EXHIBIT 4.1
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RIVERWOOD INTERNATIONAL CORPORATION
10 5/8% Senior Notes due 2007
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INDENTURE
Dated as of July 28, 1997
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STATE STREET BANK AND TRUST COMPANY,
Trustee
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TABLE OF CONTENTS
ARTICLE 1 Page
Definitions and Incorporation by Reference
SECTION 1.01. Definitions ........................................ 1
SECTION 1.02. Other Definitions................................... 33
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act............................... 33
SECTION 1.04. Rules of Construction............................... 34
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating..................................... 35
SECTION 2.02. Execution and Authentication........................ 36
SECTION 2.03. Registrar and Paying Agent.......................... 37
SECTION 2.04. Paying Agent To Hold Money in
Trust..................................... 38
SECTION 2.05. Securityholder Lists................................ 39
SECTION 2.06. Transfer and Exchange............................... 39
SECTION 2.07. Replacement Securities.............................. 40
SECTION 2.08. Outstanding Securities.............................. 41
SECTION 2.09. Temporary Securities................................ 41
SECTION 2.10. Cancelation ........................................ 42
SECTION 2.11. Defaulted Interest.................................. 42
SECTION 2.12 CUSIP Numbers....................................... 42
SECTION 2.13 Book-Entry Provisions for
U.S. Global Security...................... 43
SECTION 2.14 Special Transfer Provisions......................... 44
SECTION 2.15 General Provisions.................................. 44
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee.................................. 50
SECTION 3.02. Selection of Securities To Be
Redeemed.................................. 50
SECTION 3.03. Notice of Redemption................................ 50
SECTION 3.04. Effect of Notice of Redemption...................... 51
SECTION 3.05. Deposit of Redemption Price......................... 51
SECTION 3.06. Securities Redeemed in Part......................... 52
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities............................... 52
SECTION 4.02. SEC Reports......................................... 52
SECTION 4.03. Limitation on Indebtedness.......................... 53
SECTION 4.04. Limitation on Restricted Payments
and Investments............................. 57
SECTION 4.05. Limitation on Restrictions on
Distributions from
Restricted Subsidiaries..................... 66
SECTION 4.06. Limitation on Sales of Assets and
Subsidiary Stock............................ 68
SECTION 4.07. Limitation on Transactions with
Affiliates.................................. 72
SECTION 4.08. Change of Control................................... 73
SECTION 4.09. Compliance Certificate.............................. 75
SECTION 4.10. Further Instruments and Acts........................ 75
SECTION 4.11. Limitation on Liens................................. 75
SECTION 4.12. Limitation on the Sale or Issuance
of Preferred Stock of Restricted
Subsidiaries................................ 76
SECTION 4.13. Future Note Guarantors.............................. 76
SECTION 4.14. Limitation on Sale/Leaseback
Transactions................................ 76
ARTICLE 5
Successor Company
SECTION 5.01. When Company May Merge or Transfer
Assets...................................... 77
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ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default................................... 78
SECTION 6.02. Acceleration........................................ 80
SECTION 6.03. Other Remedies...................................... 81
SECTION 6.04. Waiver of Defaults.................................. 81
SECTION 6.05. Control by Majority................................. 81
SECTION 6.06. Limitation on Suits................................. 82
SECTION 6.07. Rights of Holders To Receive
Payment................................... 82
SECTION 6.08. Collection Suit by Trustee.......................... 83
SECTION 6.09. Trustee May File Proofs of Claim.................... 83
SECTION 6.10. Priorities.......................................... 83
SECTION 6.11. Undertaking for Costs............................... 84
SECTION 6.12. Waiver of Stay or Extension Laws.................... 84
SECTION 6.13. Restoration of Rights and Remedies.................. 84
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee................................... 84
SECTION 7.02. Rights of Trustee................................... 86
SECTION 7.03. Individual Rights of Trustee........................ 86
SECTION 7.04. Trustee's Disclaimer................................ 87
SECTION 7.05. Notice of Defaults.................................. 87
SECTION 7.06. Reports by Trustee to Holders....................... 87
SECTION 7.07. Compensation and Indemnity.......................... 87
SECTION 7.08. Replacement of Trustee.............................. 88
SECTION 7.09. Successor Trustee by Merger......................... 89
SECTION 7.10. Eligibility; Disqualification....................... 89
SECTION 7.11. Preferential Collection of Claims
Against Company........................... 90
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance................................ 90
SECTION 8.02. Conditions to Defeasance............................ 91
SECTION 8.03. Application of Trust Money.......................... 92
SECTION 8.04. Repayment to Company................................ 93
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SECTION 8.05. Indemnity for Government Obligations................ 93
SECTION 8.06. Reinstatement....................................... 93
ARTICLE 9
Amendments and Waivers
SECTION 9.01. Without Consent of Holders.......................... 94
SECTION 9.02. With Consent of Holders............................. 94
SECTION 9.03. Compliance with Trust Indenture
Act....................................... 96
SECTION 9.04. Effect of Amendments; Revocation and
Effect of Consents and Waivers............ 96
SECTION 9.05. Notation on or Exchange of
Securities................................ 96
SECTION 9.06. Trustee To Sign Amendments.......................... 97
SECTION 9.07. Payment for Consent................................. 97
ARTICLE 10
Note Guarantees
SECTION 10.01. Note Guarantees..................................... 97
SECTION 10.02. Limitation on Liability............................. 99
SECTION 10.03. Successors and Assigns.............................. 100
SECTION 10.04. No Waiver........................................... 100
SECTION 10.05. Initial Note Guarantors; Execution
of Supplemental Indenture for
Future Note Guarantors............................ 101
SECTION 10.06. Release of Note Guarantee........................... 101
ARTICLE 11
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls........................ 101
SECTION 11.02. Notices........................................... 102
SECTION 11.03. Communication by Holders with Other
Holders........................................... 103
SECTION 11.04. Certificate and Opinion as to
Conditions Precedent.............................. 103
SECTION 11.05. Statements Required in Certificate
or Opinion........................................ 103
SECTION 11.06. Form of Documents Delivered to
Trustee .......................................... 104
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SECTION 11.07. When Securities Disregarded......................... 104
SECTION 11.08. Acts of Holders; Rules by Trustee,
Paying Agent and Registrar........................ 105
SECTION 11.09. Legal Holidays...................................... 105
SECTION 11.10. Governing Law....................................... 106
SECTION 11.11. No Recourse Against Others.......................... 106
SECTION 11.12. Successors.......................................... 106
SECTION 11.13. Multiple Originals.................................. 106
SECTION 11.14. Table of Contents; Headings......................... 106
SECTION 11.15. Separability........................................ 107
SECTION 11.16. Benefits of Indenture............................... 107
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Transferee Letter of Representation
Exhibit D - Form of Supplemental Indenture
Exhibit E - Form of Certificate To Be Delivered Upon
Termination of Restricted Period
Exhibit F - Form of Certificate To Be Delivered in
Connection with Transfers Pursuant to
Rule 144A
Exhibit G - Form of Certificate To Be Delivered in
Connection with Transfers Pursuant to
Regulation S
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1) .................................... 7.10
(a)(2) .................................... 7.10
(a)(3) .................................... N.A.
(a)(4) .................................... N.A.
(b) .................................... 7.08; 7.10
(c) .................................... N.A.
311(a) .................................... 7.11
(b) .................................... 7.11
(c) .................................... N.A.
312(a) .................................... 2.05
(b) .................................... 11.03
(c) .................................... 11.03
313(a) .................................... 7.06
(b)(1) .................................... N.A.
(b)(2) .................................... 7.06
(c) .................................... 11.02
(d) .................................... 7.06
314(a) .................................... 4.02; 4.09;
11.02
(b) .................................... N.A.
(c)(1) .................................... 11.04
(c)(2) .................................... 11.04
(c)(3) .................................... N.A.
(d) .................................... N.A.
(e) .................................... 11.05
(f) .................................... 4.09
315(a) .................................... 7.01
(b) ....................................7.05; 11.02
(c) .................................... 7.01
(d) .................................... 7.01
(e) .................................... 6.11
316(a)(last sentence).................................... 11.07
(a)(1)(A) .................................... 6.05
(a)(1)(B) .................................... 6.04
(a)(2) .................................... N.A.
(b) .................................... 6.07
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317(a)(1) .................................... 6.08
(a)(2) .................................... 6.09
(b) .................................... 2.04
318(a) .................................... 11.01
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose,
be deemed to be part of the Indenture.
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INDENTURE dated as of July 28, 1997, among RIVERWOOD
INTERNATIONAL CORPORATION, a Delaware corporation (together
with its successors and assigns, the "Company"), RIC HOLDING,
INC., a Delaware corporation and the Company's parent ("RIC
HOLDING"), RIVERWOOD HOLDING, INC., a Delaware corporation and
RIC Holding's parent ("Holding") and STATE STREET BANK AND
TRUST COMPANY, a national banking association (the "Trustee").
For good and valuable consideration, the receipt of which is hereby
acknowledged, each party covenants and agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the
Company's 10 5/8% Senior Notes due 2007 (the "Securities"):
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Acquisition Date" means March 27, 1996.
"Additional Assets" means (i) any property or assets (other than
Indebtedness and Capital Stock) to be used by the Company or a Restricted
Subsidiary in a Related Business; (ii) the Capital Stock of a Person that
becomes a Restricted Subsidiary as a result of the acquisition of such Capital
Stock by the Company or another Restricted Subsidiary; or (iii) Capital Stock of
any Person that at such time is a Restricted Subsidiary acquired from a third
party; provided, however, that, in the case of clauses (ii) and (iii), such
Restricted Subsidiary is primarily engaged in a Related Business.
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings
correlative to the foregoing. For purposes of Section 4.07 only, "Affiliate"
shall also mean any Beneficial Owner of shares representing 10% or more of the
total voting power of the Voting Stock (on a fully diluted basis) of the Company
or of rights or warrants to purchase such Voting Stock (whether or not currently
exercisable) to the extent conferring Beneficial Ownership of such Voting Stock,
and any Person who would be an Affiliate of any such Beneficial Owner pursuant
to the first sentence hereof.
"Annual Carryover Amount" means, for any fiscal year, the amount (if
any) by which (x) $5,000,000 plus the portion of the Management Contribution
Amount (if any) attributable to the immediately preceding fiscal year, exceeds
(y) the amount of loans, advances, dividends or distributions pursuant to
Section 4.04(b)(vii) (net of repayments of any such loans or advances), which
loans, advances, dividends, distributions or repayments were made in the
immediately preceding fiscal year.
"Applicable Premium" means, with respect to a Security, the greater
of (i) 1.0% of the then outstanding principal amount of such Security and (ii)
the excess of (A) the present value of all remaining required interest and
principal payments due on such Security, computed using a discount rate equal to
the Treasury Rate plus 75 basis points, over (B) the then outstanding principal
amount of such Security.
"Asset Disposition" means any sale, lease, transfer or other
disposition of shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares), property or other assets (each referred to for
the purposes of this definition as a "disposition") by the Company or any of its
Restricted Subsidiaries (including any disposition by means of a merger,
consolidation or similar transaction), other than (i) a disposition by a
Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Restricted Subsidiary, (ii) a disposition in the ordinary course
of business, (iii) dispositions with a fair market value of less than
$10,000,000 in the aggregate in any fiscal year, (iv) a disposition of Capital
Stock of a Restricted Subsidiary pursuant to an agreement or other obligation
with or to a Person (other than the Company or a Restricted Subsidiary) from
whom such Restricted Subsidiary was acquired, or from whom such Restricted
Subsidiary acquired its business and assets (having been newly formed in
connection with such acquisition), entered into in connection with such
acquisition, (v) a disposition of
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properties and assets that is governed by Section 5.01, (vi) a disposition of
not more than 5% of the outstanding Capital Stock of a non-U.S. Restricted
Subsidiary that has been approved by the Board of Directors and (vii) for
purposes of Section 4.06 only, a disposition subject to Section 4.04.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate assumed in making calculations in accordance with FAS 13) of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with respect
to any Indebtedness or Preferred Stock, the quotient obtained by dividing (i)
the sum of the products of (a) the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or scheduled mandatory redemption or similar payment with
respect to such Preferred Stock multiplied by (b) the amount of such payment by
(ii) the sum of all such payments.
"Bank Indebtedness" means any and all amounts, whether outstanding
on the Issue Date or thereafter incurred, payable under or in respect of any of
the Credit Agreements and any related notes, collateral documents, letters of
credit and guarantees, including principal, premium (if any), interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or any Restricted
Subsidiary whether or not a claim for post-filing interest is allowed in such
proceedings), fees, charges, expenses, reimbursement obligations, guarantees and
all other amounts payable thereunder or in respect thereof.
"Beneficial Owner" means a "beneficial owner" as defined in Rules
13d-3 and 13d-5 under the Exchange Act.
"Beneficially Own" means "beneficially own" as defined in Rules
13d-3 and 13d-5 under the Exchange Act, and "Beneficial Ownership" has a meaning
correlative thereto.
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"Board of Directors" means the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of such Board.
"Business Day" means a day other than a Saturday, Sunday or other
day on which banking institutions in New York State are authorized or required
by law to close.
"Capitalized Lease Obligations" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease.
"Capital Stock" of any Person means any and all shares of, rights to
purchase, warrants or options for, or participations or other interests in
(however designated) equity of such Person, including any Preferred Stock, but
excluding any debt securities convertible into such equity.
"Cash Equivalents" means (A) any security, maturing not more than
six months after the date of acquisition, issued by the United States of
America, or an instrumentality or agency thereof and guaranteed fully as to
principal, premium, if any, and interest by the United States of America, (B)
any certificate of deposit, time deposit or bankers' acceptance, maturing not
more than six months after the day of acquisition, issued by any commercial
banking institution that is a member of the Federal Reserve System or a
commercial banking institution organized and located in a country recognized by
the United States of America, in each case having combined capital and surplus
and undivided profits of not less than $500,000,000 (or the equivalent thereof),
whose short-term debt (other than short-term debt of a lender under the Credit
Agreement) has a rating, at the time as of which any investment therein is made,
of "P-1" (or higher) according to Moody's, or "A-1" (or higher) according to
S&P, (C) commercial paper maturing not more than three months after the date of
acquisition, issued by a corporation (other than an Affiliate or Subsidiary of
the Company) organized and existing under the laws of the United States of
America with a rating, at the time as of which any investment therein is made,
of "P-1" (or higher) according to Moody's or "A-1" (or higher) according to S&P,
(D) any money market deposit accounts
4
issued or offered by a domestic commercial bank having capital and surplus in
excess of $500,000,000 (or the equivalent thereof), (E) investments in money
market funds complying with the risk limiting conditions of Rule 2a-7 (or any
successor rule) of the SEC under the Investment Company Act of 1940, as amended,
and (F) investments similar to any of the foregoing denominated in foreign
currencies approved by the Board of Directors.
"CD&R" means Xxxxxxx, Dubilier & Rice, Inc., a Delaware corporation.
"CD&R Fund V" means Xxxxxxx, Dubilier & Rice Fund V Limited
Partnership, a Cayman Islands exempted limited partnership, and its successors
and assigns.
"Change of Control" means any of the following events but in any
event excluding the Transactions:
(i) (A) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders or
Holding or RIC Holding, is or becomes (as a result of the issuance of
securities, by merger or otherwise) the Beneficial Owner, directly or
indirectly, of more than 35% of the total voting power of the Voting Stock
of the Company and (B) the Permitted Holders Beneficially Own, directly or
indirectly, in the aggregate a lesser percentage of the total voting power
of the Voting Stock of the Company than such other person and do not have
the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors (for the
purposes of this clause (i), such other person shall be deemed to
Beneficially Own any Voting Stock of a specified corporation held by a
parent corporation of which such specified corporation is a Subsidiary, if
such other person Beneficially Owns, directly or indirectly, more than 35%
of the voting power of the Voting Stock of such parent corporation and the
Permitted Holders Beneficially Own, directly or indirectly, in the
aggregate a lesser percentage of the voting power of the Voting Stock of
such parent corporation and do not have the right or ability by voting
power, contract or otherwise to elect or designate for election a majority
of the board of directors of such parent corporation);
(ii) the merger or consolidation of Holding, RIC Holding or the
Company with or into another Person or
5
the sale of all or substantially all the assets of Holding, RIC Holding or
the Company to another Person (a "Transferee"), in each case, other than a
Person that is controlled by the Permitted Holders, and, in the case of
any such merger or consolidation, the securities of Holding, RIC Holding
or the Company, as the case may be, that are outstanding immediately prior
to such transaction and which represent 100% of the aggregate voting power
of the Voting Stock of Holding, RIC Holding or the Company, as the case
may be, are changed into or exchanged for cash, securities or property,
unless either (x) pursuant to such transaction such securities are changed
into or exchanged for, in addition to any other consideration, (or
following consummation of such transaction the Beneficial Owners of such
securities otherwise are Beneficial Owners of) securities of the surviving
corporation or Transferee (or another Person of which the surviving
corporation or Transferee is a Subsidiary) that represent immediately
after such transaction, at least a majority of the aggregate voting power
of the Voting Stock of the surviving corporation or Transferee or such
other Person, or (y) pursuant to any such transaction (A) no "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act), other
than one or more Permitted Holders, is or becomes (as a result of the
issuance of securities, by merger or otherwise), the Beneficial Owner,
directly or indirectly, of more than 35% of the total voting power of the
Voting Stock of the surviving corporation or Transferee, as the case may
be, or (B) the Permitted Holders Beneficially Own, directly or indirectly,
in the aggregate an equal or greater percentage of the total voting power
of the Voting Stock of the surviving corporation or Transferee, as the
case may be, than any such other person or have the right or ability by
voting power, contract or otherwise to elect or designate for election a
majority of the board of directors of the surviving corporation or
Transferee, as the case may be (for purposes of this clause (ii), such
other person shall be deemed to Beneficially Own any Voting Stock of a
specified corporation held by a parent corporation of which such specified
corporation is a Subsidiary, if such other person Beneficially Owns,
directly or indirectly, more than 35% of the voting power of the Voting
Stock of such parent corporation and the Permitted Holders Beneficially
Own, directly or indirectly, in the aggregate a lesser percentage of the
voting power of
6
the Voting Stock of such parent corporation and do not have the right or
ability by voting power, contract or otherwise to elect or designate for
election a majority of the board of directors of such parent corporation);
or
(iii) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors of the
Company (together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the
Company was approved by a vote of 66 2/3% of the directors of the Company
then still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors of the Company then in office.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commodities Agreements" means one or more of the following
agreements entered into by a Person and one or more financial institutions:
commodity future contracts, forward contracts, options or other similar
agreements or arrangements designed to protect against fluctuations in the price
of, or the shortage of supply of, commodities from time to time.
"Company" means the party named as the Company in the first
paragraph of this Indenture until a successor shall have become such pursuant to
the applicable provisions of this Indenture and thereafter means such successor.
"Consolidated Cost of Timber Harvested" means, for any period, the
cost of timber harvested of the Company and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of (i) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters ending at least 45 days prior to the
date of such determination to (ii) Consolidated Interest Expense for such four
fiscal quarters; provided, however, that:
(1) if the Company or any Restricted Subsidiary (x) has Incurred any
Indebtedness since the beginning
7
of such period that remains outstanding on such date of determination or
if the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an Incurrence of Indebtedness, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving effect
on a pro forma basis to such Indebtedness and the application of the
proceeds thereof as if such Indebtedness had been Incurred on the first
day of such period or (y) has repaid, repurchased, defeased or otherwise
discharged any Indebtedness since the beginning of the period that is no
longer outstanding on such date of determination, or if the transaction
giving rise to the need to calculate the Consolidated Coverage Ratio
involves a discharge of Indebtedness, EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving effect to such
discharge of such Indebtedness, including with the proceeds of such new
Indebtedness, as if such discharge had occurred on the first day of such
period (except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall be computed based
upon the average daily balance of such Indebtedness during such
four-quarter period);
(2) if since the beginning of such period the Company or any
Restricted Subsidiary shall have disposed of any company or any business
or any group of assets constituting an operating unit (a "Disposal"), the
EBITDA for such period shall be reduced by an amount equal to the EBITDA
(if positive) directly attributable to the assets which are the subject of
such Disposal for such period or increased by an amount equal to the
EBITDA (if negative) directly attributable thereto for such period and
Consolidated Interest Expense for such period shall be reduced by an
amount equal to the Consolidated Interest Expense directly attributable to
any Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the Company
and its continuing Restricted Subsidiaries in connection with such
Disposal for such period (and, if the Capital Stock of any Restricted
Subsidiary is sold, the Consolidated Interest Expense for such period
directly attributable to the Indebtedness of such Restricted Subsidiary to
the extent the Company and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such sale);
8
(3) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have acquired any
company or any business or any group of assets constituting an operating
unit (an "Acquisition"), EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving pro forma effect thereto
(including the Incurrence of any Indebtedness) as if such Acquisition
occurred on the first day of such period; and
(4) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period)
shall have made any Disposal or Acquisition that would have required an
adjustment pursuant to clause (2) or (3) above if made by the Company or a
Restricted Subsidiary during such period, EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving pro forma effect
thereto as if such Disposal or Acquisition occurred on the first day of
such period.
If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account any Interest Rate
Agreement applicable to such Indebtedness to the extent of the remaining term of
such Interest Rate Agreement). If any Indebtedness bears, at the option of the
Company or a Restricted Subsidiary, a fixed or floating rate of interest and is
being given pro forma effect, the interest expense on such Indebtedness shall be
computed by applying, at the option of the Company or such Restricted
Subsidiary, either a fixed or floating rate. If any Indebtedness which is being
given pro forma effect was Incurred under a revolving credit facility, the
interest expense on such Indebtedness shall be computed based upon the average
daily balance of such Indebtedness during the applicable period.
"Consolidated Income Tax Expense" means for any period, as applied
to any Person, the provision for federal, state, local and foreign income taxes
of such Person and its Consolidated Subsidiaries for such period as determined
in accordance with GAAP.
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"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Restricted Subsidiaries,
net of any interest income of the Company and its consolidated Restricted
Subsidiaries, as determined in accordance with GAAP, minus, to the extent
included in such interest expense, amortization of financing costs associated
with the Riverwood Acquisition and the financing thereof, plus, to the extent
Incurred by the Company and its Restricted Subsidiaries in such period but not
included in such interest expense, (i) interest expense attributable to capital
leases, (ii) amortization of debt discount, (iii) the interest portion of any
deferred payment obligation, (iv) net costs associated with Interest Rate
Agreements, (v) interest actually paid by the Company or any Restricted
Subsidiary on any Indebtedness of any other Person to the extent such
Indebtedness is Guaranteed by the Company or any Restricted Subsidiary, (vi) the
earned discount or yield with respect to the sale of receivables (without
duplication of amounts included in Consolidated Net Income) and (vii) for the
purposes of determining whether a Sale/Leaseback Transaction is permitted under
Section 4.14 only, obligations for the interest component of rental payments in
respect of any lease in a Sale/Leaseback Transaction (other than a capital
lease) determined as if such lease were a capital lease, all as determined in
accordance with GAAP.
