EXHIBIT 4.1
PACKAGING CORPORATION OF AMERICA,
ISSUER
SUPPLEMENTAL INDENTURE
TO
INDENTURE DATED AS OF APRIL 12, 0000
XXX XXXX XX XXX XXXX
(XX XXXXXXXXX XX XXXXXX XXXXXX TRUST
COMPANY OF NEW YORK),
TRUSTEE
SERIES A & SERIES B
9(5)/(8)% SENIOR SUBORDINATED NOTES DUE 2009
SUPPLEMENTAL INDENTURE, dated as of 5:01 p.m. on July 7, 2003
("Supplemental Indenture"), among PACKAGING CORPORATION OF AMERICA, a Delaware
corporation (the "Company"), PCA INTERNATIONAL, INC., a Delaware corporation
("PCAI"), PCA INTERNATIONAL SERVICES, LLC ("PCAIS"), a Delaware limited
liability company, PACKAGING CREDIT COMPANY, LLC, a Delaware limited liability
company ("PCC"), XXXXX CONTAINER CORPORATION, a Virginia corporation ("Dixie"),
PCA HYDRO, INC., a Delaware corporation ("PCA Hydro"), TOMAHAWK POWER LLC, a
Delaware limited liability company ("Tomahawk") and THE BANK OF NEW YORK (as
successor to United States Trust Company 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 and the Trustee executed and delivered an
Indenture, dated as of April 12, 1999 (the "Indenture"), providing for the
issuance of up to an aggregate principal amount at maturity of $750,000,000 of
9 5/8% Senior Subordinated Notes due 2009; all capitalized terms used herein
and not defined are used herein as defined in the Indenture;
WHEREAS, on October 18, 1999, the Company issued under the Indenture
$550,000,000 principal amount of 9 5/8% Series B Senior Subordinated Notes
due 2009 (the "Notes") in exchange for all of its outstanding 9 5/8% Senior
Subordinated Notes due 2009 previously issued pursuant to the Indenture;
WHEREAS, Section 9.02 of the Indenture provides that the Company, when
authorized by a resolution of its board of directors, and the Trustee may amend
or supplement certain provisions of the Indenture and the Notes with the written
consent of the Holders of a majority in principal amount of the outstanding
Notes;
WHEREAS, the Company has offered to purchase for cash any and all of
the outstanding Notes, upon the terms and subject to the conditions set forth in
its Offer to Purchase and Consent Solicitation Statement, dated June 23, 2003
and in the related Letter of Transmittal and Consent (such offer, the "Offer");
in connection therewith the Company solicited written consents of the Holders to
the substance of the amendments to the Indenture set forth herein and to the
execution of this Supplemental Indenture, and the Company has now obtained such
written consents from the Holders of a majority in principal amount of the
outstanding Notes; accordingly, this Supplemental Indenture and the amendments
set forth herein are authorized pursuant to Section 9.02 of the Indenture
referred to above; and
WHEREAS, the execution and delivery of this Supplemental Indenture has
been duly authorized by the parties hereto, and all other acts necessary to make
this Supplemental Indenture a valid and binding supplement to the Indenture
effectively amending the Indenture as set forth herein have been duly taken.
NOW, THEREFORE, in consideration of the above premises, each party
hereto agrees as follows:
Section 1. AMENDMENTS TO THE INDENTURE.
Upon written notification to the Trustee by the Company that it has
accepted for purchase and payment pursuant to the Offer all Notes validly
tendered pursuant to the Offer, then automatically (without further act by any
person), with respect to the Notes:
(a) the Company shall be released from its obligations under the following
sections of the Indenture: Section 3.09 (Offer to Purchase by
Application of Excess Proceeds); Section 4.03 (Reports); Section 4.04
(Compliance Certificate); Section 4.05 (Taxes); 4.06 (Stay, Extension
and Usury Laws); Section 4.07 (Restricted Payments); Section 4.08
(Dividend and Other Payment Restrictions Affecting Subsidiaries);
Section 4.09 (Incurrence of Indebtedness and Issuance of Preferred
Stock); Section 4.10 (Asset Sales); Section 4.11 (Transactions with
Affiliates); Section 4.12 (Liens); Section 4.13 (Sale and Leaseback
Transactions); Section 4.15 (Offer to Repurchase Upon Change of
Control); Section 4.16 (No Senior Subordinated Debt); Section 4.17
(Additional Subsidiary Guarantees); Section 4.18 (Business
Activities); Section 5.01 (Merger, Consolidation, or Sale of Assets);
and Section 5.02 (Successor Corporation Substituted);
(b) failure to comply with the terms of any of the foregoing Sections of
the Indenture shall no longer constitute a default or an Event of
Default under the Indenture and shall no longer have any other
consequence under the Indenture;
(c) the occurrence of the events described in Sections 6.01 (iii), (iv),
(v), (vi), (vii), (viii), and (ix) shall no longer constitute Events
of Default; and
(d) all definitions set forth in Section 1.01 of the Indenture that relate
to defined terms used solely in covenants or sections deleted hereby
are deleted in their entirety.
Section 2. RATIFICATION.
Except as hereby expressly amended, the Indenture is in all respects
ratified and confirmed and all the terms, provisions and conditions thereof
shall be and remain in full force and effect.
Section 3. EFFECTIVENESS; OPERATION.
This Supplemental Indenture shall be effective upon execution hereof
by the Company and the Trustee, but the amendments to the Indenture in Section 1
hereof shall not become operative until the Company has given written notice to
the Trustee that it has accepted for purchase and payment pursuant to the Offer
all Notes validly tendered pursuant to the Offer.
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Section 4. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS 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. COUNTERPARTS.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 6. EFFECT OF HEADINGS.
The Section headings herein are for convenience only and shall not
affect the construction hereof.
Section 7. THE TRUSTEE.
The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this Supplemental Indenture or for
or in respect of the recitals contained herein, all of which are made solely by
PCAI, PCAIS, PCC, Xxxxx, PCA Hydro, Tomahawk and the Company.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
Packaging Corporation of America
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Senior Vice President, Chief
Financial Officer and Corporate
Secretary
PCA International Services, LLC
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Secretary
PCA International, Inc.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Secretary
Packaging Credit Company, LLC
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Assistant Secretary
Xxxxx Container Corporation
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Assistant Secretary
PCA Hydro, Inc.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Assistant Secretary
Tomahawk Power LLC
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Assistant Secretary
THE BANK OF NEW YORK (as successor to United
States Trust Company of New York) as Trustee
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
