved by the Committee of the Board or any
amendment thereto or replacement agreement therefore so long as such
amendment or replacement is not materially less favorable taken as a whole
to the Holders than the original agreement as in effect on the Closing Date
or the JSC Transaction Date, as applicable; PROVIDED that the Company or
any of its Restricted Subsidiaries receives reasonable compensation
therefor;
(x) any agreement or transaction relating to the creation of a
captive insurance subsidiary of SSCC that provides insurance for
self-insurance and any other future programs reasonably similar thereto or
to the medical liability program in existence on the Closing Date, PROVIDED
that the costs borne by the Company and its Restricted Subsidiaries are
reasonable in relation to the services and benefits the Company and its
Restricted Subsidiaries receive therefrom;
(xi) the provision of management, financial and operational
services by the Company and its Subsidiaries to Affiliates of the Company
PROVIDED that the Company or any of its Restricted Subsidiaries receives
reasonable compensation therefor;
(xii) other transactions arising in the ordinary course of business
in accordance with the past practices of the Company and its Restricted
Subsidiaries prior to the Closing Date (including, without limitation,
purchase or supply contracts relating to products or raw materials)
PROVIDED that the Company or any of its Restricted Subsidiaries receives
reasonable compensation therefor; and
(xiii) transactions in connection with a Qualified Securitization
Transaction.
53
Notwithstanding the foregoing, any transaction or series of related transactions
covered by the first paragraph of this SECTION 4.08 and not covered by clauses
(ii) through (xiii) of this paragraph, (a) the aggregate amount of which exceeds
$50 million in value, must be approved or determined to be fair in the manner
provided for in clause (i)(A) or (B) above and (b) the aggregate amount of which
exceeds $100 million in value, must be determined to be fair in the manner
provided for in clause (i)(B) above.
SECTION 4.09. LIMITATION ON LIENS. The Company will not, and will not
permit any Restricted Subsidiary to, create, incur, assume or suffer to exist
any Lien on any of its assets or properties of any character, or any shares of
Capital Stock or Indebtedness of any Restricted Subsidiary, without making
effective provision for all of the Notes and all other amounts due under this
Indenture to be directly secured equally and ratably with (or, if the obligation
or liability to be secured by such Lien is subordinated in right of payment to
the Notes, prior to) the obligation or liability secured by such Lien.
The foregoing limitation does not apply to:
(i) Liens securing Indebtedness permitted pursuant to clauses (i)
and (ix) of SECTION 4.03, and Liens on assets that secure the Box Plant
Financing as of or immediately prior to the Closing Date or secured the
First Mortgage Notes as of January 25, 2001 (prior to giving effect to the
repayment thereof);
(ii) Liens existing on (x) the Closing Date, including Liens
securing obligations under the Box Plant Financing, and (y) on the JSC
Transaction Date, with respect to the assets of JSC;
(iii) Liens granted after the Closing Date on any assets or Capital
Stock of the Company or its Restricted Subsidiaries created in favor of the
Holders;
(iv) Liens with respect to the assets of a Restricted Subsidiary
granted by such Restricted Subsidiary to the Company or a Wholly Owned
Restricted Subsidiary to secure Indebtedness owing to the Company or such
other Restricted Subsidiary;
(v) Liens securing Indebtedness which is Incurred to refinance
secured Indebtedness which is permitted to be Incurred under clause (iii)
of the second paragraph of SECTION 4.03; PROVIDED that such Liens do not
extend to or cover any property or assets of the Company or any Restricted
Subsidiary other than the property or assets securing the Indebtedness
being refinanced;
(vi) Liens on any property or assets or capital stock of a
Restricted Subsidiary securing Indebtedness of such Restricted Subsidiary
permitted under SECTION 4.03;
(vii) Permitted Liens;
(viii) Liens securing Indebtedness that is permitted to be Incurred
under clause (viii) of the second paragraph of SECTION 4.03; PROVIDED that
the assets subject to such Liens are assets of the acquired entity and its
subsidiaries;
54
(ix) Liens securing Indebtedness that is permitted to be Incurred
under clauses (ix) and (xi) of the second paragraph of SECTION 4.03; and
(x) Liens granted pursuant to the Continental Guaranty with
respect to industrial revenue bonds.
SECTION 4.10. LIMITATION ON SALE-LEASEBACK TRANSACTIONS. The Company
will not, and will not permit any Restricted Subsidiary to, enter into any
sale-leaseback transaction involving any of its assets or properties whether now
owned or hereafter acquired, whereby the Company or a Restricted Subsidiary
sells or transfers such assets or properties and then or thereafter leases such
assets or properties or any part thereof or any other assets or properties which
the Company or such Restricted Subsidiary, as the case may be, intends to use
for substantially the same purpose or purposes as the assets or properties sold
or transferred.
The foregoing restriction does not apply to any sale-leaseback
transaction if (i) the lease is for a period, including renewal rights, of not
in excess of three years; (ii) the sale or transfer of property is entered into
prior to, at the time of, or within 12 months after the later of the acquisition
of the property or the completion of construction thereof; (iii) the lease
secures or relates to industrial revenue or pollution control bonds; (iv) the
transaction is solely between the Company and any Restricted Subsidiary or
solely between Restricted Subsidiaries; or (v) the Company or such Restricted
Subsidiary, within 12 months after the sale or transfer of any assets or
properties is completed, applies an amount not less than the net proceeds
received from such sale in accordance with clause (A) or (B) of the first
paragraph of SECTION 4.11.
SECTION 4.11. LIMITATION ON ASSET SALES. The Company will not, and
will not permit any Restricted Subsidiary to, consummate any Asset Sale, unless
(i) the consideration received by the Company or such Restricted Subsidiary is
at the time of such Asset Sale, taken as a whole, at least equal to the fair
market value of the assets or Capital Stock sold or disposed of and (ii) at
least 75% of the consideration received consists of cash or Temporary Cash
Investments or the assumption of Indebtedness of the Company or any Restricted
Subsidiary (other than Indebtedness to the Company or any Restricted
Subsidiary), PROVIDED that the Company or such Restricted Subsidiary is
irrevocably and unconditionally released from all liability under such
Indebtedness.
For purposes of this provision, each of the following shall be deemed
to be cash:
(a) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet), of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by
their terms subordinated to the Exchange Notes or any Subsidiary Guarantee)
that are assumed by the transferee of any such assets; and
(b) any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that are
converted, sold or exchanged by the Company or such Restricted Subsidiary
into cash within 90 days of the related Asset Sale (to the extent of the
cash received in that conversion); and
55
(c) any Designated Noncash Consideration received by the Company
or any of its Restricted Subsidiaries in such Asset Sale having an
aggregate fair market value, taken together with all other Designated
Noncash Consideration received since the date of this Indenture pursuant to
this clause (c) that is at that time outstanding, not to exceed 10% of
Adjusted Consolidated Net Tangible Assets at the time of the receipt of
such Designated Noncash Consideration (with the fair market value of each
item of such Designated Noncash Consideration being measured at the time
received and without giving effect to subsequent changes in value).
