EXHIBIT 4.10
SILGAN HOLDINGS INC.,
as Issuer
and
FLEET NATIONAL BANK,
as Trustee
-------------------------
Indenture
Dated as of July 22, 1996
-------------------------
Subordinated Debentures due 2006
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TABLE OF CONTENTS
Page
ARTICLE 1. Definitions and Incorporation by Reference.......................1
SECTION 1.1 Definitions.................................................1
SECTION 1.2 Incorporation by Reference of Trust
Indenture Act..............................................19
SECTION 1.3 Rules of Construction......................................19
ARTICLE 2. The Securities..................................................20
SECTION 2.1 Form and Dating............................................20
SECTION 2.2 Execution, Authentication and
Denominations..............................................20
SECTION 2.3 Registrar and Paying Agent.................................21
SECTION 2.4 Paying Agent to Hold Money in Trust........................22
SECTION 2.5 Transfer and Exchange......................................22
SECTION 2.6 Replacement Securities.....................................23
SECTION 2.7 Outstanding Securities.....................................23
SECTION 2.8 Temporary Securities.......................................23
SECTION 2.9 Cancellation...............................................24
SECTION 2.10 CUSIP Numbers..............................................24
SECTION 2.11 Defaulted Interest.........................................24
ARTICLE 3. Redemption......................................................24
SECTION 3.1 Right of Redemption........................................24
SECTION 3.2 Notices to Trustee.........................................25
SECTION 3.3 Selection of Securities to Be Redeemed.....................25
SECTION 3.4 Notice of Redemption.......................................26
SECTION 3.5 Effect of Notice of Redemption.............................27
SECTION 3.6 Deposit of Redemption Price................................27
SECTION 3.7 Payment of Securities Called for
Redemption.................................................27
SECTION 3.8 Securities Redeemed in Part................................27
ARTICLE 4. Covenants.......................................................28
SECTION 4.1 Payment of Securities......................................28
SECTION 4.2 Maintenance of Office or Agency............................28
SECTION 4.3 Limitation on Indebtedness.................................29
SECTION 4.4 Limitation on Restricted Payments..........................33
SECTION 4.5 Limitation on Dividend and Other
Payment Restrictions Affecting
Restricted Subsidiaries....................................36
SECTION 4.6 Limitation on Transactions with
Shareholders and Affiliates................................37
SECTION 4.7 Limitation on the Issuance of Capital
Stock of Restricted Subsidiaries...........................38
SECTION 4.8 Repurchase of Securities upon Change of
Control....................................................39
SECTION 4.9 Limitation on Asset Sales..................................41
SECTION 4.10 Corporate Existence........................................44
SECTION 4.11 Payment of Taxes and Other Claims..........................45
SECTION 4.12 Notice of Defaults and Other Events........................45
SECTION 4.13 Maintenance of Properties and
Insurance..................................................45
SECTION 4.14 Compliance Certificates....................................46
SECTION 4.15 Commission Reports and Reports to
Holders....................................................47
SECTION 4.16 Waiver of Stay, Extension or Usury
Laws.......................................................47
SECTION 4.17 Trustee Not Liable.........................................47
ARTICLE 5. Successor Corporation...........................................48
SECTION 5.1 When Holdings May Merge, Etc...............................48
SECTION 5.2 Successor Corporation Substituted..........................49
ARTICLE 6. Default and Remedies............................................50
SECTION 6.1 Events of Default..........................................50
SECTION 6.2 Acceleration...............................................51
SECTION 6.3 Other Remedies.............................................52
SECTION 6.4 Waiver of Past Defaults....................................52
SECTION 6.5 Control by Majority........................................53
SECTION 6.6 Limitation on Suits........................................53
SECTION 6.7 Rights of Holders to Receive Payment.......................54
SECTION 6.8 Collection Suit by Trustee.................................54
SECTION 6.9 Trustee May File Proofs of Claim...........................54
SECTION 6.10 Priorities.................................................55
SECTION 6.11 Undertaking for Costs......................................55
SECTION 6.12 Restoration of Rights and Remedies.........................55
SECTION 6.13 Rights and Remedies Cumulative.............................56
SECTION 6.14 Delay or Omission Not Waiver...............................56
ARTICLE 7. Trustee.........................................................56
SECTION 7.1 Rights of Trustee..........................................56
SECTION 7.2 Individual Rights of Trustee...............................57
SECTION 7.3 Trustee's Disclaimer.......................................57
SECTION 7.4 Notice of Default..........................................57
SECTION 7.5 Reports by Trustee to Holders..............................58
SECTION 7.6 Compensation and Indemnity.................................58
SECTION 7.7 Replacement of Trustee.....................................58
SECTION 7.8 Successor Trustee by Merger, Etc...........................59
SECTION 7.9 Eligibility................................................60
SECTION 7.10 Money Held in Trust........................................60
ARTICLE 8. Discharge of Indenture..........................................60
SECTION 8.1 Termination of Holdings' Obligations.......................60
SECTION 8.2 Defeasance and Discharge of Indenture......................61
SECTION 8.3 Defeasance of Certain Obligations..........................64
SECTION 8.4 Application of Trust Money.................................66
SECTION 8.5 Repayment to Holdings......................................66
SECTION 8.6 Reinstatement..............................................67
ARTICLE 9. Amendments, Supplements and Waivers.............................67
SECTION 9.1 Without Consent of Holders.................................67
SECTION 9.2 With Consent of Holders....................................68
SECTION 9.3 Revocation and Effect of Consent...........................69
SECTION 9.4 Notation on or Exchange of Securities......................70
SECTION 9.5 Trustee to Sign Amendments, Etc............................70
SECTION 9.6 Conformity with Trust Indenture Act........................70
ARTICLE 10. Subordination of Securities....................................70
SECTION 10.1 Securities Subordinated to Senior
Indebtedness of Holdings or the
Successor Corporation......................................70
SECTION 10.2 No Payment on Securities in Certain
Circumstances..............................................71
SECTION 10.3 Payment over of Proceeds upon
Dissolution, Etc...........................................72
SECTION 10.4 Subrogation................................................75
SECTION 10.5 Obligations of Holdings and the
Successor Corporation Unconditional........................75
SECTION 10.6 Notice to Trustee..........................................76
SECTION 10.7 Reliance of Judicial Order or
Certificate of Liquidating Agent...........................77
SECTION 10.8 Trustee's Relation to Senior
Indebtedness...............................................77
SECTION 10.9 Subordination Rights Not Impaired by
Acts or Omissions of Holdings or the
Successor Corporation or Holders of
Senior Indebtedness........................................77
SECTION 10.10 Holders Authorize Trustee to Effectuate
Subordination of Securities................................78
SECTION 10.11 Not to Prevent Events of Default...........................78
SECTION 10.12 Trustee's Compensation Not Prejudiced......................78
SECTION 10.13 No Waiver of Subordination Provisions......................78
SECTION 10.14 Payments May Be Paid Prior to
Dissolution................................................79
ARTICLE 11. Miscellaneous..................................................79
SECTION 11.1 Trust Indenture Act of 1939................................79
SECTION 11.2 Notices....................................................79
SECTION 11.3 Certificate and Opinion as to
Conditions Precedent.......................................80
SECTION 11.4 Statements Required in Certificate or
Opinion....................................................80
SECTION 11.5 Rules by Trustee, Paying Agent or
Registrar..................................................81
SECTION 11.6 Payment Date Other Than a Business Day.....................81
SECTION 11.7 Governing Law..............................................81
SECTION 11.8 No Adverse Interpretation of Other
Agreements.................................................81
SECTION 11.9 No Recourse Against Others.................................81
SECTION 11.10 Successors.................................................82
SECTION 11.11 Duplicate Originals........................................82
SECTION 11.12 Separability...............................................82
SECTION 11.13 Table of Contents, Headings, Etc...........................82
INDENTURE, dated as of July 22, 1996, among Silgan Holdings
Inc., a Delaware corporation, as Issuer ("Holdings"), and Fleet National Bank, a
national banking association, as Trustee (the "Trustee").
RECITALS OF HOLDINGS
Holdings has duly authorized the execution and delivery of
this Indenture in connection with the issuance of Holdings' Subordinated
Debentures due 2006 (the "Securities") in exchange for shares of Holdings'
13-1/4% Cumulative Exchangeable Redeemable Preferred Stock (the "Exchangeable
Preferred Stock"), which Securities will be in an aggregate principal amount
equal to the aggregate liquidation preference of, and accrued but unpaid
dividends on, such Preferred Stock on the Closing Date and will be issuable as
provided in this Indenture. All things necessary to make this Indenture a valid
agreement of Holdings, in accordance with its terms, have been done, and
Holdings has done all things necessary to make the Securities, when executed by
Holdings and authenticated and delivered by the Trustee hereunder and duly
issued by Holdings, the valid obligations of Holdings as hereinafter provided.
This Indenture is subject, and shall be governed by, the
provisions of the Trust Indenture Act of 1939, as amended, that are required to
be a part of and to govern indentures qualified under the Trust Indenture Act of
1939, as amended.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders,
as follows.
ARTICLE 1.
Definitions and Incorporation by Reference
SECTION 1.1 Definitions.
"Acceleration Notice" has the meaning provided in Section 6.2
of this Indenture.
"Adjusted Consolidated Net Income" means, for any period, the
aggregate net income (or loss) of any Person and its consolidated Subsidiaries
for such period determined in conformity with GAAP; provided that the following
items shall be excluded in computing Adjusted Consolidated Net Income (without
duplication): (i) the net income (or loss) of such Person (other than a
Subsidiary of such Person) in which any other Person (other than such Person or
any of its Subsidiaries) has a joint interest, except to the extent of the
amount of dividends or other distributions actually paid to such Person or any
of its Subsidiaries by such other Person during such period; (ii) solely for the
purposes of calculating the amount of Restricted Payments that may be made
pursuant to clause (C) of the first paragraph of Section 4.4 of this Indenture
(and in such case, except to the extent includible pursuant to clause (i)
above), the net income (or loss) of such Person accrued prior to the date it
becomes a Subsidiary of any other Person or is merged into or consolidated with
such other Person or any of its Subsidiaries or all or substantially all of the
property and assets of such Person are acquired by such other Person or any of
its Subsidiaries; (iii) the net income (or loss) of any Subsidiary of any Person
to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary of such net income is not at the time permitted
by the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
such Subsidiary; (iv) any gains or losses (on an after-tax basis) attributable
to Asset Sales; (v) any amounts paid or accrued as dividends on preferred stock
of such Person or preferred stock of any Subsidiary of such Person; and (vi) all
extraordinary gains and extraordinary losses; provided that, solely for the
purposes of calculating the Interest Coverage Ratio (and in such case, except to
the extent includible pursuant to clause (i) above), "Adjusted Consolidated Net
Income" of Holdings shall include the amount of all cash dividends received by
Holdings or any Subsidiary of Holdings from an Unrestricted Subsidiary.
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise. For purposes of this
definition, neither the Bank Agent nor any Bank nor any affiliate of any of them
shall be deemed to be an Affiliate of Holdings or any Subsidiary of Holdings.
"Agent" means any Registrar, Paying Agent, authenticating
agent or co-registrar.
"Asset Acquisition" means (i) an investment by Holdings or any
of its Subsidiaries in any other Person pursuant to which such Person shall
become a Subsidiary of Holdings or any of its Subsidiaries or shall be merged
into or consolidated with Holdings or any of its Subsidiaries or (ii) an
acquisition by Holdings or any of its Subsidiaries of the property and assets of
any Person other than Holdings or any of its Subsidiaries that constitute
substantially all of an operating unit or business of such Person.
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"Asset Disposition" means the sale or other disposition by
Holdings or any of its Subsidiaries (other than to Holdings or another
Subsidiary of Holdings) of (i) all or substantially all of the capital stock of
any Subsidiary of Holdings or (ii) all or substantially all of the property and
assets that constitute an operating unit or business of Holdings or any of its
Subsidiaries.
"Asset Sale" means, with respect to any Person, any sale,
transfer or other disposition (including by way of merger, consolidation or
sale-leaseback transaction) in one transaction or a series of related
transactions by such Person or any of its Subsidiaries to any Person other than
Holdings or any of its Subsidiaries of (i) all or any of the capital stock of
any Subsidiary of such Person, (ii) all or substantially all of the property and
assets of an operating unit or business of such Person or any of its
Subsidiaries or (iii) any other property and assets of such Person or any of its
Subsidiaries outside the ordinary course of business of such Person or such
Subsidiary and, in each case, that is not governed by the provisions of Article
5 of this Indenture; provided that sales or other dispositions of inventory,
receivables and other current assets shall not be included within the meaning of
such term.
"Average Life" means, at any date of determination with
respect to any debt security, the quotient obtained by dividing (i) the sum of
the product of (A) the number of years from such date of determination to the
dates of each successive scheduled principal payment of such debt security and
(B) the amount of such principal payment by (ii) the sum of all such principal
payments.
"Bank Agent" means Bankers Trust Company, as co-arranger and
administrative agent for the Banks pursuant to the Silgan Credit Agreement, and
any successor or successors thereto.
"Banks" means the lenders who are from time to time parties to
the Silgan Credit Agreement.
"Board of Directors" means the Board of Directors of Holdings
(or any successor to Holdings) or any committee of such Board of Directors duly
authorized to act under this Indenture.
"Board Resolution" means a copy of a resolution, certified by
the Secretary or an Assistant Secretary of Holdings to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in The City of New York, or in the city of
the Corporate Trust Office of the Trustee, are authorized by law to close.
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"capital stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of capital stock of such Person, including,
without limitation, all common stock and preferred stock.
"Capitalized Lease" means, as applied to any Person, any lease
of any property (whether real, personal or mixed) of which the discounted
present value of the rental obligations of such Person as lessee, in conformity
with GAAP, is required to be capitalized on the balance sheet of such Person;
and "Capitalized Lease Obligation" means the rental obligations, as aforesaid,
under such lease.
"Change of Control" means such time as (i) (A) a "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act),
other than MSLEF II, D. Greg Horrigan, R. Philip Silver and their respective
Affiliates, becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of more than 40% of the total voting power of the then outstanding
Voting Stock of Holdings and (B) MSLEF II, D. Greg Horrigan, R. Philip Silver
and their respective Affiliates beneficially own, directly or indirectly, less
than 25% of the total voting power of the then outstanding Voting Stock of
Holdings; (ii) individuals who at the beginning of any period of two consecutive
calendar years constituted the Board of Directors (together with any new
directors whose election by the Board of Directors or whose nomination for
election by Holdings' shareholders was approved by a vote of at least two-thirds
of the members of the Board of Directors then still in office who either were
members of the Board of 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 members of the Board of Directors then in
office; or (iii) Holdings shall not beneficially own, directly or indirectly, at
least a majority of the issued and outstanding Voting Stock of Silgan other than
as a result of a Holdings Merger.
"Change of Control Offer" has the meaning provided in Section
4.8 of this Indenture.
"Change of Control Payment" has the meaning provided in
Section 4.8 of this Indenture.
"Change of Control Payment Date" has the meaning provided in
Section 4.8 of this Indenture.
"Closing Date" means the date on which the Securities are
originally issued under this Indenture in exchange for all of the Exchangeable
Preferred Stock in accordance with the terms of the Exchangeable Preferred
Stock.