"Consolidated Net Income" means, for any period, the net income
(loss) of the Company and its consolidated Subsidiaries as determined in
accordance with GAAP; provided, however, that there shall not be included in
such Consolidated Net Income:
(i) any net income of any Person if such Person is not a Restricted
Subsidiary, except that the Company's equity in the net income of any such
Person for such period shall be included in such Consolidated Net Income
up to the aggregate amount of cash actually distributed by such Person
during such period to the Company or a Restricted Subsidiary as a dividend
or other distribution,
(ii) any net income (loss) of any Person acquired by the Company or
a Subsidiary in a pooling of interests transaction for any period prior to
the date of such acquisition,
10
(iii) any net income of any Restricted Subsidiary if such Restricted
Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company (other than
restrictions in effect on the Issue Date with respect to a Restricted
Subsidiary and other than restrictions that are, with respect to such
Restricted Subsidiary, taken as a whole, no less favorable to the holders
of the Securities than the restrictions in effect with respect to such
Restricted Subsidiary on the Issue Date), except that subject to the
limitations contained in clause (iv) below, the Company's equity in the
net income of any such Restricted Subsidiary for such period shall be
included in such Consolidated Net Income up to an amount equal to the
aggregate amount of cash that could have been distributed by such
Restricted Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend or other distribution (subject, in the
case of a dividend or other distribution that could have been made to
another Restricted Subsidiary, to the limitation contained in this
clause),
(iv) any gain or loss realized upon the sale or other disposition of
any asset of the Company or its consolidated Subsidiaries (including
pursuant to any Sale/Leaseback Transaction) which is not sold or otherwise
disposed of in the ordinary course of business,
(v) any extraordinary gain or loss, and
(vi) the cumulative effect of a change in accounting principles.
Notwithstanding the foregoing, for the purpose of Section 4.04 only, there shall
be excluded from Consolidated Net Income (x) any dividends, repayments of loans
or advances or other transfers of assets from Unrestricted Subsidiaries to the
Company or a Restricted Subsidiary to the extent such dividends, repayments or
transfers increase the amount of Restricted Payments permitted under such
Section pursuant to clause (a)(3)(D) thereof, (y) any non-cash compensation
charge or expense relating to the deferred compensation referred to in clause
(iv) of the definition of "Consolidated Net Worth", and (z)(A) any non-cash
charges resulting from any write-up of assets of the Company or any of its
Subsidiaries in connection with the Riverwood
11
Acquisition, less (B) any tax benefit received from any such non-cash charge
being deducted from the taxable income of the Company or any of its
Subsidiaries.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Company and the Restricted Subsidiaries, determined on a
Consolidated basis in accordance with GAAP, as of the end of the most recent
fiscal quarter of the Company ending at least 45 days prior to the taking of any
action for the purpose of which the determination is being made, as (i) the par
or stated value of all outstanding Capital Stock of the Company plus (ii)
paid-in capital or capital surplus relating to such Capital Stock plus (iii) any
retained earnings or earned surplus less (A) any accumulated deficit and (B) any
amounts attributable to Disqualified Stock, plus (iv) the aggregate amount of
deferred compensation owed by RIC Holding or any Subsidiary thereof to any
Management Investor that shall have been canceled, waived or exchanged in
connection with the grant to such Management Investor of the right to receive or
acquire shares of Holding Common Stock or stock units in respect thereof;
without giving effect to (x) any non-cash compensation charge or expense
relating to the deferred compensation referred to in the preceding clause (iv)
or (y) charges resulting from the write-up of inventory, the depreciation and
amortization of fixed assets and intangible assets and the cost of timber
harvested pertaining to, adjustments required or permitted by Accounting
Principles Board Opinion Nos. 16 and 17 in connection with the Riverwood
Acquisition.
"Consolidated Non-Cash Charges" of any Person means, for any period,
the aggregate depreciation, amortization, Consolidated Cost of Timber Harvested
and other non-cash charges of such Person and its Consolidated Subsidiaries for
such period, on a Consolidated basis, as determined in accordance with GAAP
(excluding any non-cash charge which requires an accrual or reserve for cash
charges for any future period, other than accruals for future retiree medical
and other obligations made pursuant to SFAS Xx. 00, Xx. 000 and No. 112, as
amended or modified), including any non-cash charges resulting from any write-up
of assets of such Person or any of its Consolidated Subsidiaries in connection
with the Riverwood Acquisition.
"Consolidation" means the consolidation of the amounts of each of
the Restricted Subsidiaries with those of the Company in accordance with GAAP
consistently applied; provided, however, that "Consolidation" will not include
12
consolidation of the accounts of any Unrestricted Subsidiary, but the interest
of the Company or any Restricted Subsidiary in a Unrestricted Subsidiary will be
accounted for as an investment. The term "Consolidated" has a correlative
meaning.
"Consulting Agreement" means the Consulting Agreement, dated as of
the Acquisition Date, among Holding, RIC Holding, the Company and CD&R, as in
effect on the Issue Date.
"Credit Agreements" means the Senior Secured Credit Agreement and
the Machinery Credit Agreement.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement (including
derivative agreements) as to which such Person is a party or a beneficiary.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Definitive Securities" means Securities that are substantially in
the form of Exhibit A or Exhibit B attached hereto that do not include the
information called for by footnote 1 thereof.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock (other than Management Stock) which by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable) or upon the happening of any event (i) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (ii) is
convertible or exchangeable for Indebtedness or Disqualified Stock or (iii) is
redeemable at the option of the holder thereof, in whole or in part, in each
case on or prior to ninety-one days after the Stated Maturity of the Securities.
"EBITDA" for any period means the sum of Consolidated Net Income,
Consolidated Interest Expense, Consolidated Income Tax Expense and Consolidated
Non-Cash Charges deducted in computing Consolidated Net Income (Loss), without
duplication, in each case for such period, of such Person and its Consolidated
Subsidiaries on a Consolidated basis, all determined in accordance with GAAP.
13
"Equipment Subsidiary" means Riverwood International Machinery,
Inc., a Delaware corporation, or any other Subsidiary of the Company engaged
solely in the business of manufacturing, acquiring, owning, leasing and
financing and refinancing packaging machinery in connection with any Related
Business, and any business or activities incidental or related to such business.
"Equity Investors" means CD&R Fund V, FIMA Finance Management Inc.,
S.A., The 1818 Fund II, L.P., HWH Investment Pte Ltd., Chase Equity Associates,
First Plaza Group Trust, Madison Dearborn Capital Partners, L.P. and
Xxxxxxxxxx-River LLC.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange and Registration Rights Agreement" means the Exchange and
Registration Rights Agreement dated as of the Issue Date by and between the
Initial Purchasers and the Company, as such agreement may be amended, modified,
or supplemented from time to time in accordance with the terms thereof.
"Exchange Securities" means Securities that are substantially in the
form of Exhibit B attached hereto.
"Existing Notes" means any outstanding (i) 10-3/4% Senior Notes Due
2000 of RIC Holding, (ii) 11-1/4% Senior Subordinated Notes Due 2002 of RIC
Holding, (iii) 10-3/8% Senior Subordinated Notes Due 2004 of RIC Holding, and
(iv) 6-3/4% Convertible Subordinated Notes due 2003 of RIC Holding, (v) Existing
Senior Notes and (vi) Existing Senior Subordinated Notes.
"Existing Senior Notes" means the Company's 10-1/4% Senior Notes due
2006.
"Existing Senior Subordinated Notes" means the Company's 10-7/8%
Senior Subordinated Notes due 2008.
"Financing Disposition" means any sale, transfer, conveyance or
other disposition of property or assets by the Company or any Subsidiary to any
Receivables Subsidiary, or by any Receivables Subsidiary, in each case in
connection with the Incurrence by a Receivables Subsidiary of Indebtedness, or
obligations to make payments to the obligor on Indebtedness, secured by any Lien
in respect of such property or assets.
14
"Fiskeby Transaction" means any sale, lease, transfer, conveyance or
other disposition of Capital Stock, property or assets of Fiskeby Board AB or
any of its Swedish subsidiaries or affiliates (including any disposition by
means of a merger, consolidation or similar transaction or pursuant to a joint
venture arrangement).
"GAAP" means generally accepted accounting principles in the United
States of America as in effect on the Acquisition Date, including 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. All ratios and computations based on GAAP contained in
this Indenture shall be computed in conformity with GAAP.
"Global Security" means a Security that is substantially in the form
of Exhibit A or Exhibit B hereto that includes the information called for by
footnote 1 thereof.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person,
including any such 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 or other obligation of such other Person
(whether arising by agreement to purchase assets, goods, securities or services,
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 or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided,
however, 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.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement or
Commodities Agreement.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
15
"Holding" means the party named as Holding in the first paragraph of
the Indenture, any corporation succeeding to its ownership of RIC Holding, and
any successor thereto.
"Holding Common Stock" means the common stock, par value $0.01 per
share, of Holding.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Person at the time it becomes a Subsidiary.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication),
(i) the principal of indebtedness of such Person for borrowed money,
(ii) the principal of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of letters of credit
or other similar instruments (including reimbursement obligations with
respect thereto),
(iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables), which
purchase price is due more than one year after the date of placing such
property in service or taking delivery and title thereto or the completion
of such services,
(v) all Capitalized Lease Obligations of such Person,
(vi) the amount of all obligations of such Person with respect to
the redemption, repayment or other repurchase of any Disqualified Stock
or, with respect to any Subsidiary of the Company, any Preferred Stock
(but excluding, in each case, any accrued dividends);
(vii) 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,
16
however, that the amount of Indebtedness of such Person 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 of such other
Persons,
(viii) all Indebtedness of other Persons to the extent Guaranteed by
such Person, and
(ix) to the extent not otherwise included in this definition,
Hedging Obligations of such Person.
With respect to any Indebtedness denominated in a foreign currency, for the
purposes of determining compliance with any U.S. dollar denominated restriction
on the Incurrence of such Indebtedness under Section 4.03, the amount of such
Indebtedness shall be calculated based on the currency exchange rate in effect
on the date that such Indebtedness was incurred, in the case of term debt, or
first committed, in the case of revolving debt; provided that any such
Indebtedness outstanding on the Acquisition Date shall be calculated based on
the currency exchange rate in effect on the Acquisition Date.
"Indemnification Agreement" means the Indemnification Agreement,
dated as of the Acquisition Date, among Holding, RIC Holding, the Company, CD&R,
CD&R Fund V, and CD&R Investment Associates, Inc., a Delaware corporation, as in
effect on the Issue Date.
"Indenture" means this Indenture as amended or supplemented from
time to time.
"Initial Securities" means Securities that are substantially in the
form of Exhibit A attached hereto.
"Interest Rate Agreement" means with respect to any Person 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 or
other similar agreement (including derivative agreements) or arrangement as to
which such Person is party or a beneficiary.
"Inventory" means goods held for sale or lease by a Person in the
ordinary course of business (and shall in no event include goods, the title to
which is held by a lessee); in calculating the amount of Inventory for all
purposes hereunder, there shall be deducted a reserve for
17
goods which have been segregated by such Person to be returned to the applicable
vendor for credit, as determined in accordance with U.S. generally accepted
accounting principles.
"Investment" in any Person means any direct or indirect advance,
loan or other extensions of credit (other than advances and other extensions of
credit to customers in the ordinary course of business that are recorded as
accounts receivable on the balance sheet of such Person) 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, Indebtedness or other similar instruments issued
by such Person, in each case calculated net of any return on such Investment,
whether by dividend, interest, distribution, return of capital, repayment or
otherwise. For purposes of the definition of "Unrestricted Subsidiary" and
Section 4.04 only, (i) "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 an "Investment" in an Unrestricted Subsidiary in
an amount (if positive) equal to (x) the Company's "Investment" in such
Subsidiary at the time of such redesignation less (y) 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 redesignation; and (ii)
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 Board of Directors. For the purposes of clause
(a)(3)(F) of Section 4.04 only, "Investments" shall not be calculated net of any
return as described above.
"Issue Date" means the date on which the Securities are originally
issued.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Machinery Credit Agreement" means the Credit Agreement, dated as of
March 20, 1996, among Riverwood
18
International Machinery, Inc., a Delaware corporation, the other borrowers party
thereto from time to time, The Chase Manhattan Bank as administrative agent, and
the other lenders party thereto from time to time, as amended through the Issue
Date, and as such agreement may be amended, supplemented or otherwise modified
from time to time or refunded, refinanced, restructured, replaced, renewed,
repaid or extended from time to time (whether with the original administrative
agent and lenders or other agents and lenders or otherwise, and whether provided
under the original Machinery Credit Agreement or other credit agreements or
otherwise).
"Management Contribution Amount" means an amount equal to (x) the
Net Cash Proceeds received by the Company as a capital contribution out of the
proceeds of the sale to Management Investors of Holding Common Stock or options,
warrants or rights to purchase in respect thereof, plus (y) the aggregate amount
of deferred compensation owed by RIC Holding or any Subsidiary thereof to any
Management Investor that is or has been canceled, waived or exchanged in
connection with the grant to such Management Investor of the right to receive or
acquire shares of Holding Common Stock or stock units in respect thereof.
"Management Investors" means the officers, directors, employees and
other members of the management of Holding, RIC Holding, the Company or a
Subsidiary of any thereof, or family members or relatives thereof or trusts for
the benefit of any of the foregoing, who at any particular date shall
Beneficially Own or have the right to acquire, directly or indirectly, Holding
Common Stock.
"Management Stock" means Holding Common Stock, or options, warrants
or rights to purchase or acquire Holding Common Stock, held by any of the
Management Investors.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor
rating agency.
"Net Available Cash" from an Asset Disposition means cash or Cash
Equivalents received (including any cash payments received by way of deferred
payment of principal pursuant to a note or receivable or otherwise, but only as
and when received, but excluding any other consideration received in the form of
assumption by the acquiring person of Indebtedness or other obligations relating
to the properties or assets that are the subject of such Asset Disposition or
received in any other non-cash form)
19
therefrom, in each case net of (i) all legal, title and recording tax expenses,
commissions and other fees and expenses (including fees and expenses of counsel
and investment bankers) incurred, and all Federal, state, provincial, foreign
and local taxes required to be paid or accrued as a liability under generally
accepted accounting principles, as a consequence of such Asset Disposition, (ii)
all payments made on, and all installment payments required to be made to
retire, any Indebtedness which is secured by any assets subject to such Asset
Disposition, in accordance with the terms of any Lien upon such assets, or which
must by its terms, or in order to obtain a necessary consent to such Asset
Disposition, or by applicable law, be repaid out of the proceeds from such Asset
Disposition, (iii) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a result of such
Asset Disposition, or to any other Person (other than the Company or any
Restricted Subsidiary thereof) owning a beneficial interest in the assets
disposed of in such Asset Disposition, and (iv) appropriate amounts to be
provided by the Company or any Restricted Subsidiary as a reserve, in accordance
with generally accepted accounting principles, against any liabilities
associated with the assets disposed of in such Asset Disposition and retained by
the Company or any Restricted Subsidiary after such Asset Disposition,
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 Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock, means the proceeds of such issuance or sale in the form of cash or Cash
Equivalents, including payments in respect of deferred payment obligations when
received in the form of, or stock or other assets when disposed for, cash or
Cash Equivalents, net of attorneys' fees, accountants' fees, underwriters' or
placement agents' fees, discounts or commissions and brokerage, consultant and
other fees and expenses actually incurred in connection with such issuance or
sale and net of taxes paid or payable as a result thereof.
"Note Guarantee" means the Guarantee of the Securities by Holding
and RIC Holding on the terms of Article 10 hereof, and Guarantees on the terms
of Article 10 hereof which may from time to time be executed and delivered
20
pursuant to the terms of this Indenture. Each such Note Guarantee shall be in
the form prescribed in this Indenture.
"Note Guarantor" means any Person that has issued a Note Guarantee.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion in form and substance
reasonably satisfactory to the Trustee from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Parent" means Holding and/or RIC Holding, as applicable, and any
successor corporations and any corporation succeeding to the direct or indirect
ownership of the Company.
"Permitted Holder" means any of (i) CD&R, CD&R Fund V or any other
investment fund or vehicle managed, sponsored or advised by CD&R, or any
Affiliate of or successor to CD&R, CD&R Fund V or any such other investment fund
or vehicle, (ii) any other Equity Investor, other than Xxxxxxxxxx-River LLC, or
any Affiliate thereof or successor thereto, or (iii) any Management Investor.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in (i) a Restricted Subsidiary or Receivables Subsidiary
or a Person which will, upon the making of such Investment, become a Restricted
Subsidiary or Receivables Subsidiary; (ii) another Person if as a result of such
Investment such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all its assets to, the Company or a
Restricted Subsidiary; (iii) Temporary Cash Investments; (iv) receivables owing
to the Company or any Restricted Subsidiary, if created or acquired in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided, however, that such trade terms may include such
concessionary trade terms as the Company or any such Restricted Subsidiary deems
reasonable under the circumstances; (v) payroll, travel and similar
21
advances to cover matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes and that are made
in the ordinary course of business; (vi) loans or advances to officers or
employees of Holding, RIC Holding, the Company or any Restricted Subsidiary
referred to in clause (x) of Section 4.07(b); (vii) 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 or in
satisfaction of judgments; (viii) non-cash consideration acquired by the Company
or any Restricted Subsidiary in connection with an Asset Disposition permitted
under Section 4.06, or any disposition of property or other assets not
constituting an Asset Disposition; (ix) Investments in existence or made
pursuant to legally binding written commitments as in existence on the Issue
Date; (x) evidences of Indebtedness, securities or other property received from
another Person by the Company or any Restricted Subsidiary in connection with
any bankruptcy proceeding or other reorganization of such other Person, or as a
result of foreclosure, perfection or enforcement of any Lien in exchange for
evidences of Indebtedness, securities or other property of such other Person
held by the Company or any Restricted Subsidiary in accordance with the terms of
this Indenture; (xi) (A) Currency Agreements designed to protect the Company or
any Restricted Subsidiary against fluctuations in foreign currency rates in
respect of foreign exchange exposures incurred by the Company or any Restricted
Subsidiary in the ordinary course of its business, (B) Commodities Agreements
designed to protect the Company or any Restricted Subsidiary against
fluctuations in the price of, or the shortage or supply of, commodities entered
into in the ordinary course of business and (C) Interest Rate Agreements
designed to protect the Company or any Restricted Subsidiary against
fluctuations in interest rates in respect of Indebtedness of the Company or any
Restricted Subsidiary; (xii) deposits with respect to leases or utilities
provided to third parties in the ordinary course of business, or deposits
otherwise described in clause (a) of the definition of "Permitted Liens"; (xiii)
any joint venture or similar arrangement established in connection with any
Fiskeby Transaction; (xiv) Indebtedness of the Company to any Restricted
Subsidiary; (xv) the Securities or the Existing Notes; (xvi) bonds secured by
assets leased to and operated by the Company or 21 any Restricted Subsidiary
that were issued in connection with the financing of such assets so long as the
Company or any Restricted Subsidiary may obtain title to such assets at any time
by paying a nominal fee, canceling such bonds and terminating the transaction;
22
(xvii) promissory notes of any Management Investor acquired in connection with
the issuance of Holding Common Stock to such Management Investor; (xviii) in the
case of a Receivables Subsidiary, (A) Investments in connection with a Financing
Disposition by or to such Receivables Subsidiary, including Investments of funds
held in accounts permitted or required by the arrangements governing such
Financing Disposition or any related Indebtedness, or (B) any promissory note
issued by RIC Holding or Holding, provided that if RIC Holding or Holding, as
applicable, receives cash from such Receivables Subsidiary in exchange for such
note, an equal cash amount is contributed by RIC Holding to the Company; and
(xix) other Investments in an amount not to exceed $50,000,000 in the aggregate
outstanding at any one time.
"Permitted Liens" means, with respect to any Person:
(a) pledges or deposits made or other Liens granted (1) under
worker's compensation laws, unemployment insurance laws, social security
laws or similar legislation, (2) in connection with bids, tenders,
contracts (other than for the payment of borrowed money) or leases to
which such Person is a party, (3) to secure public or statutory
obligations, including but not limited to as security for contested taxes,
assessments or import duties, (4) as security for the payment of
insurance-related or worker's compensation-related obligations (including,
but not limited to, in respect of deductibles, self-insured retention
amounts and premiums and adjustments thereto) or (5) for the payment of
rent or utilities, in each case Incurred in the ordinary course of
business;
(b) Liens imposed by law, such as carriers', warehousemen's,
landlords', materialmen's, employees', laborers', employers', suppliers',
banks', mechanics', repairmen's and other like Liens, in each case for
sums not yet due or being contested in good faith by appropriate
proceedings or other Liens arising by reason of any judgment, award,
decree, order of any court or other governmental authority against such
Person with respect to which such Person shall then be taking appropriate
legal proceedings or other proceedings for review or the period within
which such proceedings may be instituted shall not have expired;
23
(c) Liens for taxes, assessments and similar charges not yet due or
payable or not yet subject to penalties for non-payment or which are being
contested in good faith by appropriate proceedings;
(d) Liens in favor of issuers of surety, performance, judgment,
appeal and other like bonds or letters of credit issued pursuant to the
request of and for the account of such Person in the ordinary course of
its business;
(e) minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses, rights-of-way, sewers,
electric lines, telegraph and telephone lines and other similar purposes,
or zoning provisions, covenants, conditions, waivers or other restrictions
as to the use of real properties or minor irregularities of title (and
with respect to leasehold interests, mortgages, obligations, liens and
other encumbrances Incurred, created, assumed or permitted to exist and
arising by, through or under a landlord or owner of the leased property,
with or without consent of the lessee) or Liens incidental to the conduct
of the business of such Person or to the ownership of its properties which
were not Incurred by such Person in connection with Indebtedness and which
do not in the aggregate materially adversely affect the value of said
properties or materially impair their use in the operation of the business
of such Person;
(f) Liens securing Indebtedness Incurred to finance the
construction, purchase or lease of, or repairs, improvements or additions
to, property or assets, and obligations relating to such Indebtedness;
provided, however, that the Lien may not extend to any other property or
assets owned by the Company or any Restricted Subsidiary at the time the
Lien is Incurred, and the Indebtedness secured by the Lien may not be
Incurred more than 365 days after the later of the acquisition, completion
of construction, repair, improvement, addition or commencement of full
operation of the property or assets subject to the Lien;
(g) Liens existing, or provided for under written arrangements
existing, as of the Issue Date;
(h) Liens on property, assets or shares of stock of a Person at the
time such Person becomes a Subsidiary; provided, however, such Liens are
not
24
created, Incurred or assumed by such Person in connection with, or in
contemplation of, such other Person becoming such a Subsidiary; provided
further, however, that such Liens may not extend to any other property
owned by the Company or any Restricted Subsidiary (other than
improvements, accessions, proceeds or dividends or distributions in
respect thereof);
(i) Liens on property or assets at the time the Company or a
Restricted Subsidiary acquired the property or assets, including any
acquisition by means of a merger or consolidation with or into the Company
or any Restricted Subsidiary; provided, however, that such Liens are not
created in connection with, or in contemplation of, such acquisition;
provided further, however, that the Liens may not extend to any other
property owned by the Company or any Restricted Subsidiary (other than
improvements, accessions, proceeds or dividends or distributions in
respect thereof);
(j) Liens securing Indebtedness or other obligations of a Restricted
Subsidiary owing to the Company or a Restricted Subsidiary;
(k) Liens securing Hedging Obligations; provided, however, that if
such Hedging Obligations are obligations relating to an Interest Rate
Agreement the related Indebtedness is, and is permitted to be under this
Indenture, secured by a Lien on the same property securing such Hedging
Obligations;
(l) Liens in respect of Indebtedness permitted by clause (ii),
(ix)(1) or (x) of Section 4.03(b);
(m) Liens to secure Indebtedness or other obligations of any
Receivables Subsidiary or Equipment Subsidiary;
(n) Liens securing Bank Indebtedness;
(o) Liens granted to secure the Securities under Section 4.11;
(p) Liens granted to secure up to $15,000,000 of Indebtedness or
other obligations;
25
(q) any Lien on stock or other securities of an Unrestricted
Subsidiary that secures Indebtedness or other obligations of such
Subsidiary;
(r) any encumbrance or restriction (including, but not limited to,
put and call agreements) with respect to the Capital Stock of any joint
venture or similar arrangement pursuant to any joint venture or similar
agreement; and
(s) Liens to secure any refinancing, refunding, extension, renewal
or replacement (or successive refinancings, refundings, extensions,
renewals or replacements) as a whole, or in part, of any Indebtedness or
other obligation secured by any Lien referred to in clauses (f), (g), (h),
(i), (k), (l), (m), (n), (o), (p) and (s); provided, however, that (x)
such new Lien shall be limited to all or part of the same property or
assets that secured the original Lien (plus improvements, accessions,
proceeds or dividends or distributions in respect thereof) and (y) if such
Lien secures Indebtedness, the Indebtedness secured by such Lien at such
time is not increased to any amount greater than the sum of (A) the
outstanding principal amount or, if greater, committed amount of the
Indebtedness described under clauses (f), (g), (h), (i), (k), (l), (m),
(n), (o), (p) and (s) at the time the original Lien became a Permitted
Lien under the Indenture and (B) an amount necessary to pay any fees and
expenses, including premiums, related to such refinancing, refunding,
extension, renewal or replacement.