In the event and to the extent that the Net Cash Proceeds received by
the Company or any of its Restricted Subsidiaries from one or more Asset Sales
occurring on or after the Closing Date in any period of 12 consecutive months
exceed 10% of Adjusted Consolidated Net Tangible Assets (determined as of the
date closest to the commencement of such 12-month period for which a
consolidated balance sheet of the Company and its Subsidiaries has been
prepared), then the Company shall or shall cause the relevant Restricted
Subsidiary to:
(i) within twelve months after the date Net Cash Proceeds so
received exceed 10% of Adjusted Consolidated Net Tangible Assets
(A) apply an amount equal to such excess Net Cash Proceeds to
permanently repay unsubordinated Indebtedness of the Company or any
Restricted Subsidiary owing to a Person other than the Company or any
of its Restricted Subsidiaries or
(B) invest an equal amount, or the amount not so applied
pursuant to clause (A) (or enter into a definitive agreement
committing to so invest within 12 months after the date of such
agreement), in property or assets (other than current assets) of a
nature or type or that are used in a business (or in a company having
property and assets of a nature or type, or engaged in a business)
similar or related to the nature or type of the property and assets
of, or the business of, the Company and its Restricted Subsidiaries
existing on the date of such investment and
(ii) apply (no later than the end of the 12-month period referred
to in clause (i)) such excess Net Cash Proceeds (to the extent not applied
pursuant to clause (i)) as provided in the following paragraph of this
SECTION 4.11.
The amount of such excess Net Cash Proceeds required to be applied (or
to be committed to be applied) during such 12-month period as set forth in
clause (i) of the preceding sentence and not applied as so required by the end
of such period shall constitute "EXCESS PROCEEDS."
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this
SECTION 4.11 totals at least $50 million for the calendar year in which such
calendar month occurs, the Company must commence, not later than the fifteenth
Business Day of such month, an Offer to Purchase from the Holders (and if
required by the terms of any Indebtedness that is pari passu with the Notes
("PARI PASSU INDEBTEDNESS"), from the holders of such Pari Passu Indebtedness)
on a pro rata
56
basis an aggregate principal amount of Notes (and Pari Passu Indebtedness) equal
to the Excess Proceeds on such date, at a purchase price equal to 100% of the
principal amount thereof, plus, in each case, accrued interest (if any) to the
Payment Date. If any Excess Proceeds remain after consummation of an Offer to
Purchase, the Company or any Restricted Subsidiary may use such Excess Proceeds
for any purpose not otherwise prohibited by this Indenture.
SECTION 4.12. REPURCHASE OF NOTES UPON A CHANGE OF CONTROL. The
Company shall commence, within 30 days of the occurrence of a Change of Control,
and thereafter consummate an Offer to Purchase for all Notes of each series then
outstanding, at a purchase price equal to 101% of the principal amount thereof,
plus accrued interest, if any, to the Payment Date.
SECTION 4.13. EXISTENCE. Except to the extent otherwise permitted
under any provision in Article Four or Five of this Indenture, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence and the existence of each of its Restricted
Subsidiaries in accordance with the respective organizational documents of the
Company and each Restricted Subsidiary and the material rights (whether pursuant
to charter, partnership certificate, agreement, statute or otherwise), licenses
and franchises of the Company and each Restricted Subsidiary; PROVIDED that the
Company shall not be required to preserve any such right, license or franchise,
or the existence of any Restricted Subsidiary, if the maintenance or
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries taken as a whole; and PROVIDED
FURTHER that any Restricted Subsidiary may consolidate with, merge into, or
sell, convey, transfer, lease or otherwise dispose of all or part of its
property and assets (and the Company may take any actions to affect any of the
foregoing) to or with the Company or any Wholly Owned Subsidiary of the Company;
and PROVIDED FURTHER that this SECTION 4.13 shall not prohibit the JSC
Transaction
SECTION 4.14. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay
or discharge and shall cause each of its Subsidiaries to pay or discharge, or
cause to be paid or discharged, before any penalty accrues thereon (i) all
material taxes, assessments and governmental charges levied or imposed upon (a)
the Company, any such Restricted Subsidiary or any other Subsidiary for which
the Company or any Restricted Subsidiary may be liable, (b) the income or
profits of any such Restricted Subsidiary which is a corporation or (c) the
property of the Company or any such Restricted Subsidiary and (ii) all material
lawful claims for labor, materials and supplies that, if unpaid, might by law
become a Lien upon the property of the Company or any such Restricted
Subsidiary; PROVIDED that the Company shall not be required to pay or discharge,
or cause to be paid or discharged, any such tax, assessment, charge or claim the
amount, applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate reserves have been established.
SECTION 4.15. MAINTENANCE OF PROPERTIES AND INSURANCE. The Company
will cause all properties used or useful in the conduct of its business or the
business of any of its Restricted Subsidiaries material to the Company and its
Restricted Subsidiaries taken as a whole to be maintained and kept in normal
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals and replacements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; PROVIDED
57
that nothing in this SECTION 4.15 shall prevent the Company or any Restricted
Subsidiary from discontinuing the use, operation or maintenance of any of such
properties or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Company, desirable in the conduct of the business of the
Company or such Restricted Subsidiary.
The Company will provide or cause to be provided, for itself and its
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties, including, but not limited to,
products liability insurance and public liability insurance, with reputable
insurers or with the government of the United States of America, or an agency or
instrumentality thereof, in such amounts, with such deductibles and by such
methods as shall be customary for corporations similarly situated in the
industry in which the Company or any such Restricted Subsidiary, as the case may
be, is then conducting business.
SECTION 4.16. NOTICE OF DEFAULTS. In the event that any Officer
becomes aware of any Default or Event of Default, the Company shall promptly
give written notice thereof to the Trustee.
SECTION 4.17. COMPLIANCE CERTIFICATES. (a) The Company shall deliver
to the Trustee, within 90 days after the end of each fiscal year, an Officers'
Certificate stating whether or not the signers know of any Default or Event of
Default that occurred during such fiscal year. Such certificate shall contain a
certification from the principal executive officer, principal financial officer
or principal accounting officer of the Company as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture. For
purposes of this SECTION 4.17, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this
Indenture. If any of the officers of the Company signing such certificate has
knowledge of such a Default or Event of Default, the certificate shall describe
any such Default or Event of Default and its status. The first certificate to be
delivered pursuant to this SECTION 4.17(a) shall be for the first fiscal year
beginning after the execution of this Indenture.