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"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"common stock" means, with respect to any Person, any and all
shares, interests, participations and other equivalents (however designated,
whether voting or non-voting) of common stock of such Person, including, without
limitation, all series and classes of such common stock.
"Consolidated EBITDA" means, with respect to any Person for
any period, the sum of the amounts for such period of (i) Adjusted Consolidated
Net Income, (ii) Consolidated Interest Expense, (iii) income taxes (other than
income taxes (either positive or negative) attributable to extraordinary and
nonrecurring gains or losses or sales of assets), (iv) depreciation expense, (v)
amortization expense and (vi) all other noncash items reducing Adjusted
Consolidated Net Income, less all noncash items increasing Adjusted Consolidated
Net Income, all as determined on a consolidated basis for such Person and its
Subsidiaries in conformity with GAAP; provided that, if a Person has any
Subsidiary that is not a Wholly Owned Subsidiary of such Person, Consolidated
EBITDA of such Person shall be reduced by an amount equal to (A) the Adjusted
Consolidated Net Income of such Subsidiary multiplied by (B) the quotient of (1)
the number of shares of outstanding common stock of such Subsidiary not owned on
the last day of such period by such Person or any Subsidiary of such Person
divided by (2) the total number of shares of outstanding common stock of such
Subsidiary on the last day of such period.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the aggregate amount of interest in respect of
Indebtedness (including amortization of original issue discount on any
Indebtedness and the interest portion of any deferred payment obligation,
calculated in accordance with the interest method of accounting; all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing; and the net costs associated with
Interest Rate Agreements) and all but the principal component of rentals in
respect of Capitalized Lease Obligations paid, accrued or scheduled to be paid
or accrued by such Person during such period; excluding, however, (i) any amount
of such interest of any Subsidiary of such Person if the net income (or loss) of
such Subsidiary is excluded in the calculation of Adjusted Consolidated Net
Income for such Person pursuant to clause (iii) of the definition thereof (but
only in the same proportion as the net income (or loss) of such Subsidiary is
excluded from the calculation of Adjusted Consolidated Net Income for such
Person pursuant to clause (iii) of the definition thereof), (ii) any premiums,
fees and expenses (and any amortization thereof) payable in connection with the
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Refinancing and (iii) amortization of any other deferred financing costs, all as
determined on a consolidated basis in conformity with GAAP.
"Consolidated Net Tangible Assets" means the total amount of
assets of Holdings and its Subsidiaries (less applicable depreciation,
amortization and other valuation reserves), except to the extent resulting from
write-ups of capital assets (excluding write-ups in connection with accounting
for acquisitions in conformity with GAAP), after deducting therefrom (i) all
current liabilities of Holdings and its consolidated Subsidiaries (excluding
intercompany items) and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as set
forth on the most recently available consolidated balance sheet of Holdings and
its consolidated Subsidiaries prepared in conformity with GAAP.
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity as set forth on the most recently available consolidated
balance sheet of Holdings and its consolidated Subsidiaries (which shall be as
of a date not more than 60 days prior to the date of such computation), less any
amounts attributable to Redeemable Stock or any equity security convertible into
or exchangeable for Indebtedness, the cost of treasury stock and the principal
amount of any promissory notes receivable from the sale of capital stock of
Holdings or any of its Subsidiaries, each item to be determined in conformity
with GAAP (excluding the effects of foreign currency exchange adjustments under
Financial Accounting Standards Board Statement of Financial Accounting Standards
No. 52).
"Containers" means Silgan Containers Corporation, a Delaware
corporation and an indirectly Wholly Owned Subsidiary of Holdings.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date of this Indenture,
located at 111 Westminster Street, Mail Code 199, Providence, RI 02903,
Attention: Corporate Trust Administration.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect Holdings or any of its Subsidiaries against fluctuations in currency
values to or under which Holdings or any of its Subsidiaries is a party or a
beneficiary on the date of this Indenture or becomes a party or a beneficiary
hereafter.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
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"Designated Senior Indebtedness" means (i) Indebtedness under
the Silgan Credit Agreement, including refinancings thereof, and (ii) any other
Indebtedness constituting Senior Indebtedness that, at any date of
determination, has an aggregate principal amount of at least $50 million and is
specifically designated by Holdings or the Successor Corporation in the
instrument creating or evidencing such Senior Indebtedness as "Designated Senior
Indebtedness."
"Discount Debentures" means Holdings' 13-1/4% Senior Discount
Debentures due 2002.
"Event of Default" has the meaning provided in Section 6.1 of
this Indenture.
"Excess Proceeds" has the meaning provided in Section 4.9 of
this Indenture.
"Excess Proceeds Offer" has the meaning provided in Section
4.9 of this Indenture.
"Excess Proceeds Payment" has the meaning provided in Section
4.9 of this Indenture.
"Excess Proceeds Payment Date" has the meaning provided in
Section 4.9 of this Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Closing Date applied on a basis
consistent with the principles, methods, procedures and practices employed in
the preparation of Holdings audited financial statements, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession. All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity with GAAP, except
that calculations made for purposes of determining compliance with the terms of
the covenants set forth In Article 4 and Article 5 and with other provisions of
this Indenture shall be made without giving effect to (i) the amortization of
any expenses incurred in connection with the Refinancing, and (ii) except as
otherwise provided, the amortization of any amounts required or permitted by
Accounting Principles Board Opinion Nos. 16 and 17.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
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foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay or advance or supply funds for the purchase or
payment of such Indebtedness or other obligation of such other Person (whether
arising by virtue of partnership arrangements, or by agreement to keep-well, 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 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.
"Holder" or "Securityholder" means the registered holder of
any Security.
"Holdings" means the party named as such in this Indenture
until a successor replaces it pursuant to Article 5 of this Indenture and
thereafter means the successor.
"Holdings Merger" means the merger or consolidation of
Holdings and Silgan or either of their successors.
"Holdings Organization Agreement" means the Amended and
Restated Organization Agreement dated as of December 21, 1993, among Holdings,
R. Philip Silver, D. Greg Horrigan, MSLEF II, Bankers Trust New York Corporation
and First Plaza Group Trust.
"Incur" means, with respect to any Indebtedness, to incur,
create, issue, assume, Guarantee or otherwise become liable for or with respect
to, or become responsible for, the payment of, contingently or otherwise, such
Indebtedness; provided that neither the accrual of interest (whether such
interest is payable in cash or kind) nor the accretion of original issue
discount shall be considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date
of determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (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,
which purchase price is due more than six months after the date of placing such
property in service or taking delivery and title thereto or the completion of
such services, except Trade Payables, (v) all obligations of such Person as
lessee under Capitalized Leases, (vi) all Indebtedness of other Persons secured
by a Lien on any asset of such Person, whether or not such Indebtedness is
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assumed by such Person; provided that the amount of such Indebtedness shall be
the lesser of (A) the fair market value of such asset at such date of
determination and (B) the amount of such Indebtedness, (vii) all Indebtedness of
other Persons Guaranteed by such Person to the extent such Indebtedness is
Guaranteed by such Person, (viii) all obligations of such Person in respect of
borrowed money under the Silgan Credit Agreement, the Silgan Notes, the Discount
Debentures and any Guarantees thereof and (ix) to the extent not otherwise
included in this definition, all obligations of such Person under Currency
Agreements and Interest Rate Agreements. The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and the maximum liability, upon the
occurrence of the contingency giving rise to the obligation, of any contingent
obligations at such date; provided that the amount outstanding at any time of
any Indebtedness issued with original issue discount is the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with GAAP
and, in clarification of this definition, any unused commitment under the Silgan
Credit Agreement or any other agreement relating to Indebtedness shall not be
treated as outstanding.
"Indenture" means this Indenture as originally executed or as
it may be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture.
"Interest Coverage Ratio" means, with respect to any Person on
any Transaction Date, the ratio of (i) the aggregate amount of Consolidated
EBITDA of such Person for the four fiscal quarters for which financial
information in respect thereof is available immediately prior to such
Transaction Date to (ii) the aggregate Consolidated Interest Expense of such
Person during such four fiscal quarters. In making the foregoing calculation,
(A) pro forma effect shall be given to (1) any Indebtedness Incurred subsequent
to the end of the four-fiscal-quarter period referred to in clause (i) and prior
to the Transaction Date (other than Indebtedness Incurred under a revolving
credit or similar arrangement) to the extent of the commitment thereunder (or
under any predecessor revolving credit or similar arrangement on the last day of
such period), (2) any Indebtedness Incurred during such period to the extent
such Indebtedness is outstanding at the Transaction Date and (3) any
Indebtedness to be Incurred on the Transaction Date, in each case as if such
Indebtedness had been Incurred on the first day of such four-fiscal-quarter
period and after giving effect to the application of the proceeds thereof; (B)
Consolidated Interest Expense attributable to interest on any Indebtedness
(whether existing or being Incurred) computed on a pro forma basis and bearing a
floating interest rate shall be computed as if the rate in effect on the date of
computation (taking into account any Interest Rate Agreement applicable to such
Indebtedness if such Interest Rate Agreement has a remaining term in excess of
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12 months) had been the applicable rate for the entire period; (C) there shall
be excluded from Consolidated Interest Expense any Consolidated Interest Expense
related to any amount of Indebtedness that was outstanding during such
four-fiscal-quarter period or thereafter but which is not outstanding or which
is to be repaid on the Transaction Date, except for Consolidated Interest
Expense accrued (as adjusted pursuant to clause (B)) during such
four-fiscal-quarter period under a revolving credit or similar arrangement) to
the extent of the commitment thereunder (or under any successor revolving credit
or similar arrangement) on the Transaction Date; (D) pro forma effect shall be
given to Asset Dispositions and Asset Acquisitions that occur during such
four-fiscal-quarter period or thereafter and prior to the Transaction Date
(including any Asset Acquisition to be made with the Indebtedness Incurred
pursuant to clause (i) above) as if they had occurred on the first day of such
four-fiscal-quarter period; (E) with respect to any such four-fiscal-quarter
period commencing prior to the Refinancing, the Refinancing shall be deemed to
have taken place on the first day of such period; and (F) pro forma effect shall
be given to asset dispositions and asset acquisitions that have been made by any
Person that has become a Subsidiary of Holdings or has been merged with or into
Holdings or any Subsidiary of Holdings during the four-fiscal-quarter period
referred to above or subsequent to such period and prior to the Transaction Date
and that would have been Asset Dispositions or Asset Acquisitions had such
transactions occurred when such Person was a Subsidiary of Holdings as if such
asset dispositions or asset acquisitions were Asset Dispositions or Asset
Acquisitions that occurred on the first day of such period.
"Interest Payment Date" means each semiannual interest payment
date on January 15 and July 15 of each year, commencing with the first such date
to occur after the Closing Date.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement or other similar agreement or
arrangement designed to protect Holdings or any of its Subsidiaries against
fluctuations in interest rates to or under which Holdings or any of its
Subsidiaries is a party or a beneficiary or becomes a party or a beneficiary
thereafter.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, or any successor internal revenue code.
"Investment" means any direct or indirect advance, loan (other
than advances to customers in the ordinary course of business that are recorded
as accounts receivable on the balance sheet of any Person or its Subsidiaries)
or other extension of credit or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
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services for the account or use of others) or any purchase or acquisition of
capital stock, bonds, notes, debentures or other similar instruments issued by,
any other Person. For purposes of the definition of "Unrestricted Subsidiary"
and Section 4.4 of this Indenture, (i) "Investment" shall include the fair
market value of the net assets of any Subsidiary of Holdings at the time that
such Subsidiary of Holdings is designated an Unrestricted Subsidiary and shall
exclude the fair market value of the net assets of any Unrestricted Subsidiary
at the time that such Unrestricted Subsidiary is designated a Subsidiary of
Holdings 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 by the Board of Directors in good faith.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof, any sale with recourse against the seller or any Affiliate of the
seller, or any agreement to give any security interest).
"Management Agreements" means the amended and restated
management services agreements each dated as of December 21, 1993, between S&H
and Holdings, S&H and Silgan, S&H and Containers and S&H and Plastics, as the
same may be further amended.
"MSLEF II" means The Morgan Stanley Leveraged Equity Fund II,
L. P., a Delaware limited partnership.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of cash or cash equivalents, including
payments in respect of deferred payment obligations (to the extent corresponding
to the principal, but not interest, component thereof) when received in the form
of cash or cash equivalents (except to the extent such obligations are financed
or sold with recourse to Holdings or any Subsidiary of Holdings) and proceeds
from the conversion of other property received when converted to cash or cash
equivalents, net of (i) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment bankers) related to such
Asset Sale, (ii) provisions for all taxes (whether or not such taxes will
actually be paid or are payable) as a result of such Asset Sale computed without
regard to the consolidated results of operations of Holdings and its
Subsidiaries, taken as whole, (iii) payments made to repay Indebtedness or any
other obligation outstanding at the time of such Asset Sale that either (A) is
secured by a Lien on the property or assets sold or (B) is required to be paid
as a result of such sale and (iv) appropriate amounts to be provided by Holdings
or any Subsidiary of Holdings as a reserve against any liabilities associated
with such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
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matters and liabilities under any indemnification obligations associated with
such Asset Sale, all as determined in conformity with GAAP.
"Officer" means, with respect to Holdings, the Chairman of the
Board, the President, any Vice President, the Chief Financial Officer, the
Controller, the Treasurer or any Assistant Treasurer, or the Secretary or any
Assistant Secretary.
"Officers' Certificate" means a certificate signed by two
Officers. Each Officers' Certificate (other than certificates provided pursuant
to TIA Section 314(a)(4)) shall include the statements provided for in TIA
Section 314(e).
"Opinion of Counsel" means a written opinion signed by legal
counsel who is acceptable to the Trustee. Such counsel may be an employee of
(except for purposes of Opinions of Counsel delivered pursuant to Article 8 of
this Indenture) or counsel for Holdings or the Trustee. Each such Opinion of
Counsel shall include the statements provided for in TIA Section 314(e).
"Paying Agent" has the meaning provided in Section 2.3, except
that, for the purposes of Article 8, the Paying Agent shall not be Holdings or a
Subsidiary of Holdings or an Affiliate of any of them. The term "Paying Agent"
includes any additional Paying Agent.
"Payment Blockage Period" has the meaning set forth in Section
10.2 of this Indenture.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization including a government
or political subdivision or an agency or instrumentality thereof.
"Plastics" means Silgan Plastics Corporation, a Delaware
corporation and an indirectly Wholly Owned Subsidiary of Holdings.
"preferred stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of preferred or preference stock of such Person,
including, without limitation, the Exchangeable Preferred Stock.
"principal" of a debt security, including the Securities,
means the principal amount due on the Stated Maturity as shown on such debt
security.