"Permitted Sale/Leaseback Transaction" means any Sale/Leaseback
Transaction relating to the financing of packaging machinery.
"Permitted Subsidiary Indebtedness" means Indebtedness of any
Restricted Subsidiary that is (a) Incurred as permitted under Section 4.03(b) or
(b) Incurred as permitted under Section 4.03(a) and not exceeding $200,000,000
plus (if positive) 5% of the Company's Consolidated Net Worth in an aggregate
principal amount outstanding at any given time.
"Permitted Subsidiary Preferred Stock" means, with respect to any
Subsidiary, any Preferred Stock of such Subsidiary that (a) is Disqualified
Stock and such Subsidiary would be entitled to Incur Indebtedness permitted
26
by this Indenture in an aggregate principal amount equal to the aggregate
involuntary maximum fixed repurchase price of such Preferred Stock or (b) is not
Disqualified Stock and no dividends or distributions thereon are paid (to any
Person other than the Company or any Wholly Owned Subsidiary) other than in
accordance with Section 4.04.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Private Placement Legend" means the legend set forth under such
caption in the form of Initial Security in Exhibit A hereto.
"Public Equity Offering" means an underwritten primary public
offering of common stock of the Company, RIC Holding or Holding pursuant to an
effective registration statement under the Securities Act (whether alone or in
conjunction with any secondary public offering).
"Public Market" means any time after (x) a Public Equity Offering
has been consummated and (y) at least 15% of the total issued and outstanding
common stock of the Company, RIC Holding or Holding, as applicable, has been
distributed by means of an effective registration statement under the Securities
Act.
"Receivable" means a right to receive payment arising from a sale or
lease of goods or services by a Person pursuant to an arrangement with another
Person pursuant to which such other Person is obligated to pay for goods or
services under terms that permit the purchase of such goods and services on
credit, as determined in accordance with U.S. generally accepted accounting
principles.
"Receivables Financing" means any financing by any Receivables
Subsidiary of Receivables of the Company that
27
have been transferred to such Receivables Subsidiary in a Financing Disposition.
"Receivables Subsidiary" means a Subsidiary of the Company that (a)
is engaged solely in the business of acquiring, selling, collecting, financing
or refinancing Receivables, accounts (as defined in the Uniform Commercial Code)
and other accounts and receivables (including any thereof constituting or
evidenced by chattel paper, instruments or general intangibles), all proceeds
thereof and all rights (contractual and other), collateral and other assets
relating thereto, and any business or activities incidental or related to such
business, and (b) is designated as a "Receivables Subsidiary" by the Board of
Directors.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, restructure, replace, renew, repay or extend (including
pursuant to any defeasance or discharge mechanism) (collectively, "refinances,"
and "refinanced" shall have a correlative meaning) any Indebtedness existing on
the Issue Date or Incurred in compliance with this Indenture (including
Indebtedness of the Company that refinances Indebtedness of any Restricted
Subsidiary (to the extent permitted in this Indenture) and Indebtedness of any
Restricted Subsidiary that refinances Indebtedness of another Restricted
Subsidiary) including Indebtedness that refinances Refinancing Indebtedness;
provided, however, that (i) the Refinancing Indebtedness has a Stated Maturity
no earlier than the Stated Maturity of the Indebtedness being refinanced, (ii)
the Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life of
the Indebtedness being refinanced and (iii) such Refinancing Indebtedness is
Incurred in an aggregate principal amount (or if issued with original issue
discount, an aggregate issue price) that is equal to or less than (x) the
aggregate principal amount (or if issued with original issue discount, the
aggregate accreted value) then outstanding of the Indebtedness being refinanced
plus (y) the amount of premium or other amounts paid and fees and expenses
incurred in connection with such refinancing; provided further, however, that
Refinancing Indebtedness shall not include (x) Indebtedness of a Restricted
Subsidiary that refinances Indebtedness of the Company or (y) Indebtedness of
the Company or a Restricted Subsidiary that refinances Indebtedness of an
Unrestricted Subsidiary.
28
"Registered Exchange Offer" shall have the meaning set forth in the
Exchange and Registration Rights Agreement.
"Registration and Participation Agreement" means the agreement dated
the Acquisition Date among Holding and the purchasers of Holding Common Stock
providing among other things for certain registration rights in respect of
Holding Common Stock, as in effect on the Issue Date.
"Related Business" means the businesses of the Company and the
Restricted Subsidiaries as conducted on the Issue Date, and any business
related, ancillary or complementary to such businesses.
"Restricted Subsidiary" means any Subsidiary of the Company other
than an Unrestricted Subsidiary.
"RIC Holding" means the party named as RIC Holding in the first
paragraph of this Indenture, any corporation succeeding to its ownership of the
Company, and any successor thereto.
"Riverwood Acquisition" means the acquisition on March 27, 1996, of
the Company by RIC Holding and the mergers related thereto.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by the Company or a Restricted
Subsidiary, whereby the Company or a Restricted Subsidiary transfers such
property to a Person and the Company or a Restricted Subsidiary leases it from
such Person, other than leases between the Company and a Restricted Subsidiary
or between Restricted Subsidiaries.
"S&P" means Standard and Poor's Rating Group (a division of McGraw
Hill Inc.) or any successor rating agency.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company secured
by a Lien.
"Securities" means the securities issued under this Indenture.
29
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means (i) the Bank Indebtedness and the
Securities and (ii) all Indebtedness of the Company, including interest thereon
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or any Restricted
Subsidiary whether or not a claim for post-filing interest is allowed in such
proceedings), whether outstanding on the Issue Date or thereafter Incurred,
unless in the instrument creating or evidencing the same or pursuant to which
the same is outstanding it is expressly provided that such obligations are not
superior in right of payment to the Existing Senior Subordinated Notes;
provided, however, that Senior Indebtedness shall not include (1) any obligation
of the Company to any Subsidiary, (2) any liability for Federal, state, local or
other taxes owed or owing by the Company, (3) any accounts payable or other
liability to trade creditors arising in the ordinary course of business
(including Guarantees thereof or instruments evidencing such liabilities), (4)
any Indebtedness of the Company which is expressly subordinate in right of
payment to any other Indebtedness of the Company, including any Senior
Subordinated Indebtedness and any Subordinated Obligations, (5) any obligations
with respect to any Capital Stock, or (6) any Indebtedness Incurred in violation
of this Indenture.
"Senior Secured Credit Agreement" means the Credit Agreement, dated
as of March 20, 1996, among the Company, the other borrowers party thereto from
time to time, The Chase Manhattan Bank as administrative agent, and the lenders
party thereto from time to time, as amended to the Issue Date, and as such
agreement may be amended, supplemented or otherwise modified from time to time
or refunded, refinanced, restructured, replaced, renewed, repaid or extended
from time to time (whether with the original administrative agent and lenders or
other agents and lenders or otherwise, and whether provided under the original
Senior Secured Credit Agreement or other credit agreements or otherwise).
"Senior Subordinated Indebtedness" means the Existing Senior
Subordinated Notes and any other Indebtedness of the Company that specifically
provides that such Indebtedness is to rank pari passu with such notes and is not
by its express terms subordinate in right of payment
30
to any Indebtedness of the Company which is not Senior Indebtedness.
"Significant Subsidiary" means any Restricted Subsidiary of the
Company that would be a "significant subsidiary" of the Company as defined in
Rule 1-02 of Regulation S-X under the Securities Act and the Exchange Act.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the purchase of
such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Stockholders Agreement" means the Stockholders Agreement, dated as
of the Acquisition Date, among Holding and the Equity Investors, as in effect on
the Issue Date.
"Subordinated Obligation" means any Indebtedness of the Company
(whether outstanding on the Issue Date or thereafter Incurred) which is
expressly subordinate in right of payment to the Securities pursuant to a
written agreement.
"Subsidiary" of any Person means any corporation, association,
partnership, limited liability company or other business entity of which more
than 50% of the total voting power of shares of Capital Stock or other equity
interests (including partnership interests) generally entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by (i) such Person or (ii) one or more Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following: (i) any
investment in direct obligations (x) of the United States of America or any
agency thereof or obligations Guaranteed by the United States of America or any
agency thereof, or (y) of any foreign country recognized by the United States of
America rated at least "A" by S&P or "A-1" by Moody's, (ii) investments in time
deposit accounts, certificates of deposit and money market deposits maturing
31
within 365 days of the date of acquisition thereof issued by a bank or trust
company which is organized under the laws of the United States of America, any
state thereof or any foreign country recognized by the United States of America
having capital, surplus and undivided profits aggregating in excess of
$250,000,000 (or the foreign currency equivalent thereof) and whose long-term
debt 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), (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 meeting the qualifications described in clause
(ii) above, (iv) investments in commercial paper, maturing not more than 180
days after the date of acquisition, issued by a corporation (other than an
Affiliate of the Company) organized and in existence under the laws of the
United States of America or any foreign country recognized by the United States
of America with a rating at the time as of which any investment therein is made
of "P-1" (or higher) according to Moody's or "A-1" (or higher) according to S&P,
(v) investments in securities with maturities of six months or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States of America, or by any political subdivision or
taxing authority thereof, and rated at least "A" by S&P or "A-1" by Moody's,
(vi) any money market deposit accounts issued or offered by a domestic
commercial bank or a commercial bank organized and located in a country
recognized by the United States, in each case, having capital and surplus in
excess of $500,000,000, or investments in money market funds complying with the
risk limiting conditions of Rule 2a-7 (or any successor rule) of the SEC under
the Investment Company Act of 1940, as amended, and (vii) similar investments
approved by the Board of Directors in the ordinary course of business.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the date of this Indenture, except as provided in
Section 9.03.
"Trade Payables" means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.
32
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by, and published in, the most recent Federal Reserve Statistical
Release H.15 (519) which has become publicly available at least two business
days prior to the date fixed for redemption of the Securities following a Change
of Control (or, if such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to the then
remaining Average Life to Stated Maturity of the Securities; provided, however,
that if the Average Life to Stated Maturity of the Securities is not equal to
the constant maturity of a 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 Average Life to Stated Maturity of the Securities 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 this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President or
any other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"Unrestricted Subsidiary" means (i) 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 (ii) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors may designate any
Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of,
or owns or holds any Lien on any property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that either (A) such
33
designation is made at or prior to the Issue Date, (B) the Subsidiary to be so
designated has total consolidated assets of $1,000 or less or (C) if such
Subsidiary has consolidated assets greater than $1,000, then such designation
would be permitted under Section 4.04. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided, however, that
immediately after giving effect to such designation (x) the Company could Incur
$1.00 of additional Indebtedness under Section 4.03(a) and (y) no Default shall
have occurred and be continuing.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of a corporation means all classes of Capital Stock
of such corporation then outstanding and normally entitled to vote in the
election of directors.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Company all the Capital Stock of which (other than directors' qualifying shares)
is owned by the Company or another Wholly Owned Subsidiary.
34
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Agent Members" ........................ 2.13
"Affiliate Transaction" ................ 4.07
"Authorized Project" ................... 4.06
"Bankruptcy Law" ....................... 6.01
"covenant defeasance option" ........... 8.01(b)
"Custodian" ............................ 6.01
"Depositary" ........................... 2.03
"Event of Default" ..................... 6.01
"IAI"................................... 2.01
"Initial Agreement" .................... 4.05
"Initial Lien".......................... 4.11
"legal defeasance option" .............. 8.01(b)
"Legal Holiday" ........................ 11.09
"Note Offer" ........................... 4.06
"Notice of Default" .................... 6.01
"Obligations" .......................... 10.01
"Offer Amount" ......................... 4.06
"Offer Period" ......................... 4.06
"Paying Agent" ......................... 2.03
"Permanent Offshore Physical
Securities" .......................... 2.14
"Physical Securities" .................. 2.01
"Purchase Date" ........................ 4.06
"QIB Global Note" ...................... 2.01
"QIBs" ................................. 2.01
"Refinancing Agreement" ................ 4.05
"Registrar"............................. 2.03
"Restricted Payment" ................... 4.04
"restricted period" .................... 2.01
"Rule 144A" ............................ 2.01
"Subsidiary Guarantor" ................. 10.05
"Successor Company" .................... 5.01
"Temporary Offshore Physical
Securities" .......................... 2.14
"U.S. Global Security" ................. 2.01
"U.S. Physical Securities" ............. 2.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in
35
and made a part of this Indenture. The following TIA terms have the following
meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
as in effect from time to time unless reference to GAAP is made with
respect to any specific accounting term;
(3) "or" is not exclusive;
(4) "including" means including without limitation; and
(5) words in the singular include the plural and words in the plural
include the singular.
(6) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness of the Company or a Note Guarantor, as the
case may be, merely by virtue of its nature as unsecured Indebtedness, and
Indebtedness that is not guaranteed by a particular Person is not deemed
to be subordinate or junior to Indebtedness that is so guaranteed merely
because it is not so guaranteed; and
36
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared
in accordance with GAAP.
37
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating. (a) The Initial Securities and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture, and as otherwise provided in this Article 2. Any Exchange Securities
and the Trustee's certificate of authentication shall be substantially in the
form of Exhibit B, which is incorporated in and expressly made a part of this
Indenture, and as otherwise provided in this Article 2. The Securities may have
notations, legends or endorsements required by law, stock exchange or Depositary
rule, agreements to which the Company or any Note Guarantor is subject, if any,
or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). Each Security shall be dated the date of its
authentication. The terms of the Securities set forth in Exhibits A and B are
part of the terms of this Indenture. The Securities shall be issuable only in
registered form without coupons and only in denominations of $1,000 and integral
multiples thereof.
(b) The Initial Securities are being offered and sold by the Company
pursuant to the Purchase Agreement. Initial Securities offered and sold to
"qualified institutional buyers" (as defined in Rule 144A under the Securities
Act) ("QIBs") in accordance with Rule 144A under the Securities Act ("Rule
144A") as provided in the Purchase Agreement, shall be issued on the Issue Date
initially in the form of one or more permanent Global Securities substantially
in the form set forth in Exhibit A (collectively, the "U.S. Global Security")
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 Security 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. Transfers
of Initial Securities from QIBs to institutional "accredited investors" (within
the meaning of Rule 50l (a)(1), (2), (3) or (7) under the Securities Act)
("IAIs") or Non-U.S. Persons, and from IAIs or Non-U.S. Persons to QIBS, will be
reflected in appropriate increases and decreases to the amount of the
38
U.S. Global Security, as more fully provided in, and subject to the provisions
of, Sections 2.13 and 2.14.
Initial Securities offered and sold other than to QIBs shall be
issued in the form of certificated Securities in registered form in
substantially the form set forth in Exhibit A ("Physical Securities").
(c) Each Global Security shall bear the legend called for by
footnote 1 to Exhibit A or Exhibit B, as the case may be. Each Initial Security
shall bear the Private Placement Legend until such time as such Initial Security
is no longer required to bear such legend and such legend is removed in
accordance with paragraph (g) of Section 2.14.
SECTION 2.02. Execution and Authentication. One Officer shall sign
the Securities for the Company by manual or facsimile signature. The Company's
seal shall be impressed, affixed, imprinted or reproduced on the Secu rities
(except with respect to Global Securities) and may be in facsimile form. If an
Officer whose signature is on a Security no longer holds that office at the time
the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate and deliver (1)Initial Securities for
original issue in an aggregate principal amount of $250,000,000 and (2) Exchange
Securities for issue only in a Registered Exchange Offer, pursuant to the
Exchange and Registration Rights Agreement, for Initial Securities for a like
principal amount of Initial Securities exchanged pursuant thereto, in each case
upon a written order of the Company signed by two Officers, by an Officer and
either an Assistant Treasurer or an Assistant Secretary of the Company, or by an
Officer. Such order shall specify the amount of the Securities to be
authenticated, the date on which the original issue of Securities is to be
authenticated and whether the Securities are to be Initial Securities or
Exchange Securities. The aggregate principal amount of Securities outstanding at
any time may not exceed $250,000,000 except as provided in Section 2.07.
39
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate the Securities. Any such appointment shall be evidenced
by an instrument signed by an authorized officer of the Trustee, a copy of which
shall be promptly furnished to the Company. Unless limited by the terms of such
appointment, an authenticating
agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as any
Registrar, Paying Agent or agent for service of notices and demands.
SECTION 2.03. Registrar and Paying Agent. The Company shall maintain
an office or agency where Securities may be presented for registration of
transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange (the
"Register"). The ownership of the Securities shall be proved by such Register.
The Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with
any Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities.
The Company initially appoints The Depository Trust Company to act
as depositary ("Depositary") with respect to the Global Securities.
The Company may remove any Registrar or Paying Agent upon written
notice to such Registrar or Paying Agent and to the Trustee; provided that no
such removal shall
40
become effective until (1) acceptance of an appointment by a successor as
evidenced by an appropriate agreement entered into by the Company and such
successor Registrar or Paying Agent, as the case may be, and delivered to the
Trustee or (2) notification to the Trustee that the Trustee shall serve as
Registrar or Paying Agent until the appointment of a successor in accordance
with clause (1) above. The Registrar or Paying Agent may resign at any time upon
written notice; provided, however, that the Trustee may resign as Paying Agent
or Registrar only if the Trustee also resigns as Trustee in accordance with
Section 7.08.
SECTION 2.04. Paying Agent To Hold Money in Trust. On or prior to
each due date of the principal and interest on any Security, the Company shall
deposit with the Paying Agent (or if the Company or a Subsidiary is acting as
Paying Agent, segregate and hold in trust for the benefit of the Persons
entitled thereto) a sum sufficient to pay such principal and interest when so
becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Securityholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest on the Securities and shall notify the
Trustee of any default by the Company in making any such payment. If the Company
or a Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed by the Paying Agent. Upon complying with this Section,
the Paying Agent shall have no further liability for the money delivered to the
Trustee.
Any money deposited with any Paying Agent, or then held by the
Company or a Subsidiary, in trust for the payment of principal or interest on
any Security and remaining unclaimed for two years after such principal and
interest has become due and payable shall be paid to the Company at its request,
or, if then held by the Company or a Subsidiary, shall be discharged from such
trust; and the Securityholders shall thereafter, as unsecured general creditors,
look only to the Company for payment thereof, and all liability of the Paying
Agent with respect to such money, and all liability of the Company or such
Subsidiary as trustee thereof, shall thereupon cease.
41
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish, or cause the Registrar to furnish, to the
Trustee, in writing at least five Business Days before each interest payment
date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. The Securities shall be issued
in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer. When a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if (x) the requirements of Section
8-401(l) of the Uniform Commercial Code and any other applicable provisions of
law are met and (y) such transfer complies with the provisions of Sections 2.13
and 2.14, if applicable. Definitive Securities surrendered for transfer shall be
duly endorsed or accompanied by a written instrument of transfer in form and
substance reasonably satisfactory to the Company and the Registrar or
co-registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. When Securities are presented to the Registrar or a
co-registrar with a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the exchange as
requested if the same requirements as for a transfer thereof are met. To permit
registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Securities at the Registrar's or co-registrar's
request. The Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with any transfer or
exchange pursuant to this Section 2.06. The Company shall not be required to
make and the Registrar need not register transfers or exchanges of Securities
selected for redemption (except, in the case of Securities to be redeemed in
part, the portion thereof not to be redeemed) or any Securities for a period of
15 days before a selection of Securities to be redeemed or 15 days before an
interest payment date.
Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and
42
treat the Person in whose name a Security is registered as the absolute owner of
such Security for the purpose of receiving payment of principal of and interest,
if any, on such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and none of the Company, the Trustee, the
Paying-Agent, the Registrar or any co-registrar shall be affected by notice to
the contrary.
Any Holder of any Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interest in such Global
Security may be effected only through a book-entry system maintained by the
Holder of such Global Security (or its agent), and that ownership of a
beneficial interest in such Global Security shall be required to be reflected in
a book entry.
All Securities issued upon any transfer or exchange pursuant to this
Section 2.06 will evidence the same debt and will be entitled to the same
benefits under this Indenture as the Securities surrendered upon such transfer
or exchange.
SECTION 2.07. Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code and any other applicable provisions
of law are met, and if the Holder (i) satisfies the Company and the Trustee
within a reasonable time after such Holder has notice of such loss, destruction
or wrongful taking and the Registrar does not register a transfer prior to
receiving such notification, (ii) makes such request to the Company or the
Trustee prior to the Security being acquired by a bona fide purchaser and (iii)
satisfies any other reasonable requirements of the Company and the Trustee. Any
such request shall either be accompanied by evidence satisfactory to the Company
and the Trustee that any such issuance of a replacement Security will not
involve a transfer or exchange of any Security, or shall comply with the
requirements of Section 2.06. If required by the Trustee or the Company, such
Holder shall furnish an indemnity bond sufficient in the judgment of the Company
and the Trustee to protect the Company, the Trustee, the Paying Agent, the
Registrar and any co-registrar from any loss that any of them may suffer if a
Security is replaced. Upon the issuance of any new Security under this Section
2.07, the Company may require the payment of a sum
43
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Registrar and the Trustee) connected therewith. In the event any such mutilated,
lost, destroyed or wrongfully taken Security has become or is about to become
due and payable, the Company in its discretion may pay such Security instead of
issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the
Company.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
SECTION 2.08. Outstanding Securities. Securities outstanding at any
time are all Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancelation and those described in this Section
as not outstanding. A Security does not cease to be outstand ing because the
Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient to
pay all principal and interest payable on that date with respect to the
Securities (or portions thereof) to be redeemed or maturing, as the case may be,
then on and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09. Temporary Securities. Until definitive Securities are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities and
deliver them in exchange for temporary
44
Securities upon surrender of such temporary Securities at the office or agency
of the Company, without charge to the Holder.