(b) The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year, beginning with the fiscal year in which this
Indenture was executed, a certificate signed by the Company's independent
certified public accountants stating (i) that their audit examination has
included a review of the terms of this Indenture and the Notes as they relate to
accounting matters, (ii) that they have read the most recent Officers'
Certificate delivered to the Trustee pursuant to paragraph (a) of this SECTION
4.17 and (iii) whether, in connection with their audit examination, anything
came to their attention that caused them to believe that the Company was not in
compliance with any of the terms, covenants, provisions or conditions of Article
Four and SECTION 5.01 of this Indenture as they pertain to accounting matters
and, if any Default or Event of Default has come to their attention, specifying
the nature and period of existence thereof; PROVIDED that such independent
certified public accountants shall not be liable in respect of such statement by
reason of any failure to obtain knowledge of any such Default or Event of
Default that would not be disclosed in the course of an audit examination
conducted in accordance with generally accepted auditing standards in effect at
the date of such examination. The Company shall not be required to comply with
the foregoing clause (b) with respect to any fiscal year if such compliance
would be contrary to the recommendations of the American
58
Institute of Certified Public Accountants so long as the Company delivers to the
Trustee within 90 days after the end of such fiscal year an Officer's
Certificate stating that such compliance would be so contrary and any facts
particular to the Company that may have caused such compliance to be so
contrary.
SECTION 4.18. COMMISSION REPORTS AND REPORTS TO HOLDERS. Whether or
not the Company is then required to file reports with the Commission, the
Company shall file with the Commission all such reports and other information as
it would be required to file with the Commission by Sections 13(a) or 15(d)
under the Exchange Act if it were subject thereto. The Company shall supply the
Trustee copies of such reports and other information within 15 days after the
date it files such reports or other information with the Commission. In
addition, with respect to any Notes of any series, at all times prior to the
earlier of the date of the registration of the Notes of that series pursuant to
and in accordance with the terms of the Registration Rights Agreement or any
other registration rights agreement (the "REGISTRATION") and the date that is
six months after the initial issuance date of the Notes of that series, the
Company shall, at its costs, deliver to each Holder of the Notes quarterly and
annual reports substantially equivalent to those which would be required by the
Exchange Act. In addition, at all times prior to the Registration, upon the
request of any Holder or any prospective purchaser of the Notes designated by a
Holder, the Company shall supply to such Holder or such prospective purchaser
the information required under Rule 144A(d)(4) under the Securities Act. The
Company also shall comply with the other provisions of TIA Section 314(a) to the
extent required thereby. 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
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.19. WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of, premium, if any, or interest on the Notes as contemplated herein
or in the Notes, wherever enacted, now or at any time hereafter in force, or
that may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC. The Company shall not
consolidate with, or merge with or into any other corporation (whether or not
the Company shall be the surviving corporation), or sell, assign, transfer or
lease all or substantially all of its properties and assets as an entirety or
substantially as an entirety to any Person or group of affiliated Persons, in
one transaction or a series of related transactions, unless:
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(1) either the Company shall be the continuing Person or the
Person (if other than the Company) formed by such consolidation or with
which or into which the Company is merged or the Person (or group of
affiliated Persons) to which all or substantially all the properties and
assets of the Company are sold, assigned, transferred or leased is a
corporation (or constitute corporations) organized under the laws of the
United States of America or any State thereof or the District of Columbia
and expressly assumes, by an indenture supplemental to this Indenture, all
the obligations of the Company under the Notes and this Indenture;
(2) immediately before and after giving effect to such transaction
or series of related transactions, no Event of Default, and no Default,
shall have occurred and be continuing;
(3) immediately after giving effect to such transaction or series
of related transactions on a pro forma basis, but prior to any purchase
accounting adjustments resulting from the transaction or series of related
transactions, the Consolidated Net Worth of the Company (or of the
surviving, consolidated or transferee entity if the Company is not
continuing, treating such entity as the Company for purposes of determining
Consolidated Net Worth) shall be at least equal to the Consolidated Net
Worth of the Company immediately before such transaction or series of
related transactions; and
(4) immediately after giving effect to such transaction or series
of related transactions, the Company (or the surviving, consolidated or
transferee entity if the Company is not continuing, but treating such
entity as the Company for purposes of making such determination) would be
permitted to incur an additional $1.00 of Indebtedness immediately prior to
such transaction or series of related transactions, under the first
paragraph of clause (a) of SECTION 4.03; PROVIDED, HOWEVER, that this
clause (4) shall be inapplicable if (a) such transaction or series of
related transactions would result in the occurrence of a Change of Control
or related transactions would result in the occurrence of a Change of
Control or (b) immediately prior to giving effect to such transaction or
series of related transactions, the Company would not be permitted to incur
additional $1.00 of Indebtedness under the first paragraph of clause (a) of
SECTION 4.03, and immediately after giving effect to such transaction or
series of related transactions on a pro forma basis, but prior to any
purchase accounting adjustments resulting from the transaction or series of
related transactions, the Consolidated Interest Coverage Ratio of the
Company (or the surviving, consolidated or transferee entity if the Company
is not continuing, treating such entity as the Company for purposes of
determining Consolidated Interest Coverage Ratio) shall be at least equal
to the Consolidated Interest Coverage Ratio of the Company immediately
before such transaction or series of related transactions.
The Company shall not consummate the JSC Transaction, unless:
(1) clauses (1) - (4) of the first paragraph of this covenant are
satisfied; and
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(2) solely in connection with the transaction described in clause
(iii) of the definition of "JSC Transaction", JSCE shall expressly assume,
by an indenture supplemental to this Indenture, all obligations of the
Company under the Notes and this Indenture such that JSCE shall be the sole
direct obliger under the Notes and this Indenture from and after the JSC
Transaction Date.
SECTION 5.02. SUCCESSOR SUBSTITUTED. Upon any consolidation or merger,
or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
SECTION 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition 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 Person had been named
as the Company herein; PROVIDED that the Company shall not be released from its
obligation to pay the principal of, premium, if any, or interest on the Notes in
the case of a lease of all or substantially all of its property and assets.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. Any of the following events shall
constitute an "EVENT OF DEFAULT" hereunder with respect to Notes of any series:
(a) default in the payment of principal of (or premium, if any,
on) any Note of that series when the same becomes due and payable at
maturity, upon acceleration, redemption or otherwise;
(b) default in the payment of interest on any Note of that series
when the same becomes due and payable, and such default continues for a
period of 30 days;
(c) default in the performance or breach of the provisions of this
Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the assets of the Company or the failure to make or
consummate an Offer to Purchase in accordance with SECTION 4.11 or SECTION
4.12;
(d) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture or under the
Notes (other than a default specified in clause (a), (b) or (c) above) and
such default or breach continues for a period of 45 consecutive days after
written notice by the Trustee or the Holders of 25% or more in aggregate
principal amount of the Notes;
(e) there occurs with respect to any issue or issues of
Indebtedness of the Company or any Significant Subsidiary having an
outstanding principal amount of $25 million, and following the consummation
of the JSC Transaction, $40 million, or more in the aggregate for all such
issues of all such Persons, whether such Indebtedness now exists or shall
hereafter be created, (I) an event of default that has caused the holder
thereof to declare such Indebtedness to be due and payable prior to its
Stated Maturity and such Indebtedness has not been discharged in full or
such acceleration has not been rescinded or annulled within 30 days of such
acceleration and/or (II) the failure to make a
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principal payment at the final (but not any interim) fixed maturity and
such defaulted payment shall not have been made, waived or extended within
30 days of such payment default;
(f) any final judgment or order (not covered by insurance) for the
payment of money in excess of $25 million, and following the consummation
of the JSC Transaction, $40 million, in the aggregate for all such final
judgments or orders against all such Persons (treating any deductibles,
self-insurance or retention as not so covered) shall be rendered against
the Company or any Significant Subsidiary and shall not be paid or
discharged, and there shall be any period of 60 consecutive days following
entry of the final judgment or order that causes the aggregate amount for
all such final judgments or orders outstanding and not paid or discharged
against all such Persons to exceed $25 million, and following the
consummation of the JSC Transaction, $40 million, during which a stay of
enforcement of such final judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect;
(g) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Company or any Significant
Subsidiary in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (B) appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) the winding up or liquidation of the affairs
of the Company or any Significant Subsidiary and, in each case, such decree
or order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(h) the Company or any Significant Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) effects any
general assignment for the benefit of creditors.