"Redeemable Stock" means any class or series of capital stock
of any Person that by its terms or otherwise is (i) required to be redeemed
prior to the Stated Maturity of the Securities, (ii) redeemable at the option of
the holder of such class or series of capital stock at any time prior to the
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Stated Maturity of the Securities or (iii) convertible into or exchangeable for
capital stock referred to in clause (i) or (ii) above or Indebtedness having a
scheduled maturity prior to the Stated Maturity of the Securities; provided that
any capital stock that would not constitute Redeemable Stock but for provisions
thereof giving holders thereof the right to require Holdings to repurchase or
redeem such capital stock upon the occurrence of an "asset sale" or a "change of
control" occurring prior to the Stated Maturity of the Securities shall not
constitute Redeemable Stock if the "asset sale" or "change of control" provision
applicable to such capital stock is no more favorable to the holders of such
capital stock than the provisions contained in Sections 4.8 and 4.9 of this
Indenture and such capital stock specifically provides that Holdings will not
repurchase or redeem any such capital stock pursuant to such provisions prior to
Holdings' repurchase of Securities required to be repurchased by Holdings under
Sections 4.8 and 4.9 of this Indenture.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which such Security is to be redeemed pursuant
to this Indenture.
"Refinancing" means, collectively, (i) the original issuance
of the Exchangeable Preferred Stock on the date hereof and the use of the
proceeds therefrom and (ii) the incurrence of $125 million of additional B term
loans in July 1996 and $17.4 million of working capital loans in June 1996 under
the Silgan Credit Agreement and the use of such proceeds to redeem a portion of
the Discount Debentures.
"Registrar" has the meaning provided in Section 2.3 of this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the January 1 or July 1 (whether or not January 1 or July 1
is a Business Day), as the case may be, next preceding such Interest Payment
Date.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee in its Corporate Trust Office or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Payments" has the meaning specified in Section 4.4
of this Indenture.
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"Restricted Subsidiary" means any Subsidiary of Holdings other
than an Unrestricted Subsidiary.
"S&H" means S&H, Inc., a company wholly owned by D. Greg
Horrigan and R. Philip Silver.
"Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture.
"Security Register" has the meaning provided in Section 2.3 of
this Indenture.
"Senior Indebtedness" means the following obligations of
Holdings or a Successor Corporation: (i) all Indebtedness and other monetary
obligations of Holdings or a Successor Corporation under (or in respect of) the
Silgan Credit Agreement, the Discount Debentures and, in the event of a Holdings
Merger or similar transaction, the Silgan Notes (including any agreement
pursuant to which the Silgan Notes or the Discount Debentures were issued), any
Interest Rate Agreement or any Currency Agreement, (ii) all other Indebtedness
of Holdings or a Successor Corporation (other than Indebtedness evidenced by the
Securities), including principal and interest on such Indebtedness, unless such
Indebtedness, by its terms or by the terms of any agreement or instrument
pursuant to which such Indebtedness is issued, is pari passu with, or
subordinated in right of payment to, the Securities and (iii) all fees, expenses
and indemnities payable in connection with the Silgan Credit Agreement, the
Silgan Notes (including any agreement pursuant to which the Silgan Notes are
issued) and, if applicable, Currency Agreements and Interest Rate Agreements;
provided that the term "Senior Indebtedness" shall not include (A) any
Indebtedness of Holdings or a Successor Corporation that, when Incurred and
without respect to any election under Section 1111(b) of the United States
Bankruptcy Code, was without recourse to Holdings or a Successor Corporation,
(B) any Indebtedness of Holdings or a Successor Corporation to a Subsidiary of
Holdings or a Successor Corporation or to a joint venture in which Holdings or a
Successor Corporation has an interest, (C) any Indebtedness of Holdings or a
Successor Corporation (other than such Indebtedness already described in clause
(i) above) of the type described in clause (ii) above and not permitted by
Section 4.3 of this Indenture, (D) any repurchase, redemption or other
obligation in respect of Redeemable Stock, (E) any Indebtedness to any employee
or officer of Holdings or a Successor Corporation or any of its Subsidiaries,
(F) any liability for federal, state, local or other taxes owed or owing by
Holdings or a Successor Corporation or (G) any Trade Payables. "Senior
Indebtedness" will also include interest accruing subsequent to events of
bankruptcy of Holdings or a Successor Corporation and its Subsidiaries at the
rate provided for in the document governing such Indebtedness, whether or not
such interest is an allowed claim enforceable against the debtor in a
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bankruptcy case under federal bankruptcy law.
"Shareholder Subordinated Notes" has the same meaning given
such term in the Silgan Credit Agreement (including the exhibits thereto) as in
effect on the Closing Date.
"Significant Subsidiary" means, at any date of determination,
any Subsidiary of Holdings that, together with its Subsidiaries, (i) for the
most recent fiscal year of Holdings, accounted for more than 10% of the
consolidated revenues of Holdings or (ii) as of the end of such fiscal year, was
the owner of more than 10% of the consolidated assets of Holdings, all as set
forth on the most recently available consolidated financial statements of
Holdings and its consolidated Subsidiaries for such fiscal year prepared in
conformity with GAAP.
"Silgan" means Silgan Corporation, a Delaware corporation and
a Wholly Owned Subsidiary of Holdings.
"Silgan Credit Agreement" means the Credit Agreement, dated as
of August 1, 1995, as amended, among Silgan, Containers, Plastics, the Banks
party thereto and the Bank Agent and Bank of America Illinois, as co-arranger
and as documentation agent, together with the related documents thereof
(including without limitation any Guarantees and security documents), in each
case as such agreements may be amended (including any amendment and restatement
thereof), supplemented, replaced or otherwise modified from time to time,
including any agreement extending the maturity of, refinancing or otherwise
restructuring (including, but not limited to, the inclusion of additional
borrowers thereunder that are Subsidiaries of Silgan whose obligations are
Guaranteed by Silgan thereunder and who are included as additional borrowers
thereunder) all or any portion of the Indebtedness under such agreement or any
successor agreement; provided that, with respect to any agreement providing for
the refinancing of Indebtedness under the Silgan Credit Agreement, such
agreement shall only be the Silgan Credit Agreement under the Indenture if a
notice to that effect is delivered by Holdings or Silgan to the Trustee and
there shall be at any time only one debt instrument that is the Silgan Credit
Agreement under the Indenture.
"Silgan Indebtedness" means any of the following Indebtedness
of Silgan and/or any of its Subsidiaries: (i) Indebtedness outstanding at any
time in an aggregate principal amount not to exceed the sum of (a) the aggregate
outstanding Indebtedness and unutilized commitments under the Silgan Credit
Agreement on the date of the original issuance of the Exchangeable Preferred
Stock plus (b) an aggregate amount not to exceed $200 million outstanding at any
time; (ii) Indebtedness issued in exchange for or the net proceeds of which are
used directly or indirectly to refinance, redeem or repurchase all (but not less
than all) of the outstanding Securities; (iii) $150 million outstanding at any
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time of Capitalized Lease Obligations; (iv) Indebtedness in respect of letters
of credit (other than letters of credit issued pursuant to the Silgan Credit
Agreement) in an aggregate amount not to exceed $30 million outstanding at any
time; (v) Indebtedness in an aggregate amount not to exceed $50 million
outstanding at any time; provided that such Indebtedness (a) by its terms or by
the terms of any agreement or instrument pursuant to which such Indebtedness is
issued, is expressly made subordinate in right of payment to the Securities at
least to the extent that the Securities are subordinated to Senior Indebtedness,
(b) does permit or require payments of interest in cash prior to July 15, 2000,
(c) does not mature prior to July 15, 2006, (d) the Average Life of such
Indebtedness (determined as of the date of Incurrence of such Indebtedness) is
greater than the remaining Average Life of the Securities, and (e) by its terms
or by the terms of any agreement or instrument pursuant to which such
Indebtedness is issued, provides that no payments of principal of such
Indebtedness by way of sinking fund, mandatory redemption or otherwise
(including defeasance) may be made by Silgan (including, without limitation, at
the option of the holder thereof other than an option given to a holder pursuant
to an "asset sale" or "change of control" provision that is no more favorable to
the holders of such Indebtedness than the provisions contained in Sections 4.8
and 4.9 of this Indenture and such Indebtedness specifically provides that
Silgan will not repurchase or redeem such Indebtedness pursuant to such
provisions prior to Silgan's repurchase of the Securities required to be
repurchased by Silgan under Sections 4.8 and 4.9 of this Indenture at any time
prior to July 15, 2006; and (vi) any Indebtedness of Silgan or any of its
Subsidiaries that is permitted to be Incurred under the Silgan Notes Indenture
as in effect on the date hereof (other than under clauses (i), (ix) and (x) of
the second paragraph of part (a) of Section 4.03 of the Silgan Notes Indenture
(which clauses are similar to clauses (i), (iv) and (v) above other than the
dollar amounts)).
"Silgan Notes" means Silgan's 11-3/4% Senior Subordinated
Notes that mature on June 15, 2002.
"Stated Maturity" means, with respect to any debt security or
any installment of interest thereon, the date specified in such debt security as
the fixed date on which any principal of such debt security or any such
installment of interest is due and payable.
"Stock Based Plan" means any stock option plan, stock
appreciation rights plan or other similar plan or agreement of Holdings or any
Subsidiary of Holdings relating to capital stock of Holdings or any Subsidiary
of Holdings established and in effect from time to time, including, without
limitation, the Holdings Organization Agreement or any stock option plan, stock
appreciation rights plan or other similar plan or agreement for the benefit of
employees of Holdings and its Subsidiaries.
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"Subordinated Obligations" means any principal of, premium, if
any, or interest on the Securities payable pursuant to the terms of the
Securities or upon acceleration, including any amounts received upon the
exercise of rights of rescission or other rights of action (including claims for
damages) or otherwise, to the extent relating to the purchase price of the
Securities or amounts corresponding to such principal, premium, if any, or
interest on the Securities.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
outstanding Voting Stock is owned, directly or indirectly, by Holdings or any
one or more other Subsidiaries of Holdings, or by such Person and one or more
other Subsidiaries of such Person; provided that, except as the term
"Subsidiary" is used in the definition of "Unrestricted Subsidiary" described
below, an Unrestricted Subsidiary shall not be deemed to be a Subsidiary of
Holdings.
"Successor Corporation" means (i) the surviving entity of any
Holdings Merger, (ii) Silgan, upon the assumption by Silgan of the liabilities
of Holdings represented by the Securities or (iii) any successor corporation to
Silgan that becomes the successor obligor on the Securities, whether by merger,
consolidation, sale of assets, assumption of liabilities or otherwise.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act
of 1939, as amended from time to time (15 U.S. Code ss.ss. 77aaa-77bbb).
"Trade Payables" means, with respect to any Person, any
accounts payable or any other indebtedness or monetary obligation to trade
creditors created, assumed or Guaranteed by such Person or any of its
Subsidiaries arising in the ordinary course of business in connection with the
acquisition of goods or services.
"Transaction Date" means, with respect to the Incurrence of
any Indebtedness by Holdings or any of its Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of Article 7 of this Indenture and thereafter means such successor.
"United States Bankruptcy Code" means the Bankruptcy Act of
Title 11 of the United States Code, as amended from time to time hereafter, or
any successor federal bankruptcy law.
"Unrestricted Subsidiary" means (i) any Subsidiary of Holdings
that at the time of determination shall be designated an Unrestricted
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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 Holdings (including any newly acquired or newly formed
Subsidiary of Holdings) to be an Unrestricted Subsidiary unless such Subsidiary
owns any capital stock of, or owns or holds any Lien on any property of,
Holdings or any other Subsidiary of Holdings that is not a Subsidiary of the
Subsidiary to be so designated; provided that either (a) the Subsidiary to be so
designated has total assets of $1,000 or less or (b) if such Subsidiary has
assets greater than $1,000, such designation would be permitted under Section
4.4 of this Indenture. The Board of Directors may designate any Unrestricted
Subsidiary to be a Subsidiary of Holdings; provided that immediately after
giving effect to such designation (1) Holdings could Incur $1.00 of additional
Indebtedness under the first paragraph in part (a) of Section 4.3 of this
Indenture and (2) no Default or Event of Default shall have occurred and be
continuing. Any such designation by the Board of Directors shall be evidenced to
the Trustee by filing promptly with the Trustee a copy of the Board Resolution
giving effect to such designation and an Officers Certificate certifying that
such designation complied with the foregoing provisions.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the Stated Maturity of the Securities, and shall also include a depository
receipt issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligation or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for the account of
the holder of a depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
"Voting Stock" means, with respect to any Person, capital
stock of any class or kind ordinarily having the power to vote for the election
of directors of such Person.
"Wholly Owned Subsidiary" means, (i) with respect to Silgan
and Holdings, Plastics and Containers, and (ii) with respect to any Person, any
Subsidiary of such Person if all of the common stock or other similar equity
ownership interests (but not including preferred stock) in such Subsidiary
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(other than any director's qualifying shares or Investments by foreign nationals
mandated by applicable law) is owned directly or indirectly by such Person.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a
Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee; and
"obligor" on the indenture securities means Holdings or
any other obligor on the 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 a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.3 Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in
the plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(vii) all ratios and computations based on GAAP contained in
this Indenture shall be computed in accordance with the definition of
GAAP set forth above; and
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(viii) all references to Sections or Articles refer to
Sections or Articles of this Indenture unless otherwise indicated.
ARTICLE 2.
The Securities
SECTION 2.1 Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form annexed hereto
as Exhibit A. The Securities may have notations, legends or endorsements
required by law, stock exchange agreements to which Holdings is subject or
usage. Holdings shall approve the form of the Securities and any notation,
legend or endorsement on the Securities. Each Security shall be dated the date
of its authentication.
The terms and provisions contained in the form of the
Securities annexed hereto as Exhibit A shall constitute, and are hereby
expressly made, a part of this Indenture. To the extent applicable, Holdings and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
The definitive Securities shall be printed, lithographed,
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the Officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.2 Execution, Authentication and Denominations. Two
Officers shall execute the Securities for Holdings by facsimile or manual
signature in the name and on behalf of Holdings. The seal of Holdings shall be
reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee or authenticating agent authenticates the
Security, the Security shall be valid nevertheless.
A Security shall not be valid until the Trustee or
authenticating agent 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 or an authenticating agent shall authenticate for
original issue on the Closing Date Securities in the aggregate principal amount
equal to the aggregate liquidation preference of, and accrued but unpaid
dividends on, the Exchangeable Preferred Stock on the Closing Date, upon a
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written order set forth in an Officers' Certificate. Such order shall specify
the amount of Securities to be authenticated and the date on which the original
issue of Securities is to be authenticated.
The Trustee may appoint an authenticating agent to
authenticate Securities. 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 authenticating
agent. An authenticating agent has the same rights as an Agent to deal with
Holdings or an Affiliate of Holdings.
The Securities shall be issuable only in fully registered form
without coupons, and only in denominations of $1.00 in original principal amount
and integral multiples thereof.
SECTION 2.3 Registrar and Paying Agent. Holdings shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar"), an office or agency where
Securities may be presented for payment (the "Paying Agent") and an office or
agency where notices and demands to or upon Holdings in respect of the
Securities and this Indenture may be served. Holdings shall cause the Registrar
to keep a register of the Securities and of their transfer and exchange (the
"Security Register"). Holdings may have one or more co-registrars and one or
more additional Paying Agents.