SECTION 2.10. Cancelation. The Company at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancelation unless the Company directs the Trustee to deliver canceled
Securities to the Company. The Company may not issue new Securities to replace
Securities it has redeemed, paid or delivered to the Trustee for cancelation.
The Trustee shall not authenticate Securities in place of canceled Securities
other than pursuant to the terms of this Indenture.
SECTION 2.11. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) in any
lawful manner. The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail or cause to be
mailed to each Securityholder a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
The Company may make payment of any defaulted interest in any other
lawful manner not inconsistent with the requirements (if applicable) of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this paragraph, such manner of
payment shall be deemed practicable by the Trustee.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Securities
may use "CUSIP" numbers (if then generally in use) and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is made
as to the correctness of such
45
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
SECTION 2.13. Book-Entry Provisions for Global Securities.
(a) Each Global Security initially shall (i) be registered in the
name of the Depositary for such Global Security or the nominee of such
Depositary and (ii) be delivered to the Trustee as custodian for such
Depositary. After the issuance of Exchange Securities under a Registered
Exchange Offer, the Trustee shall have no duty to hold any Global Security as
custodian for the Depository or any other Security registered in the name of the
Depository or a nominee of the Depository.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary, or the Trustee as its custodian, or
under any Global Security, 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 any
Global Security 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 shall 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 Security.
Except as otherwise provided herein, owners of beneficial interests
in the U.S. Global Security will not be entitled to receive physical delivery of
certificated Securities. After a transfer of any Initial Securities during the
period of the effectiveness of, and pursuant to, a Shelf Registration Statement
with respect to the Initial Securities, the requirements requiring that any such
Initial Securities issued to certain Holders be issued in global form will cease
to apply, and certificated Initial Securities will be made available to the
Holders of such Initial Securities. Upon the consummation of a Registered
Exchange Offer with respect to the Initial Securities pursuant to which Holders
of Initial Securities are offered
46
Exchange Securities in exchange for their Initial Securities, all requirements
pertaining to such Initial Securities that Initial Securities issued to certain
Holders be issued in global form will cease to apply and certificated Initial
Securities with the Private Placement Legend will be available to Holders of
such Initial Securities that do not exchange their Initial Securities, and
Exchange Securities in certificated form will be available to Holders that
exchange such Initial Securities in such Registered Exchange Offer.
(b) Transfers of any Global Security shall be limited to transfers
of such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in such
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 2.14. If required to do so
pursuant to any applicable law or regulation, beneficial owners may obtain
Physical Securities in exchange for their beneficial interests in any Global
Security upon written request in accordance with the Depositary's and the
Registrar's procedures and compliance with any other applicable requirements of
the Indenture (including of Section 2.06). In addition, Physical Securities
shall be transferred to all beneficial owners in exchange for their beneficial
interests in a Global Security upon surrender by the Depositary of such Global
Security, for cancelation, if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or the
Depositary ceases to be a clearing agency registered under the Exchange Act, at
a time when the Depositary is required to be so registered in order to act as
Depositary, and in each case a successor depositary is not appointed by the
Company within 90 days of such notice or (ii) the Company, at its option,
notifies the Trustee in writing that it elects to cause such Global Security to
be so exchangeable or (iii) an Event of Default has occurred and is continuing
and the Registrar has received a request from the Depositary to issue Physical
Securities.
(c) In connection with any transfer of a portion of the beneficial
interest in any Global Security pursuant to subsection (b) of this Section to
beneficial owners or other Persons who are to hold Physical Securities, the
Registrar shall reflect on its books and records the date and a decrease in the
principal amount of such Global Security in an amount equal to the principal
amount of the
47
portion of the beneficial interest in such Global Security so transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Physical Securities of like tenor and amount.
(d) In connection with the transfer of an entire Global Security to
beneficial owners pursuant to subsection (b) of this Section, 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
such Global Security, an equal aggregate principal amount of Physical Securities
of authorized denominations.
(e) Any Physical Security delivered in exchange for an interest in
any Global Security pursuant to subsection (c) or subsection (d) of this Section
shall, except as otherwise provided by paragraph (g) of Section 2.14, bear the
applicable legend regarding transfer restrictions applicable to the Physical
Security set forth in Exhibit A.
(f) The registered holder of a Global Security 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 Securities.
(g) The Company or the Trustee, in the discretion of either of them,
may treat as the act of a Holder any instrument or writing of any Person that is
identified by the Depositary as the owner of a beneficial interest in a Global
Security, provided that the fact and date of the execution of such instrument or
writing is proved in accordance with Section 11.08.
SECTION 2.14. Special Transfer Provisions.
The provisions of this Section 2.14 will apply to each Initial
Security, and such Initial Security may not be transferred or exchanged other
than pursuant to such provisions, unless and until such Initial Security shall
have been transferred or exchanged under an effective registration statement
under the Securities Act.
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of an
48
Initial Security to any IAI which is not a QIB (excluding Non-U.S. Persons) that
is consistent with the Private Placement Legend:
(i) The Registrar shall register the transfer of such Initial
Security if (x) the requested transfer is after the date that is two years
after the later of the Issue Date and the last date on which the Company
or any of its Affiliates was the owner of such Initial Security or any
predecessor of such Initial Security (such later date, the "Resale
Restriction Termination Date") or (y) the proposed transferee has
delivered to the Registrar (1) a certificate substantially in the form set
forth in Exhibit C and (2) unless otherwise agreed by the Company and the
Trustee, an Opinion of Counsel, certifications and other information
satisfactory to the Company and the Trustee.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon (1) receipt by the
Registrar of (x) the documents and other information, if any, required by
paragraph (i) and (y) written instructions given in accordance with the
Depositary's and the Registrar's procedures therefor and (2) compliance
with any other applicable requirements of the Indenture (including of
Section 2.06), the Registrar shall reflect on its books and records the
date and a decrease in the principal amount of the U.S. Global Security in
an amount equal to the principal amount of the beneficial interest in the
U.S. Global Security to be transferred, and the Company shall execute, and
the Trustee shall authenticate and deliver, one or more Physical
Securities ("U.S. Physical Securities") of like tenor and amount.
(iii) If the Initial Security to be transferred consists of one or
more Physical Securities, upon (1) receipt by the Registrar of the
documents and other information, if any, required by paragraph (i) and (2)
compliance with any other applicable requirements of the Indenture
(including of Section 2.06), the Registrar shall register such transfer
and the Company shall execute, and the Trustee shall authenticate and
deliver, one or more U.S. Physical Securities of like tenor and amount.
49
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of an Initial Security to a
QIB (excluding Non-U.S.
Persons):
(i) The Registrar shall register the transfer if the Security to be
transferred consists of one or more Physical Securities and if such
transfer (1) is being made by a proposed transferor who has delivered to
the Registrar a certificate substantially in the form set forth in Exhibit
F hereto and (2) complies with any other applicable requirements of the
Indenture (including of Section 2.06).
(ii) If the proposed transferee is an Agent Member, and the Initial
Security to be transferred consists of one or more Physical Securities
that after transfer are to be evidenced by an interest in the U.S. Global
Security, upon (1) receipt by the Registrar of (x) the document, required
by paragraph (i) and (y) written instructions given in accordance with the
Depositary's and the Registrar's procedures therefor and (2) compliance
with any other applicable requirements of the Indenture (including of
Section 2.06), the Registrar shall reflect on its books and records the
date and an increase in the principal amount of the U.S. Global Security
in an amount equal to the principal amount of the Physical Securities to
be transferred, and the Trustee shall cancel the Physical Securities so
transferred.
(iii) If the proposed transferee is to receive a Physical Security
as provided in Section 2.13 and the proposed transferor is an Agent Member
holding a beneficial interest in the U.S. Global Security, upon (1)
receipt by the Registrar of (x) the document required by paragraph (i) and
(y) written instructions given in accordance with the Depositary's and the
Registrar's procedures therefor and (2) compliance with any other
applicable requirements of the Indenture (including of Section 2.06), the
Registrar shall reflect on its books and records the date and a decrease
in the principal amount of the U.S. Global Security in an amount equal to
the principal amount of the beneficial interest in the U.S. Global
Security to be transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Physical Securities of like
tenor and amount.
50
(iv) If the Initial Security to be transferred consists of Physical
Securities and the proposed transferee is to receive a Physical Security
as provided in Section 2.13 or otherwise, upon (1) receipt by the
Registrar of the document required by paragraph (i) and (2) compliance
with any other applicable requirements of the Indenture (including of
Section 2.06), the Registrar shall register such transfer and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Physical Securities of like tenor and amount. The Trustee shall cancel the
Physical Securities so transferred.
(c) Transfers by Non-U.S. Persons Prior to September 7, 1997. The
following provisions shall apply with respect to registration of any proposed
transfer of an Initial Security to or by a Non-U.S. Person prior to September 7,
1997:
(i) The Registrar shall register the transfer of such Initial
Security (1)(x) if the proposed transferee is a Non-U.S. Person and the
proposed transferor has provided the Registrar with a certificate
substantially in the form set forth in Exhibit G hereto or (y) if the
proposed transferee is a QIB and the proposed transferor has provided the
Registrar with a certificate substantially in the form set forth in
Exhibit F hereto and (2) if such transfer complies with any other
applicable requirements of the Indenture (including of Section 2.06); and
upon such transfer, unless clause (ii) below is applicable, the Company
shall execute, and the Trustee shall authenticate and deliver one or more
temporary Physical Securities (the "Temporary Offshore Physical
Securities") of like tenor and amount. The Trustee shall cancel any
Physical Securities so transferred.
(ii) If the proposed transferee is an Agent Member in connection
with a proposed transfer by a Non-U.S. Person of an Initial Security to a
QIB, upon (1) receipt by the Registrar of (x) the document required by
paragraph (i) and (y) written instructions given in accordance with the
Depositary's and the Registrar's procedures therefor and (2) compliance
with any other applicable requirements of the Indenture (including of
Section 2.06), the Registrar shall reflect on its books and records the
date and an increase in the principal amount of the U.S. Global
51
Security in an amount equal to the principal amount of the Temporary
Offshore Physical Security to be transferred, and the Trustee shall cancel
the Temporary Offshore Physical Security so transferred.
(d) Ownership or Transfers by Non-U.S. Persons on or After September
7, 1997. On or after September 7, 1997, upon the receipt by the Trustee and the
Company of a certificate from a non-U.S. Person that is a Holder of Temporary
Offshore Physical Securities, substantially in the form set forth in Exhibit E,
the Company shall execute, and the Trustee shall authenticate and deliver to
such Holder one or more permanent Physical Securities (the "Permanent Offshore
Physical Securities", and together with the Temporary Offshore Physical
Securities, the "Offshore Securities") in exchange for a like amount of such
Temporary Offshore Physical Securities. The Trustee shall cancel such Temporary
Offshore Physical Securities so exchanged.
The provisions of this Section 2.14 shall apply with respect to any
transfer of an Initial Security by a Non-U.S. Person on or after September 7,
1997.
(e) Transfers to Non-U.S. Persons at any Time. The following
provisions shall apply with respect to any transfer of an Initial Security to a
Non-U.S. Person:
(i) Prior to September 7, 1997, the Registrar shall register any
proposed transfer of an Initial Security to a Non-U.S. Person upon (1)
receipt of a certificate substantially in the form set forth in Exhibit G
from the proposed transferor and (2) compliance with any other applicable
requirements of the Indenture (including of Section 2.06), and the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, one or more Temporary Offshore Physical Securities of like tenor
and amount. The Trustee shall cancel any Physical Securities so
transferred.
(ii) On and after September 7, 1997, the Registrar shall register
any proposed transfer to any Non-U.S. Person upon (x) if the Initial
Security to be transferred is a Temporary Offshore Physical Security,
receipt of a certificate substantially in the form set forth in Exhibit E
from the proposed transferor, (y) receipt of a certificate substantially
in the form set forth in Exhibit G from the proposed transferor and (z)
52
compliance with any other applicable requirements of the Indenture
(including of Section 2.06); and upon such transfer, the Company shall
execute, and the Trustee shall authenticate and deliver, one or more
Permanent Offshore Physical Securities of like tenor and amount. The
Trustee shall cancel any Physical Securities so transferred.
(iii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon (1) receipt by the
Registrar of (x) the documents and other information required by paragraph
(i) or (ii), as the case may be, and (y) instructions in accordance with
the Depositary's and the Registrar's procedures therefor and (2)
compliance with any other applicable requirements of the Indenture
(including of Section 2.06), the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the U.S. Global
Security in an amount equal to the principal amount of the beneficial
interest in the U.S. Global Security transferred and the Company shall
execute, and the Trustee shall authenticate and deliver, one or more
Offshore Securities of like tenor and amount.
(iv) Unless otherwise agreed by the Company and the Trustee, no such
transfer of an Initial Security to a Non-U.S. Person shall be made or
effective unless the Registrar shall have received an Opinion of Counsel,
certifications and other information satisfactory to the Company and the
Trustee.
(f) Other Exempt Transfers. The following provisions shall apply to
the registration of any proposed transfer of an Initial Security (other than
pursuant to paragraph (a), (b) or (e) of this Section 2.14) pursuant to any
exemption from the registration requirements of the Securities Act. No such
transfer shall be made or effective unless (1) the proposed transferor shall
have delivered to the Registrar a certification that such transfer shall be
exempt from such registration requirements (in substantially the form set forth
on the reverse of the Security or otherwise satisfactory to the Registrar) and
(2) unless otherwise agreed by the Company and the Trustee, the Registrar shall
have received an Opinion of Counsel, certifications and other information
satisfactory to the Company and the Trustee.
53
(g) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing and not required to bear the Private
Placement Legend, the Registrar shall deliver Securities that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar shall deliver
only Securities that bear the Private Placement Legend unless either (i) such
transfer, exchange or replacement of such Securities occurs after the Resale
Restriction Termination Date for such Securities or (ii) 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.
SECTION 2.15. General Provisions. By its acceptance of any Security
bearing the Private Placement Legend, each Holder of such a Security
acknowledges the restrictions on transfer of such Security set forth in this
Indenture and in the Private Placement Legend and agrees that it will transfer
such Security only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.13 or Section 2.14. The
Company shall have the right to inspect and make copies or to require the
Registrar to deliver copies to the Company, at the Company's expense, of all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Registrar.
In connection with any transfer of Securities, the Trustee, the
Registrar and the Company shall be entitled to receive, shall be under no duty
to inquire into, may conclusively presume the correctness of, and shall be fully
protected in relying upon the certificate, opinions and other information
referred to herein (or in the forms provided herein, attached hereto or to the
Securities, or otherwise) received from any Holder and any transferee of any
Security regarding the validity, legality and due authorization of any such
transfer, the eligibility of the transferee to receive such Security and any
other facts and circumstances related to such transfer.
54
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount of Securities
to be redeemed.
The Company shall give each notice to the Trustee provided for in
this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate from the Company to the effect that such redemption will comply with
the conditions herein.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by a method that complies with applicable
legal and securities exchange requirements, if any, and that the Trustee
considers fair and appropriate and in accordance with methods generally used at
the time of selection by fiduciaries in similar circumstances. The Trustee shall
make the selection from outstanding Securities not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Securities that have denominations larger than $1,000. Securities and portions
of them the Trustee selects shall be in amounts of $1,000 or a whole multiple of
$1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company in writing promptly of the Securities or
portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not more
than 60 days before a date for redemption of Securities, the Company shall mail
a notice of redemption by first-class mail to each Holder of Securities to be
redeemed.
55
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be redeemed,
the identification and principal amounts of the particular Securities to
be redeemed;
(6) that, unless the Company defaults in making such redemption
payment, interest on Securities (or portion thereof) called for redemption
ceases to accrue on and after the redemption date; and
(7) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Company's written request at least 5 days before the date of
mailing, the Trustee shall give the notice of redemption in the Company's name
and at the Company's expense. In such event, the Company shall provide the
Trustee with the information required by this Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date.
Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. On or prior to, the
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest on all
Securities to be redeemed on that date other than
56
Securities or portions of Securities called for redemption which have been
delivered by the Company to the Trustee for cancelation, and from and after such
date (unless the Company defaults in making such redemption payment) interest on
such Securities (or portions thereof) shall cease to accrue.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part (with, if the Company or the Trustee so
reasonably require, due endorsement by, or a written instrument of transfer in
form reasonably satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), the Company
shall execute and the Trustee shall authenticate for the Holder (at the
Company's expense) a new Security equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities. The Company shall pay the
principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due.
The Company shall pay interest on overdue principal at the same
rate borne by the Securities, and it shall pay interest on overdue installments
of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Company may not
be required to remain subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, to the extent permitted by the Exchange Act the
Company will file with the SEC and provide, within 15 days after the Company is
required to file the same with the SEC, the Trustees and Holders and prospective
Holders (upon request) with the annual reports and the information, documents
and other reports which are specified in Sections 13 and 15(d) of the Exchange
Act. In the event that the Company is not permitted to file such reports,
documents and information with the SEC, the Company will
57
provide substantially similar information to the Trustee, the Holders, and
prospective Holders (upon request) as if the Company was subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act. The Company
will be deemed to have satisfied such requirements if Holding or RIC Holding
files and provides reports, documents and information of the types otherwise so
required, in each case within the applicable time periods, and the Company is
not required to file such reports, documents and information separately under
the applicable rules and regulations of the SEC (after giving effect to any
exemptive relief) because of the filings by Holding or RIC Holding. The Company
also will comply with the other provisions of TIA Section 314(a).
SECTION 4.03. Limitation on Indebtedness. (a) The Company shall not,
and shall not permit any Restricted Subsidiary to, Incur any Indebtedness (other
than pursuant to Section 4.03(b)) unless (x) on the date thereof the
Consolidated Coverage Ratio would be greater than 2.00:1.00, if such
Indebtedness is Incurred on or prior to March 31, 1999, and 2.25:1.00 if such
Indebtedness is Incurred thereafter and (y) in the case of any such Indebtedness
Incurred by a Restricted Subsidiary, such Indebtedness is Permitted Subsidiary
Indebtedness.
(b) Notwithstanding Section 4.03(a), the Company
and its Restricted Subsidiaries may Incur the following
Indebtedness:
(i) Indebtedness under the Senior Secured Credit Agreement of the
Company, in an aggregate principal amount at any time outstanding not to
exceed an amount equal to $1,045,000,000 minus (without duplication) the
following amounts:
(A) the aggregate amount of all scheduled repayments of principal
actually made thereunder since the Issue Date and all mandatory
repayments of principal actually made thereunder since the Issue
Date with the Net Available Cash from Asset Dispositions other than
Financing Dispositions (to the extent, in the case of repayments of
revolving credit indebtedness, that the corresponding commitments
have been permanently reduced), and
(B) at any date of determination, an amount equal to (x) the
amount then outstanding (i.e., advanced, and received by, and
available for use
58
by, the Company) under any Receivables Financing (as set forth in
the books and records of the Company and confirmed by the agent,
trustee or other representative of the institution or group
providing such Receivables Financing) that has been entered into by
any Receivables Subsidiary since the Issue Date and that, as of such
date of determination, has not expired or otherwise terminated,
minus (y) the sum (without duplication) of (1) the aggregate
borrowing commitment amount under the Senior Secured Credit
Agreement that at the time can be used only for the purpose of
funding any liabilities or obligations arising in connection with
any such Receivables Financing, or funding any refinancing,
refunding, repayment or replacement in respect of any such
Receivables Financing, plus (2) the aggregate face amount of letters
of credit issued or to be issued under or pursuant to the Senior
Secured Credit Agreement to support any such liabilities or
obligations, or any such refinancing, refunding, repayment or
replacement, which letters of credit at the time are undrawn and
outstanding or have been drawn; provided that such reduction shall
be effective on the business day next following the date of receipt
of such confirmation in writing by the Company and shall no longer
be effective on the business day next preceding the date of such
expiration or other termination;
(ii) Indebtedness of the Company or any Subsidiary of the Company
under the Machinery Credit Agreement or otherwise Incurred to finance or
refinance packaging machinery (including the development, manufacture or
acquisition thereof) in connection with any Related Business, in an
aggregate principal amount outstanding at any time not to exceed the then
aggregate book value of the packaging machinery that is thereby financed
or refinanced or that is otherwise owned by the Company or any of its
Subsidiaries on the Issue Date (or, if greater, to the extent that any
such machinery shall be appraised by an independent appraiser, the
appraised value of such machinery);
(iii) Indebtedness of the Company owing to and held by any
Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to
and held by the Company
59
or any Restricted Subsidiary; provided, however, that any subsequent
issuance or transfer of any Capital Stock or any other event which results
in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or
any subsequent transfer of any such Indebtedness (except to the Company or
a Restricted Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the issuer thereof;
(iv) Indebtedness represented by the Securities, any Indebtedness
(other than the Indebtedness described in clauses (i)-(iii) above)
outstanding, or Incurred pursuant to commitments outstanding, on the Issue
Date (including, without limitation, the Existing Notes) and any
Refinancing Indebtedness Incurred in respect of any Indebtedness described
in this clause (iv) or Section 4.03(a);
(v) (A) (x) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted Subsidiary
was acquired by the Company and (y) Indebtedness of a Person assumed by
the Company or a Restricted Subsidiary in connection with the acquisition
of assets from such Person provided that at the time such assets were
owned by such other Person such Indebtedness was either secured by such
assets or related to the acquisition, ownership, improvement or use of
such assets by such other Person (in each case other than Indebtedness
Incurred as consideration in, in contemplation of, or to provide all or
any portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Restricted Subsidiary became a Subsidiary or such assets were acquired by
the Company or a Restricted Subsidiary, as applicable); provided, however,
that at the time such Restricted Subsidiary is acquired by the Company or
such assets are acquired by the Company or a Restricted Subsidiary, as
applicable, the Company would have been able to Incur $1.00 of additional
Indebtedness pursuant to Section 4.03(a) after giving effect to the
Incurrence of such Indebtedness pursuant to this clause (v) and (B)
Refinancing Indebtedness Incurred by the Company or a Restricted
Subsidiary, as applicable, in respect of Indebtedness Incurred by the
Company or such Restricted Subsidiary, as applicable, pursuant to this
clause (v);
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(vi) Indebtedness (A) in respect of judgment, appeal, surety,
performance and other like bonds provided by the Company and its
Restricted Subsidiaries in the ordinary course of their business and which
do not secure other Indebtedness (other than any involved in any judgment,
appeal or similar proceeding to which any such bond relates), (B) of the
Company or any Restricted Subsidiary with respect to letters of credit or
bankers' acceptances incurred in the ordinary course of business, (C)
consisting of accommodation guarantees for the benefit of trade creditors
of the Company or any of its Restricted Subsidiaries, or represented by
Guarantees consisting of contracts for the purchase of wood chips in the
ordinary course of business, (D) under (x) Currency Agreements designed to
protect the Company or any Restricted Subsidiary against fluctuations in
foreign currency exchange rates in respect of foreign exchange exposures
incurred by the Company or any Restricted Subsidiary in the ordinary
course of its business, (y) Interest Rate Agreements entered into in the
ordinary course of business and designed to protect the Company against
fluctuations in interest rates in respect of Indebtedness of the Company
or any Restricted Subsidiary permitted to be Incurred under this
Indenture, and (z) Commodities Agreements designed to protect the Company
or any Restricted Subsidiary against fluctuations in the price of, or the
shortage or supply of, commodities entered into in the ordinary course of
business, (E) in respect of the financing of insurance premiums in the
ordinary course of business, (F) of the Company or any Restricted
Subsidiary arising from the honoring of a check, draft or similar
instrument drawn against insufficient funds; provided that such
Indebtedness is extinguished within two business days of its incurrence,
and (G) of a Receivables Subsidiary secured by a Lien on all or part of
the assets disposed of in, or otherwise Incurred in connection with, a
Financing Disposition;
(vii) Indebtedness represented by the Note Guarantees, Guarantees by
the Company or any Restricted Subsidiary of Indebtedness Incurred by any
Restricted Subsidiary, and Guarantees of Indebtedness Incurred pursuant to
clause (i), (ii) or (iv) hereof;
(viii) Indebtedness of the Company or any Restricted Subsidiary
consisting of guarantees, indemnities, or
61
obligations in respect of purchase price adjustments, in connection with
the acquisition or disposition of assets permitted under this Indenture;
(ix) Indebtedness (1) of the Company consisting of guarantees of up
to an aggregate principal amount of $30,000,000 of borrowings by
Management Investors in connection with the purchase of Management Stock
by such Management Investors or (2) of the Company or any Restricted
Subsidiary consisting of guarantees in respect of loans or advances made
to officers or employees of Holding, RIC Holding, the Company or any
Restricted Subsidiary, or guarantees otherwise made on their behalf, (A)
in respect of travel, entertainment and moving-related expenses incurred
in the ordinary course of business, (B) in respect of moving-related
expenses incurred in connection with any closing or consolidation of any
facility or (C) in the ordinary course of business not exceeding
$2,500,000 in the aggregate outstanding at any time;
(x) Bank Indebtedness or working capital Indebtedness of non-U.S.