SECTION 6.02. ACCELERATION. If an Event of Default (other than an
Event of Default specified in clause (g) or (h) of SECTION 6.01 that occurs with
respect to the Company) with respect to Notes of any series at the time
outstanding occurs and is continuing then in every such case, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding of that series, by written notice to the Company (and to the Trustee
if such notice is given by the Holders), may, and the Trustee at the request of
such Holders shall, declare the principal of, premium, if any, and accrued
interest on all of the Notes of that series to be immediately due and payable.
Upon a declaration of acceleration, such principal, premium, if any, and accrued
interest shall be immediately due and payable. In the event of a declaration of
acceleration because an Event of Default set forth in clause (e) of SECTION 6.01
has occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to clause (e) shall be remedied or
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cured by the Company or the relevant Significant Subsidiary or waived by the
holders of the relevant Indebtedness within 60 days after the declaration of
acceleration with respect thereto. If an Event of Default specified in clause
(g) or (h) of SECTION 6.01 occurs with respect to the Company, the principal of,
premium, if any, and accrued interest on all the Notes then outstanding shall
IPSO FACTO become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
At any time after such declaration of acceleration with respect to
Notes of any series (or of all series, as the case may be), but before a
judgment or decree for the payment of the money due has been obtained by the
Trustee, the Holders of at least a majority in principal amount of the
outstanding Notes of that series (or of all series, as the case may be) by
written notice to the Company and to the Trustee, may waive all past Defaults
and rescind and annul a declaration of acceleration and its consequences if (a)
the Company has paid or deposited with the Trustee a sum sufficient to pay (i)
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, (ii) all overdue interest on all Notes then outstanding of that
series, (iii) the principal of and premium, if any, on any Notes then
outstanding of that series that have become due otherwise than by such
declaration or occurrence of acceleration and interest thereon at the rate
prescribed therefor by such Notes, and (iv) to the extent that payment of such
interest is lawful, interest upon overdue interest, if any, at the rate
prescribed therefor by such Notes, (b) all existing Events of Default with
respect to Notes of any series (or of all series, as the case may be) other than
the non-payment of the principal of, premium, if any, and accrued interest on
the Notes of that series (or of all series, as the case may be) that have become
due solely by such declaration of acceleration, have been cured or waived and
(c) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.
SECTION 6.03. OTHER REMEDIES. If an Event of Default with respect to
Notes of any series at the time outstanding occurs and is continuing, the
Trustee may, and at the direction of the Holders of at least a majority in
principal amount of the outstanding Notes of that series shall, pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of, premium, if any, or interest on the Notes of that series or to
enforce the performance of any provision of the Notes of that series or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding.
SECTION 6.04. WAIVER OF PAST DEFAULTS. Subject to SECTIONS 6.02, 6.07
and 9.02, the Holders of at least a majority in principal amount of the
outstanding Notes of any series, by notice to the Trustee, may on behalf of the
Holders of all the Notes of such series waive an existing Default or Event of
Default and its consequences, except a Default in the payment of principal of,
premium, if any, or interest on any Note as specified in clause (a) or (b) of
SECTION 6.01 or in respect of a covenant or provision of this Indenture which
cannot be modified or amended without the consent of the Holder of each
outstanding Note affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
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SECTION 6.05. CONTROL BY MAJORITY. With respect to the Notes of any
series, the Holders of at least a majority in aggregate principal amount of the
outstanding Notes of that series may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee; provided that the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, that
may involve the Trustee in personal liability, or that the Trustee determines in
good faith may be unduly prejudicial to the rights of Holders of Notes of that
series not joining in the giving of such direction; and provided further that
the Trustee may take any other action it deems proper that is not inconsistent
with any such direction received from Holders of Notes of that series.
SECTION 6.06. LIMITATION ON SUITS. A Holder of any Note of any series
may not institute any proceeding, judicial or otherwise, with respect to this
Indenture or that series of Notes, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(i) the Holder has previously given the Trustee written notice of
a continuing Event of Default with respect to the Notes of that series;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Notes of that series shall have made a written request to the
Trustee to pursue such remedy;
(iii) such Holder or Holders offer the Trustee indemnity reasonably
satisfactory to the Trustee against any costs, liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes of that series do not
give the Trustee a direction that is inconsistent with the request.
For purposes of SECTION 6.05 of this Indenture and this SECTION 6.06,
the Trustee shall comply with TIA Section 316(a) in making any determination of
whether the Holders of the required aggregate principal amount of outstanding
Notes of a particular series have concurred in any request or direction of the
Trustee to pursue any remedy available to the Trustee or the Holders with
respect to this Indenture or the Notes of that series or otherwise under the
law.
A Holder may not use this Indenture to prejudice the rights of another
Holder of Notes of the same series or to obtain a preference or priority over
such other Holder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of the principal of, premium, if any, or interest on, such Note
or to bring suit for the enforcement of any such payment, on or after the due
date expressed in the Notes, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default in
payment of principal, premium or interest of any Note specified in clause (a),
(b) or (c) of SECTION 6.01
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occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or any other obligor of that
Note for the whole amount of principal, premium, if any, and accrued interest
remaining unpaid, together with interest on overdue principal, premium, if any,
and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate specified in such Notes, and
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
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 (including any claim for
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) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor of the Notes), its creditors or its property
and shall be entitled and empowered to collect and receive any monies,
securities or other property payable or deliverable upon conversion or exchange
of the Notes or upon any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding 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 agents and counsel, and any other
amounts due the Trustee under SECTION 7.07. Nothing herein contained shall be
deemed to empower 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 Notes 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.
SECTION 6.10. PRIORITIES. If the Trustee collects any money pursuant
to this Article Six, it shall pay out the money in the following order:
First: to the Trustee for all amounts due under SECTION 7.07;
Second: to Holders for amounts then due and unpaid for principal of,
premium, if any, and interest on the Notes in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such Notes for
principal, premium, if any, and interest, respectively; and
Third: to the Company or any other obligors of the Notes, as their
interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this SECTION
6.10.
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 Trustee, a court may require any party
litigant in such suit to file an undertaking
65
to pay the costs of the suit, and the court may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
the suit having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This SECTION 6.11 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 outstanding Notes of any
series.
SECTION 6.12. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then,
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Company, Trustee and the Holders shall continue as though no
such proceeding had been instituted.
