EXHIBIT 4.2
STONE CONTAINER CORPORATION,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
Indenture
Dated as of January 25, 2001
9 1/4% Senior Notes due 2008
9 3/4% Senior Notes due 2011
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.................................................27
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.......................................................27
SECTION 2.02. Restrictive Legends...................................................28
SECTION 2.03. Execution, Authentication and Denominations...........................30
SECTION 2.04. Registrar and Paying Agent............................................33
SECTION 2.05. Paying Agent to Hold Money in Trust...................................33
SECTION 2.06. Transfer and Exchange.................................................34
SECTION 2.07. Book-Entry Provisions for Global Notes................................35
SECTION 2.08. Special Transfer Provisions...........................................36
SECTION 2.09. Replacement Notes.....................................................39
SECTION 2.10. Outstanding Notes.....................................................39
SECTION 2.11. Temporary Notes.......................................................40
SECTION 2.12. Cancellation..........................................................40
SECTION 2.13. CUSIP Numbers.........................................................40
SECTION 2.14. Defaulted Interest....................................................40
ARTICLE THREE
REDEMPTION
SECTION 3.01. Applicability.........................................................41
SECTION 3.02. Notices to Trustee....................................................41
SECTION 3.03. Selection of Notes to Be Redeemed.....................................41
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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................................43
SECTION 3.08. Notes Redeemed in Part................................................43
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes......................................................43
SECTION 4.02. Maintenance of Office or Agency.......................................43
SECTION 4.03. Limitation on Indebtedness............................................44
SECTION 4.04. Limitation on Restricted Payments.....................................47
SECTION 4.05. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries....................................50
SECTION 4.06. Limitation on the Issuance and Sale of Capital Stock of
Restricted Subsidiaries..............................................52
SECTION 4.07. Limitation on Issuances of Guarantees by Restricted Subsidiaries......52
SECTION 4.08. Limitation on Transactions with Stockholders and Affiliates...........53
SECTION 4.09. Limitation on Liens...................................................54
SECTION 4.10. Limitation on Sale-Leaseback Transactions.............................55
SECTION 4.11. Limitation on Asset Sales.............................................56
SECTION 4.12. Repurchase of Notes upon a Change of Control..........................57
SECTION 4.13. Existence.............................................................58
SECTION 4.14. Payment of Taxes and Other Claims.....................................58
SECTION 4.15. Maintenance of Properties and Insurance...............................58
SECTION 4.16. Notice of Defaults....................................................59
SECTION 4.17. Compliance Certificates...............................................59
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SECTION 4.18. Commission Reports and Reports to Holders.............................59
SECTION 4.19. Waiver of Stay, Extension or Usury Laws...............................60
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc...........................................60
SECTION 5.02. Successor Substituted.................................................61
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.....................................................62
SECTION 6.02. Acceleration..........................................................63
SECTION 6.03. Other Remedies........................................................64
SECTION 6.04. Waiver of Past Defaults...............................................64
SECTION 6.05. Control by Majority...................................................64
SECTION 6.06. Limitation on Suits...................................................65
SECTION 6.07. Rights of Holders to Receive Payment..................................65
SECTION 6.08. Collection Suit by Trustee............................................65
SECTION 6.09. Trustee May File Proofs of Claim......................................66
SECTION 6.10. Priorities............................................................66
SECTION 6.11. Undertaking for Costs.................................................66
SECTION 6.12. Restoration of Rights and Remedies....................................66
SECTION 6.13. Rights and Remedies Cumulative........................................67
SECTION 6.14. Delay or Omission Not Waiver..........................................67
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General...............................................................67
SECTION 7.02. Certain Rights of Trustee.............................................67
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SECTION 7.03. Individual Rights of Trustee..........................................69
SECTION 7.04. Trustee's Disclaimer..................................................69
SECTION 7.05. Notice of Default.....................................................69
SECTION 7.06. Reports by Trustee to Holders.........................................69
SECTION 7.07. Compensation and Indemnity............................................69
SECTION 7.08. Replacement of Trustee................................................70
SECTION 7.09. Successor Trustee by ▇▇▇▇▇▇, ▇▇▇......................................71
SECTION 7.10. Eligibility...........................................................71
SECTION 7.11. Money Held in Trust...................................................72
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations..................................72
SECTION 8.02. Defeasance and Discharge of Indenture.................................73
SECTION 8.03. Defeasance of Certain Obligations.....................................75
SECTION 8.04. Application of Trust Money............................................76
SECTION 8.05. Repayment to Company..................................................76
SECTION 8.06. Reinstatement.........................................................77
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders............................................77
SECTION 9.02. With Consent of Holders...............................................78
SECTION 9.03. Revocation and Effect of Consent......................................79
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...................................80
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ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act of 1939..........................................80
SECTION 10.02. Notices..............................................................80
SECTION 10.03. Certificate and Opinion as to Conditions Precedent...................81
SECTION 10.04. Statements Required in Certificate or Opinion........................81
SECTION 10.05. Rules by Trustee, Paying Agent or Registrar..........................82
SECTION 10.06. Payment Date Other Than a Business Day...............................82
SECTION 10.07. Governing Law........................................................82
SECTION 10.08. No Adverse Interpretation of Other Agreements........................82
SECTION 10.09. No Recourse Against Others...........................................82
SECTION 10.10. Successors...........................................................83
SECTION 10.11. Duplicate Originals..................................................83
SECTION 10.12. Separability.........................................................83
SECTION 10.13. Table of Contents, Headings, Etc.....................................83
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 January 25, 2001, 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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"APPLICABLE PREMIUM" means, with respect to any Note, the
greater of (i) 1% of the then outstanding principal amount of such Note and (ii)
(a) the present value of all remaining required interest and principal payments
due on such Note computed using a discount rate equal to the Treasury Rate plus
50 basis points minus (b) the then outstanding principal amount of such Note
minus (c) accrued interest paid on the date of redemption.