Restricted Subsidiaries not exceeding an aggregate principal amount of the
sum (determined as of the end of the most recent fiscal quarter ending at
least 45 days prior to the date of determination) of (A) 90% of
Receivables of all non- U.S. Restricted Subsidiaries, and (B) 75% of
Inventory of all non-U.S. Restricted Subsidiaries; and
(xi) Indebtedness of the Company or any Restricted Subsidiary (other
than Indebtedness permitted to be Incurred pursuant to Section 4.03(a) or
any other clause of this Section 4.03(b)) in an aggregate principal amount
not exceeding $100,000,000.
(c) For purposes of determining the outstanding principal amount of
any particular Indebtedness Incurred pursuant to this Section 4.03, (1)
Indebtedness permitted by this Section 4.03 need not be permitted solely by
reference to one provision permitting such Indebtedness but may be permitted in
part by one such provision and in part by one or more other provisions of this
Section 4.03 permitting such Indebtedness and (2) in the event that Indebtedness
or any portion thereof meets the criteria of more than one of the types of
Indebtedness described in this Section 4.03, the Company, in its sole
discretion, shall classify such
62
Indebtedness and only be required to include the amount of such Indebtedness in
one of such clauses.
SECTION 4.04. Limitation on Restricted Payments and Investments. (a)
The Company shall not, and shall not permit any Restricted Subsidiary, directly
or indirectly, to:
(i) declare or pay any dividend or make any distribution on or in
respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving the Company) except (x) dividends or
distributions payable or made solely in its Capital Stock (other than
Disqualified Stock), (y) dividends or distributions payable or made to the
Company or another Restricted Subsidiary, and (z) in the case of a
Restricted Subsidiary that is not a Wholly Owned Subsidiary, dividends or
distributions payable or made to the holders of such Capital Stock on a
pro rata basis (measured by value), or on a basis that results in the
receipt by the Company or a Restricted Subsidiary of dividends or
distributions of equal or greater value,
(ii) purchase, redeem, retire or otherwise acquire for value any
Capital Stock of the Company held by Persons other than the Company or
another Restricted Subsidiary,
(iii) purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, prior to scheduled maturity, scheduled repayment or
scheduled sinking fund payment any Subordinated Obligations (other than
(x) the purchase, repurchase or other acquisition of Subordinated
Obligations so acquired in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due
within one year of the date of acquisition or (y) any purchase,
repurchase, redemption, defeasance, or other acquisition or retirement of
any Existing Notes other than the Existing Senior Subordinated Notes), or
(iv) make any Investment (other than a Permitted Investment) in any
Person,
(any such dividend, distribution, purchase, redemption, repurchase, defeasance,
other acquisition, retirement or
63
Investment being herein referred to as a "Restricted Payment") if at the time
the Company or such Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount so expended, 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
resolution of the Board of Directors) declared or made subsequent to
the Issue Date would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from June 30,
1997, to the end of the most recent fiscal quarter ending at
least 45 days prior to the date of such Restricted Payment
(or, in case such Consolidated Net Income shall be a deficit,
minus 100% of such deficit), excluding any amounts included
pursuant to clause (F) below;
(B) the aggregate Net Cash Proceeds received by the
Company from the issue or sale of the Capital Stock (other
than Disqualified Stock) of Parent or the Company subsequent
to the Issue Date (other than an issuance or sale to a
Restricted Subsidiary of the Company); provided, however, that
the Net Cash Proceeds determined in accordance with this
clause (B) shall not include any portion of such Net Cash
Proceeds that at the time of such determination is included in
any amount that is excluded from the calculation of the amount
of Restricted Payments pursuant to the proviso to Section
4.04(b)(vii);
(C) the aggregate Net Cash Proceeds received by the
Company from the issue or
64
sale of its Capital Stock (other than Disqualified Stock) to
an employee stock ownership plan or similar trust established
by the Company or any of its Restricted Subsidiaries
subsequent to the Issue Date; provided, however, that if such
plan or trust Incurs any Indebtedness to or Guaranteed by the
Company to finance the acquisition of such Capital Stock, such
aggregate amount shall be limited to (x) to the extent such
Indebtedness is owed to the Company, any increase in the
Consolidated Net Worth of the Company resulting from principal
repayments made by such plan or trust with respect to such
Indebtedness and (y) to the extent such Indebtedness is
Guaranteed by the Company, the aggregate amount of principal
payments made by such plan or trust with respect to such
Indebtedness;
(D) without duplication of any Net Cash Proceeds
included pursuant to clause (B) above, the aggregate Net Cash
Proceeds received subsequent to the Issue Date as capital
contributions to the Company;
(E) the amount by which Indebtedness of the Company or
any of its Restricted Subsidiaries is reduced on the Company's
balance sheet upon the conversion or exchange (other than by a
Restricted Subsidiary) subsequent to the Issue Date of any
Indebtedness of the Company or its Restricted Subsidiaries
convertible or exchangeable for Capital Stock (other than
Disqualified Stock) of Parent or the Company (less the amount
of any cash or other property (other than Capital Stock)
distributed by the Company or any Restricted Subsidiary upon
such conversion or exchange plus the amount of any cash or
other property received by the Company or any Restricted
Subsidiary upon such conversion or exchange); and
(F) the amount equal to the net reduction in Investments
in Unrestricted Subsidiaries resulting from (i) payments of
dividends or interest, repayments of the
65
principal of loans or advances or other transfers of assets to
the Company or any Restricted Subsidiary from Unrestricted
Subsidiaries or (ii) the redesignation of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each case
as provided in the definition of "Investment") or the receipt
of proceeds from the sale or other disposition of any portion
of any Investment in an Unrestricted Subsidiary not to exceed,
in the case of any Unrestricted Subsidiary, the amount of
Investments previously made by the Company or any Restricted
Subsidiary in such Unrestricted Subsidiary, which amount was
included in the calculation of the amount of Restricted
Payments.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) any purchase, repurchase, defeasance, redemption, retirement or
other acquisition of Capital Stock of the Company or Subordinated
Obligations made by exchange for (including any such exchange pursuant to
the exercise of a conversion right or privilege in connection with which
cash is paid in lieu of the issuance of fractional shares or scrip), or
out of the proceeds of the substantially concurrent sale of, Capital Stock
of the Company (other than Disqualified Stock and other than Capital Stock
issued or sold to a Subsidiary of the Company or an employee stock
ownership plan or other trust established by the Company or any of its
Subsidiaries) or Capital Stock of Parent; provided, however, that (A) such
purchase, repurchase, defeasance, redemption, retirement or other
acquisition shall be excluded in the calculation of the amount of
Restricted Payments and (B) to the extent so applied to such purchase,
repurchase, defeasance, redemption, retirement or other acquisition, the
Net Cash Proceeds from such sale shall be excluded from clause (3)(B) of
Section 4.04(a);
(ii) any purchase, repurchase, defeasance, retirement, redemption or
other acquisition of Subordinated Obligations made by exchange for, or out
of the proceeds of the substantially concurrent sale of, Indebtedness of
the Company which is permitted to be Incurred pursuant to Section 4.03;
provided,
66
however, that such purchase, defeasance, retirement, redemption or other
acquisition shall be excluded in the calculation of the amount of
Restricted Payments;
(iii) any purchase, repurchase, defeasance, retirement, redemption
or other acquisition of Subordinated Obligations from Net Available Cash
to the extent permitted by Section 4.06; provided, however, that such
purchase, defeasance, retirement, redemption or other acquisition shall be
excluded in the calculation of the amount of Restricted Payments;
(iv) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with Section 4.04(a); provided, however, that such dividend shall be
included in the calculation of the amount of Restricted Payments;
(v) the repurchase of Securities pursuant to Section 4.08 and
Section 4.06; provided, however, that such repurchases shall be excluded
in the calculation of the amounts of Restricted Payments;
(vi) (A) loans, advances, dividends or distributions by the Company
or any Restricted Subsidiary to RIC Holding or Holding not to exceed an
amount necessary to permit each of RIC Holding and Holding to pay (1) its
costs (including all professional fees and expenses) incurred to comply
with its reporting obligations under Federal or state laws or under this
Indenture or the indentures relating to the Existing Senior Notes and
Existing Senior Subordinated Notes, including Section 4.02, or in
connection with reporting or other obligations under the Credit Agreements
or any related collateral documents or guarantees, (2) its expenses
incurred in connection with any public offering of equity securities or of
Indebtedness permitted by this Indenture which has been terminated by the
board of directors of the Company, a Restricted Subsidiary, RIC Holding or
Holding, as applicable, in each case, (x) the net proceeds of which were
specifically intended to be received by or contributed or loaned to the
Company or a Restricted Subsidiary or (y) in a prorated amount of such
expenses in proportion to the amount of such net proceeds specifically
intended to be so received, contributed or loaned, (3) in the case of
67
RIC Holding, its expenses incurred in connection with the acquisition,
development, maintenance, ownership, prosecution, protection and defense
of its intellectual property and associated rights (including but not
limited to trademarks, service marks, trade names, trade dress, patents,
copyrights and similar rights, including registrations and registration or
renewal applications in respect thereof; inventions; processes, designs,
formulae, trade secrets, know-how, confidential information, computer
software, data and documentation, and any other intellectual property
rights; and licenses of any of the foregoing) to the extent such
intellectual property and associated rights relate to the business of the
Company or any of its Subsidiaries, and (4) its other operational expenses
(other than taxes) incurred in the ordinary course of business and not
exceeding $1,000,000 in any fiscal year and (B) loans or advances by the
Company or any Restricted Subsidiary to RIC Holding or Holding not to
exceed an amount necessary to permit each of RIC Holding and Holding to
pay its interim expenses incurred in connection with any public offering
of equity securities or of Indebtedness permitted by this Indenture, the
net proceeds of which are specifically intended to be received by or
contributed or loaned to the Company or a Restricted Subsidiary, or a
prorated amount of such interim expenses in proportion to the amount of
such net proceeds specifically intended to be so received, contributed or
loaned, which loans and advances shall be repaid to the Company or the
relevant Restricted Subsidiary promptly out of the proceeds of such
offering, unless such offering shall be of Indebtedness of the Company or
a Restricted Subsidiary or shall have been terminated by the board of
directors of the Company, RIC Holding or Holding, as applicable; provided,
however, that such loans, advances, dividends or distributions pursuant to
this clause (vi) shall be excluded in the calculation of the amount of
Restricted Payments;
(vii) loans, advances, dividends or distributions by the Company or
any Restricted Subsidiary to RIC Holding or Holding in order for Holding
to repurchase or otherwise acquire or settle shares of Holding Common
Stock or options, warrants or other rights in respect thereof, or the
repurchase or other acquisition or settlement by the Company or any
Subsidiary of shares of Holding Common Stock or options, warrants or other
68
rights in respect thereof, in each case from the Management Investors not
to exceed an aggregate amount (net of repayments of any such loans or
advances) equal to (A) $25,000,000, plus (B) $5,000,000 multiplied by the
number of calendar years that have commenced since the Issue Date, plus
(C) the Management Contribution Amount (if any), provided, however, that
if (x) the amount of such loans, advances, dividends or distributions made
in any fiscal year (net of repayments of any such loans or advances
whenever made, which repayments are made in such year) exceeds $5,000,000
plus the portion of the Management Contribution Amount (if any)
attributable to such fiscal year, plus the Annual Carryover Amount for
such fiscal year, or (y) the amount of such loans, advances, dividends or
distributions made after the Issue Date (net of repayments of any such
loans or advances) exceeds $25,000,000 plus the Management Contribution
Amount (if any), the amount of any such excess will be included in the
calculation of the amount of Restricted Payments (in each case, without
duplication of any portion of any such excess amount otherwise included in
such calculation);
(viii) payments by the Company or any Restricted Subsidiary to RIC
Holding to pay (A) without duplication of amounts payable pursuant to
subclause (B) of this clause (viii), any taxes, charges or assessments,
including but not limited to, sales, use, transfer, rental, ad valorem,
value-added, stamp, property, consumption, franchise, license, capital,
net worth, gross receipts, excise, occupancy, intangibles or similar
taxes, charges or assessments (other than Federal, state or local taxes
measured by income and Federal, state or local withholding imposed on
payments made by RIC Holding) required to be paid by RIC Holding by virtue
of its being incorporated or having capital stock outstanding (but not by
virtue of owning stock of any corporation other than the Company), or
being a holding company parent of the Company or receiving dividends from
or other distributions in respect of the stock of the Company, or having
guaranteed any obligations of the Company or any Subsidiary thereof, or
having made any payment in respect to any of the items for which the
Company is permitted to make payments to Holding pursuant to clauses (vi),
(vii), (viii), (ix), (x) or (xi) hereof, or acquiring, developing,
maintaining, owning, prosecuting,
69
protecting or defending its intellectual property and associated rights
(including but not limited to receiving or paying royalties for the use
thereof) relating to the business or businesses of the Company and any
Subsidiary thereof or (B) any other Federal, state or local taxes measured
by income for which RIC Holding is liable up to an amount not to exceed
with respect to such Federal taxes the amount of any such taxes which the
Company would have been required to pay on a separate company basis or on
a consolidated basis if the Company had filed a consolidated return on
behalf of an affiliated group (as defined in Section 1504 of the Code or
an analogous provision of state, local or foreign law) of which it were
the common parent, or with respect to state and local taxes, on a combined
basis if the Company had filed a combined return on behalf of an
affiliated group consisting only of the Company and its Subsidiaries;
provided, however, that such payments shall be excluded in the calculation
of the amount of Restricted Payments;
(ix) payments by the Company or any Restricted Subsidiary to
Holding, or to RIC Holding in order for RIC Holding to make payments to
Holding, to pay (A) without duplication of amounts payable pursuant to
subclause (B) of this clause (ix), any taxes, charges or assessments,
including but not limited to, sales, use, transfer, rental, ad valorem,
value-added, stamp, property, consumption, franchise, license, capital,
net worth, gross receipts, excise, occupancy, intangibles or similar
taxes, charges or assessments (other than Federal, state or local taxes
measured by income and Federal, state or local withholding imposed on
payments made by Holding) required to be paid by Holding by virtue of its
being incorporated or having capital stock outstanding (but not by virtue
of owning stock of any corporation other than RIC Holding or the Company,
or through any such other corporation, stock of any other corporation), or
being a holding company parent of RIC Holding or the Company or receiving
dividends from or other distributions in respect of the stock of RIC
Holding (to the extent attributable to its intellectual property and
associated rights, relating to the business or businesses of the Company
and any Subsidiary thereof, including but not limited to receiving
royalties for the use thereof, or to the stock of the Company) or the
Company, or having
70
guaranteed any obligations of RIC Holding (to the extent attributable to
RIC Holding's intellectual property and associated rights relating to the
business or businesses of the Company and any Subsidiary thereof or
obligations of the Company), the Company or any Subsidiary thereof, or
having made any payment in respect to any of the items for which the
Company is permitted to make payments to RIC Holding or Holding pursuant
to clauses (vi), (vii), (viii), (ix), (x) or (xi) hereof, or (B) without
duplication of amounts payable pursuant to clause (viii) hereof, any other
Federal, state or local taxes measured by income for which Holding is
liable up to an amount not to exceed with respect to such Federal taxes
the amount of any such taxes which the Company would have been required to
pay on a separate company basis or on a consolidated basis if the Company
had filed a consolidated return on behalf of an affiliated group (as
defined in Section 1504 of the Code or an analogous provision of state,
local or foreign law) of which it were the common parent, or with respect
to state and local taxes, on a combined basis if the Company had filed a
combined return on behalf of an affiliated group consisting only of the
Company and its Subsidiaries; provided, however, that such payments shall
be excluded in the calculation of the amount of the Restricted Payments;
(x) loans, advances, dividends or distributions by the Company or
any Restricted Subsidiary to RIC Holding or Holding to pay dividends on
the Holding Common Stock following an initial public offering of the
Holding Common Stock, in an amount not to exceed in any fiscal year 6% of
the aggregate gross proceeds (before underwriting commissions and other
expenses) received by Holding in such public offering or any additional
public offerings (or if the Company and Holding have merged, payment of
such dividends by the Company), provided, however, that such loans,
advances, dividends or distributions shall be included in the calculation
of the amount of Restricted Payments;
(xi) payments by the Company or any Restricted Subsidiary to RIC
Holding or Holding not to exceed an amount necessary to permit each of RIC
Holding and Holding to (A) make payments in respect of its indemnification
obligations owing to directors, officers or other Persons under its
charter or by-laws
71
or pursuant to written agreements with any such Person; provided that such
payments relate to the Company or any of its Subsidiaries, (B) satisfy its
obligations under the Registration and Participation Agreement, the
Stockholders Agreement, the Consulting Agreement and the Indemnification
Agreement or (C) make payments in respect of indemnification obligations
of Holding in connection with any offering of Holding Common Stock the net
proceeds of which are specifically intended to be received by or
contributed or loaned to the Company or a Restricted Subsidiary, or in
respect of a prorated amount of such indemnification obligations in
proportion to the amount of such net proceeds specifically intended to be
so received, contributed or loaned; provided, however, that such payments
shall be excluded in the calculation of the amount of Restricted Payments;
or
(xii) payments by the Company or any Restricted Subsidiary to RIC
Holding to pay principal of, and premium, if any, and interest on, any
Existing Notes (other than the Existing Senior Subordinated Notes) that
are outstanding on or after the Issue Date (whether by way of scheduled
payment, or by purchase, repurchase, redemption, defeasance or other
acquisition or retirement); provided, however, that such payments shall be
excluded in the calculation of the amount of Restricted Payments.
SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (i) pay dividends or make any other distributions on
its Capital Stock, or pay any Indebtedness owed, to the Company, (ii) make any
loans or advances to the Company or (iii) transfer any of its property or assets
to the Company, except:
(1) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Issue Date, including without limitation,
each of the Credit Agreements and any related collateral documents and
guarantees;
(2) any encumbrance or restriction with respect to a Restricted
Subsidiary (x) pursuant to an agreement
72
relating to any Indebtedness (A) Incurred by such Restricted Subsidiary
prior to the date on which such Restricted Subsidiary was acquired by the
Company or (B) of a Person assumed by the Company or a Restricted
Subsidiary in connection with the acquisition of assets from such Person
provided that at the time such assets were owned by such other Person such
Indebtedness was either secured by such assets or related to the
acquisition, ownership, improvement or use of such assets (in each case
other than Indebtedness Incurred as consideration in, in contemplation of,
or to provide all or any portion of the funds or credit support utilized
to consummate, the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Restricted Subsidiary or such
assets were acquired by the Company or a Restricted Subsidiary, as
applicable) or (y) that is not pursuant to an agreement relating to
Indebtedness, and is in existence at the time that such Person becomes a
Subsidiary of the Company and not incurred in connection with, or in
contemplation of, such Person becoming such a Subsidiary;
(3) any encumbrance or restriction pursuant to an agreement (a
"Refinancing Agreement") that extends, renews, refinances or replaces an
agreement referred to in clause (1) or (2) of this Section or this clause
(3) (an "Initial Agreement") or contained in any amendment to an Initial
Agreement; provided, however, that the encumbrances and restrictions
contained in any such Refinancing Agreement or amendment are not
materially less favorable to the Securityholders than encumbrances and
restrictions contained in the Initial Agreement or Initial Agreements to
which such Refinancing Agreement or amendment relates (as determined in
good faith by the Company);
(4) any encumbrance or restriction (A) that restricts in a customary
manner (x) the subletting, assignment or transfer of any property or asset
that is subject to a lease, license or similar contract, or (y) the
assignment or transfer of any lease, license or other contract, or (B)
contained in security agreements or mortgages securing Indebtedness of a
Restricted Subsidiary to the extent such encumbrance or restriction
restricts the transfer of the property or asset subject to such security
agreements or mortgages;
73
(5) any restriction with respect to a Restricted Subsidiary, or any
property or assets of any Restricted Subsidiary, imposed pursuant to an
agreement entered into for the sale or disposition of all or substantially
all the Capital Stock or assets of such Restricted Subsidiary, or the sale
or disposition of the property or assets that are subject to such
restriction, pending the closing of such sale or disposition;
(6) customary provisions restricting dispositions of real property
interests set forth in any reciprocal easement agreements of the Company
or any Restricted Subsidiary;
(7) any encumbrance or restriction pursuant to an agreement relating
to any foreign Indebtedness incurred by any non-U.S. Restricted
Subsidiary;
(8) any encumbrance or restriction required by any regulatory
authority having jurisdiction over the Company or any Restricted
Subsidiary or any of their businesses;
(9) any encumbrance or restriction pursuant to an agreement relating
to Indebtedness of or a Financing Disposition to or by any Receivables
Subsidiary or Equipment Subsidiary; and
(10) any encumbrance or restriction pursuant to a joint venture or
similar agreement or arrangement entered into in connection with a Fiskeby
Transaction.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to,
make any Asset Disposition unless (i) either (x) in the case of any Asset
Disposition, the Company or such Restricted Subsidiary receives consideration
(including by way of relief from, or by any other Person assuming responsibility
for, any liabilities, contingent or otherwise) at the time of such Asset
Disposition at least equal to the fair market value, as may be determined (and
shall be determined, to the extent an Asset Disposition involves a fair market
value greater than $10,000,000) in good faith by the Board of Directors, whose
determination will be conclusive and evidenced by a resolution of the Board of
Directors (including as to the value of all non-cash consideration), of the
shares and
74
assets subject to such Asset Disposition, or (y) in the case of a Financing
Disposition, the Board of Directors shall have determined in good faith, which
determination will be conclusive and evidenced by a resolution of the Board of
Directors, that such Financing Disposition is economically fair and reasonable
to the Company or such Restricted Subsidiary, as the case may be, and in the
best interest of the Company or such Restricted Subsidiary and its respective
creditors, (ii) in the case of any Asset Disposition having a fair market value
of $10,000,000 or more, at least 75% of the consideration thereof received by
the Company or such Restricted Subsidiary is in the form of cash or Cash
Equivalents (other than with respect to an Asset Disposition consisting of an
exchange of equipment for use in related lines of business, a Financing
Disposition or a Fiskeby Transaction), and (iii) an amount equal to 100% of the
Net Available Cash from such Asset Disposition (other than any Financing
Disposition relating to any Receivables Financing) is applied by the Company (or
such Restricted Subsidiary, as the case may be) as follows: (A) first, to the
extent the Company elects (or is required by the terms of any Senior
Indebtedness (other than the Securities) or Indebtedness (other than Preferred
Stock) of a Restricted Subsidiary), to prepay, repay or purchase Senior
Indebtedness (other than the Securities) or such Indebtedness (in each case
other than Indebtedness owed to the Company or a Restricted Subsidiary) within
365 days after an Asset Disposition; (B) second, to the extent of the balance of
Net Available Cash after application in accordance with clause (A), to the
extent the Company or such Restricted Subsidiary elects, to reinvest in
Additional Assets (including by means of an Investment in Additional Assets by a
Restricted Subsidiary with Net Available Cash received by the Company or another
Restricted Subsidiary) within 365 days after an Asset Disposition or, if such
reinvestment in Additional Assets is a project authorized by the Board of
Directors of the Company or a Restricted Subsidiary, as the case may be, that
will take longer than such 365 days to complete (an "Authorized Project"), the
period of time necessary to complete the Authorized Project; and (C) third, to
the extent of the balance of such Net Available Cash after application in
accordance with clauses (A) and (B), to make a Note Offer to purchase Securities
pursuant to and subject to the conditions of Section 4.06(b) within 365 days
after an Asset Disposition or, in the event that the Company or a Restricted
Subsidiary shall have undertaken an Authorized Project, within 20 days after
completion of such Authorized Project; provided, however that in connection with
any
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prepayment, repayment or purchase of Indebtedness pursuant to clause (A) or (C)
above, the Company or such Restricted Subsidiary shall retire such Indebtedness
and shall cause the related loan commitment (if any) to be permanently reduced
in an amount equal to the principal amount so prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this Section, the Company and the
Restricted Subsidiaries shall not be required to apply any Net Available Cash
in accordance with this Section except to the extent that the aggregate Net
Available Cash from all Asset Dispositions which is not applied in accordance
with this Section exceeds $25,000,000.