SECTION 6.13. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Notes in SECTION 2.09, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.14. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article Six or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. GENERAL. The duties and responsibilities of the Trustee
shall be as provided by the TIA and as set forth herein. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not herein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Article Seven.
SECTION 7.02. CERTAIN RIGHTS OF TRUSTEE. Subject to TIA Sections
315(a) through (d):
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(i) the Trustee may conclusively rely, and shall be protected in
acting or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper person;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall
conform to SECTION 10.04. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or
opinion;
(iii) the Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any attorney or
agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders, of Notes of any series unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
(v) the Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers, provided that the Trustee's conduct does not constitute
negligence or bad faith;
(vi) whenever in the administration of this Indenture the Trustee
shall reasonably deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(vii) 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, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company
personally or by agent or attorney;
(viii) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect to any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(ix) the Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the
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Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Notes and this Indenture;
(x) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder; and
(xi) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not the 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 (i) makes no
representation as to the validity or adequacy of this Indenture or the Notes,
(ii) shall not be accountable for the Company's use or application of the
proceeds from the Notes and (iii) shall not be responsible for any statement in
the Notes other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULT. If any Default or any Event of
Default with respect to the Notes of any series occurs and is continuing and if
such Default or Event of Default is known to the Trustee, the Trustee shall mail
to each Holder of Notes of that series in the manner and to the extent provided
in TIA Section 313(c) notice of the Default or Event of Default within 60 days
after it occurs, unless such Default or Event of Default has been cured;
PROVIDED, HOWEVER, that, except in the case of a default in the payment of the
principal of, premium, if any, or interest on any Note of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Notes of such
series.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each
May 15, beginning with May 15, 2003, the Trustee shall mail to each Holder as
provided in TIA Section 313(c) a brief report dated as of such May 15, if
required by TIA Section 313(a).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange or of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing for its services
hereunder. The compensation of the Trustee shall not be limited by any law on
compensation of a trustee of an
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express trust. The Company shall reimburse the Trustee upon request for all
reasonable disbursements, expenses and advances incurred or made by the Trustee
without negligence or bad faith on its part. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense incurred by it without negligence or
bad faith on its part in connection with the acceptance or administration of
this Indenture and its duties under this Indenture and the Notes, including the
costs and expenses of defending itself against any claim (whether asserted by
the Company, a Holder or any other Person) or liability and of complying with
any process served upon it or any of its officers in connection with the
acceptance, exercise or performance of any of its powers or duties under this
Indenture and the Notes. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder, unless the
Company is materially prejudiced thereby. The Company shall defend the claim and
the Trustee shall cooperate in the defense. Unless otherwise set forth herein,
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, which consent shall not be unreasonably withheld. The
Company need not reimburse any expense or indemnity against any loss or
liability incurred by the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this SECTION 7.07, the
Trustee shall have a lien prior to the Notes 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 of, premium, if any, and interest on particular
Notes.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in clause (g) or (h) of SECTION
6.01, the expenses and the compensation for the services will be intended to
constitute expenses of administration under Title 11 of the United States
Bankruptcy Code or any applicable federal or state law for the relief of
debtors.
The provisions of this SECTION 7.07 shall survive the termination of
this Indenture.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this SECTION
7.08.
The Trustee may resign at any time with respect to the Notes of one or
more series by so notifying the Company in writing at least 30 days prior to the
date of the proposed resignation. The Holders of a majority in principal amount
of the outstanding Notes of such series may remove the Trustee by so notifying
the Trustee in writing and may appoint a successor Trustee with the consent of
the Company. The Company may remove the Trustee if: (i) the Trustee is no longer
eligible under SECTION 7.10; (ii) the Trustee is adjudged a bankrupt or
69
an insolvent; (iii) a receiver or other public officer takes charge of the
Trustee or its property; or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists in the
office of Trustee for any reason, with respect to the Notes of one or more
series the Company shall promptly appoint a successor Trustee (it being
understood that any such successor Trustee may be appointed with respect to the
Notes of one or more or all of such series and at any time there shall be only
one Trustee with respect to the Notes of any particular series). Within one year
after the successor Trustee takes office, the Holders of a majority in principal
amount of the outstanding Notes of those series may appoint a successor Trustee
to replace the successor Trustee appointed by the Company. If the successor
Trustee does not deliver its written acceptance required by the next succeeding
paragraph of this SECTION 7.08 within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the outstanding Notes of those series may, at the expense of
the Company, petition any court of competent jurisdiction for the appointment of
a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, subject to the lien provided in SECTION
7.07, (i) the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee shall become effective and (iii) the successor Trustee shall have all
the rights, powers and duties of the Trustee under this Indenture. A successor
Trustee with respect to the Notes of one or more series shall mail notice of its
succession to each Holder of those series. No successor Trustee shall accept its
appointment unless at the time of such acceptance such successor Trustee shall
be qualified and eligible under this Article.
If the Trustee with respect to the Notes of any series is no longer
eligible under SECTION 7.10 or shall fail to comply with TIA Section 310(b), any
Holder of Notes of such 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. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this SECTION
7.08, the Trustee shall resign immediately in the manner and with the effect
provided in this Section with respect to the Notes of such series.
The Company shall give notice of any resignation and any removal of
the Trustee with respect to the Notes of any series and each appointment of a
successor Trustee with respect to the Notes of any series to all Holders of
Notes of such series. Each notice shall include the name of the successor
Trustee with respect to the Notes of such series and the address of its
Corporate Trust Office.
Notwithstanding replacement of the Trustee pursuant to this SECTION
7.08, the Company's obligation under SECTION 7.07 shall continue for the benefit
of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee
70
corporation or national banking association without any further act shall be the
successor Trustee with the same effect as if the successor Trustee had been
named as the Trustee herein, provided such corporation shall be otherwise
qualified and eligible under this Article.
SECTION 7.10. ELIGIBILITY. This Indenture shall always have a Trustee
who satisfies the requirements of TIA Section 310(a)(1). The Trustee shall have
a combined capital and surplus of at least $25 million as set forth in its most
recent published annual report of condition that is subject to the requirements
of applicable federal or state supervising or examining authority. If at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect specified in this Article.
SECTION 7.11. MONEY HELD IN TRUST. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law and except for money held in trust
under Article Eight of this Indenture.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS. Except as
otherwise provided in this SECTION 8.01, the Company may terminate its
obligations under the Notes of any series if:
(i) all Notes of such series previously authenticated and
delivered (other than destroyed, lost or stolen Notes that have been
replaced or Notes of such series that are paid pursuant to SECTION 4.01 or
the Notes of such series for whose payment money or securities have
theretofore been held in trust and thereafter repaid to the Company, as
provided in SECTION 8.05) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder; or
(ii) (A) the Notes of such series mature within one year or all of
them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (B) the
Company irrevocably deposits in trust with the Trustee during such one-year
period, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds solely for the
benefit of the Holders for that purpose, money or U.S. Government
Obligations sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment of any
interest thereon, to pay principal, premium, if, any, and interest on the
Notes of such series to maturity or redemption, as the case may be, and to
pay all other sums payable by it hereunder, (C) no Default or Event of
Default with respect to the Notes of such series shall have occurred and be
continuing on the date of such deposit, (D) such deposit will not result in
a breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound and (E) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating that
all conditions precedent
71
provided for herein relating to the satisfaction and discharge of this
Indenture have been complied with.