"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
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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 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
4
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.
"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
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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 (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
6
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 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
7
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 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 due 2002, issued pursuant to this Indenture dated as of October
12, 1994, between the Borrower 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.
8
"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 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);
9
(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) 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,
10
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 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
11
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.
"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
12
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
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 Amended and Restated Credit
Agreement dated as of November 18, 1998 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 INDENTURES" means (i) the Indenture dated as of May 1,
1994 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 11-1/8% Series A Senior Notes Due 2004, together with all
agreements, instruments and documents executed or delivered pursuant thereto or
in connection therewith (including, without limitation, any promissory notes and
Guarantees), (ii) the Indenture dated as of May 1, 1994 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 10-3/4%
Series B Senior Notes due 2002, together with all agreements, instruments and
documents executed or delivered pursuant thereto or in connection therewith
(including, without limitation, any promissory notes and Guarantees), and (iii)
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
13
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 (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, 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 LIMITED 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
14
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.
"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;
15
(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 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
16
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;
(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
17
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
(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);
18
(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;
(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
19
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
(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
20
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),
or may grant 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;
21
(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.
"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 January 18, 2001, between the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, Deutsche Bank Securities Inc., Chase Securities Inc., ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 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
22
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.
"6 3/4% CONVERTIBLE NOTES" means the Company's 6 3/4%
Convertible Subordinated Debentures due 2007, issued pursuant to the Indenture
dated as of February 15, 1992 between the Company, as issuer, and The Bank of
New York, as trustee, as amended, restated, supplemented or otherwise modified
from time to time.
"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.
23
"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;
(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
24
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.
"TREASURY RATE" means the rate per annum equal to the yield to
maturity at the time of computation of United States Treasury securities with a
constant maturity most nearly equal to the period from such date of redemption
to February 1, 2008; PROVIDED, HOWEVER, that if the period from such date of
redemption to February 1, 2008 is not equal to the constant maturity of the
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the period
from such date of redemption to February 1, 2008 is less than one year, the
weekly average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year shall be used.
"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 Indentures) 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 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
25
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.
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
26
"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 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.
27
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.
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
28
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 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
29
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 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
30
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).
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.
31
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.
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.
32
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 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
33
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 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
34
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 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.
35
(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 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
36
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:
(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:
37
(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 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.
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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.
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
39
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 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
40
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
$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:
41
(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.
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
42
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 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
43
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 on the
Closing Date 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 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
44
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
(C) 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 (A) 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 and (B) the 6 3/4% Convertible
Notes may be refinanced with Indebtedness which is PARI PASSU with the
Notes;
(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);
(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;
45
(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 2001, 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 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
46
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,
(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
the Closing Date 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 the
Closing
47
Date 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 the Closing Date 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 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 Indentures on the JSC
Transaction Date.
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
48
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) the declaration and payment of dividends to holders
of the 6 3/4% Convertible Notes as required pursuant to the terms
thereof;
(viii) the redemption or repurchase of the 6 3/4%
Convertible Notes;
(ix) 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, commencing with
2000;
(x) other Restricted Payments in an aggregate amount not
to exceed $75 million, increasing to $150 million following the
consummation of the JSC Transaction;
(xi) 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
the Company shall first have complied with its obligations, if any,
under SECTION 4.12 and 4.11 of this Indenture;
(xii) 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
49
company, including, all costs and expenses with respect to filings with
the SEC, of up to $5 million per fiscal year;
(xiii) 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
(xiv) 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),
(viii), (ix), (xii), (xiii) and (xiv) 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 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
50
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 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.
51
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 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
52
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;
(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;
53
(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.
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
54
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 secured
the First Mortgage Notes or the Box Plant Financing as of or
immediately prior to the Closing Date;
(ii) Liens existing on (x) the Closing Date, including
Liens securing obligations under the First Mortgage Notes and 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;
(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
55
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
(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).
56
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 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
57
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 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
58
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 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
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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:
(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;
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(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
(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
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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 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
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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 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
63
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.
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.
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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 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.
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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 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
66
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):
(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
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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 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
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(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, 2001, 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 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
69
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 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
70
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 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
71
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 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
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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 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
73
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 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.
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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 (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
75
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.
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
76
(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;
(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;
77
(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
(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.
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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.
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
79
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.: ▇▇▇ ▇▇▇-▇▇▇▇
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.
80
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:
(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;
81
(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 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.
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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 Treasurer
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
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Stone Container Corporation (the "Company")
[__]% Senior Notes Due [____] (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 January 25, 2001 (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
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Stone Container Corporation (the "Company")
[__]% Senior Notes Due [____] (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 January 25, 2001 (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
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: Stone Container Corporation (the "Company")
[__]% Senior Notes Due [____] (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