For the purposes of clause (ii) of this Section 4.06(a), the
following are deemed to be cash: (w) the assumption of Indebtedness of the
Company (other than Disqualified Stock of the Company) or any Restricted
Subsidiary and the release of the Company or such Restricted Subsidiary from all
liability on such Indebtedness in connection with such Asset Disposition, (x)
Indebtedness of any Restricted Subsidiary that is no longer a Restricted
Subsidiary as a result of such Asset Disposition, to the extent that the Company
and each other Restricted Subsidiary is released from any Guarantee of such
Indebtedness in connection with such Asset Disposition, (y) securities received
by the Company or any Restricted Subsidiary from the transferee that are
promptly converted by the Company or such Restricted Subsidiary into cash or
Cash Equivalents, and (z) consideration consisting of Indebtedness of the
Company or any Restricted Subsidiary.
(b) In the event of an Asset Disposition that requires the purchase
of Securities pursuant to Section 4.06(a)(iii)(C), the Company will first be
required to purchase Securities tendered pursuant to an offer by the Company for
the Securities (the "Note Offer") at a purchase price of 100% of their principal
amount plus accrued and unpaid interest to the Purchase Date in accordance with
the procedures (including prorating in the event of oversubscription) set forth
in Section 4.06(c). If the aggregate purchase price of Securities tendered
pursuant to the Note Offer is less than the Net Available Cash allotted to the
purchase of the Securities, the Company may apply the remaining Net Available
Cash in any manner. After repayment of all the Securities tendered pursuant to
the Note Offer, the remaining amount of Net Available Cash, if any, shall be
reset at zero. The Company shall not be required to make a Note Offer for
Securities pursuant to this Section if the
76
Net Available Cash available therefor (after application of the proceeds as
provided in clauses (A) and (B) of Section 4.06(a)(iii)) is less than
$25,000,000 (which lesser amount shall be carried forward for purposes of
determining whether a Note Offer is required with respect to the Net Available
Cash from any subsequent Asset Disposition).
(c) (1) Promptly, and in any event within 20 days after the Company
becomes obligated to make a Note Offer, the Company shall be obligated to
deliver to the Trustee and send, by first-class mail to each Holder, a written
notice stating that the Holder may elect to have his Securities purchased by the
Company either in whole or in part (subject to prorating as hereinafter
described in the event the Note Offer is oversubscribed) in integral multiples
of $1,000 of principal amount, at the applicable purchase price. The notice
shall specify a purchase date not less than 30 days nor more than 60 days after
the date of such notice (the "Purchase Date"), and shall contain such
information concerning the business of the Company which the Company in good
faith believes will enable such Holders to make an informed decision (which at a
minimum will include (i) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the Company, the most
recent subsequently filed Quarterly Report on Form 10-Q and any Current Report
on Form 8-K of the Company filed subsequent to such Quarterly Report, other than
Current Reports describing Asset Dispositions otherwise described in the
offering materials (or corresponding successor reports), (ii) a description of
material developments in the Company's business subsequent to the date of the
latest of such Reports, and (iii) if material, appropriate pro forma financial
information) and all instructions and materials necessary to tender Securities
pursuant to the Note Offer, together with the information contained in clause
(3).
(2) Not later than the date upon which written notice of a Note
Offer is delivered to the Trustee as provided below, the Company shall deliver
to the Trustee an Officers' Certificate as to (i) the amount of the Note Offer
(the "Offer Amount"), (ii) the allocation of the Net Available Cash from the
Asset Dispositions pursuant to which such Note Offer is being made and (iii) the
compliance of such allocation with the provisions of Section 4.06(a). On or
prior to the Purchase Date, the Company shall also irrevocably deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own paying
agent,
77
segregate and hold in trust) in Temporary Cash Investments an amount equal to
the Offer Amount to be held for payment in accordance with the provisions of
this Section. Upon the expiration of the period for which the Note Offer remains
open (the "Offer Period"), the Company shall deliver to the Trustee for
cancelation the Securities or portions thereof which have been properly tendered
to and are to be accepted by the Company. The Trustee shall, on the Purchase
Date, mail or deliver payment to each tendering Holder in the amount of the
purchase price. In the event that the aggregate purchase price of the Securities
delivered by the Company to the Trustee is less than the Offer Amount, the
Trustee shall deliver the excess to the Company immediately after the expiration
of the Offer Period for application in accordance with this Section.
(3) Holders electing to have a Security purchased will be required
to surrender the Security, with an appropriate form duly completed, to the
Company at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders will be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the Purchase Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities surrendered by
Holders exceeds the Offer Amount, the Company shall select the Securities to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of $1,000,
or integral multiples thereof, shall be purchased). Holders whose Securities are
purchased only in part will be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which
are to be accepted for purchase, the Company will also deliver an Officers'
Certificate stating that such Securities are to be accepted by the Company
pursuant to and in accordance with the terms of this Section. A Security shall
be deemed to have been accepted for purchase at the time the Trustee, directly
or through an agent, mails or delivers payment therefor to the surrendering
Holder.
78
(d) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict or are inconsistent with provisions of this Section, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates. (a) The
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, enter into or conduct any transaction (including the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any Affiliate of the Company (an "Affiliate Transaction") on terms (i) that are
less favorable to the Company or such Restricted Subsidiary, as the case may be,
than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate and (ii) that,
in the event such Affiliate Transaction involves an aggregate amount in excess
of $10,000,000, have not been approved by a majority of the members of the Board
of Directors having no material direct or indirect financial interest in or with
respect to such Affiliate Transaction. For purposes of this paragraph, any
transaction or series of related transactions with any Affiliate shall be deemed
to have satisfied the requirements set forth in this paragraph if (x) such
transaction or series of related transactions is approved by a majority of the
members of the Board of Directors having no material direct or indirect
financial interest in or with respect to such Affiliate Transaction, or (y) in
the event there are no such directors without any such interest, a fairness
opinion is provided by a nationally recognized appraisal or investment banking
firm with respect to such transaction or series of related transactions.
(b) The provisions of Section 4.07(a) shall not apply to: (i) any
Restricted Payment permitted pursuant to, or any other payment or transaction
permitted by, Section 4.04 or any Indebtedness permitted to be Incurred pursuant
to Section 4.03(b)(ix), or any payments in respect thereof, (ii) any issuance of
securities, or other payments, awards or grants in cash, securities or otherwise
pursuant to, or the funding of, employment arrangements, stock options and stock
ownership plans approved by the Board of
79
Directors, (iii) the payment of reasonable fees to directors of the Company and
its Subsidiaries who are not employees of the Company or its Subsidiaries, (iv)
any transaction between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries, (v) any transaction with an officer or member of the
board of directors of the Company, RIC Holding or Holding not covered by clause
(ii) above entered into in the ordinary course of business (x) involving
compensation or employee benefit arrangements or (y) not involving more than
$100,000 in any one case, (vi) any transaction arising out of agreements as in
existence on the Issue Date, including but not limited to the Indemnification
Agreement and any payments made pursuant thereto, (vii) payment to CD&R or any
Affiliate of CD&R of fees in an aggregate amount not to exceed $1,000,000 in any
fiscal year plus all reasonable out-of-pocket expense incurred by CD&R or any
such Affiliate in connection with its performance of management consulting,
monitoring and financial advisory services with respect to Holding, RIC Holding,
the Company and its Restricted Subsidiaries, and (viii) loans and advances (or
guarantees in respect thereof and payments thereunder) made to officers or
employees of Holding, RIC Holding, the Company or any Restricted Subsidiary, or
guarantees made on their behalf (and payments thereunder), (A) in respect of
travel, entertainment and moving-related expenses incurred in the ordinary
course of business, (B) in respect of moving-related expenses incurred in
connection with any closing or consolidation of any facility and (C) in the
ordinary course of business not exceeding $2,500,000 in the aggregate
outstanding at any time.
SECTION 4.08. Change of Control. (a) Upon the occurrence of a Change
of Control, each Holder shall have the right to require the Company to purchase
all or any part of such Holder's Securities at a purchase price in cash equal to
101% of the principal amount thereof plus accrued and unpaid interest, if any,
to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), in accordance with the terms contemplated in Section 4.08(b); provided,
however, that notwithstanding the occurrence of a Change of Control, the Company
shall not be obligated to purchase the Securities pursuant to this Section 4.08
in the event that it has exercised its rights to redeem all of the Securities
under paragraph 5 of the Securities. In the event that at the time of such
Change of Control the terms of the Bank Indebtedness restrict or
80
prohibit the repurchase of Securities pursuant to this Section 4.08, then prior
to the mailing of the notice to Holders provided for in Section 4.08(b) below
but in any event within 30 days following any Change of Control, the Company
shall (i) repay in full all Bank Indebtedness or offer to repay in full all Bank
Indebtedness and repay the Bank Indebtedness of each lender who has accepted
such offer or (ii) obtain the requisite consent under the agreements governing
the Bank Indebtedness to permit the repurchase of the Securities as provided for
in Section 4.08(b).
(b) Within 30 days following any Change of Control (except as
provided for in the proviso to the first sentence of Section 4.08(a)), the
Company shall mail a notice to each Holder at its registered address with a copy
to the Trustee stating:
(1) that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase such Holder's Securities at a
purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of repurchase (subject to
the right of Holders of record on a record date to receive interest on the
relevant interest payment date);
(2) the circumstances and relevant facts and financial information
regarding such Change of Control;
(3) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed, and in any event
earlier than the repurchase date for the Senior Subordinated Notes); and
(4) the instructions determined by the Company, consistent with this
Section, that a Holder must follow in order to have its Securities
purchased.
(c) Holders electing to have a Security purchased will be required
to surrender the Security, with an appropriate form duly completed, to the
Company at the address specified in the notice at least three Business Days
prior to the purchase date. Holders will be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the purchase date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered for purchase by
81
the Holder and a statement that such Holder is withdrawing his election to have
such Security purchased.
(d) On the purchase date, all Securities purchased by the Company
under this Section shall be delivered by the Trustee for cancelation, and the
Company shall pay the purchase price plus accrued and unpaid interest, if any,
to the Holders entitled thereto.
(e) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section. To the extent that the provisions of any securities laws or regulations
conflict or are inconsistent with provisions of this Section, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.08 by virtue
thereof.
SECTION 4.09. Compliance Certificate. The Company shall deliver to
the Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default and whether or not the signers know of any Default that
occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take
with respect thereto. One of the persons signing the Officers' Certificate given
pursuant to this Section 4.09 shall be the principal executive, financial or
accounting officer of the Company, in compliance with TIA ss. 314(a)(4).
SECTION 4.10. Further Instruments and Acts. Upon request of the
Trustee, the Company shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.11. Limitation on Liens. (a) The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, create or
permit to exist any Lien (the "Initial Lien"), other than any Permitted Lien, on
any of its property or assets (including any Capital Stock owned by it), whether
owned on the Issue Date or thereafter acquired, securing any obligation unless
82
contemporaneously therewith effective provision is made to secure the Securities
equally and ratably with (or on a senior basis to, in the case of Indebtedness
expressly subordinated in right of payment to the Securities) such obligation
for so long as such obligation is so secured. The preceding sentence shall not
require the Company or any Restricted Subsidiary to secure the Securities if the
Initial Lien consists of one or more Permitted Liens.
(b) Any Lien created for the benefit of the Holders of the
Securities pursuant to Section 4.11(a) shall be automatically and
unconditionally released and discharged upon the earliest to occur of (i) the
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value of all of the then outstanding Securities, or the payment in full of
the principal amount of, and all premium and interest then due and payable on,
the then outstanding Securities, (ii) the release and discharge of the Initial
Lien, and (iii) any sale, exchange or transfer to any Person not an Affiliate of
the Company of the property or assets (including Capital Stock) subject to the
Initial Lien, provided that after giving effect to such sale, exchange or
transfer such property or assets (including Capital Stock) remain subject to the
Initial Lien.
SECTION 4.12. Limitation on the Sale or Issuance of Preferred Stock
of Restricted Subsidiaries. The Company shall not sell, and shall not permit any
Restricted Subsidiary, directly or indirectly, to issue or sell any shares of
Preferred Stock of any Restricted Subsidiary except (i) to the Company or a
Wholly Owned Subsidiary, (ii) if, immediately after giving effect to such
issuance or sale, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary or (iii) Permitted Subsidiary Preferred Stock.
SECTION 4.13. Future Note Guarantors. The Company shall cause each
Significant Subsidiary which Guarantees the Bank Indebtedness to execute and
deliver to the Trustee a supplemental indenture in substantially the form of
Exhibit D hereto pursuant to which such Subsidiary will Guarantee payment of the
Securities.
SECTION 4.14. Limitation on Sale/Leaseback Transactions. The Company
shall not, and shall not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction (other than a Permitted Sale/Leaseback Transaction)
with respect to any property unless (i) the
83
Company or such Subsidiary would be entitled to Incur Indebtedness in an amount
equal to the Attributable Debt with respect to such Sale/Leaseback Transaction
pursuant to Section 4.03, (ii) the consideration received by the Company or any
Restricted Subsidiary in connection with such Sale/Leaseback Transaction is at
least equal to the fair value of such property, as may be determined (and in the
case of a Sale/Leaseback Transaction involving a fair value in excess of
$10,000,000, shall be determined) in good faith by the Board of Directors, whose
determination shall be conclusive and evidenced by a resolution of the Board of
Directors, and (iii) the transfer of such property is permitted by, and (to the
extent required by Section 4.06) the Company applies the proceeds of such
transaction in compliance with, Section 4.06.
ARTICLE 5
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets. The Company
shall not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a corporation, limited liability company, limited
partnership or business trust organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia
and the Successor Company (if not the Company) shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee,
in form reasonably satisfactory to the Trustee, all the obligations of the
Company under the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Restricted Subsidiary as a result of such transaction as
having been Incurred by the Successor Company or such Restricted
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
84
(iii) immediately after giving effect to such transaction, the
Successor Company would be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.03(a); and
(iv) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture.
The Successor Company 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 the Successor Company had been named as the Company herein, and thereafter
the predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities, except that the predecessor Company in the
case of a conveyance, transfer or lease of all or substantially all its assets
shall not be released from the obligation to pay the principal of and interest
on the Securities.
Notwithstanding the foregoing clauses (ii) and (iii) of this Section 5.01, any
Restricted Subsidiary may consolidate with, merge into or transfer all or part
of its properties
and assets to the Company.
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in any payment of inter
est on any Security when due and such default continues
for a period of 30 days;
(2) the Company defaults in the payment of the principal of any
Security when the same becomes due at its Stated Maturity, upon optional
redemption, upon required purchase, upon declaration of acceleration or
otherwise;
(3) the Company fails to comply with Section 5.01;
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(4) the Company fails to comply with Section 4.02, 4.03, 4.04, 4.05,
4.06, 4.07, 4.08, 4.11, 4.12, 4.13 or 4.14 (other than a failure to
purchase Securities when required under Section 4.06 or 4.08) and such
failure continues for 30 days after the notice specified in the
penultimate paragraph of this Section 6.01;
(5) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in (1), (2),
(3) or (4) above) and such failure continues for 60 days after the notice
specified in the penultimate paragraph of this Section 6.01;
(6) the Company or any Restricted Subsidiary fails to pay any
Indebtedness within any applicable grace period after final maturity or
the acceleration of any such Indebtedness by the holders thereof because
of a default if the total amount of such Indebtedness unpaid or
accelerated exceeds $20,000,000 or its foreign currency equivalent at the
time;
(7) the Company or any Restricted Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in
an involuntary case;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Restricted
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Restricted
Subsidiary or for any substantial part of its property; or
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(C) orders the winding up or liquidation of the Company or any
Restricted Subsidiary;
and the order or decree remains unstayed and in effect
for 60 days;
(9) any judgment or decree for the payment of money in excess of
$15,000,000 or its foreign currency equivalent at the time (net of amounts
paid within 30 days of any such judgment or decree under any insurance,
indemnity, bond, surety or similar instrument) is entered against the
Company or any Restricted Subsidiary by a court or other adjudicatory
authority of competent jurisdiction for which the Company or the
Restricted Subsidiary, as applicable, is not insured by a third Person and
(A) an enforcement proceeding thereon is commenced or (B) such judgment or
decree remains outstanding at the later of (I) the day which is the
sixtieth day after the judgment is rendered and (II) the day on which any
right to appeal expires; or
(10) any Note Guarantee ceases to be in full force and effect
(except as contemplated by the terms thereof or of this Indenture) or any
Note Guarantor denies or disaffirms in writing its obligations under this
Indenture or any Note Guarantee and such Default continues for 10 days.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal, state or foreign law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (4) or (5) is not an Event of Default until
the Trustee or the Holders of at least 25% in principal amount of the Securities
notify the Company (and the Trustee in the case of a notice by Holders) of the
Default and the Company does not cure such Default within the time specified
therein after receipt of such notice.
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Such notice must specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default". When a Default or an Event of Default is
cured, it ceases.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (6) and any event which with the giving of
notice or the lapse of time would become an Event of Default under clause (4),
(5) or (9), its status and what action the Company is taking or proposes to take
with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(7) or (8) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the Securities by notice to the
Company and the Trustee, may declare the principal of and accrued but unpaid
interest on all the Securities to be due and payable. Upon such a declaration,
such principal and interest shall be due and payable immediately. If an Event of
Default specified in Section 6.01(7) or (8) with respect to the Company occurs
and is continuing, the principal of and interest on all the Securities shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Securityholders. The Holders of a
majority in principal amount of the Securities by notice to the Company and the
Trustee may rescind an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
have been cured or waived except non-payment of principal or interest that has
become due solely because of such acceleration. No such rescission shall affect
any subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair
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the right or remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All available remedies are
cumulative.
SECTION 6.04. Waiver of Defaults. The Holders of a majority in
principal amount of the Securities by notice to the Trustee may waive on behalf
of the Holders of all Securities an existing or past Default and its
consequences except (i) a Default in the payment of the principal of or interest
on a Security or (ii) a Default in respect of a provision that under Section
9.02 cannot be amended without the consent of each Securityholder 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
impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
SECTION 6.06. Limitation on Suits. A Security holder may not pursue
any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
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(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the Securities
do not give the Trustee a direction inconsistent with the request during
such 60-day period.
A Securityholder may not use this Indenture to affect, disturb or
prejudice the rights of another Securityholder, to obtain a preference or
priority over another Securityholder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders.
SECTION 6.07. Rights of Holders To Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and interest on the Securities held by such Holder, on
or after the respective due dates expressed in the Securities, or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, its creditors or
its property and, unless prohibited by law or applicable regulations, may vote
on behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the
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Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and its counsel, and any
other amounts due the Trustee under Section 7.07.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively, in accordance with
Article 2; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment
to Securityholders pursuant to this Section. At least 15 days before such record
date, the Company shall mail to each Securityholder and the Trustee a notice
that states the record date, the payment date and amount to be paid.
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 in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section
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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
Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company (to the
extent it may lawfully do so) shall 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 wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 6.13. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee. (a) If a Default or an Event of
Default actually known to the Trustee has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs.
(b) Except during the continuance of a Default or
an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations
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shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture but need not verify the contents thereof.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (h) of this Section 7.01.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur 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 to believe that
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repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(h) 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 Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
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SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in the Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within the earlier of 90 days after it
occurs or 30 days after it is known to a Trust Officer or written notice of it
is received by the Trustee. Except in the case of a Default in payment of
principal of, premium (if any) or interest on any Security, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of
Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of May 15 that
complies with TIA ss. 313(a). The Trustee also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed by the Trustee with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to
the Trustee from time to time reasonable compensation for its services. The
Trustee's compensation 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 out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The
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Company shall indemnify the Trustee against any and all loss, liability or
expense (including reasonable attorneys' fees) incurred by it in connection with
the administration of this trust and the performance of its duties hereunder.
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. The Company shall defend the claim and the
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own wilful misconduct, negligence or bad faith. The Company need
not pay for any settlement made without its consent.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(7) or (8) with respect to
the Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign at any
time by so notifying the Company. The Holders of a majority in principal amount
of the Securities may remove the Trustee by so notifying the Trustee and the
Company and may appoint a successor Trustee with the Company's consent (which
shall not be unreasonably withheld). The Company shall remove the Trustee if it
has knowledge of any of the following:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
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If the Trustee resigns, is removed by the Company or by the Holders
of a majority in principal amount of the Securities and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall use its best efforts to
promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate
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of authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA ss. 310(a). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
ss. 310(b); provided, however, that there shall be excluded from the operation
of TIA ss. 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated.
ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance. (a)
When (i) the Company delivers to the Trustee all outstanding Securities (other
than Securities replaced pursuant to Section 2.07) for cancelation or (ii) all
outstanding Securities have become due and payable, whether at maturity or as a
result of the mailing of a notice of redemption pursuant to Article 3 hereof and
the Company irrevocably deposits with the Trustee funds sufficient to pay at
maturity or upon redemption all outstanding Securities, including interest
thereon to maturity or such redemption date (other than Securities replaced
pursuant to Section 2.07), and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall, subject to Sections
8.01(c), cease to be of
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further effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time
may terminate (i) all its obligations under the Securities and this Indenture
("legal defeasance option") or (ii) its obligations under Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.11, 4.12, 4.13, and 4.14 and the operation of Sections
6.01(6), 6.01(7), 6.01(8) and 6.01(9) and the limitation set forth in Section
5.01(iii) ("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option. The Company may exercise its legal defeasance option or covenant
defeasance option with respect to any Security to any redemption date or to
maturity.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Sections 6.01(4),
6.01(6), 6.01(7) (but only with respect to a Restricted Subsidiary), 6.01(8)
(but only with respect to a Restricted Subsidiary) or 6.01(9) or because of the
failure of the Company to comply with clause (iii) of Section 5.01. If the
Company exercises its legal defeasance option or its covenant defeasance option,
each Note Guarantor will be released from all of its obligations with respect to
its Note Guarantee.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, Sections 2.03, 2.04,
2.05, 2.06, 2.07, 2.08, 2.10, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive
until the Securities have been paid in full. Thereafter, Sections 7.07, 8.04 and
8.05 shall survive.
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SECTION 8.02. Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of, premium
(if any) and interest on the Securities to maturity or redemption, as the
case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants or a nationally
recognized investment banking firm expressing their opinion to the effect
that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all the Securities to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Section 6.01(7) or (8) with respect to the
Company occurs which is continuing at the end of the period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company;
(5) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment
Company Act of 1940;
(6) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this Indenture there
has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall be to
the effect that such opinion confirms that, the Securityholders will not
recognize income, gain or loss for Federal income tax purposes as a result
of such defeasance and will be subject to
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Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred;
(7) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Securityholders will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred; and
(8) the Company delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each to the effect that all conditions
precedent to the defeasance and discharge of the Securities as
contemplated by this Article 8 have been complied with.
Before or after a deposit, the Company may make arrangements
reasonably satisfactory to the Trustee for the redemption of Securities at a
future date in accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent (including the Company acting as its own
Paying Agent) and in accordance with this Indenture to the payment of principal
of and interest on the Securities.
SECTION 8.04. Repayment to Company. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall promptly pay to the Company upon request any money held
by them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Company for payment as unsecured general creditors, and all liability of the
Trustee or the Paying Agent with respect to such trust money shall thereupon
cease.
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SECTION 8.05. Indemnity for Government Obligations. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations other than
any tax, fee or other charge which by law is for the account of the Holders of
the Securities.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 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 and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the
Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
Amendments and Waivers
SECTION 9.01. Without Consent of Holders. The Company, the Note
Guarantors and the Trustee at any time and from time to time may amend this
Indenture or the Securities without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
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(4) to add guarantees with respect to the Securities or to secure
the Securities;
(5) to confirm and evidence the release and discharge of any Lien
created for the benefit of Holders pursuant to Section 4.11;
(6) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company or any Note Guarantor;
(7) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA or otherwise; or
(8) to make any change that does not adversely affect the rights of
any Securityholder.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.02. With Consent of Holders. The Company, the Note
Guarantors and the Trustee may amend this Indenture or the Securities, for the
purpose of adding any provision to this Indenture or of modifying in any manner
the rights of Holders under this Indenture, the Securities or any Note Guarantee
or to evidence any waiver of (or waiver of compliance with) any provision of
this Indenture (as hereinafter provided), without notice to any Securityholder
but with the written consent of the Holders of at least a majority in principal
amount of the Securities. The Holders of a majority in principal amount of the
Securities may waive compliance by the Company or any Note Guarantor with any
provision or covenant of this Indenture or the Securities. However, without the
consent of each Securityholder affected thereby, an amendment or waiver may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(2) reduce the rate of or extend the time for payment of interest on
any Security;
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(3) reduce the principal amount of or extend the Stated Maturity of
any Security;
(4) reduce the premium payable upon the redemption of any Security
or change the time at which any Security may be redeemed in accordance
with Article 3;
(5) make any Security payable in money other than that stated in the
Security;
(6) impair the right of any Holder to receive payment of principal
of and interest on such Holder's Securities on or after the due dates
therefor or to institute suit for the enforcement of any payment on or
with respect to such Holder's Securities;
(7) make any change in clause (i) or (ii) of the first sentence of
Section 6.04 or Section 6.07 or the third sentence of this Section; or
(8) modify the terms of the Note Guarantees contained in Article 10
(except as contemplated by the terms thereof or of this Indenture) in any
manner adverse to the Holders.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section becomes effective,
the Company shall mail to Securityholders a notice briefly describing such
amendment or waiver. The failure to give such notice to all Securityholders, or
any defect therein, shall not impair or affect the validity of an amendment or
waiver under this Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04. Effect of Amendments; Revocation and Effect of
Consents and Waivers. Upon the execution of any amendment under this Article 9,
this Indenture shall be modified in accordance therewith, and such amendment
shall form a part of this Indenture for all purposes. A consent to an amendment
or a waiver by a Holder of a Security is a continuing consent and shall bind the
Holder and every
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subsequent Holder of that Security or portion of the Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
or waiver is not made on the Security. However, any such Holder or subsequent
Holder may revoke the consent or waiver as to such Holder's Security or portion
of the Security if the Trustee receives the notice of revocation before the date
the instrument providing for the amendment or waiver is signed by the parties
thereto. After an amendment or waiver becomes effective, it shall bind every
Securityholder.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date (except as to any
supplemental indenture, agreement or instrument or waiver entered into, or any
other action taken in respect of such consent, prior to the expiration of such
120 day period).
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company so determines, the Company in exchange for
the Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms. Failure to make the appropriate notation or to issue
a new Security shall not affect the validity of any amendment or waiver.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in
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relying upon, an Officers' Certificate and an Opinion of Counsel to the effect
that such amendment is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame and subject to the terms and conditions set forth in solicitation
documents relating to such consent, waiver or agreement.
ARTICLE 10
Note Guarantees
SECTION 10.01. Note Guarantees. Each Note Guarantor hereby jointly
and severally unconditionally and irrevocably guarantees, as a primary obligor
and not merely as a surety, on a senior basis to each Holder and to the Trustee
and its successors and assigns (a) the full and punctual payment of principal
of, premium (if any) and interest on the Securities when due, whether at
maturity, by acceleration, by redemption or otherwise, and all other monetary
obligations of the Company under this Indenture (including obligations to the
Trustee) and the Securities and (b) the full and punctual performance within
applicable grace periods of all other obligations of the Company under this
Indenture and the Securities (all the foregoing being hereinafter collectively
called the "Obligations"). Each Note Guarantor further agrees (to the extent
permitted by law) that the Obligations may be extended or renewed, in whole or
in part, without notice or further assent from each such Note Guarantor, and
that each such Note Guarantor shall remain bound under this Article 10
notwithstanding any extension or renewal of any Obligation.
Each Note Guarantor waives (to the extent permitted by law)
presentation to, demand of, payment from and protest to the Company of any of
the Obligations and also waives notice of protest for non-payment. Each Note
Guarantor waives (to the extent permitted by law) notice of any default under
the Securities or the Obligations. The
106
obligations of each Note Guarantor hereunder shall not be affected (to the
extent permitted by law) by (a) the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any right or remedy against the Company
or any other Person under this Indenture, the Securities or any other agreement
or otherwise; (b) any extension or renewal of any thereof; (c) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Securities or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Obligations or any of them;
(e) the failure of any Holder or Trustee to exercise any right or remedy against
any other guarantor of the Obligations; or (f) any change in the ownership of
such Note Guarantor, except as provided in Section 10.02(b).
Each Note Guarantor further agrees that its Note Guarantee herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives (to the extent permitted by law) any right
to require that any resort be had by any Holder or the Trustee to any security
held for payment of the Obligations.
The obligations of each Note Guarantor hereunder shall not (to the
extent permitted by law) be subject to any reduction, limitation, impairment or
termination for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and (to the extent permitted by law) shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Note Guarantor herein shall not (to the extent permitted by
law) be discharged or impaired or otherwise affected by the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any remedy
under this Indenture, the Securities or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Obligations, or by any other act or thing
or omission or delay to do any other act or thing which may or might in any
manner or to any extent vary the risk of any Note Guarantor or would otherwise
operate as a discharge of any Note Guarantor as a matter of law or equity.
Each Note Guarantor further agrees (to the extent permitted by law)
that its Note Guarantee herein shall
107
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any Note
Guarantor by virtue hereof, upon the failure of the Company to pay the principal
of or interest on any Obligation when and as the same shall become due, whether
at maturity, by acceleration, by redemption or otherwise, or to perform or
comply with any other Obligation, each Note Guarantor hereby promises to and
shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to
be paid, in cash, to the Holders or the Trustee an amount equal to the sum of
(i) the unpaid principal amount of such Obligations, (ii) accrued and unpaid
interest on such Obligations (but only to the extent not prohibited by law) and
(iii) all other monetary Obligations of the Company to the Holders and the
Trustee.
Each Note Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any Obligations
guaranteed hereby until payment in full of all Obligations. Each Note Guarantor
further agrees that, as between it, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the Obligations guaranteed
hereby may be accelerated as provided in Article 6 for the purposes of any Note
Guarantee herein, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such obligations as
provided in Article 6, such Obligations (whether or not due and payable) shall
forthwith become due and payable by such Note Guarantor for the purposes of this
Section.
Each Note Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section.
SECTION 10.02. Limitation on Liability. (a) Any term or provision of
this Indenture to the contrary notwithstanding, the maximum aggregate amount of
the obligations guaranteed hereunder by any Note Guarantor shall
108
not exceed the maximum amount that can be hereby guaranteed without rendering
this Indenture, as it relates to any Note Guarantor, voidable under applicable
law relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally. In the event that the obligations
of any Note Guarantor under such Note Guarantor's guarantee of the Bank
Indebtedness are limited under applicable law relating to fraudulent conveyance
or fraudulent transfer, the obligations of such Note Guarantor hereunder shall
not be deemed to have been incurred to the extent necessary to assure that the
obligations of such Note Guarantor under such Note Guarantor's guarantee of the
Bank Indebtedness are at least equal to the value of the assets and property
securing such Note Guarantor's obligations under such guarantee.
(b) This Note Guarantee as to any Note Guarantor other than Holding
or RIC Holding shall terminate and be of no further force or effect upon the
sale or other transfer (i) by such Note Guarantor of all or substantially all of
its assets or (ii) by the parent company of such Note Guarantor of all of its
stock or other equity interests in such Note Guarantor, to a Person that is not
an Affiliate of the Company. The Note Guarantee of RIC Holding shall terminate
and be of no further force or effect upon RIC Holding's consolidation with or
merger with or into Holding or the Company.
SECTION 10.03. Successors and Assigns. This Article 10 shall be
binding upon each Note Guarantor and its successors, transferees and assigns and
shall enure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
SECTION 10.04. No Waiver. Neither a failure nor a delay on the part
of either the Trustee or the Holders in exercising any right, power or privilege
under this Article 10 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may
109
have under this Article 10 at law, in equity, by statute or otherwise.
SECTION 10.05. Initial Note Guarantors; Execution of Supplemental
Indenture for Future Note Guarantors. (a) Upon execution hereof, Holding and RIC
Holding will be the only Note Guarantors.
(b) Each Subsidiary which is required to become a Note Guarantor
pursuant to Section 4.13 (a "Subsidiary Guarantor") shall promptly execute and
deliver to the Trustee a supplemental indenture in substantially the form of
Exhibit D hereto pursuant to which such Subsidiary shall become a Note Guarantor
under this Article 10 and shall guarantee the Obligations. Concurrently with the
execution and delivery of such supplemental indenture, the Company shall deliver
to the Trustee an Opinion of Counsel or an Officers' Certificate substantially
to the effect that such supplemental indenture has been duly authorized,
executed and delivered by such Subsidiary and that, subject to the application
of bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and
other similar laws relating to creditors' rights generally and to the principles
of equity, whether considered in a proceeding at law or in equity, the Note
Guarantee of such Note Guarantor is a legal, valid and binding obligation of
such Note Guarantor, enforceable against such Note Guarantor in accordance with
its terms.
SECTION 10.06. Release of Note Guarantee. Each Note Guarantee is a
continuing guarantee and shall remain in full force and effect, except as
otherwise provided herein, until payment in full of all principal of or interest
on the Securities, and all other Obligations then due and payable, or in the
case of a Subsidiary Guarantor, upon the earlier release or termination of its
Guarantees of the Bank Indebtedness, or upon such Subsidiary Guarantor no longer
being a Restricted Subsidiary.
ARTICLE 11
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies or conflicts with another provision which is
required to be
110
included in this Indenture by the TIA, the required provision shall control.
SECTION 11.02. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Riverwood International Corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Treasurer
with copies to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
if to the Trustee:
State Street Bank and Trust Company
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
All such notices and communications shall be deemed to be duly given
at the time delivered by hand, if personally delivered, or 5 Business Days after
being deposited in the mail, if mailed.
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
111
Any notice or communication mailed to a Securityholder shall be
mailed to the Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, 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.
SECTION 11.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee to the effect 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
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee to the effect that, in the opinion of such
counsel, all such conditions precedent have been complied with;
except that, in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
112
SECTION 11.05. Statements Required in Certificate or Opinion. Each
certificate or opinion of counsel with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section 4.09)
shall include:
(1) a statement to the effect that the individual making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement to the effect that, in the opinion of such
individual, 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
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 11.06. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company, unless such counsel
113
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 11.07. When Securities Disregarded. In determining whether
the Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded, except that, for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded. Also, subject to the foregoing, only
Securities outstanding at the time shall be considered in any such
determination.
SECTION 11.08. Acts of Holders; Rules by Trustee, Paying Agent and
Registrar. (a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by a
specified percentage in principal amount of the Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such specified percentage of Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 7.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided herein. The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(b) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture of the Holder of any Security
shall bind every future Holder of the same Security and the Holder of
114
every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(c) The Trustee may make reasonable rules for action by or a meeting
of Securityholders not inconsistent with the foregoing. The Registrar and the
Paying Agent may make reasonable rules for their functions.
SECTION 11.09. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institu tions are not required to be open in
the State of New York. If a payment date is a Legal Holiday, payment shall be
made on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period. If a regular record date is a Legal
Holiday, the record date shall not be affected.
SECTION 11.10. Governing Law. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 11.11. No Recourse Against Others. A director, officer,
employee, agent, partner or stockholder, as such, of the Company or a Note
Guarantor, or of any stockholder of the Company or a Note Guarantor, shall not
have any liability for any obligations of the Company or any Note Guarantor,
either directly or through the Company or any Note Guarantor, as the case may
be, under the Securities or this Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation, whether by virtue of any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise. By accepting a
Security, each Securityholder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the
Securities.
SECTION 11.12. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
115
SECTION 11.13. Multiple 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. One signed copy is enough to prove
this Indenture.
SECTION 11.14. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
SECTION 11.15. Separability. In case any provision of this
Indenture, the Securities or the Note Guarantees 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 11.16. Benefits of Indenture. Nothing in this Indenture, the
Securities or the Note Guarantees, expressed or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
116
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
RIC HOLDING, INC.,
by
------------------------
Name:
Title:
RIVERWOOD HOLDING, INC.,
by
------------------------
Name:
Title:
RIVERWOOD INTERNATIONAL
CORPORATION,
by
------------------------
Name:
Title:
STATE STREET BANK AND
TRUST COMPANY, as
trustee
by
------------------------
Name:
Title:
117
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 1/
[Private Placement Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION, AND SUBJECT TO COMPLIANCE WITH OTHER APPLICABLE LAWS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER
----------
1. This paragraph should only be added if the Security is issued in global
form.
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION INVOLVING A
MINIMUM PURCHASE PRICE OF $250,000 FOR SUCH SECURITIES FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND IN THE CASE OF ANY OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON
THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE, AND
COMPLIANCE WITH ANY APPLICABLE PROVISIONS OF THE INDENTURE UNDER WHICH THIS
SECURITY HAS BEEN ISSUED.
2
RIVERWOOD INTERNATIONAL CORPORATION
10 5/8% SENIOR NOTE DUE 0000
Xx. # XXXXX Xx. 000000XX0
$[ ]
RIVERWOOD INTERNATIONAL CORPORATION, a Delaware corporation,
promises to pay to [ ](or such lesser or greater amount as shall be outstanding
hereunder from time to time in accordance with Sections 2.13 and 2.14 of the
Indenture referred to on the reverse hereof) 2/ , or registered assigns, the
principal sum of $[ ] on August 1, 2007 and to pay interest thereon on February
1 and August 1 in each year, commencing on February 1, 1998 (each an "Interest
Payment Date"), accruing from the Issue Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, at the rate
of 10 5/8% per annum, until the principal hereof is paid or duly provided for.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
Additional provisions of this Security are set forth on the other
side of this Security.
Dated: July 28, 1997
RIVERWOOD INTERNATIONAL
CORPORATION,
by
-----------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND
TRUST COMPANY
----------
2. This parenthetical phrase should only be added if the Security is issued
in global form.
3
as Trustee, certifies [Seal]
that this is one of
the Securities referred
to in the Indenture,
by
---------------------------
Authorized Signatory
4
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
10 5/8% Senior Note due 2007
1. Interest
Riverwood International Corporation, a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above.
Pursuant to the Exchange and Registration Rights Agreement, the
Company has agreed to use its reasonable best efforts to have the Exchange Offer
Registration Statement (as defined in the Exchange and Registration Rights
Agreement) declared effective by the Commission within 105 days after the Issue
Date. If (i) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to 45 days after the Issue Date, (ii) (A) the Exchange
Offer Registration Statement is not declared effective within 105 days after the
Issue Date, or (B) the Shelf Registration Statement (as defined in the Exchange
and Registration Rights Agreement), if required to be filed under the terms of
the Exchange and Registration Rights Agreement, is not filed within 135 days
after the Issue Date, (iii) the Registered Exchange Offer is not consummated on
or prior to 135 days after the Issue Date, or (iv) the Shelf Registration
Statement is filed within 135 days after the Issue Date and declared effective
but shall thereafter cease to be effective (at any time that the Company is
obligated to maintain the effectiveness thereof) without being succeeded within
30 days by an additional Registration Statement filed and declared effective
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), the Company will pay liquidated damages to each holder of Transfer
Restricted Securities (as defined), during the period of such Registration
Default, in an amount equal to $0.096 per week per $1,000 principal amount of
the Securities constituting Transfer Restricted Securities held by such holder
until the applicable Registration Statement is filed or declared effective, the
Registered Exchange Offer is consummated or the Shelf Registration Statement
again becomes effective, as the case may be, provided, that, except with respect
to Securities purchased by the Initial Purchasers on the Issue Date that were
ineligible to be exchanged by them for Exchange Securities in the Registered
Exchange Offer, if any, the Company's obligations to pay liquidated damages will
terminate upon the consummation of the Registered Exchange Offer. All accrued
liquidated damages shall be paid to holders in the same manner as interest
payments on the Securities on semi-annual payment dates which correspond to
interest payment dates for the Securities. Following the cure of all
Registration Defaults, the accrual of liquidated damages will cease. The Trustee
shall have no responsibility with respect to the determination of the amount of
any such liquidated damages. For purposes of the foregoing, "Transfer Restricted
Securities" means each Initial Security until (i) the date on which such Initial
Security has been exchanged for a freely transferable Exchange Security in the
Exchange Offer, (ii) the date on which such Initial Security has been
effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement or (iii) the date on which such Initial
Security is distributed to the public pursuant to Rule 144 under the Securities
Act or is saleable pursuant to Rule 144(k) under the Securities Act.
5
The Company will pay interest and liquidated damages, if any,
semiannually on February 1 and August 1 of each year, commencing on February 1,
1998. Interest on the Securities will accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for, from July 28, 1997. Interest will be computed on the basis of
a 360-day year of twelve 30-day months. The Company shall pay interest on
overdue principal at the rate borne by the Securities, and it shall pay interest
on overdue installments of interest at the same rate to the extent lawful.
2. Method of Payment
The Company will pay interest (except defaulted interest) on and
liquidated damages, if any, in respect of the Securities to the Persons who are
registered holders of Securities at the close of business on the January 15 or
July 15 next preceding the interest payment date even if Securities are canceled
after the record date and on or before the interest payment date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
However, the Company, at its option, may pay principal and interest by check
payable in such money or by wire transfer of federal funds.
3. Paying Agent and Registrar
Initially, STATE STREET BANK AND TRUST COMPANY, a national banking
corporation (the "Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of
July 28, 1997 (the "Indenture"), among the Company, the Note Guarantors and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Act"). The Securities are subject to all such terms, and Securityholders are
referred to the Indenture and the Act for a statement of those terms. With
respect to paragraph 1 hereof, the Securities are also subject to the terms of
the Exchange and Registration Rights Agreement, and Securityholders are referred
to such agreement for a statement of those terms. Terms defined in the Indenture
and not defined herein have the meanings ascribed thereto in the Indenture. Each
Holder by acepting a Security, agrees to be bound by all of the terms and
provisions of the Indenture, as the same may be amended or supplemented from
time to time.
The Securities are general unsecured obligations of the Company
limited to $250,000,000 aggregate principal amount at any one time outstanding
(subject to
6
Section 2.07 of the Indenture). This Security is one of the Initial Securities
referred to in the Indenture. The Securities include the Initial Securities and
any Exchange Securities issued in exchange for the Initial Securities pursuant
to the Indenture. The Initial Securities and the Exchange Securities are treated
as a single class of securities under the Indenture. The Indenture imposes
certain limitations on the Incurrence of Indebtedness by the Company and its
Restricted Subsidiaries; the payment of dividends on, and redemption of, Capital
Stock of the Company, the payment of dividends on Capital Stock of Restricted
Subsidiaries and the redemption of certain Subordinated Obligations of the
Company and its Restricted Subsidiaries; Investments; sales of assets and
Restricted Subsidiary Capital Stock; certain transactions with Affiliates of the
Company; the sale or issuance of Preferred Stock of the Restricted Subsidiaries;
the creation of Liens; Sale/Leaseback Transactions and consolidations, mergers
and transfers of all or substantially all of the Company's assets. In addition,
the Indenture prohibits certain restrictions on distributions and dividends from
Restricted Subsidiaries.
To guarantee the due and punctual payment of the principal of, and
premium (if any) and interest on, the Securities and all other amounts payable
by the Company under the Indenture and the Securities when and as the same shall
be due and payable, whether at maturity, by acceleration or otherwise, according
to the terms of the Securities and the Indenture, the Note Guarantors have
guaranteed the Company's obligations under the Indenture on a senior basis
pursuant to the terms of the Indenture.
5. Optional Redemption
Except as set forth in the next two paragraphs, the Securities may
not be redeemed at the Company's option prior to August 1, 2002. On and after
that date, the Company may redeem the Securities in whole at any time or in part
from time to time at the following redemption prices (expressed in percentages
of principal amount), plus accrued and unpaid interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date):
If redeemed during the 12-month period beginning on August 1 of the
years set forth below:
Redemption
Period Price
------ --------
2002.......................................... 105.313%
2003.......................................... 103.542%
2004.......................................... 101.771%
2005 and thereafter........................... 100.000%
Notwithstanding the foregoing, at any time prior to August 1, 2000,
the Company may redeem Securities in an aggregate principal amount equal to up
to 35% of the original aggregate principal amount of Securities with the
proceeds of one or more Public Equity Offerings by the Company, RIC Holding or
Holding following which there
7
is a Public Market, at a redemption price (expressed as a percentage of
principal amount thereof) of 110.625%, in each case plus accrued interest, if
any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date); provided, however, that Securities in an aggregate principal amount equal
to at least 65% of the original aggregate principal amount of the Securities
must remain outstanding after each such redemption.