Holdings may enter into an appropriate agency agreement with
any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. Holdings shall give
prompt written notice to the Trustee of the name and address of any such Agent
and any change in the address of such Agent. If Holdings fails to maintain a
Registrar, Paying Agent and/or agent for service of notices and demands, the
Trustee shall act as such Registrar, Paying Agent and/or agent for service of
notices and demands for so long as such failure shall continue. Holdings may
remove any Agent upon written notice to such Agent and the Trustee; provided
that no such removal shall become effective until (i) the acceptance of an
appointment by a successor Agent to such Agent as evidenced by an appropriate
agency agreement entered into by Holdings and such successor Agent and delivered
to the Trustee or (ii) notification to the Trustee that the Trustee shall serve
as such Agent until the appointment of a successor Agent in accordance with
clause (i) of this proviso. Holdings, any Subsidiary of Holdings, or any
Affiliate of any of them may act as Paying Agent, Registrar or co-registrar.
Holdings initially appoints the Trustee as Registrar, Paying
Agent, authenticating agent and agent for service of notice and demands. If, at
any time, the Trustee is not the Registrar, the Registrar shall make available
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to the Trustee on or before each Interest Payment Date and at such other times
as the Trustee may reasonably request, the names and addresses of the Holders as
they appear in the Security Register.
SECTION 2.4 Paying Agent to Hold Money in Trust. Not later
than each due date of the principal, premium, if any, and interest on any
Securities, Holdings shall deposit with the Paying Agent money sufficient to pay
such principal, premium, if any, and interest so becoming due (or, in the case
of interest, on or prior to July 15, 2000, Securities, executed and
authenticated in accordance herewith, in a principal amount equal to the
interest so becoming due, if Holdings has elected to pay such interest in
additional Securities). Holdings shall require each Paying Agent other than the
Trustee to agree in writing that such Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all money (or Securities, as the case may
be) held by the Paying Agent for the payment of principal of, premium, if any,
and interest on the Securities (whether such money (or Securities, as the case
may be) has been paid to it by Holdings or any other obligor on the Securities),
and such Paying Agent shall promptly notify the Trustee of any default by
Holdings (or any other obligor on the Securities) in making any such payment.
Holdings at any time may require a Paying Agent to pay all money (or Securities,
as the case may be) held by it to the Trustee and account for any funds (or
Securities, as the case may be) disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request to a Paying
Agent, require such Paying Agent to pay all money (or Securities, as the case
may be) held by it to the Trustee and to account for any funds (or Securities,
as the case may be) disbursed. Upon doing so, the Paying Agent shall have no
further liability for the money (or Securities, as the case may be) so paid over
to the Trustee. If Holdings or any Subsidiary of Holdings or any Affiliate of
any of them acts as Paying Agent, it will, on or before each due date of any
principal of, premium, if any, or interest on the Securities, segregate and hold
in a separate trust fund for the benefit of the Holders a sum (or Securities, as
the case may be) sufficient to pay such principal, premium, if any, or interest
so becoming due until such sums (or Securities, as the case may be) shall be
paid to such Holders or otherwise disposed of as provided in this Indenture, and
will promptly notify the Trustee of its action or failure to act.
SECTION 2.5 Transfer and Exchange. When Securities are
presented to the Registrar or a co-registrar with a request to register the
transfer or to exchange them for an equal principal amount of Securities of
other authorized denominations, the Registrar shall register the transfer or
make the exchange as requested if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, Holdings shall execute
and the Trustee shall authenticate Securities at the Registrar's request. No
service charge shall be made for any registration of transfer or exchange of the
Securities, but Holdings may require payment of a sum sufficient to cover any
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transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or other similar governmental charge payable
upon exchanges pursuant to Section 2.8, 3.8 or 9.4 of this Indenture).
The Registrar need not register the transfer or exchange of
Securities for a period of 15 days before a selection of Securities to be
redeemed.
SECTION 2.6 Replacement Securities. If a mutilated Security is
surrendered to the Trustee or if the Holder certifies that the Security has been
lost, destroyed or wrongfully taken, Holdings shall issue and the Trustee shall
authenticate a replacement Security of like tenor and principal amount. If
required by the Trustee or Holdings, an indemnity bond must be furnished that is
sufficient in the judgment of both the Trustee and Holdings to protect Holdings,
the Trustee or any Agent from any loss that any of them may suffer if a Security
is replaced. Holdings may charge such Holder for its expenses in replacing a
Security. In case any such mutilated, lost, destroyed or wrongfully taken
Security has become or is about to become due and payable, Holdings in its
discretion may pay such Security instead of issuing a new Security in
replacement thereof.
Every replacement Security is an additional obligation of
Holdings and shall be entitled to the benefits of this Indenture.
SECTION 2.7 Outstanding Securities. Securities outstanding at
any time are all Securities that have been authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation and those
described in this Section 2.7 as not outstanding. A Security does not cease to
be outstanding because Holdings or one of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.6, it ceases
to be outstanding unless and until the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than Holdings or an Affiliate of
Holdings) holds on a maturity date money sufficient to pay the principal amount
of, premium, if any, and interest on, any Securities payable on that date, then
on and after that date such Securities cease to be outstanding and interest on
them shall cease to accrue.
SECTION 2.8 Temporary Securities. Until definitive Securities
are ready for delivery, Holdings may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have insertions, substitutions, omissions and
other variations determined to be appropriate by the Officers executing the
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temporary Securities, as evidenced by their execution of such temporary
Securities. Without unreasonable delay, Holdings shall prepare and the Trustee
shall authenticate definitive Securities in exchange for temporary Securities.
Until so exchanged, the temporary Securities shall be entitled to the same
benefits under this Indenture as definitive Securities.
SECTION 2.9 Cancellation. Holdings at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for
transfer, exchange, payment or cancellation, shall destroy them in accordance
with its normal procedure and shall notify the Registrar of the same. Holdings
may not issue new Securities to replace Securities it has paid in full or
delivered to the Trustee for cancellation.
SECTION 2.10 CUSIP Numbers. Holdings in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and the Trustee shall use
CUSIP numbers in notices of redemption or exchange as a convenience to Holders;
provided that any such notice shall state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or exchange and that reliance may be
placed only on the other identification numbers printed on the Securities.
SECTION 2.11 Defaulted Interest. If Holdings defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds, or, on or prior to July 15,
2000, Securities, if Holdings has elected to pay such interest in additional
Securities, sufficient to pay, the defaulted interest, plus (to the extent
lawful) any interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date. A special record date, as used in
this Section 2.11 with respect to the payment of any defaulted interest, shall
mean the 15th day next preceding the date fixed by Holdings for the payment of
defaulted interest, whether or not such day is a Business Day. At least 15 days
before the subsequent special record date, Holdings shall mail to each Holder
and to the Trustee a notice that states the subsequent special record date, the
payment date and the amount of defaulted interest to be paid.
ARTICLE 3.
Redemption
SECTION 3.1 Right of Redemption.
(a) Except as otherwise provided in Sections 3.1(b),
4.8 and 4.9 of this Indenture, the Securities may be redeemed at any time on or
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after July 15, 2000, at Holdings' option, in whole or in part, at the Redemption
Prices specified in the form of the Securities annexed hereto as Exhibit A, plus
an amount in cash equal to all accumulated and unpaid interest thereon to the
Redemption Date, subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment Date that is
on or prior to the Redemption Date.
(b) On or prior to July 15, 2000, Holdings or a
Successor Corporation may redeem all (but not less than all) outstanding
Securities, at a Redemption Price equal to 110% of the principal amount thereof,
plus accrued and unpaid interest to the Redemption Date, out of the net proceeds
of any sale of its common stock, provided that such redemption occurs within 180
days after consummation of such sale.
SECTION 3.2 Notices to Trustee. If Holdings elects to redeem
Securities pursuant to Section 3.1, it shall notify the Trustee in writing of
the Redemption Date and the principal amount of Securities to be redeemed.
Holdings shall give each notice provided for in this Section
3.2 in an Officers' Certificate and shall furnish to the Trustee an Opinion of
Counsel as required by Section 11.3(ii) at least 45 days before the Redemption
Date (unless a shorter period shall be satisfactory to the Trustee).
SECTION 3.3 Selection of Securities to Be Redeemed. If less
than all of the Securities are to be redeemed at any time, the Trustee shall
select the Securities to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not listed on a national securities exchange,
on a pro rata basis, by lot or by such method as the Trustee in its sole
discretion shall deem fair and appropriate; provided that no Securities of $1.00
in original principal amount shall be redeemed in part; and provided further
that, if the selection of the Securities for redemption is required to comply
with the requirements of any national securities exchange on which the
Securities are listed, the Trustee shall be entitled to rely on Holdings'
written instructions regarding such requirements of any such national securities
exchange, and, in the absence of such instructions, shall be entitled to assume
that no such requirements are applicable to such redemption.
The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption. Securities in
denominations of $1.00 in original principal amount may only be redeemed in
whole. The Trustee may select for redemption portions (equal to $1.00 in
original principal amount or any integral multiple thereof) of the principal of
Securities that have denominations larger than $1.00 in original principal
amount. Provisions of this Indenture that apply to Securities called for
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redemption also apply to portions of Securities called for redemption. The
Trustee shall notify Holdings and any Registrar promptly in writing of the
Securities or portions of Securities to be called for redemption.
SECTION 3.4 Notice of Redemption. At least 30 days but not
more than 60 days before a Redemption Date, Holdings shall mail a notice of
redemption by first class mail to each Holder whose Securities are to be
redeemed.
The notice shall identify the Securities to be redeemed and
shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be
surrendered to the Paying Agent in order to collect the Redemption
Price;
(v) that, unless Holdings defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue
on and after the Redemption Date and the only remaining right of the
Holders is to receive payment of the Redemption Price plus accrued
interest, if any, to the Redemption Date upon surrender of the
Securities to the Paying Agent;
(vi) that, if any Security is being redeemed in part, the
portion of the principal amount (equal to $1.00 in original principal
amount or any integral multiple thereof) of such Security to be
redeemed and that, on and after the Redemption Date, upon surrender of
such Security, a new Security or Securities in principal amount equal
to the unredeemed portion thereof will be reissued; and
(vii) that, if any Security contains a CUSIP number as
provided in Section 2.10 of this Indenture, no representation is being
made as to the correctness of the CUSIP number either as printed on the
Securities or as contained in the notice of redemption and that
reliance may be placed only on the other identification numbers printed
on the Securities.
At Holdings' request, the Trustee shall give the notice of
redemption in the name and at the expense of Holdings. If, however, Holdings
gives such notice to the Holders, Holdings shall concurrently deliver to the
Trustee an Officers' Certificate stating that such notice has been given.
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SECTION 3.5 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. Upon surrender of any
Securities to the Paying Agent, such Securities shall be paid at the Redemption
Price, plus accrued interest, if any, to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed,
whether or not the Holder receives the notice. In any event, failure to give
such notice, or any defect therein, shall not affect the validity of the
proceedings for the redemption of the Securities.
SECTION 3.6 Deposit of Redemption Price. On or prior to any
Redemption Date, Holdings shall deposit with the Paying Agent (or, if Holdings
is acting as its own Paying Agent, shall segregate and hold in trust as provided
in Section 2.4 of this Indenture) money sufficient to pay the Redemption Price
of and accrued interest, if any, on all Securities to be redeemed on that date
other than Securities or portions thereof called for redemption on that date
that have been delivered by Holdings to the Trustee for cancellation.
SECTION 3.7 Payment of Securities Called for Redemption. If
notice of redemption has been given in the manner provided above, the Securities
or portion of Securities specified in such notice to be redeemed shall become
due and payable on the Redemption Date at the Redemption Price stated therein,
together with accrued interest, if any, to such Redemption Date, and on and
after such date (unless Holdings shall default in the payment of such Securities
at the Redemption Price and accrued interest, if any, to the Redemption Date, in
which case the principal, until paid, shall bear interest from the Redemption
Date at the rate prescribed in the Securities), such Securities shall cease to
accrue interest. Upon surrender of any Security for redemption in accordance
with a notice of redemption, such Security shall be paid and redeemed by
Holdings at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders registered as
such at the close of business on the relevant Record Date.
SECTION 3.8 Securities Redeemed in Part. Upon surrender of any
Security that is redeemed in part, the Trustee shall authenticate for the Holder
a new Security equal in principal amount to the unredeemed portion of such
surrendered Security.
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ARTICLE 4.
Covenants
SECTION 4.1 Payment of Securities. Holdings shall pay the
principal of, premium, if any, and interest on the Securities on the dates and
in the manner provided in the Securities and this Indenture. An installment of
principal, premium, if any, or interest shall be considered paid on the date due
if the Trustee or Paying Agent (other than Holdings, a Subsidiary of Holdings,
or any Affiliate of any of them) holds on that date money (or Securities, as the
case may be) designated for and sufficient to pay the installment. If Holdings,
any Subsidiary of Holdings or any Affiliate of any of them acts as Paying Agent,
an installment of principal, premium, if any, or interest shall be considered
paid on the due date if the entity acting as Paying Agent complies with the last
sentence of Section 2.4 of this Indenture.
Holdings shall pay interest on overdue principal, premium, if
any, and overdue installments of interest, to the extent lawful, at the rate per
annum borne by the Securities.
SECTION 4.2 Maintenance of Office or Agency. Holdings will
maintain in the Borough of Manhattan, The City of New York an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon Holdings
in respect of the Securities and this Indenture may be served. Holdings will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time Holdings shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 11.2 of
this Indenture.
Holdings may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve Holdings of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. Holdings will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
Holdings hereby initially designates the office of the
Trustee, Fleet National Bank, Corporate Trust Department, 14 Wall Street, 8th
Floor, Window Number 2, New York, New York 10005 as such office of Holdings in
accordance with Section 2.3 of this
Indenture.
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SECTION 4.3 Limitation on Indebtedness. (a) So long as any of
the Securities are outstanding, Holdings shall not, and shall not permit any
Subsidiary (other than Silgan and its Subsidiaries) to, Incur any Indebtedness
(other than the Securities (including any Securities issued in payment of
interest) and Indebtedness existing on the date the Securities are issued)
unless after giving effect to the Incurrence of such Indebtedness and the
receipt and application of the proceeds therefrom, the Interest Coverage Ratio
of Holdings would be greater than 1.75:1.