With respect to the foregoing clause (i), the Company's obligations
under SECTION 7.07 shall survive with respect to such Notes. With respect to the
foregoing clause (ii), the Company's obligations in SECTIONS 2.02, 2.03, 2.04,
2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06
with respect to such Notes shall survive until such Notes are no longer
outstanding. Thereafter, only the Company's obligations with respect to such
Notes in SECTIONS 7.07, 8.04, 8.05 and 8.06 shall survive. After any such
irrevocable deposit, the Trustee upon request shall acknowledge in writing the
discharge of the Company's obligations under the Notes of such series and this
Indenture with respect to such Notes except for those surviving obligations
specified above.
SECTION 8.02. DEFEASANCE AND DISCHARGE OF INDENTURE. The Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of Notes of any series after the date of the deposit referred to in
clause (A) of this SECTION 8.02, and the provisions of this Indenture will no
longer be in effect with respect to such Notes, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same if:
(A) with reference to this SECTION 8.02, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of SECTION 7.10)
and conveyed all right, title and interest to the Trustee for the benefit
of the Holders, under the terms of an irrevocable trust agreement in form
and substance satisfactory to the Trustee as trust funds in trust,
specifically pledged to the Trustee for the benefit of the Holders as
security for payment of the principal of, premium, if any, and interest, if
any, on the Notes, and dedicated solely to, the benefit of the Holders, in
and to (1) money in an amount, (2) U.S. Government Obligations that,
through the payment of interest, premium, if any, and principal in respect
thereof in accordance with their terms, will provide, not later than one
day before the due date of any payment referred to in this clause (A),
money in an amount or (3) a combination thereof in an amount 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, without consideration of the reinvestment of
such interest and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee,
the principal of, premium, if any, and interest on the outstanding Notes on
the Stated Maturity of such principal or interest; PROVIDED that the
Trustee shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to the payment of such
principal, premium, if any, and interest with respect to the Notes;
(B) the Company has delivered to the Trustee (1) either (x) an
Opinion of Counsel to the effect that Holders of Notes of such series will
not recognize income, gain or loss for federal income tax purposes as a
result of the Company's exercise of its option under this SECTION 8.02 and
will be subject to federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such option had
not been exercised, which Opinion of Counsel shall be based upon (and
accompanied by
72
a copy of) a ruling of the Internal Revenue Service to the same effect
unless there has been a change in applicable federal income tax law after
the Closing Date such that a ruling is no longer required or (y) a ruling
directed to the Trustee received from the Internal Revenue Service to the
same effect as the aforementioned Opinion of Counsel and (2) an Opinion of
Counsel to the effect that the creation of the defeasance trust does not
violate the Investment Company Act of 1940 and following the deposit
(except, with respect to any trust funds for the account of any Holder of
Notes of such series who may be deemed to be an "insider" for purposes of
the United States Bankruptcy Code, after one year following the deposit),
the trust funds will not be subject to the effect of Section 547 of the
United States Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law in a case commenced by or against the Company under either
such statute, and either (I) the trust funds will no longer remain the
property of the Company (and therefore will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally) or (II) if a court were to rule
under any such law in any case or proceeding that the trust funds remained
property of the Company, (a) assuming such trust funds remained in the
possession of the Trustee prior to such court ruling to the extent not paid
to the Holders of Notes of such series, the Trustee will hold, for the
benefit of the Holders, a valid and perfected security interest in such
trust funds that is not avoidable in bankruptcy or otherwise except for the
effect of Section 552(b) of the United States Bankruptcy Code on interest
on the trust funds accruing after the commencement of a case under such
statute and (b) the Holders of Notes of such series will be entitled to
receive adequate protection of their interests in such trust funds if such
trust funds are used in such case or proceeding;
(C) immediately after giving effect to such deposit, on a pro
forma basis, no Default or Event of Default shall have occurred and be
continuing on the date of such deposit, and such deposit shall not result
in a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries
is bound; and
(D) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this SECTION 8.02 have been complied with.
Notwithstanding the foregoing, prior to the end of the 123-day (or one
year) period referred to in clause (B)(2) of this SECTION 8.02, none of the
Company's obligations under this Indenture with respect to the Notes of such
series shall be discharged. Subsequent to the end of such 123-day (or one year)
period with respect to this SECTION 8.02, the Company's obligations in SECTIONS
2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 8.04, 8.05,
8.06 and the rights, powers, trusts, duties and immunities of the Trustee
hereunder with respect to the Notes of such series shall survive until the Notes
of such series are no longer outstanding. Thereafter, only the Company's
obligations in SECTIONS 7.07, 8.04, 8.05 and 8.06 with respect to the Notes of
such series shall survive. If and when a ruling from the Internal Revenue
Service or an Opinion of Counsel referred to in clause (B)(1) of this SECTION
8.02 is able to be provided specifically without regard to, and not in reliance
upon, the continuance of the Company's obligations under SECTION 4.01, then the
Company's obligations under such SECTION 4.01 with respect to the Notes
73
of such series shall cease upon delivery to the Trustee of such ruling or
Opinion of Counsel and compliance with the other conditions precedent provided
for herein relating to the defeasance contemplated by this SECTION 8.02.
After any such irrevocable deposit, the Trustee upon written request
shall acknowledge in writing the discharge of the Company's obligations under
the Notes of such series and this Indenture with respect to the Notes of such
series except for those surviving obligations in the immediately preceding
paragraph.
SECTION 8.03. DEFEASANCE OF CERTAIN OBLIGATIONS. The Company may omit
to comply with any term, provision or condition set forth in clauses (iii) and
(iv) of SECTION 5.01 and SECTIONS 4.03 through 4.11 and clause (c) of SECTION
6.01 with respect to clauses (iii) and (iv) of SECTION 5.01, clause (d) of
SECTION 6.01 with respect to SECTIONS 4.01, 4.02 and 4.12 through 4.19 and
clauses (e) and (f) of SECTION 6.01 shall be deemed not to be Events of Default,
in each case with respect to the outstanding Notes of any series if:
(i) with reference to this SECTION 8.03, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of SECTION 7.10)
and conveyed all right, title and interest to the Trustee for the benefit
of the Holders of Notes of such series, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the benefit of such
Holders as security for payment of the principal of, premium, if any, and
interest, if any, on the Notes of such series, and dedicated solely to, the
benefit of the Holders, in and to (A) money in an amount, (B) U.S.
