Second Supplemental Indenture Dated as of May 27, 2003
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XXXXX-ILLINOIS, INC.,
Issuer
AND
XXXXX-ILLINOIS GROUP, INC.
XXXXX-XXXXXXXX PACKAGING, INC.,
The Guaranteeing Subsidiaries
AND
THE BANK OF NEW YORK,
Trustee
Dated as of May 27, 2003
Supplemental to the Indenture
dated as of May 15, 1997
and supplemented as of May 16, 1997 and June 26, 2001
with respect to the
7.85% Senior Notes due 2004
Second Supplemental Indenture (this "Second Supplemental Indenture"), dated as of May 27, 2003 among Xxxxx-Illinois, Inc. (or its permitted successor), a Delaware corporation (the "Company"), Xxxxx-Illinois Group, Inc. ("Group") and Xxxxx-Xxxxxxxx Packaging, Inc. ("Packaging") (each of Group and Packaging, a "Guaranteeing Subsidiary"), subsidiaries of the Company, and The Bank of New York, as trustee under the indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has executed and delivered to the Trustee an indenture dated as of May 15, 1997, as amended or supplemented prior to the date hereof (the "Indenture"), pursuant to which the Company has issued $300 million principal amount of 7.85% Senior Notes due 2004 (the "Notes"), which is a separate series of Securities under the Indenture;
WHEREAS, Xxxxx-Xxxxxxxx Glass Container Inc., an indirect wholly owned subsidiary of the Company ("Glass Container"), is making a tender offer (the "Tender Offer") to purchase the Notes for cash;
WHEREAS, Glass Container has solicited consents from Holders of the Notes to certain amendments to the Indenture, which are contained in this Second Supplemental Indenture (the "Amendments");
WHEREAS, Section 9.02 of the Indenture provides that the Company and the Trustee, with the consent of the Holders of at least a majority in principal amount of the then outstanding Notes, may amend or supplement certain provisions of the Indenture with respect to the Notes;
WHEREAS, the Holders of not less than a majority in principal amount of the outstanding Notes have consented to the Amendments; and
WHEREAS, this Second Supplemental Indenture is effective as of the date upon which the conditions set forth in Section 3 hereof (subject to the proviso set forth therein) are satisfied, and the Amendments effected by this Second Supplemental Indenture will become operative with respect to the Notes on the date the Notes that are tendered and not withdrawn are accepted for purchase by Glass Container pursuant to the Tender Offer.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, each Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
SECTION 1. Definitions. For all purposes of the Indenture and this Second Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) the words "herein," "hereof" and "hereunder" and other words of similar import refer to the Indenture and this Second Supplemental Indenture as a whole and not to any particular Article, Section or subdivision; and
(b) capitalized terms used but not defined in this Second Supplemental Indenture shall have the meanings assigned to them in the Indenture.
SECTION 2. Amendments. The Indenture is hereby amended with respect to the Notes as follows:
(1) Section 4.03
of the Indenture is hereby amended to state, in its entirety, the following:
"Section 4.03. Commission Reports.
The Company shall comply with TIA Section 314(a)."
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(2) Section 4.04
of the Indenture is hereby amended to state, in its entirety, the following:
"Section 4.04. Compliance Certificate.
The Company shall comply with TIA Section 314(a)."
(3) Section 4.06 of the Indenture is hereby eliminated in its entirety and replaced with the words: "Section 4.06. [INTENTIONALLY OMITTED]."
(4) Section 4.08 of the Indenture is hereby eliminated in its entirety and replaced with the words: "Section 4.08. [INTENTIONALLY OMITTED]."
(5) Section 4.09 of the Indenture is hereby eliminated in its entirety and replaced with the words: "Section 4.09. [INTENTIONALLY OMITTED]."
(6) Section 4.10 of the Indenture is hereby eliminated in its entirety and replaced with the words: "Section 4.10. [INTENTIONALLY OMITTED]."
(7) Section 5.01 of the Indenture is hereby eliminated in its entirety and replaced with the words: "Section 5.01. [INTENTIONALLY OMITTED]."
(8) Section 6.01 of the Indenture is hereby amended to delete the text in subsections 6.01(4) and 6.01(5) and 6.01(6) as set forth in the Officers' Certificate with respect to the Notes dated as of May 16, 1997 and to replace the text thereof with the text "[INTENTIONALLY OMITTED]."
SECTION 3. Effectiveness. This Second Supplemental Indenture supplements the Indenture with respect to the Notes and shall be a part and subject to all of the terms thereof. Except as supplemented hereby, the Indenture shall continue in full force and effect.
The Amendments effected by this Second Supplemental Indenture shall take effect on the date that each of the following conditions shall have been satisfied or waived:
(a) each of the parties hereto shall have executed and delivered this Second Supplemental Indenture; and
(b) Glass Container shall have received written consent to these Amendments from the Holders of at least a majority in principal amount of the Notes;
provided, however, that the Amendments set forth in Section 2 of this Second Supplemental Indenture shall become operative only upon and simultaneously with, and shall have no force and effect prior to, Glass Container's acceptance for purchase of the Notes that are tendered and not withdrawn pursuant to the Tender Offer.
SECTION 4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SECOND SUPPLEMENTAL INDENTURE 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 5. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Second Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company and the Guaranteeing Subsidiaries.
SECTION 6. Successors and Assigns. All agreements of the Company and the Guaranteeing Subsidiaries in this Second Supplemental Indenture shall bind their respective successors and assigns. All agreements of the Trustee in this Second Supplemental Indenture shall bind its successors.
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SECTION 7. Separability. In case any provision of this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 8. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 9. Counterparts. The parties may sign any number of copies of this Second Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed of the date first above written.
| Dated: May 27, 2003 | |||
| XXXXX-ILLINOIS, INC. | |||
| By: | /s/ XXXXX X. XXXXXXX |
||
| Name: | Xxxxx X. Xxxxxxx | ||
| Title: | Vice President & Secretary | ||
| XXXXX-ILLINOIS GROUP, INC. | |||
| By: | /s/ XXXXX X. XXXXXXX |
||
| Name: | Xxxxx X. Xxxxxxx | ||
| Title: | Vice President & Secretary | ||
| XXXXX-XXXXXXXX PACKAGING, INC. | |||
| By: | /s/ XXXXX X. XXXXXXX |
||
| Name: | Xxxxx X. Xxxxxxx | ||
| Title: | Vice President & Secretary | ||
| THE BANK OF NEW YORK, as Trustee |
|||
| By: | /s/ XXXXXX X. XXXXXX |
||
| Authorized Signatory | |||
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