Notwithstanding the foregoing, Holdings and its Subsidiaries (other
than Silgan and its Subsidiaries) may Incur each and all of the following:
(i) Indebtedness in an aggregate principal amount not to
exceed $100 million outstanding at any time;
(ii) Indebtedness to Holdings or any Restricted Subsidiary;
(iii) Indebtedness issued in exchange for, or the net
proceeds of which are used to exchange, refinance or refund,
outstanding Indebtedness, other than Indebtedness Incurred under
clauses (i) and (viii) and any refinancings thereof, in an amount (or,
if such new Indebtedness provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration
thereof, with an original issue price) not to exceed the amount
exchanged, refinanced or refunded (plus premiums, accrued interest,
fees and expenses); provided that Indebtedness the proceeds of which
are used to exchange, refinance or refund the Securities or other
Indebtedness that is subordinated in right of payment to the Securities
shall only be permitted under this clause (iii) if: (A) in case the
Securities are exchanged, refinanced or refunded in part, such
Indebtedness, by its terms or by the terms of any agreement or
instrument pursuant to which such Indebtedness is issued, is expressly
made pari passu with, or subordinate in right of payment to, the
remaining Securities, (B) in case the Indebtedness to be exchanged,
refinanced or refunded is subordinated in right of payment to the
Securities, such Indebtedness, by its terms or by the terms of any
agreement or instrument pursuant to which such Indebtedness is issued,
is expressly made subordinate in right of payment to the Securities at
least to the extent that the Indebtedness to be exchanged, refinanced
or refunded is subordinated in right of payment to the Securities and
(C) in case the Securities are exchanged, refinanced or refunded in
part or the Indebtedness to be exchanged, refinanced or refunded is
subordinated in right of payment to the Securities, such Indebtedness
determined as of the date of Incurrence of such new Indebtedness, does
not mature prior to the Stated Maturity of the Indebtedness being
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refinanced, and the Average Life of such Indebtedness is at least equal
to the remaining Average Life of the Indebtedness being refinanced; and
provided further that in no event may Indebtedness of Holdings that is
pari passu with, or subordinated in right of payment to, the Securities
be exchanged, refinanced or refunded by means of Indebtedness of any
Subsidiary of Holdings pursuant to this clause (iii);
(iv) Indebtedness issued in exchange for, or the net proceeds
of which are used to exchange, refinance or refund, Silgan
Indebtedness; provided that (A) the principal amount (or, if such
Indebtedness provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
thereof, the original issue price) of such new Indebtedness shall not
exceed the principal amount of Silgan Indebtedness exchanged,
refinanced or refunded (plus premiums, if any, accrued interest, fees
and expenses) and (B) the Average Life of such new Indebtedness,
determined as of the date of Incurrence of such new Indebtedness, is at
least equal to the remaining Average Life of the Indebtedness being
refinanced;
(v) Indebtedness Incurred in connection with the purchase,
redemption, acquisition, cancellation or other retirement for value of
shares of capital stock of Holdings, Silgan or any other Restricted
Subsidiary, options on any such shares or related stock appreciation
rights or similar securities held by officers or employees or former
officers or employees (or their estates or beneficiaries under their
estates) and which were issued pursuant to any Stock Based Plan, upon
death, disability, retirement, termination of employment or pursuant to
the terms of such Stock Based Plan or any other agreement under which
such shares of capital stock, options, related rights or similar
securities were issued; provided that (A) such Indebtedness (other than
any Shareholder Subordinated Notes, which must be pari passu with, or
subordinated in right of payment to, the Securities), by its terms or
by the terms of any agreement or instrument pursuant to which such
Indebtedness is issued, is expressly made subordinate in right of
payment to the Securities at least to the extent that the Securities
are subordinated in right of payment to Senior Indebtedness in the
event of a Holdings Merger, (B) such Indebtedness, by its terms or by
the terms of any agreement or instrument pursuant to which such
Indebtedness is issued, provides that no payments of principal of such
Indebtedness by way of sinking fund, mandatory redemption or otherwise
(including defeasance) may be made by Holdings (including, without
limitation, at the option of the holder thereof other than an option
given to a holder pursuant to an "asset sale" or a "change of control"
provision that is no more favorable to the holders of such Indebtedness
than the provisions contained in Sections 4.8 and 4.9 of this Indenture
and such
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and such Indebtedness specifically provides that Holdings will not
repurchase or redeem such Indebtedness pursuant to such provisions
prior to Holdings' repurchase of the Securities required to be
repurchased by Holdings under Sections 4.8 and 4.9 of this Indenture at
any time prior to the Stated Maturity of the Securities and (C) the
scheduled maturity of all principal of such Indebtedness is beyond the
Stated Maturity of the Securities;
(vi) Guarantees of Indebtedness of Silgan and other
Restricted Subsidiaries under the Silgan Credit Agreement;
(vii) Indebtedness (A) in respect of performance bonds,
bankers' acceptances and surety or appeal bonds provided in the
ordinary course of business, (B) under (or in respect of) Currency
Agreements and Interest Rate Agreements; provided that in the case of
Currency Agreements that relate to other Indebtedness, such Currency
Agreements do not increase the Indebtedness of Holdings and its
Subsidiaries outstanding at any time other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder and (C) arising from
agreements providing for indemnification, adjustment of purchase price
or similar options, or from Guarantees or letters of credit, surety
bonds or performance bonds securing any obligations of Holdings or any
of its Subsidiaries pursuant to such agreements, in any case Incurred
in connection with the disposition of any business, assets or
Subsidiary of Holdings, other than Guarantees of Indebtedness Incurred
by any Person acquiring all or any portion of such business, assets or
Subsidiary of Holdings for the purpose of financing such acquisition;
and
(viii) unsecured Indebtedness of Holdings; provided that such
Indebtedness, (A) by its terms or by the terms of any agreement or
instrument pursuant to which such Indebtedness is issued, is expressly
made subordinate in right of payment to the Securities at least to the
extent that the Securities are subordinated in right of payment to
Senior Indebtedness in the event of a Holdings Merger, (B) determined
as of the date of Incurrence of such Indebtedness, does not mature
prior to the Stated Maturity of the Securities, and the Average Life of
such Indebtedness is greater than the remaining Average Life of the
Securities, (C) by its terms or by the terms of any agreement or
instrument pursuant to which such Indebtedness is issued, provides that
no payments of principal of such Indebtedness by way of sinking fund,
mandatory redemption or otherwise (including defeasance) may be made by
Holdings (including, without limitation, at the option of the holder
thereof other than an option given to a holder pursuant to a "change of
control" or an "asset sale" provision that is no more favorable to the
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holders of such Indebtedness than the provisions contained in Sections
4.8 and 4.9 of this Indenture and such Indebtedness specifically
provides that Holdings will not repurchase or redeem such Indebtedness
pursuant to such provisions prior to Holdings' repurchase of the
Securities required to be repurchased by Holdings under Sections 4.8
and 4.9 of this Indenture at any time prior to the Stated Maturity of
the Securities and (D) by its terms or the terms of any agreement or
instrument pursuant to which such Indebtedness is issued, is not
scheduled to pay interest in cash prior to the first date on which
interest on the Securities is required to be paid in cash.
(b) So long as any of the Securities are outstanding,
Holdings shall not permit Silgan or any Subsidiary of Silgan to Incur any
Indebtedness unless (i) after giving effect to the Incurrence of such
Indebtedness and the receipt and application of the proceeds therefrom, the
Interest Coverage Ratio of Silgan would be greater than 1.75:l or (ii) such
Indebtedness so Incurred by Silgan or such Subsidiary of Silgan constitutes
Silgan Indebtedness; provided, however, that any Indebtedness so Incurred
pursuant to clause (i) or (ii) above may not prohibit the payment of dividends
to Holdings (but any such Indebtedness may condition such payments on the
absence of any defaults or events of default thereunder and on compliance with
financial tests) in amounts sufficient to make mandatory interest and principal
payments due on the Securities at the times and in the amount due and payable;
and provided further, however, that in the event the Securities become
obligations of a Successor Corporation, nothing in this part (b) shall prohibit
the Successor Corporation from assuming or otherwise becoming liable for
existing Indebtedness of Holdings or its Subsidiaries.
(c) Notwithstanding any other provision of this Section 4.3,
(i) the maximum amount of Indebtedness that Holdings, Silgan or any of their
respective Subsidiaries may Incur pursuant to this Section 4.3 shall not be
deemed to be exceeded due solely to the result of fluctuations in the exchange
rates of currencies, (ii) solely for purposes of calculating the amount of
Indebtedness outstanding at any time under this Section 4.3, all Indebtedness of
Holdings, Silgan or any of their respective Subsidiaries outstanding on the
Closing Date shall be considered to be outstanding and (iii) Holdings shall not
Incur any Indebtedness that is expressly subordinated to any other Indebtedness
of Holdings unless such Indebtedness, by its terms or the terms of any agreement
or instrument pursuant to which such Indebtedness is issued, is also expressly
made subordinate to the Securities at least to the extent that it is
subordinated to such other Indebtedness.
(d) For purposes of determining any particular amount of
Indebtedness under this Section 4.3, Guarantees of, or obligations with respect
to letters of credit supporting, Indebtedness otherwise included in the
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determination of such particular amount shall not be included. For purposes of
determining compliance with this Section 4.3, (i) in the event that an item of
Indebtedness meets the criteria of more than one of the types of Indebtedness
described in the above clauses, Holdings, in its sole discretion, shall classify
such item of Indebtedness and only be required to include the amount and type of
such Indebtedness in one of such clauses and (ii) the amount of Indebtedness
issued at a price that is less than the principal amount thereof shall be equal
to the amount of the liability in respect thereof determined in conformity with
GAAP.
(e) Notwithstanding any of the foregoing, nothing in this
Section 4.3 shall prohibit the occurrence of (i) a Holdings Merger, (ii) the
sale of all or substantially all of the property and assets of Silgan or its
successors to Holdings, and the assumption by Holdings of all or substantially
all of the liabilities of Silgan or its successors or (iii) the assumption by
Silgan or its successors of Indebtedness represented by the Securities.
Immediately upon the occurrence of an event specified in clause (i), (ii) or
(iii) in this Section 4.3(e), Section 4.3(a) of this Indenture and this Section
4.3(e) (other than clause (i)) shall be of no further force and effect, and all
references to Silgan in Section 4.3(b) of this Indenture shall refer to the
Successor Corporation.
SECTION 4.4 Limitation on Restricted Payments. So long as any
of the Securities are outstanding, Holdings will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, (i) declare or pay any
dividend or make any distribution on its capital stock (other than dividends or
distributions payable solely in shares of its or such Restricted Subsidiary's
capital stock (other than Redeemable Stock) of the same class held by such
holders or in options, warrants or other rights to acquire such shares of
capital stock) held by Persons other than Holdings or another Restricted
Subsidiary, (ii) purchase, redeem, retire or otherwise acquire for value, any
shares of capital stock of Holdings, any Restricted Subsidiary or any
Unrestricted Subsidiary (including options, warrants or other rights to acquire
such shares of capital stock) held by Persons other than Holdings or another
Restricted Subsidiary, (iii) make any voluntary or optional principal payment,
or voluntary or optional redemption, repurchase, defeasance or other acquisition
or retirement for value, of Indebtedness of Holdings that is subordinated in
right of payment to the Securities or (iv) make any Investment in any Affiliate
(other than Holdings or a Restricted Subsidiary) or Unrestricted Subsidiary
(such payments or any other actions described in clauses (i) through (iv) being
collectively "Restricted Payments") if at the time of and after giving effect to
the proposed Restricted Payment: (A) an Event of Default or event that, after
the giving of notice or lapse of time or both, would become an Event of Default
shall have occurred and be continuing, (B) Holdings (in the case Holdings or its
Restricted Subsidiaries will make the Restricted Payment) could not Incur at
least $1.00 of Indebtedness under the first paragraph in Section 4.3(a) of this
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Indenture or Silgan (in the case Silgan or its Restricted Subsidiaries will make
the Restricted Payment) could not Incur at least $1.00 of Indebtedness under
clause (i) of Section 4.3(b) of this Indenture or (C) the aggregate amount
expended for all 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 Board Resolution) after the
date hereof (other than any Restricted Payments described in clauses (ii) and
(iii) of the second paragraph of this Section 4.4) shall exceed the sum of (1)
50% of the aggregate amount of Adjusted Consolidated Net Income (or, if Adjusted
Consolidated Net Income is a loss, minus 100% of such amount) of Holdings
(determined by excluding income resulting from the transfers of assets received
by Holdings or a Restricted Subsidiary from an Unrestricted Subsidiary) accrued
on a cumulative basis during the period (taken as one accounting period)
beginning on the first day of the month immediately following the date hereof
and ending on the last day of the last fiscal quarter preceding the Transaction
Date plus (2) the aggregate net proceeds received by Holdings from the issuance
and sale of capital stock of Holdings (other than Redeemable Stock) to any
Person other than a Subsidiary of Holdings, including an issuance or sale
permitted by the Indenture for cash or other property upon the conversion of any
Indebtedness of Holdings subsequent to the date hereof, or from the issuance of
any options, warrants or other rights to acquire capital stock of Holdings (in
each case, exclusive of any Redeemable Stock or any options, warrants or other
rights that are redeemable at the option of the holder, or are required to be
redeemed, prior to the Stated Maturity of the Securities) plus (3) an amount
equal to the net reduction in Investments in Unrestricted Subsidiaries resulting
from payments of interest on Indebtedness, dividends, repayments of loans or
advances, or other transfers of assets, in each case to Holdings or any
Restricted Subsidiary from Unrestricted Subsidiaries, or from redesignations of
Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as
provided in the definition of "Investments"), not to exceed in the case of any
Unrestricted Subsidiary the amount of Investments previously made by Holdings or
any Restricted Subsidiary in such Unrestricted Subsidiary plus (4) $25 million.
The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after the date
of declaration thereof if, at the date of declaration, such payment
would comply with the foregoing provision;
(ii) the making of Investments in Unrestricted Subsidiaries
in an aggregate amount not to exceed $75 million outstanding at any
time;
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(iii) the redemption, repurchase, defeasance or other
acquisition or retirement for value of Indebtedness that is
subordinated in right of payment to the Securities, including premium,
if any, and accrued and unpaid interest, with the proceeds of
Indebtedness Incurred under clauses (iii) or (viii) of the second
paragraph of Section 4.3(a) of this Indenture;
(iv) the declaration and payment of dividends on the common
stock of Holdings or Silgan, following an initial public offering of
the common stock of Holdings or Silgan, as the case may be, of up to 6%
per annum of the net proceeds received by Holdings or Silgan, as the
case may be, in such initial public offering;
(v) the purchase, redemption, acquisition, cancellation or
other retirement for value of shares of capital stock of Holdings,
Silgan or any other Restricted Subsidiary, options on any such shares
or related stock appreciation rights or similar securities held by
officers or employees or former officers or employees (or their estates
or beneficiaries under their estates) and which were issued pursuant to
any Stock Based Plan, upon death, disability, retirement or termination
of employment or pursuant to the terms of such Stock Based Plan or any
other agreement under which such shares of capital stock, options,
related rights or similar securities were issued; provided that the
aggregate cash consideration paid for such purchase, redemption,
acquisition, cancellation or other retirement for value of such shares
of capital stock, options, related rights or similar securities after
the Closing Date does not exceed $25 million and that any additional
consideration in excess of such $25 million is in the form of
Indebtedness that would be permitted to be Incurred under clause (v) of
the second paragraph of Section 4.3(a) of this Indenture;
(vi) the repurchase of capital stock of Holdings or any
Subsidiary of Holdings followed immediately by the reissuance thereof
for consideration in an amount at least equal to the consideration paid
to acquire such stock, or the redemption, repurchase or other
acquisition for value of capital stock of Holdings or any Subsidiary of
Holdings in exchange for, or with the proceeds of a substantially
concurrent offering of, other shares of the capital stock of such
entity (other than Redeemable Stock); and
(vii) payments or distributions pursuant to or in connection
with a consolidation, merger or transfer of assets that complies with
the provisions of Article 5 of this Indenture; provided that in the
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case of clauses (ii), (iv), (v) and (vii), no Event of Default shall
have occurred and be continuing or shall occur as a consequence
thereof.