Government Obligations that, through the payment of interest, premium, if
any, and principal in respect thereof in accordance with their terms, will
provide, not later than one day before the due date of any payment referred
to in this clause (i), money in an amount or (C) a combination thereof in
an amount 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, without consideration of
the reinvestment of such interest and after payment of all federal, state
and local taxes or other charges and assessments in respect thereof payable
by the Trustee, the principal of, premium, if any, and interest on the
outstanding Notes of such series on the Stated Maturity of such principal
or interest; PROVIDED that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of such principal, premium, if any, and interest
with respect to the Notes of such series;
(ii) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the creation of the defeasance trust does not
violate the Investment Company Act of 1940, (B) after the passage of 123
days following the deposit (except, with respect to any trust funds for the
account of any Holder of Notes of such series who may be deemed to be an
"insider" for purposes of the United States Bankruptcy Code, after one year
following the deposit), the trust funds will not be subject to the effect
of Section 547 of the United States Bankruptcy Code or Section 15 of the
New York Debtor and Creditor Law in a case commenced by or against the
Company under either such statute, and either (1) the trust funds will no
longer remain the property of the Company
74
(and therefore will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally) or (2) if a court were to rule under any such law in any
case or proceeding that the trust funds remained property of the Company,
(x) assuming such trust funds remained in the possession of the Trustee
prior to such court ruling to the extent not paid to the Holders, the
Trustee will hold, for the benefit of the Holders of Notes of such series,
a valid and perfected security interest in such trust funds that is not
avoidable in bankruptcy or otherwise (except for the effect of Section
552(b) of the United States Bankruptcy Code on interest on the trust funds
accruing after the commencement of a case under such statute) and (y) the
Holders of Notes of such series will be entitled to receive adequate
protection of their interests in such trust funds if such trust funds are
used in such case or proceeding, (C) the Holders of Notes of such series
will not recognize income, gain or loss for federal income tax purposes as
a result of such deposit and defeasance of certain covenants and Events of
Default and will be subject to federal income tax on the same amount and in
the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred and (D) the Trustee, for the
benefit of the Holders of Notes of such series, has a valid first-priority
security interest in the trust funds;
(iii) immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default shall have occurred and be continuing
on the date of such deposit or during the period ending on the 123rd day
after such date of such deposit, and such deposit shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries
is bound;
(iv) if the Notes of such series are then listed on a national
securities exchange, the Company has delivered to the Trustee an Opinion of
Counsel to the effect that such Notes will not be delisted as a result of
such deposit, defeasance and discharge; and
(v) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this SECTION 8.03 have been complied with.
SECTION 8.04. APPLICATION OF TRUST MONEY. Subject to SECTION 8.06, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to SECTION 8.01, 8.02 or 8.03, as the case may be,
and shall apply the deposited money and the money from U.S. Government
Obligations in accordance with the Notes of the relevant series and this
Indenture to the payment of principal of, premium, if any, and interest on such
Notes; but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to this Article or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of outstanding Notes.
75
SECTION 8.05. REPAYMENT TO COMPANY. Subject to SECTIONS 7.07, 8.01,
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any excess money held
by them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the Company
upon request any money held by them for the payment of principal, premium, if
any, or interest that remains unclaimed for two years; PROVIDED that the Trustee
or Paying Agent before being required to make any payment may cause to be
published at the expense of the Company once in a newspaper of general
circulation in The City of New York or mail to each Holder entitled to such
money at such Holder's address (as set forth in the Security Register) notice
that such money remains unclaimed and that after a date specified therein (which
shall be at least 30 days from the date of such publication or mailing) any
unclaimed balance of such money then remaining will be repaid to the Company.
After payment to the Company, Holders entitled to such money must look to the
Company for payment as general creditors unless an applicable law designates
another Person, and all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
SECTION 8.06. REINSTATEMENT. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations with respect to any series of
Notes in accordance with SECTION 8.01, 8.02 or 8.03, as the case may be, by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture with respect to
such series of Notes and the Notes of such series shall be revived and
reinstated as though no deposit had occurred pursuant to SECTION 8.01, 8.02 or
8.03, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with SECTION 8.01, 8.02 or 8.03, as the case may be; PROVIDED that, if the
Company has made any payment of principal of, premium, if any, or interest on
any Notes of such series because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company, when authorized
by a resolution of its Board of Directors (as evidenced by a Board Resolution
delivered to the Trustee), and the Trustee may amend or supplement this
Indenture or the Notes without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not, in the
good faith opinion of the Board of Directors as evidenced by a Board
Resolution delivered to the Trustee, adversely affect the interests of the
Holders in any material respect;
(2) to comply with Article Five;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
76
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor ▇▇▇▇▇▇▇;
(5) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(6) to add one or more Subsidiary Guarantees on the terms required
by this Indenture;
(7) to establish the form or terms of Notes of any series as
permitted by SECTION 2.03; or
(8) to make any change that, in the good faith opinion of the
Board of Directors as evidenced by a Board Resolution delivered to the
Trustee, does not materially and adversely affect the rights of any Holder.
SECTION 9.02. WITH CONSENT OF HOLDERS. Subject to SECTIONS 6.04 and
6.07 and without prior notice to the Holders, the Company, when authorized by
its Board of Directors (as evidenced by a Board Resolution delivered to the
Trustee), and the Trustee may amend this Indenture and the Notes with the
written consent of the Holders of a majority in aggregate principal amount of
the Notes then outstanding affected by such amendment, and the Holders of a
majority in aggregate principal amount of the Notes then outstanding affected by
written notice to the Trustee may waive future compliance by the Company with
any provision of this Indenture or the Notes.
Notwithstanding the provisions of this SECTION 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to SECTION 6.04, may not:
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Note;
(ii) reduce the principal amount of, premium, if any, or interest
on any Note;
(iii) change any place or currency of payment of principal of,
premium, if any, or interest on, any Note;
(iv) impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity (or, in the case of redemption, on
or after the Redemption Date) on any Note;
(v) reduce the percentage or principal amount of outstanding Notes
the consent of whose Holders is necessary to modify or amend this Indenture
or to waive compliance with certain provisions of or certain Defaults under
this Indenture;
(vi) waive a default in the payment of principal of, premium, if
any, or interest on, any Note; or
77
(vii) modify any of the provisions of this Section 9.02, except to
increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each outstanding Note affected thereby.
Any amendment or waiver which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Notes, or which modifies the
rights of Holders of Notes 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 Notes 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,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this SECTION 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. 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.
SECTION 9.03. REVOCATION AND EFFECT OF CONSENT. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the Note of the consenting Holder, even if notation
of the consent is not made on any Note. However, any such Holder or subsequent
Holder may revoke the consent as to its Note or portion of its Note. Such
revocation shall be effective only if the Trustee receives the notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective on receipt
by the Trustee of written consents from the Holders of the requisite percentage
in principal amount of the outstanding Notes.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
two sentences of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies) and only those
persons shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such persons continue to
be Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it is of the type described in the second paragraph of
SECTION 9.02. In case of an amendment or waiver of the type described in the
second paragraph of SECTION 9.02, the amendment or waiver shall bind each Holder
who has consented to it and every subsequent Holder of a Note that evidences the
same indebtedness as the Note of the consenting Holder.