At any time prior to August 1, 2002, the Securities may be redeemed,
in whole or in part, at the option of the Company within 180 days after a Change
of Control, at a redemption price equal to the sum of (i) the principal amount
thereof plus (ii) accrued and unpaid interest, if any, to the redemption date
(subject to the right of holders of record on the relevant record date to
receive interest due on the relevant interest payment date) plus (iii) the
Applicable Premium.
6. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at such Holder's registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all Securities (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying Agent on or before
the redemption date and certain other conditions are satisfied, on and after
such date interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, unless the Company has elected to redeem
the Securities pursuant to paragraph 5 hereof, any Holder of Securities will
have the right, subject to certain conditions specified in the Indenture, to
cause the Company to repurchase all or any part of the Securities of such Holder
at a purchase price equal to 101% of the principal amount of the Securities to
be repurchased, plus accrued and unpaid interest, if any, to the date of
repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date) as provided
in, and subject to the terms of, the Indenture.
8. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the
8
portion of the Security not to be redeemed) or to transfer or exchange any
Securities for a period of 15 days prior to a selection of Securities to be
redeemed or 15 days before an interest payment date.
9. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner
of it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
11. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal of, and premium (if any) and interest on, the Securities to
redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount then
outstanding of the Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of the Indenture,
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the Securities or
to secure the Securities, or to confirm and evidence the release and discharge
of any Lien created for the benefit of Securityholders pursuant to Section 4.11
of the Indenture, or to add additional covenants or surrender rights and powers
conferred on the Company, or to comply with any request of the SEC in connection
with qualifying the Indenture under the Act, or to make any other change that
does not adversely affect the rights of any Securityholder, or to provide for
the issuance and authorization of the Exchange Securities.
9
13. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for 30
days in payment of interest on the Securities; (ii) default in payment of
principal on any Security at its Stated Maturity, upon redemption pursuant to
paragraph 5 of the Securities, or failure by the Company to redeem or purchase,
upon declaration or acceleration or otherwise, Securities when required; (iii)
failure by the Company to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of time; (iv) certain
accelerations (including failure to pay within any grace period after final
maturity) of other Indebtedness of the Company or any Restricted Subsidiary if
the amount accelerated (or so unpaid) exceeds $20,000,000 or its foreign
currency equivalent; (v) certain events of bankruptcy, insolvency or
reorganization with respect to the Company and its Restricted Subsidiaries; (vi)
certain judgments or decrees not covered by insurance for the payment of money
in excess of $15,000,000 or its foreign currency equivalent against the Company
or a Restricted Subsidiary; and (vii) a Note Guarantee ceasing to be in full
force and effect (other than in accordance with its terms) or any Note Guarantor
denies or disaffirms its obligations under the Indenture or any Note Guarantee
and such Default continues for 10 days. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the Securities may declare all the Securities to be due and payable immediately.
Certain events of bankruptcy or insolvency are Events of Default which will
result in the Securities being due and payable immediately upon the occurrence
of such Events of Default.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of any continuing Default
(except a Default in payment of principal, premium, if any, or interest) if and
so long as a committee of its Trust Officers in good faith determines that
withholding notice is in the interest of the Holders.
14. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it were not Trustee.
15. No Recourse Against Others
A director, officer, employee, agent, partner or stockholder, as
such, of the Company or any Note Guarantor, or of any stockholder of the Company
or a Note Guarantor, shall not have any liability for any obligations of the
Company or a Note Guarantor, either directly or through the Company or any Note
Guarantor, as the case may be, under the Securities or the Indenture or for any
claim based on, in respect of or
10
by reason of such obligations or their creation, whether by virtue of any rule
of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding, or otherwise. By accepting a
Security, each Securityholder waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
16. Governing Law
THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
17. Authentication
This Security shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
Customary abbreviations may be used in the name of a Securityholder
or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
11
The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture. Requests may
be made to:
Riverwood International Corporation
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention of Treasurer
12
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the books of
the Company. The agent may substitute another to act for him.
____________________________________________________________
Date: ________________ Your Signature: _____________________
Signature Guarantee:_______________________________________
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
____________________________________________________________
Sign exactly as your name appears on the other side of this Security.
13
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER RESTRICTED SECURITIES
This certificate of a Qualified Institutional Buyer (as defined in Rule 144A
under the Securities Act of 1933, as amended) relates to $_________ principal
amount of Securities held in (check applicable space) ____ book-entry or _____
definitive form by the undersigned.
The undersigned (check one box below):
o has requested the Trustee, by written order, to deliver in exchange for
its beneficial interest in the U.S. Global Security held by the Depository
a Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial
interest in the U.S. Global Security (or the portion thereof indicated
above);
o has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Securities and the last date, if any, on which such Securities were
owned by the Company or any Affiliate of the Company, the undersigned confirms
that such
14
Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW:
(1) o to the Company; or
(2) o pursuant to an effective registration statement under
the Securities Act of 1933; or
(3) o inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act
of 1933) that purchases for its own account or for the
account of a qualified institutional buyer to whom
notice is given that such transfer is being made in
reliance on Rule 144A, in each case pursuant to and in
compliance with Rule 144A under the Securities Act of
1933; or
(4) o outside the United States in an offshore transaction
within the meaning of Regulation S under the Securities
Act in compliance with Rule 904 under the Securities Act
of 1933; or
(5) o inside the United States to an institutional "Accredited
Investor" as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act of 1933, that is purchasing for
its own account or for the account of such an
institutional "Accredited Investor", in each case in a
minimum principal amount of Securities of $250,000.
(6) o pursuant to another available exemption from
registration provided by Rule 144 under the Securities
Act of 1933.
15
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any
person other than the registered holder thereof; provided, however, that
if box (4), (5) or (6) is checked, the Company or the Trustee may require,
prior to registering any such transfer of the Securities, such written
legal opinions, certifications and other information as the Company, the
Trustee or the Registrar has reasonably requested 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 of
1933, as amended, such as the exemption provided by Rule 144 under such
Act.
If none of the foregoing boxes are checked, the Trustee or Registrar shall
not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Article 2 of the
Indenture shall have been satisfied.
------------------------
Signature
Signature Guarantee:
---------------------------- --------------------------
Signature must be guaranteed Signature
------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security 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 "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, 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
the undersigned has requested pursuant to Rule 144A or has
16
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: ________________
-------------------------------
NOTICE: To be executed by
an executive officer
17
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have
been made:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized officer
Amount of this Amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase) Custodian
18
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.08 of the Indenture, check the box:
|_|
If you want to elect to have only part of
this Security purchased by the Company pursuant to
Section 4.06 or 4.08 of the Indenture, state the amount: $
Date: __________________ Your Signature:
--------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
------------------------------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
19
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Global Securities Legend]
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN. 3/
RIVERWOOD INTERNATIONAL CORPORATION
10-5/8% SENIOR NOTE DUE 2007
No. Cusip No. 789507AK0
$[ ]
RIVERWOOD INTERNATIONAL CORPORATION, a Delaware corporation,
promises to pay to [ ], or registered assigns, the principal sum of $ on August
1, 2007 and to pay interest thereon on February 1, and August 1 in each year,
commencing on February 1, 1998 (each an "Interest Payment Date"), accruing from
the Issue Date or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, at the rate of 10 5/8% per annum, until the
principal hereof is paid or duly provided for.
Interest Payment Dates: February 1 and August 1
Record Dates: January 15 and July 15
----------
3. This paragraph should only be added if the Security is issued in global
form.
Additional provisions of this Security are set forth on the other
side of this Security.
Dated:
RIVERWOOD INTERNATIONAL
CORPORATION,
by
------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND
TRUST COMPANY
as Trustee, certifies [Seal]
that this is one of
the Securities referred
to in the Indenture,
by
-------------------------
Authorized Signatory
2
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
10-5/8% Senior Note due 2007
1. Interest
RIVERWOOD INTERNATIONAL CORPORATION, a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company
will pay interest, semiannually on February 1 and August 1 (each an "Interest
Payment Date") of each year. Interest on the Securities will accrue from the
most recent date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from July 28, 1997. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. The Company
shall pay interest on overdue principal at the rate borne by the Securities, and
it shall pay interest on overdue installments of interest at the same rate to
the extent lawful. Nothwithstanding the foregoing, (i) to the extent interest
has been paid or duly provided for with respect to any Initial Security(as
defined in the Indenture referred to below) exchanged for this Security,
interest on this Security shall accrue from the most recent Interest Payment
Date to which such interest on such Initial Security had been paid or duly
provided for, and (ii) to the extent that liquidated damages, if any, payable in
respect of such Initial Security as provided therein have been aid or duly
provided for with respect to such Initial Security such liquidated damages shall
accrue from the most recent Interest Payment Date to which such liquidated
damages on such Initial Security had been paid or duly provided for. All accrued
liquidated damages shall be paid to Securityholders in the same manner as
interest payments on the Securities on semiannual payment dates which correspond
to interest payment dates for the Securities.
2. Method of Payment
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the January 15 or July 15 next preceding the interest payment
date even if Securities are canceled after the record date and on or before the
interest payment date. Holders must
3
surrender Securities to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
However, the Company, at its option, may pay principal and interest by check
payable in such money or by wire transfer of federal funds.
3. Paying Agent and Registrar
Initially, STATE STREET BANK AND TRUST COMPANY, a national banking
corporation (the "Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of
July 28, 1997 (the "Indenture"), among the Company, the Note Guarantors and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Act"). The Securities are subject to all such terms, and Securityholders are
referred to the Indenture and the Act for a statement of those terms. With
respect to paragraph 1 hereof, the Securities are also subject to the terms of
the Exchange and Registration Rights Agreement, and Securityholders are referred
to such agreement for a statement of those terms. Terms defined in the Indenture
and not defined herein have the meanings ascribed thereto in the Indenture. Each
Holder by accepting a Security, agrees to be bound by all of the terms and
provisions of the Indenture, as the same may be amended or supplemented from
time to time.
The Securities are general unsecured obligations of the Company
limited to $250,000,000 aggregate principal amount at any one time outstanding
(subject to Sections 2.07 and 2.08 of the Indenture). This Security is one of
the Exchange Securities referred to in the Indenture. The Securities include the
Initial Securities and any Exchange Securities issued in exchange for the
Initial Securities
4
pursuant to the Indenture. The Initial Securities and the Exchange Securities
are treated as a single class of securities under the Indenture. The Indenture
imposes certain limitations on the Incurrence of Indebtedness by the Company and
its Restricted Subsidiaries; the payment of dividends on, and redemption of,
Capital Stock of the Company, the payment of dividends on the Capital Stock of
Restricted Subsidiaries and the redemption of certain Subordinated Obligations
of the Company and its Restricted Subsidiaries; Investments; sales of assets and
Restricted Subsidiary Capital Stock; certain transactions with Affiliates of the
Company; the sale or issuance of Preferred Stock of the Restricted Subsidiaries;
the creation of Liens; Sale/Leaseback Transactions and consolidations, mergers
and transfers of all or substantially all of the Company's assets. In addition,
the Indenture prohibits certain restrictions on distributions and dividends from
Restricted Subsidiaries.
To guarantee the due and punctual payment of the principal of, and
premium (if any) and interest on the Securities and all other amounts payable by
the Company under the Indenture and the Securities when and as the same shall be
due and payable, whether at maturity, by acceleration or otherwise, according to
the terms of the Securities and the Indenture, the Note Guarantors have
guaranteed the Company's obligations under the Indenture on a senior basis
pursuant to the terms of the Indenture.
5. Optional Redemption
Except as set forth in the next two paragraphs, the Securities may
not be redeemed, at the Company's option, prior to August 1, 2002. On and after
that date, the Company may redeem the Securities in whole at any time or in part
from time to time at the following redemption prices (expressed in percentages
of principal amount), plus accrued and unpaid interest, if any, to the
redemption date (subject
5
to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date):
If redeemed during the 12-month period beginning on August 1 of the
years set forth below:
Redemption
Period Price
------ ----------
2002............................................ 105.313%
2003............................................ 103.542%
2004............................................ 101.771%
2005 and thereafter............................. 100.000%
Notwithstanding the foregoing, at any time prior to August 1, 2000,
the Company may redeem Securities in an aggregate principal amount equal to up
to 35% of the original aggregate principal amount of Securities with the
proceeds of one or more Public Equity Offerings by the Company, RIC Holding or
Holding following which there is a Public Market, at a redemption price
(expressed as a percentage of principal amount thereof) of 110.625% plus accrued
and unpaid interest, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date); provided, however, that Securities in an
aggregate principal amount equal to at least 65% of the original aggregate
principal amount of the Securities must remain outstanding after each such
redemption.
At any time prior to August 1, 2002, the Securities may be redeemed,
in whole or in part, at the option of the Company within 180 days after a Change
of Control, at a redemption price equal to the sum of (i) the principal amount
thereof plus (ii) accrued and unpaid interest, if any, to the redemption date
(subject to the right of holders of record on the relevant record date to
receive interest due on the relevant interest payment date) plus (iii) the
Applicable Premium.
6. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his registered address. Securities in denominations
larger than $1,000 may be redeemed in part but only in whole
6
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all Securities (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying Agent on or before
the redemption date and certain other conditions are satisfied, on and after
such date interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, unless the Company has elected to redeem
the Securities pursuant to paragraph 5 hereof, any Holder of Securities will
have the right, subject to certain conditions specified in the Indenture, to
cause the Company to purchase all or any part of the Securities of such Holder
at a repurchase price equal to 101% of the principal amount of the Securities to
be repurchased plus accrued and unpaid interest, if any, to the date of
repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date) as provided
in, and subject to the terms of, the Indenture.
8. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. Upon any transfer or
exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay
any taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed or 15 days
before an interest payment date.
9. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner
of it for all purposes.
7
10. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
11. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal of, and premium (if any) and interest on the Securities to
redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount then
outstanding of the Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of the Indenture,
or to provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the Securities or
to secure the Securities, or to confirm and evidence the release and discharge
of any Lien created for the benefit of Securityholders pursuant to Section 4.11
of the Indenture or to add additional covenants or surrender rights and powers
conferred on the Company or the Note Guarantors, or to comply with any request
of the SEC in connection with qualifying the Indenture under the Act, or to make
certain changes in the subordination provisions, or to make any change that does
not adversely affect the rights of any Securityholder.
8
13. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for 30
days in payment of interest on the Securities; (ii) default in payment of
principal on any Security at its Stated Maturity, upon redemption pursuant to
paragraph 5 of the Securities, or failure by the Company to redeem or purchase,
upon declaration, acceleration or otherwise, Securities when required; (iii)
failure by the Company or any Note Guarantor to comply with other agreements in
the Indenture or the Securities, in certain cases subject to notice and lapse of
time; (iv) certain accelerations (including failure to pay within any grace
period after final maturity) of other Indebtedness of the Company or any
Restricted Subsidiary if the amount accelerated (or so unpaid) exceeds
$20,000,000 or its foreign currency equivalent; (v) certain events of
bankruptcy, insolvency or reorganization with respect to the Company and its
Restricted Subsidiaries; (vi) certain judgments or decrees not covered by
insurance for the payment of money in excess of $15,000,000 or its foreign
currency equivalent against the Company or a Restricted Subsidiary; and (vii) a
Note Guarantee ceasing to be in full force and effect (other than in accordance
with its terms) or any Note Guarantor denies or disaffirms its obligations under
the Indenture or any Note Guarantee and such Default continues for 10 days. If
an Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Securities may declare all the Securities
to be due and payable immediately. Certain events of bankruptcy or insolvency
are Events of Default which will result in the Securities being due and payable
immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or
security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default (except a Default in payment of principal, premium, if any, or interest)
if and so long as a committee of its Trust Officers in good faith determines
that withholding notice is in the interest of the Holders.
9
14. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it were not Trustee.
15. No Recourse Against Others
A director, officer, employee, agent, partner or stockholder, as
such, of the Company or any Note Guarantor, or of any stockholder of the Company
or a Note Guarantor, shall not have any liability for any obligations of the
Company or a Note Guarantor, either directly or through the Company or any Note
Guarantor, as the case may be, under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their creation
whether by virtue of any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
16. Governing Law
THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
17. Authentication
This Security shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
10
18. Abbreviations
Customary abbreviations may be used in the name of a Securityholder
or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture. Requests may
be made to:
RIVERWOOD INTERNATIONAL CORPORATION
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention of Treasurer
11
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Security on the books of the Company. The
agent may substitute another to act for him.
____________________________________________________________
Date: ________________ Your Signature:
---------------------
Signature Guarantee:
---------------------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
------------------------------------------------------------
Sign exactly as your name appears on the other side of this
Security.
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have
been made:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized officer
Amount of this Amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase) Custodian
2
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.08 of the Indenture, check the box:
|_|
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.08 of the Indenture,
state the amount: $
Date: __________________ Your Signature:
--------------------------
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:
-----------------------------------------------
(Signature must be guaranteed by a
participant in a recognized signature
guarantee medallion program)
3
EXHIBIT C
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS TO NON-QIB
INSTITUTIONAL ACCREDITED INVESTORS]
Transferee Letter of Representation
Riverwood International Corporation
c/o State Street Bank and Trust Company
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Ladies and Gentlemen:
This certificate is delivered to request a transfer of $ principal
amount of the 10 5/8% Senior Notes due 2007 (the "Securities") of Riverwood
International Corporation (the "Company").
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name: ___________________________________
Address: ________________________________
Taxpayer ID Number: _____________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Securities, and we are acquiring the Securities not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risk of our investment in the Securities
and invest in or purchase securities similar to the Securities in the normal
course of our business. We, and any accounts for which we are acting, are each
able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date which is two years after
the later of the date of original issue and the last date on which the Company
or any affiliate of the Company was the owner of such Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A, (d) pursuant to
offers and sales that occur outside the United States within the meaning of
Regulation S under the Securities Act or (e) to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is purchasing for its own account or for the account of such
an institutional "accredited investor", in each case in a transaction involving
a minimum principal amount of Securities of $250,000 or (f) pursuant to any
other available exemption from the registration requirements of the Securities
Act, subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Securities is proposed to be made pursuant to clause (e)
above prior to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of this letter to
the Company and the Trustee, which shall provide, among other things, that the
transferee is an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring
such Securities for investment purposes and not for distribution in violation of
the Securities Act. Each purchaser acknowledges that the Company and the Trustee
reserve the right prior to any offer, sale or other transfer prior to the Resale
Termination Date of the Securities
2
pursuant to clause (d), (e) or (f) above to require the delivery of an opinion
of counsel, certifications and/or other information satisfactory to the Company
and the Trustee.
TRANSFEREE:
-------------------
BY
------------------------------
3
EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of [ ], among [NEW NOTE GUARANTOR] (the "New Note
Guarantor"), a subsidiary of RIVERWOOD INTERNATIONAL
CORPORATION (or its successor), a Delaware corporation (the
"Company"), THE COMPANY, on behalf of itself and the Note
Guarantors (the "Existing Note Guarantors") under the
Indenture referred to below, and STATE STREET BANK AND TRUST
COMPANY, a national banking corporation, as trustee under the
indenture referred to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Company and the Existing Note Guarantors have heretofore
executed and delivered to the Trustee an indenture (the "Indenture"), dated as
of July 28, 1997, providing for the issuance of an aggregate principal amount of
$250,000,000 of 10 5/8% Senior Notes due 2007 (the "Securities").
WHEREAS Section 4.13 of the Indenture provides that under certain
circumstances the Company is required to cause the New Note Guarantor to execute
and deliver to the Trustee a supplemental indenture pursuant to which the New
Note Guarantor shall unconditionally guarantee all of the Company's obligations
under the Securities pursuant to a Note Guarantee on the terms and conditions
set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the
Company and Existing Note Guarantors are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Note Guarantor, the Company, the Existing Note Guarantors and the Trustee
mutually covenant and agree for the equal and ratable benefit of the holders of
the Securities as follows:
1. Definitions. (a) Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
(b) For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires:
(i) the terms and expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture; and (ii) the words
"herein," "hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
2. Agreement to Guarantee. The New Note Guarantor hereby agrees,
jointly and severally with all other Note Guarantors, to Guarantee the Company's
obligations under the Securities on the term and subject to the conditions set
forth in Article 1 of the Indenture and to be bound by all other applicable
provisions of the Indenture.
3. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
6. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy
2
Shall be an original, but all of them together represent the same agreement.
7. Effect of Headings. The Section headings herein are for
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW NOTE GUARANTOR],
by
-------------------------------
Name:
Title:
RIVERWOOD INTERNATIONAL
CORPORATION, on behalf of
itself and the Existing
Note Guarantors,
by
-------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY as Trustee,
by
-------------------------------
Name:
Title:
3
EXHIBIT E
[FORM OF CERTIFICATE TO BE DELIVERED
DUURING RESTRICTED PERIOD]
On or after September 4, 0000
Xxxxxxxxx Xxxxxxxxxxxxx Corporation
x/x Xxxxx Xxxxxx Xxxx and Trust Company
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: [ ]
Re: Riverwood International Corporation (the "Company") 10 5/8%
Senior Notes due 2007 (the "Initial Securities") and 10 5/8%
Series B Senior Notes due 2007 (the "Exchange Securities" and,
together with the Initial Securities, the "Securities")
Ladies and Gentlemen:
This letter relates to Securities represented by a temporary
certificate (the "Temporary Certificate"). Pursuant to Section 2.14 of the
Indenture dated as of July 28, 1997 relating to the Securities (the
"Indenture"), we hereby certify that (1) we are the beneficial owner of $[ ]
principal amount of Initial Securities represented by the Temporary Certificate
and (2) we are a person outside the United States to whom the Initial Securities
could be transferred in accordance with Rule 904 of Regulation S promulgated
under the Securities Act of 1933, as amended. Accordingly, you are hereby
requested to issue a Certificated Note representing the undersigned's interest
in the principal amount of Initial Securities represented by the Temporary
Certificate, all in the manner provided by the Indenture.
You, the Company and counsel for 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 Holder]
By:
------------------------------
Authorized Signature
2
EXHIBIT F
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 000X]
Xxxxx Xxxxxx Xxxx and Trust Company
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: [ ]
[date]
Re: Riverwood International Corporation (the
"Company") 10 5/8% Senior Notes due 2007 (the
"Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $_______ aggregate principal
amount at maturity of the Securities, we hereby certify that such transfer is
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, we hereby further certify that the Securities are being transferred
to a person that we reasonably believe is purchasing the Securities for its own
account, or for one or more accounts with respect to which such person exercises
sole investment discretion, and such person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Securities are being transferred
in compliance with any applicable blue sky securities laws of any state of the
United States.
You, the Company and counsel for 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 Transferor]
By:
---------------------------
Authorized Signature
2
EXHIBIT G
[Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S]
[date]
State Street Bank and Trust Company
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: [ ]
Re: Riverwood International Corporation (the
"Company") 10 5/8% Senior Notes due 2007 (the
"Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either (a) 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 or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may be.
You, the Company and counsel for 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
2