SECTION 4.5 Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries. So long as any of the Securities
are outstanding, Holdings will not, and will not permit any Restricted
Subsidiary to, create or otherwise cause or suffer to exist or become effective
any consensual encumbrance or restriction of any kind on the ability of any
Restricted Subsidiary to (i) pay dividends or make any other distributions
permitted by applicable law on any capital stock of such Restricted Subsidiary
owned by Holdings or any other Restricted Subsidiary, (ii) pay any Indebtedness
owed to Holdings or any other Restricted Subsidiary, (iii) make loans or
advances to Holdings or any other Restricted Subsidiary or (iv) transfer,
subject to certain exceptions, any of its property or assets to Holdings or any
other Restricted Subsidiary.
This covenant shall not restrict or prohibit any encumbrances
or restrictions existing:
(i) in the Silgan Credit Agreement, the Silgan Notes, the
Discount Debentures (including any agreement pursuant to which the
Silgan Notes or the Discount Debentures were issued) or any other
agreements in effect on the date hereof, including extensions,
refinancings, renewals or replacements thereof; provided that the
encumbrances and restrictions in any such extensions, refinancings,
renewals or replacements are no less favorable in any material respect
to the Holders than those encumbrances or restrictions that are then in
effect and that are being extended, refinanced, renewed or replaced;
(ii) under or by reason of applicable law, rule or regulation
(including, without limitation, applicable currency control laws and
applicable state corporate statutes restricting the payment of
dividends in certain circumstances);
(iii) with respect to any Person or the property or assets of
such Person acquired by Holdings or any Restricted Subsidiary and
existing at the time of such acquisition, which encumbrances or
restrictions are not applicable to any Person or the property or assets
of any Person other than such Person or the property or assets of such
Person so acquired;
(iv) in the case of clause (iv) of the first paragraph of
this Section 4.5, (A) that restrict in a customary manner the
subletting, assignment or transfer of any property or asset that is a
lease, license, conveyance or contract or similar property or asset,
(B) by virtue of any transfer of, agreement to transfer, option or
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right with respect to, or Lien on, any property or assets of Holdings
or any Restricted Subsidiary not otherwise prohibited by this Indenture
or (C) arising or agreed to in the ordinary course of business and that
do not, individually or in the aggregate, detract from the value of the
property or assets of Holdings or any Restricted Subsidiary in any
manner material to Holdings or such Restricted Subsidiary; or
(v) with respect to any Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the capital stock of, or
property and assets of, such Restricted Subsidiary.
Nothing contained in this Section 4.5 shall prevent Holdings
or any Restricted Subsidiary from restricting the sale or other disposition of
property or assets of Holdings or any of its Subsidiaries that secure
Indebtedness of Holdings or any of its Subsidiaries.
SECTION 4.6 Limitation on Transactions with Shareholders and
Affiliates. So long as any of the Securities are outstanding, Holdings will not,
and will not permit any Subsidiary of Holdings to, directly or indirectly, enter
into, renew or extend any transaction (including, without limitation, the
purchase, sale, lease or exchange of property or assets, or the rendering of any
service) with any holder (or any Affiliate of such holder) of 5% or more of any
class of capital stock of Holdings (other than the Bank Agent or any of its
Affiliates) or any Subsidiary of Holdings or with any Affiliate of Holdings or
any Subsidiary of Holdings, except upon fair and reasonable terms no less
favorable to Holdings or such Subsidiary of Holdings than could be obtained in a
comparable, arm's-length transaction with a Person that is not such a holder or
an Affiliate.
The foregoing limitation does not limit, and shall not apply
to:
(i) any transaction between Holdings and any Subsidiary of
Holdings or between Subsidiaries of Holdings;
(ii) transactions (A) for which Holdings or any Subsidiary of
Holdings delivers to the Trustee a written opinion of a nationally
recognized investment banking firm stating that the transaction is fair
to Holdings or such Subsidiary of Holdings from a financial point of
view or (B) approved by a majority of the disinterested members of the
Board of Directors;
(iii) the payment of fees pursuant to the Management
Agreements or pursuant to any similar management contracts entered into
by Holdings or any Subsidiary of Holdings;
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(iv) the payment of reasonable and customary regular fees to
directors of Holdings or any Subsidiary of Holdings who are not
employees of Holdings or such Subsidiary of Holdings;
(v) any payments or other transactions pursuant to any
tax-sharing agreement between Holdings and Silgan or any other Person
with which Holdings is required or permitted to file a consolidated tax
return or with which Holdings is or could be part of a consolidated
group for tax purposes;
(vi) any Restricted Payments not prohibited by Section 4.4 of
this Indenture;
(vii) the payment of fees to Morgan Stanley & Co.
Incorporated, S&H or their respective Affiliates for financial,
advisory, consulting or investment banking services that the Board of
Directors deems to be advisable or appropriate for Holdings or any
Subsidiary of Holdings to obtain (including the payment to Morgan
Stanley & Co. Incorporated of any underwriting discounts or commissions
or placement agency fees) in connection with the issuance and sale of
any securities by Holdings or any Subsidiary of Holdings; or
(viii) any transaction contemplated by any of the Stock Based
Plans.
Notwithstanding any of the foregoing, nothing in this Section
4.6 shall prohibit the occurrence of (i) a Holdings Merger, (ii) the sale of all
or substantially all of the property and assets of Silgan or its successors to
Holdings and the assumption by Holdings of all or substantially all of the
liabilities of Silgan or its successors or (iii) the issuance by Silgan or its
successors of Securities. Immediately upon the occurrence of an event specified
in clause (i), (ii) or (iii) of the preceding sentence, all references to
Holdings in this Section 4.6 shall refer to the Successor Corporation.
SECTION 4.7 Limitation on the Issuance of Capital Stock of
Restricted Subsidiaries. So long as any of the Securities are outstanding,
Holdings will not permit any Restricted Subsidiary to, directly or indirectly,
issue or sell any shares of its capital stock (including options, warrants or
other rights to purchase shares of such capital stock) except (i) to Holdings or
another Restricted Subsidiary that is a Wholly Owned Subsidiary of Holdings,
(ii) pursuant to options on such capital stock granted to officers and directors
of such Restricted Subsidiary, (iii) if, immediately after giving effect to such
issuance or sale, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary or (iv) in connection with an initial public offering of
the common stock of such Restricted Subsidiary; provided that, within 12 months
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after the date the Net Cash Proceeds of such initial public offering are
received by such Restricted Subsidiary, such Restricted Subsidiary shall (A)
apply an amount equal to such Net Cash Proceeds to repay Senior Indebtedness of
Holdings or Indebtedness of a Restricted Subsidiary, in each case owing to a
Person other than Holdings or any of its Subsidiaries, (B) apply an amount equal
to such Net Cash Proceeds to the repurchase of Senior Indebtedness pursuant to
mandatory repurchase or repayment provisions applicable to such Senior
Indebtedness or (C) invest an equal amount, or the amount not so applied
pursuant to subclause (A) or (B) (or enter into a definitive agreement
committing to so invest within 12 months of the date of such agreement), in
property or assets that (as determined in good faith by the Board of Directors,
whose determination shall be conclusive and evidenced by a Board Resolution) are
of a nature or type or are used in a business (or in a company having property
and assets of a nature or type, or engaged in a business) similar or related to
the nature or type of the property and assets of, or the business of, any
Restricted Subsidiary and its Subsidiaries existing on the date thereof.
Notwithstanding any of the foregoing, nothing in this Section
4.7 shall prohibit the occurrence of (i) a Holdings Merger, (ii) the sale of all
or substantially all of the property and assets of Silgan or its successors to
Holdings and the assumption by Holdings of all or substantially all of the
liabilities of Silgan or its successors or (iii) the assumption by Silgan or its
successors of Indebtedness represented by the Securities. Immediately upon the
occurrence of an event specified in clause (i), (ii) or (iii) of the preceding
sentence, all references to Holdings in this Section 4.7 shall refer to the
Successor Corporation.
SECTION 4.8 Repurchase of Securities upon Change of Control.
(a) In the event of a Change in Control, each Holder shall have the right to
require the repurchase of its Securities by Holdings in cash pursuant to the
offer described below (the "Change of Control Offer") at a purchase price equal
to 101% of the principal amount, plus accrued interest (if any) to the date of
purchase (the "Change of Control Payment"). Prior to the mailing of the notice
to Holders provided for in the succeeding paragraph, but in any event within 30
days following any Change of Control, Holdings covenants to, or to cause Silgan
to, (i) repay in full all Indebtedness under the Silgan Credit Agreement and all
other Senior Indebtedness required to be redeemed or repurchased pursuant to the
terms thereof, or to offer to repay in full all Indebtedness under the Silgan
Credit Agreement and all such other Senior Indebtedness and to repay the
Indebtedness of each holder of Senior Indebtedness who has accepted such offer
or (ii) obtain the requisite consents under the Silgan Credit Agreement and such
other Senior Indebtedness to permit the repurchase of the Securities as provided
for in the succeeding paragraph. Holdings shall first comply with the covenant
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in the preceding sentence before it shall be required to repurchase Securities
pursuant to this Section 4.8.
(b) Within 30 days of the Change of Control, Holdings shall
mail a notice to the Trustee and each Holder stating:
(i) that a Change of Control has occurred,
that the Change of Control Offer is being made pursuant to this Section
4.8 and that all Securities validly tendered will be accepted for
payment;
(ii) the purchase price and the date of purchase (which shall
be a Business Day no earlier than 30 days nor later than 60 days from
the date such notice is mailed) (the "Change of Control Payment Date");
(iii) that any Security not tendered will continue to accrue
interest pursuant to its terms;
(iv) that, unless Holdings defaults in the payment of the
Change of Control Payment, any Security accepted for payment pursuant
to the Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date;
(v) that Holders electing to have any Security purchased
pursuant to the Change of Control Offer will be required to surrender
such Security, together with the form entitled "Option of the Holder to
Elect Purchase" on the reverse side of such Security completed, to the
Paying Agent at the address specified in the notice prior to the close
of business on the Business Day immediately preceding the Change of
Control Payment Date;
(vi) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the third Business Day immediately preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of such Holder, the principal amount of
Securities delivered for purchase and a statement that such Holder is
withdrawing his election to have such Securities purchased; and
(vii) that Holders whose Securities are being purchased only
in part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; provided that each
Security purchased and each new Security issued shall be in an original
principal amount of $1.00 or integral multiples thereof.
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(c) On the Change of Control Payment Date, Holdings shall:
(i) accept for payment Securities or portions thereof
tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent money sufficient to pay
the purchase price of all Securities or portions thereof so accepted;
and
(iii) deliver, or cause to be delivered, to the Trustee, all
Securities or portions thereof so accepted together with an Officers'
Certificate specifying the Securities or portions thereof accepted for
payment by Holdings.
The Paying Agent shall promptly mail, to the Holders of
Securities so accepted, payment in an amount equal to the purchase price, and
the Trustee shall promptly authenticate and mail to such Holders new Securities
equal in principal amount to any unpurchased portion of the Securities
surrendered; provided that each Security purchased and each new Security issued
shall be in an original principal amount of $1.00 or integral multiples thereof.
Holdings will publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Payment Date. For purposes of
this Section 4.8, the Trustee shall act as Paying Agent.
(d) Holdings will comply with Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable, in the event that a Change of Control
occurs under this Section 4.8 and Holdings is required to repurchase Securities
as described above.
(e) Notwithstanding any of the foregoing, nothing in this
Section 4.8 shall prohibit the occurrence of (i) a Holdings Merger, (ii) the
sale of all or substantially all of the property and assets of Silgan or its
successors to Holdings, and the assumption by Holdings of all or substantially
all of the liabilities of Silgan or its successors or (iii) the assumption by
Silgan or its successors of Indebtedness represented by the Securities.
Immediately upon the occurrence of an event specified in clause (i), (ii) or
(iii) of the preceding sentence, all references to Holdings in this Section 4.8
shall refer to the Successor Corporation.
SECTION 4.9 Limitation on Asset Sales. (a) In the event and to
the extent that the Net Cash Proceeds received by Holdings or any Restricted
Subsidiary from one or more Asset Sales occurring on or after the date hereof in
any period of 12 consecutive months (other than Asset Sales by Holdings or any
Restricted Subsidiary to Holdings or another Restricted Subsidiary) exceed 15%
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of Consolidated Net Tangible Assets in any one fiscal year (determined as of the
date closest to the commencement of such 12-month period for which a
consolidated balance sheet of Holdings and its Subsidiaries has been prepared),
then Holdings shall, or shall cause such Restricted Subsidiary to, (i) within 12
months after the date the Net Cash Proceeds so received exceed 15% of
Consolidated Net Tangible Assets in any one fiscal year (determined as of the
date closest to the commencement of such 12-month period for which a
consolidated balance sheet of Holdings and its Subsidiaries has been prepared),
(A) apply an amount equal to such excess Net Cash Proceeds to repay Senior
Indebtedness of Holdings or Indebtedness of a Restricted Subsidiary, in each
case owing to a Person other than Holdings or any of its Subsidiaries or (B)
invest an equal amount, or the amount not so applied pursuant to subclause (A)
(or enter into a definitive agreement committing to so invest within 12 months
of the date of such agreement), in property or assets that (as determined in
good faith by the Board of Directors, whose determination shall be conclusive
and evidenced by a Board Resolution) are of a nature or type or are used in a
business (or in a company having property and assets of a nature or type, or
engaged in a business) similar or related to the nature or type of the property
and assets of, or the business of, Holdings and its Subsidiaries existing on the
date thereof and (ii) apply such excess Net Cash Proceeds (to the extent not
applied pursuant to clause (i)) as provided in the following paragraphs of this
Section 4.9. The amount of such excess Net Cash Proceeds required to be applied
(or to be committed to be applied) during such 12-month period as set forth in
subclause (A) or (B) of the preceding sentence and not applied as so required by
the end of such period shall constitute "Excess Proceeds."
(b) If, as of the first day of any calendar month, the
aggregate amount of Excess Proceeds not theretofore subject to an Excess
Proceeds Offer (as defined below) totals at least $10 million, Holdings must,
not later than the fifteenth Business Day of such month, make an offer (an
"Excess Proceeds Offer") to purchase from the Holders on a pro rata basis an
aggregate principal amount of Securities equal to the Excess Proceeds on such
date, at a purchase price equal to 101% of the principal amount thereof, plus
accrued interest (if any) to the date of purchase (the "Excess Proceeds
Payment"); provided, however, that no Excess Proceeds Offer shall be required to
be commenced with respect to the Securities until the Business Day following the
dates that payments are made pursuant to similar offers that are made to holders
of Senior Indebtedness, and need not be commenced if the Excess Proceeds
remaining after application to the Senior Indebtedness purchased in the offers
made to the holders of the Senior Indebtedness are less than $10 million; and
provided further, however, that no Securities may be purchased under this
Section 4.9 unless Holdings shall have purchased all Senior Indebtedness
tendered pursuant to the offers applicable thereto.