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SECTION 9.04. NOTATION ON OR EXCHANGE OF NOTES. If an amendment,
supplement or waiver changes the terms of a Note, the Trustee may require the
Holder to deliver such Note to the Trustee. At the Company's expense, the
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder and the Trustee may place an appropriate notation on
any Note thereafter authenticated. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation, or issue a new Note, shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 9.05. TRUSTEE TO SIGN AMENDMENTS, ETC. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture and that it will be valid and binding upon the Company. Subject to the
preceding sentence, the Trustee shall sign such amendment, supplement or waiver
if the same does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver that affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.06. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article Nine shall conform to the
requirements of the TIA as then in effect.
ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT OF 1939. Prior to the effectiveness
of the Registration Statement, this Indenture shall incorporate and be governed
by the provisions of the TIA that are required to be part of and to govern
indentures qualified under the TIA. After the effectiveness of the Registration
Statement, this Indenture shall be subject to the provisions of the TIA that are
required to be a part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 10.02. NOTICES. Any notice or communication shall be
sufficiently given if in writing and delivered in person, mailed by first-class
mail or sent by telecopier transmission addressed as follows:
if to the Company:
Stone Container Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇ ▇▇▇-▇▇▇▇
79
Attention: Chief Financial Officer
if to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇ ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to it
at its address as it appears on the Security Register by first-class mail and
shall be sufficiently given to him if so mailed within the time prescribed. Any
notice or communication shall also be so mailed to any Person described in TIA
Section 313(c), to the extent required by the TIA. Copies of any such
communication or notice to a Holder shall also be mailed to the Trustee and each
Agent at the same time.
Failure to mail a notice or communication to a Holder as provided
herein or any defect in any such notice or communication shall not affect its
sufficiency with respect to other Holders. Except for a notice to the Trustee,
which is deemed given only when received, and except as otherwise provided in
this Indenture, if a notice or communication is mailed in the manner provided in
this SECTION 10.02, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 10.03. 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:
80
(i) 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
(ii) an Opinion of Counsel stating that, in the opinion of such
Counsel, all such conditions precedent have been complied with, PROVIDED
that no such opinion shall be required in connection with any initial
issuance of any series of Notes.
SECTION 10.04. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion contained
in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iv) a statement as to whether or not, in the opinion of each 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 Officers' Certificate or certificates of public officials.
SECTION 10.05. RULES BY TRUSTEE, PAYING AGENT OR REGISTRAR. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 10.06. PAYMENT DATE OTHER THAN A BUSINESS DAY. If an Interest
Payment Date, Redemption Date, Payment Date, Stated Maturity or date of maturity
of any Note shall not be a Business Day, then payment of principal of, premium,
if any, or interest on such Note, as the case may be, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Payment Date or Redemption
Date, or at the Stated Maturity or date of maturity of such Note; PROVIDED that
no interest shall accrue for the period from and after such Interest Payment
Date, Payment Date, Redemption Date, Stated Maturity or date of maturity, as the
case may be.
SECTION 10.07. GOVERNING LAW. This Indenture and the Notes shall be
governed by the laws of the State of New York. The Trustee, the Company and the
Holders agree to submit to the jurisdiction of the courts of the State of New
York in any action or proceeding arising out of or relating to this Indenture or
the Notes.
SECTION 10.08. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company
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or any Subsidiary of the Company. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.
SECTION 10.09. NO RECOURSE AGAINST OTHERS. No recourse for the payment
of the principal of, premium, if any, or interest on any of the Notes, or for
any claim based thereon or otherwise in respect thereof, and no recourse under
or upon any obligation, covenant or agreement of the Company contained in this
Indenture or in any of the Notes, or because of the creation of any Indebtedness
represented thereby, shall be had against any incorporator or against any past,
present or future partner, stockholder, other equityholder, officer, director,
employee or controlling person, as such, of the Company or of any successor
Person, either directly or through the Company or any successor Person, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that all
such liability is hereby expressly waived and released as a condition of, and as
a consideration for, the execution of this Indenture and the issue of the Notes.
SECTION 10.10. SUCCESSORS. All agreements of the Company in this
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successor.
SECTION 10.11. DUPLICATE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 10.12. SEPARABILITY. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 10.13. TABLE OF CONTENTS, HEADINGS, ETC. The Table of
Contents, Cross-Reference Table and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
STONE CONTAINER CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
(Trustee's Certificate of Authentication)
This is one of the Notes of the series designated therein referred to in the
within-mentioned Indenture.
Date: [________,_____]
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------
Authorized Signatory
EXHIBIT B
FORM OF CERTIFICATE
_____,____
The Bank of New York
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re:
Stone Container Corporation (the "Company")
[__]% SENIOR NOTES DUE 2012 (THE "NOTES")
Dear Sirs:
This letter relates to U.S. $________ principal amount of Notes represented
by a Note (the "Legended Note") which bears a legend outlining restrictions upon
transfer of such Legended Note. Pursuant to Section 2.02 of the Indenture dated
as of June 26, 2002 (the "Indenture") relating to the Notes, we hereby certify
that we are (or we will hold such securities on behalf of) a person outside the
United States to whom the Notes could be transferred in accordance with Rule 904
of Regulation S promulgated under the U.S. Securities Act of 1933. Accordingly,
you are hereby requested to exchange the legended certificate for an unlegended
certificate representing an identical principal amount of Notes, all in the
manner provided for in the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of ▇▇▇▇▇▇]
By:
------------------------------
Authorized Signature
EXHIBIT C
Form of Certificate to Be
Delivered in Connection with
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
_____,_____
The Bank of New York
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re:
Stone Container Corporation (the "Company")
[__]% SENIOR NOTES DUE 2012 (THE "NOTES")
Dear Sirs:
In connection with our proposed purchase of $____________ aggregate
principal amount of the Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is subject to
certain restrictions and conditions set forth in the Indenture dated as of June
26, 2002 (the "Indenture") relating to the Notes and the undersigned agrees to
be bound by, and not to resell, pledge or otherwise transfer the Notes except in
compliance with such restrictions and conditions and the Securities Act of 1933,
amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered or
sold except as permitted in the following sentence. We agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated,
that if we should sell any Notes within the time period referred to in Rule
144(k) of the Securities Act, we will do so only (A) to the Company or any
subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to
a "qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and, if such
transfer is in respect of an aggregate principal amount of less than $100,000,
an opinion of counsel acceptable to the Company that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
available) or (F) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing any of
the Notes from us a notice advising such purchaser that resales of the Notes are
restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will be
required to furnish to you and the Company such certifications, legal opinions
and other information as you
and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes purchased by us for our own account or for
one or more accounts (each of which is an institutional "accredited investor")
as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
------------------------------
Authorized Signature
C-2
EXHIBIT D
Form of Certificate to Be Delivered in
CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S
____,____
The Bank of New York
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re:
Stone Container Corporation (the "Company")
[__]% SENIOR NOTES DUE 2012 (THE "NOTES")
Dear Sirs:
In connection with our proposed sale of U.S.$______aggregate principal
amount [at maturity] of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of 1933
and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United States;
(2) at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably believed
that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
------------------------------
Authorized Signature