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(c) Holdings shall commence an Excess Proceeds Offer by
mailing a notice to the Trustee and each Holder stating:
(i) that the Excess Proceeds Offer is being made pursuant to
this Section 4.9 and that all Securities validly tendered will be
accepted for payment on a pro rata basis;
(ii) the purchase price and the date of purchase (which shall
be a Business Day no earlier than 30 days nor later than 60 days from
the date such notice is mailed) (the "Excess Proceeds Payment Date");
(iii) that any Security not tendered will continue to accrue
interest pursuant to its terms;
(iv) that, unless Holdings defaults in the payment of the
Excess Proceeds Payment, any Security accepted for payment pursuant to
the Excess Proceeds Offer shall cease to accrue interest after the
Excess Proceeds Payment Date;
(v) that Holders electing to have any Security purchased
pursuant to the Excess Proceeds Offer will be required to surrender the
Security, together with the form entitled "Option of the Holder to
Elect Purchase" on the reverse side of such Security completed, to the
Paying Agent at the address specified in the notice prior to the close
of business on the Business Day immediately preceding the Excess
Proceeds Payment Date;
(vi) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the third Business Day immediately preceding the Excess Proceeds
Payment Date, a telegram, telex, facsimile transmission or letter,
setting forth the name of such Holder, the principal amount of
Securities delivered for purchase and a statement that such Holder is
withdrawing his election to have such Securities purchased; and
(vii) that Holders whose Securities are being purchased only
in part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; provided that each
Security purchased and each new Security issued shall be in an original
principal amount of $1.00 or integral multiples thereof.
(d) On the Excess Proceeds Payment Date, Holdings shall:
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(i) accept for payment on a pro rata basis Securities or
portions thereof tendered pursuant to the Excess Proceeds Offer;
(ii) deposit with the Paying Agent money sufficient to pay
the purchase price of all Securities or portions thereof so accepted;
and
(iii) deliver, or cause to be delivered, to the Trustee, all
Securities or portions thereof so accepted, together with an Officer's
Certificate specifying the Securities or portions thereof accepted for
payment by Holdings.
The Paying Agent shall promptly mail to the Holders of
Securities so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and mail to such Holders a new Security
equal in principal amount to any unpurchased portion of the Security
surrendered; provided that each Security purchased and each new Security issued
shall be in an original principal amount of $1.00 or integral multiples thereof.
Holdings will publicly announce the results of the Excess Proceeds Offer as soon
as practicable after the Excess Proceeds Payment Date. For purposes of this
Section 4.9, the Trustee shall act as the Paying Agent.
(e) Holdings will comply with Rule 14e-l under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable, in the event that such Excess Proceeds are
received by Holdings under this Section 4.9 and Holdings is required to
repurchase Securities as described above.
(f) Notwithstanding the foregoing, nothing in this Section
4.9 shall prohibit the occurrence of (i) a Holdings Merger, (ii) the sale of all
or substantially all of the property and assets of Silgan or its successors to
Holdings, and the assumption by Holdings of all or substantially all of the
liabilities of Silgan or its successors or (iii) the assumption by Silgan or its
successors of Indebtedness represented by the Securities. Immediately upon the
occurrence of an event specified in clause (i), (ii) or (iii) of the preceding
sentence, all references to Holdings in this Section 4.9 shall refer to the
Successor Corporation.
SECTION 4.10 Corporate Existence. Subject to Articles 4 and 5
of this Indenture, so long as any of the Securities are outstanding, Holdings
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence and the corporate existence of each
Subsidiary in accordance with the respective organizational documents of
Holdings and of each Subsidiary of Holdings and the rights (charter and
statutory), licenses and franchises of Holdings and its Subsidiaries; provided
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that Holdings shall not be required to preserve any such right, license or
franchise, or the corporate existence of any Subsidiary of Holdings, if the
preservation thereof is no longer desirable in the conduct of the business of
Holdings and its Subsidiaries taken as a whole; and provided further that any
Subsidiary of Holdings may consolidate with, merge into, or sell, convey,
transfer, lease or otherwise dispose of all or part of its property and assets
to Holdings or any Wholly Owned Subsidiary of Holdings.
SECTION 4.11 Payment of Taxes and Other Claims. So long as
any of the Securities are outstanding, Holdings will pay or discharge, or cause
to be paid or discharged, before any penalty accrues thereon (i) all material
taxes, assessments and governmental charges levied or imposed upon Holdings or
any Subsidiary of Holdings or upon the income, profits or property of Holdings
or any Subsidiary of Holdings and (ii) all material lawful claims for labor,
materials and supplies that, if unpaid, might by law become a Lien upon the
property of Holdings or any Subsidiary of Holdings; provided that Holdings shall
not be -------- required to pay or discharge, or cause to be paid or discharged,
any such tax, assessment, charge or claim the amount, applicability or validity
of which is being contested in good faith by appropriate proceedings and for
which adequate reserves have been made.
SECTION 4.12 Notice of Defaults and Other Events. In the event
that any issue or issues of Indebtedness of Holdings and/or any Significant
Subsidiary of Holdings having an outstanding principal amount of $20 million or
more in the aggregate for all such issues has been or could be declared due and
payable before its maturity because of the occurrence of any event of default
under such Indebtedness (including, without limitation, any Default or Event of
Default under this Indenture), so long as any of the Securities are outstanding,
Holdings, promptly after it becomes aware thereof, will give written notice
thereof to the Trustee.
SECTION 4.13 Maintenance of Properties and Insurance. So long
as any of the Securities are outstanding, Holdings will cause all properties
used or useful in the conduct of its business or the business of any Subsidiary
of Holdings and material to Holdings and its Subsidiaries taken as a whole to be
maintained and kept in normal condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of Holdings may be necessary, so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided that nothing in this Section 4.13 shall prevent Holdings or any
Subsidiary of Holdings from discontinuing the use, operation or maintenance of
any of such properties or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors or the board of directors
of such Subsidiary, or an Officer (or other agent employed by Holdings or any
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Subsidiary of Holdings) of Holdings or such Subsidiary of Holdings having
managerial responsibility for any such property, desirable in the conduct of the
business of Holdings or such Subsidiary of Holdings.
So long as any of the Securities are outstanding, Holdings
will provide or cause to be provided, for itself and its Subsidiaries, insurance
(including appropriate self-insurance) against loss or damage of the kinds
customarily insured against by corporations similarly situated and owning like
properties, including, but not limited to, products liability insurance and
public liability insurance with reputable insurers or with the government of the
United States of America, or an agency or instrumentality thereof, in such
amounts, with such deductibles and by such methods as shall be customary for
corporations similarly situated in the industry.
SECTION 4.14 Compliance Certificates. (a) So long as any of
the Securities are outstanding, Holdings shall deliver to the Trustee, within
120 days after the end of each fiscal year, an Officers' Certificate, which
shall contain a certification from a Chief Executive Officer, Chief Financial
Officer or Controller that a review has been conducted of the activities of
Holdings and its Subsidiaries and Holdings' and its Subsidiaries' performance
under this Indenture and that Holdings has fulfilled all obligations hereunder,
or, if there has been a Default in the fulfillment of any such obligation, such
certificate shall contain a description of such Default and the nature and
status thereof. For purposes of this Section 4.14, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
(b) So long as any of the Securities are outstanding,
Holdings shall deliver to the Trustee, within 120 days after the end of
Holdings' fiscal year, a certificate signed by Holdings' independent certified
public accountants stating (i) that their audit examination has included a
review of the terms of this Indenture and the Securities as they relate to
accounting matters, (ii) that they have read the most recent Officers
Certificate delivered to the Trustee pursuant to paragraph (a) of this Section
4.14 and (iii) whether, in connection with their audit examination, anything
came to their attention that caused them to believe that Holdings was not in
compliance with any of the terms, covenants, provisions or conditions of Article
4 and Section 5.1 of this Indenture as they pertain to accounting matters and,
if any Default or Event of Default has come to their attention, specifying the
nature and period of existence thereof; provided that such independent certified
public accountants shall not be liable in respect of such statement by reason of
any failure to obtain knowledge of any such Default or Event of Default that
would not be disclosed in the course of an audit examination conducted in
accordance with generally accepted auditing standards in effect at the date of
such examination.
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SECTION 4.15 Commission Reports and Reports to Holders. So
long as any of the Securities are outstanding, within 15 days after Holdings
files with the Commission copies of its annual reports and other information,
documents and reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) that it is required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act,
Holdings shall file the same with the Trustee. So long as any Securities remain
outstanding, Holdings shall cause quarterly reports (containing unaudited
financial statements) for the first three quarters of each fiscal year and
annual reports (containing audited financial statements and an opinion thereon
by Holdings' independent certified public accountants) that it would be required
to file under Section 13 of the Exchange Act if it had a class of debt
securities listed on a national securities exchange to be filed with the
Commission and the Trustee within 15 days of when such report would have been
required to be filed with the Commission under Section 13 of the Exchange Act.
So long as any of the Securities are outstanding, Holdings also shall comply
with the other provisions of TIA Section 314(a).
SECTION 4.16 Waiver of Stay, Extension or Usury Laws. Holdings
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive Holdings from paying all or any portion of the
principal of, premium, if any, or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) Holdings hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 4.17 Trustee Not Liable. Holdings is solely
responsible for performing the duties and responsibilities contained in Sections
4.8 and 4.9 of this Indenture, other than the obligations of the Trustee as
Paying Agent expressly set forth therein. The Trustee shall not be responsible
for any failure of Holdings to make any deposit with the Trustee as Paying Agent
or to deliver to the Trustee Securities accepted by it or, subject to TIA
Sections 315(a) through (d), any failure of Holdings to comply with any of the
other covenants of Holdings contained in Sections 4.8 and 4.9 of this Indenture.
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ARTICLE 5.
Successor Corporation
SECTION 5.1 When Holdings May Merge, Etc. Holdings shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person (other than a Restricted Subsidiary that is
a Wholly Owned Subsidiary of Holdings; provided that, in connection with any
merger of Holdings with any Restricted Subsidiary that is a Wholly Owned
Subsidiary of Holdings, no consideration (other than common stock in the
surviving Person or Holdings) shall be issued or distributed to the stockholders
of Holdings) or permit any Person to merge with or into Holdings, unless:
(i) Holdings shall be the continuing Person, or the Person
(if other than Holdings) formed by such consolidation or into which
Holdings is merged or that acquired or leased such property and assets
of Holdings shall be a corporation organized and validly existing under
the laws of the United States of America or any jurisdiction thereof
and shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all of
the obligations of Holdings on all of the Securities and under this
Indenture;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction on
a pro forma basis, the Interest Coverage Ratio of Holdings (or any
Person becoming the successor obligor on the Securities) is at least
1:1; provided that if the Interest Coverage Ratio of Holdings before
giving effect to such transaction is within the range set forth in
column (A) below, then the Interest Coverage Ratio of Holdings (or any
Person becoming the successor obligor on the Securities) shall be at
least equal to the lesser of (1) the ratio determined by multiplying
the percentage set forth in column (B) below by the Interest Coverage
Ratio of Holdings prior to such transaction and (2) the ratio set forth
in column (C) below:
(A) (B) (C)
--- --- ---
1.11:1 to 1.99:1 90% 1.5:1
2.00:1 to 2.99:1 80% 2.1:1
3.00:1 to 3.99:1 70% 2.4:1
4.00:1 or more 60% 2.5:1
and provided further that, if the Interest Coverage Ratio of
Holdings (or any Person becoming the successor obligor on
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the Securities) is 3:1 or more, the calculation in the preceding
proviso shall be inapplicable and such transaction shall be deemed to
have complied with the requirements of this clause (iii);
(iv) immediately after giving effect to such transaction on a
pro forma basis, Holdings (or any Person that becomes the successor
obligor on the Securities) shall have a Consolidated Net Worth equal to
or greater than the Consolidated Net Worth of Holdings immediately
prior to such transaction; and
(v) Holdings delivers to the Trustee an Officer's Certificate
(attaching the arithmetic computations to demonstrate compliance with
clauses (iii) and (iv)) and an Opinion of Counsel, in each case stating
that such consolidation, merger or transfer and such supplemental
indenture comply with this Section 5.1 and that all conditions
precedent provided for herein relating to such transaction have been
complied with;
provided, however, that clause (iv) of this Section 5.1 shall not apply
to, and the Interest Coverage Ratio required by clause (iii) of this
Section 5.1 (A) shall be 1.75:1 with respect to, (1) a Holdings Merger,
(2) the sale of all or substantially all of the property and assets of
Silgan or its successors to Holdings, and the assumption by Holdings of
all or substantially all of the liabilities of Silgan or its successors
or (3) the assumption by Silgan or its successors of Indebtedness
represented by the Securities and (B) does not apply if, in the good
faith determination of the Board of Directors, whose determination
shall be evidenced by a Board Resolution, the principal purpose of such
transaction is to change the state of incorporation of Holdings; and
provided further, however, that any such transaction shall not have as
one of its purposes the evasion of the limitations of this Section 5.1.
SECTION 5.2 Successor Corporation Substituted. Upon any
consolidation or merger, or any sale, conveyance, transfer, lease or other
disposition of all or substantially all of the property and assets of Holdings
in accordance with Section 5.1 of this Indenture, the successor corporation
formed by such consolidation or into which Holdings is merged or to which such
sale, conveyance, transfer, lease or other disposition is made shall succeed to,
and be substituted for, and may exercise every right and power of, Holdings
under this Indenture with the same effect as if such successor corporation had
been named as Holdings herein.
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ARTICLE 6.
Default and Remedies
SECTION 6.1 Events of Default. An "Event of Default" occurs
with respect to the Securities if:
(i) Holdings defaults in the payment of principal of (or
premium, if any, on) any Security when the same becomes due and payable
at maturity, upon acceleration, redemption or otherwise, whether or not
such payment is prohibited by Article 10 of this Indenture, if Article
10 is then applicable;
(ii) Holdings defaults in the payment of interest on any
Security when the same becomes due and payable, and such default
continues for a period of 30 days, whether or not such payment is
prohibited by Article 10 of this Indenture, if Article 10 is then
applicable;
(iii) Holdings defaults in the performance of or breaches any
other covenant or agreement of Holdings in this Indenture or under the
Securities, and such default or breach continues for a period of 30
consecutive days after written notice by the Trustee or the Holders of
25% or more in aggregate principal amount of the Securities in the
manner described below;
(iv) there occurs with respect to any issue or issues of
Indebtedness of Holdings and/or any Significant Subsidiary having an
outstanding principal amount of $20 million or more in the aggregate
for all such issues of Holdings and/or any Significant Subsidiary,
whether such Indebtedness now exists or shall hereafter be created, (A)
an event of default that has caused the holder thereof to declare such
Indebtedness to be due and payable prior to its Stated Maturity and
such Indebtedness has not been discharged in full or such acceleration
has not been rescinded or annulled within 30 days of such acceleration
and/or (B) the failure to make a principal payment at the final (but
not any interim) fixed maturity and such defaulted payment shall not
have been made, waived or extended within 30 days of such payment
default;
(v) any final judgment or order (not covered by insurance)
for the payment of money in excess of $10 million individually or $20
million or more in the aggregate for all such final judgments or orders
against all such Persons (treating any deductibles, self-insurance or
retention as not so covered) shall be rendered against Holdings or any
Significant Subsidiary and shall not be discharged, and there shall be
any period of 60 consecutive days following entry of the final judgment
or order in excess of $10 million individually or that causes the
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aggregate amount for all such final judgments or orders outstanding
against all such Persons to exceed $20 million during which a stay of
enforcement of such final judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect;
(vi) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of Holdings or any
Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
(B) appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of Holdings or any
Significant Subsidiary or for all or substantially all of the property
and assets of Holdings or any Significant Subsidiary or (C) the winding
up or liquidation of the affairs of Holdings or any Significant
Subsidiary and, in each case, such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; and
(vii) Holdings or any Significant Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law, (B)
consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of Holdings or any Significant Subsidiary or for all or
substantially all of the property and assets of Holdings or any
Significant Subsidiary or (C) effects any general assignment for the
benefit of creditors.
A Default under clause (iii) is not an Event of Default until
the Trustee notifies Holdings in writing, or the Holders of at least 25% of the
aggregate principal amount of the Securities then outstanding notify Holdings
and the Trustee in writing, of the Default and Holdings does not cure the
Default within 30 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default." Such notice shall be given by the Trustee if so requested in writing
by the Holders of 25% of the aggregate principal amount of the Securities then
outstanding.
SECTION 6.2 Acceleration. If an Event of Default (other than
an Event of Default specified in clause (vi) or (vii) of Section 6.1 of this
Indenture that occurs with respect to Holdings or Silgan) occurs and is
continuing, the Trustee or the Holders of at least 25% of the aggregate
principal amount of the Securities then outstanding, by written notice to
Holdings (and to the Trustee if such notice is given by the Holders (the
"Acceleration Notice")), may, and the Trustee at the request of the Holders of
at least 25% in aggregate principal amount of the Securities then outstanding
shall, declare the principal of and all accrued and unpaid interest on the
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Securities to be immediately due and payable. Any such declaration of
acceleration shall not become effective until the earlier of (A) five Business
Days after receipt of the Acceleration Notice by the Bank Agent, Holdings and
the agent for the holders of the Silgan Notes and Discount Debentures or (B)
acceleration of the Indebtedness under the Silgan Credit Agreement, the Silgan
Notes or the Discount Debentures; provided that such acceleration shall
automatically be rescinded and annulled without any further action required on
the part of the Holders in the event that any and all Events of Default
specified in the Acceleration Notice under this Indenture shall have been cured,
waived or otherwise remedied as provided in this Indenture prior to the
expiration of the period referred to in the preceding clauses (A) and (B). In
the event of a declaration of acceleration because an Event of Default set forth
in clause (iv) of Section 6.1 of this Indenture has occurred and is continuing,
such declaration of acceleration shall be automatically rescinded and annulled
if the event of default triggering such Event of Default pursuant to clause (iv)
of Section 6.1 of this Indenture shall be remedied, cured by Holdings and/or
such Significant Subsidiary or waived by the holders of the relevant
Indebtedness within 60 days after the declaration of acceleration with respect
thereto. If an Event of Default specified in clause (vi) or (vii) of Section 6.1
of this Indenture occurs with respect to Holdings or Silgan, the principal of
and all accrued and unpaid interest on the Securities shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder. The Holders of at least a majority in aggregate
principal amount of the outstanding Securities, by written notice to Holdings
and to the Trustee, may waive all past defaults and rescind and annul a
declaration of acceleration and its consequences if (1) all existing Events of
Default, other than the non-payment of the principal of, premium, if any, and
interest on the Securities that have become due solely by such declaration of
acceleration, have been cured or waived and (2) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction.
SECTION 6.3 Other Remedies. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy by proceeding at law
or in equity to collect the payment of principal of, premium, if any, or
interest on the 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.
SECTION 6.4 Waiver of Past Defaults. Subject to Sections 6.2,
6.7 and 9.2 of this Indenture, the Holders of at least a majority in aggregate
principal amount of the outstanding Securities, by notice to the Trustee, may
waive an existing Default or Event of Default and its consequences, except a
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Default in the payment of principal of, premium, if any, or interest on any
Security as specified in clause (i) or (ii) of Section 6.1 of this Indenture.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereto.
SECTION 6.5 Control by Majority. The Holders of at least a
majority in aggregate principal amount of the outstanding Securities may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that the Trustee is
advised by counsel conflicts with law or this Indenture, that may involve the
Trustee in personal liability or that the Trustee determines in good faith may
be unduly prejudicial to the rights of Holders not joining in the giving of such
direction.
SECTION 6.6 Limitation on Suits. A Holder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(i) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal
amount of outstanding Securities make a written request to the Trustee
to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities do not give
the Trustee a direction that is inconsistent with the request.
For purposes of Section 6.5 of this Indenture and this Section
6.6, the Trustee shall comply with TIA Section 316(a) in making any
determination of whether the Holders of the required aggregate principal amount
of outstanding Securities have concurred in any request or direction of the
Trustee to pursue any remedy available to the Trustee or the Holders with
respect to this Indenture or the Securities or otherwise under the law.
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A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the principal of, premium, if any, or interest on its
Securities, or to bring suit for the enforcement of any such payment, on or
after the respective due dates expressed in its Securities, shall not be
impaired or affected without the consent of the Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of Default
in payment of principal, premium or interest specified in clause (i) or (ii) of
Section 6.1 of this Indenture occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against Holdings or
any other obligor of the Securities for the whole amount of principal, premium,
if any, and accrued interest (if any) remaining unpaid, together with interest
on overdue principal, premium, if any, and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each case
at the rate borne by the Securities, and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.9 Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.6 of this Indenture) and the Holders allowed in any judicial
proceedings relative to Holdings (or any other obligor of the Securities), its
creditors or its property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same, and any custodian in any such judicial proceedings
is hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 7.6 of this
Indenture. To the extent that such payment of reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel out of the
estate in any such judicial proceeding shall be denied for any reason, payment
of the same shall be secured by a lien on, and shall be paid out of, any and all
dividends, distributions, monies, securities and other property that the Holders
may be entitled to receive in such judicial proceedings, whether in liquidation
or under any plan of reorganization, arrangement or otherwise. Nothing herein
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contained shall be deemed to empower the Trustee to authorize or consent to, or
accept or adopt on behalf of any Holder, any plan of reorganization,
arrangement, adjustment or composition affecting the 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
pursuant to this Article 6, it shall pay out the money in the following order,
subject to Article 10 of this Indenture:
First: to the Trustee for amounts due under
Section 7.6 of this Indenture;
Second: to Holders for amounts then due and unpaid
for principal of, premium, if any, and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, respectively; and
Third: to Holdings or any other obligors of the
Securities, as their interests may appear, or as a court of
competent jurisdiction may direct.
The Trustee, upon prior written notice to Holdings, may fix a
record date and payment date for any payment to Holders pursuant to this Section
6.10.
SECTION 6.11 Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court 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 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 of this
Indenture, or a suit by Holders of more than 10% in principal amount of the
outstanding Securities.
SECTION 6.12 Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then, and in every such case, subject to any determination in such
proceeding, Holdings, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
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and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 6.13 Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.6 of this Indenture,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.14 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article 6 or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE 7.
Trustee
SECTION 7.1 Rights of Trustee. Subject to TIA Sections 315(a)
through (d):
(i) 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;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Section 11.4 of this Indenture. The Trustee shall not be
liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any
agent appointed with due care;
(iv) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders, unless such Holders shall have
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offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
(v) the Trustee or Paying Agent shall not be liable for
interest on any money recovered by it except as the Trustee or Paying
Agent may agree in writing with Holdings. Money held in trust by the
Trustee or Paying Agent need not be segregated from other funds except
to the extent required by law; and
(vi) the Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or
within its rights or powers; provided that the Trustee's conduct does
not constitute negligence or bad faith.
SECTION 7.2 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 Holdings or its Affiliates with the same rights it
would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 7.3 Trustee's Disclaimer. The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture or the
Securities, (ii) shall not be accountable for Holdings' use of the proceeds from
the Securities and (iii) shall not be responsible for any statement in the
Securities other than its certificate of authentication.
SECTION 7.4 Notice of Default. If any Default or any Event of
Default occurs and is continuing and if such Default or Event of Default is
known to the Trustee, the Trustee shall mail to each Holder in the manner and to
the extent provided in TIA Section 313(c) notice of the Default or Event of
Default within 30 days after it occurs, unless such Default or Event of Default
has been cured; provided, however, that, except in the case of a default in the
payment of the principal of, premium, if any, or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders.
The Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (i) any Event of Default occurring pursuant
to Section 6.1(i), 6.1(ii) or 4.1 of this Indenture if the Trustee is then
acting as Paying Agent or (ii) any Default or Event of Default of which a
Responsible Officer of the Trustee shall have received written notification or
obtained actual knowledge, and such notification shall not be deemed to include
receipt of information obtained in any report or other documents furnished under
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Section 4.15 of this Indenture, which reports and documents the Trustee shall
have no duty to examine.
SECTION 7.5 Reports by Trustee to Holders. Within 60 days
after each May 15, beginning with May 15, 1993, the Trustee shall mail to each
Holder as provided in TIA Section 313(c) a brief report dated as of such May 15,
if required by TIA Section 313(a).
SECTION 7.6 Compensation and Indemnity. Holdings shall pay to
the Trustee such compensation as shall be agreed upon in writing for its
services. The compensation of the Trustee shall not be limited by any law on
compensation of a trustee of an express trust. Holdings shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses and advances
incurred or made by it. Such expenses shall include the reasonable compensation
and expenses of the Trustee's agents and counsel.
Holdings shall indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense incurred by it without negligence or
bad faith on its part in connection with the administration of this Indenture
and its duties under this Indenture and the Securities, including the costs and
expenses of defending itself against any claim or liability and of complying
with any process served upon it or any of its officers in connection with the
exercise or performance of any of its powers or duties under this Indenture and
the Securities. The Trustee shall notify Holdings promptly of any claim asserted
against the Trustee for which it may seek indemnity. Holdings shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and Holdings shall pay reasonable fees and expenses of such
counsel. Holdings need not pay for any settlements made without its consent;
provided that such consent shall not be unreasonably withheld. Holdings need not
reimburse any expense or indemnify against any loss or liability incurred by the
Trustee through negligence or bad faith.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in clause (vi) or (vii) of Section
6.1 of this Indenture, the expenses and the compensation for the services will
be intended to constitute expenses of administration under Title 11 of the
United States Bankruptcy Code or any applicable federal or state law for the
relief of debtors.
SECTION 7.7 Replacement of Trustee. A resignation or removal
of the Trustee and appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in this
Section 7.7.
The Trustee may resign by so notifying Holdings in writing at
least 30 Business Days prior to the date of the proposed resignation.
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The Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee by so notifying the Trustee in writing and may appoint a
successor Trustee with the consent of Holdings. Holdings may remove the Trustee
if:
(i) the Trustee fails to comply with Section 7.9 of this
Indenture;
(ii) the Trustee is adjudged a bankrupt or an insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists
in the office of Trustee for any reason, Holdings shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by
Holdings. If the successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, Holdings or the
Holders of a majority in principal amount of the outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to Holdings. Immediately after the
delivery of such written acceptance, subject to the lien provided in Section 6.9
of this Indenture, (i) the retiring Trustee shall transfer all property held by
it as Trustee to the successor Trustee, (ii) the resignation or removal of the
retiring Trustee shall become effective and (iii) the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. A
successor Trustee shall mail notice of its succession to each Holder.
If the Trustee fails to comply with Section 7.9 of this
Indenture, any Holder who satisfies the requirements of TIA Section 310(b) may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.7, Holdings' obligations under Section 7.6 of this Indenture shall
continue for the benefit of the retiring Trustee.
SECTION 7.8 Successor Trustee by Merger, Etc. If the
Trustee consolidates with, merges or converts into, or transfers all or
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substantially all of its corporate trust business to, another corporation or
national banking association, the resulting, surviving or transferee corporation
or national banking association without any further act shall be the successor
Trustee with the same effect as if the successor Trustee had been named as the
Trustee herein.
SECTION 7.9 Eligibility. This Indenture shall always have a
Trustee who satisfies the requirements of TIA Section 310(a)(1). The Trustee
shall have a combined capital and surplus of at least $25,000,000 as set forth
in its most recent published annual report of condition.
SECTION 7.10 Money Held in Trust. The Trustee shall not be
liable for interest on any money received by it except as the Trustee may agree
with Holdings. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law and except for money held in
trust under Article 8 of this Indenture.
ARTICLE 8.
Discharge of Indenture
SECTION 8.1 Termination of Holdings' Obligations. Except as
otherwise provided in this Section 8.1, Holdings may terminate its obligations
under the Securities and this Indenture if:
(i) all Securities previously authenticated and delivered
(other than destroyed, lost or stolen Securities that have been
replaced or Securities that are paid pursuant to Section 4.1 of this
Indenture or Securities for whose payment money or securities have
theretofore been held in trust and thereafter repaid to Holdings, as
provided in Section 8.5 of this Indenture) have been delivered to the
Trustee for cancellation and Holdings has paid all sums payable by it
hereunder; or
(ii) (A) the Securities mature within one year or all of them
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (B)
Holdings irrevocably deposits in trust with the Trustee during such
one-year period, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, as trust funds solely
for the benefit of the Holders for that purpose, money or U.S.
Government Obligations sufficient (in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee), without
consideration of any reinvestment of any interest thereon, to pay
principal, premium, if any, and interest on the Securities to maturity
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or redemption, as the case may be, and to pay all other sums payable by
it hereunder, (C) no Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit, (D) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which Holdings is a party or by which it is bound and (E)
Holdings has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the satisfaction and discharge of this
Indenture have been complied with.
With respect to the foregoing clause (i), Holdings'
obligations under Section 7.6 of this Indenture shall survive. With respect to
the foregoing clause (ii), Holdings' obligations in Sections 2.2, 2.3, 2.4, 2.5,
2.6, 2.11, 4.1, 4.2, 7.6, 7.7, 8.4, 8.5 and 8.6 of this Indenture shall survive
until the Securities are no longer outstanding. Thereafter, only Holdings'
obligations in Sections 7.6, 8.5 and 8.6 of this Indenture shall survive. After
any such irrevocable deposit, the Trustee upon request shall acknowledge in
writing the discharge of Holdings' obligations under the Securities and this
Indenture except for those surviving obligations specified above.
SECTION 8.2 Defeasance and Discharge of Indenture. Holdings
will be deemed to have paid and will be discharged from any and all obligations
in respect of the Securities and the provisions of this Indenture will no longer
be in effect with respect to the Securities on the 123rd day after the date of
the deposit referred to below, and the Trustee, at the expense of Holdings,
shall execute proper instruments acknowledging the same, except as to (i) rights
of registration of transfer and exchange, (ii) substitution of apparently
mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
Holders to receive payments of principal thereof and interest thereon, (iv)
Holdings' obligations under Section 4.2, (v) the rights, obligations and
immunities of the Trustee hereunder and (vi) the rights of the Holders as
beneficiaries of this Indenture with respect to the property so deposited with
the Trustee payable to all or any of them; provided that the following
conditions shall have been satisfied:
(A) with reference to this Section 8.2, Holdings has
irrevocably deposited or caused to be irrevocably deposited
with the Trustee (or another trustee satisfying the
requirements of Section 7.9 of this Indenture) and conveyed all
right, title and interest for the benefit of the Holders, under
the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee as trust funds in trust,
specifically pledged to the Trustee for the benefit of the
Holders as security for payment of the principal of, premium,
if any, and interest, if any, on the Securities, and dedicated
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solely to, the benefit of the Holders, in and to (1) money in
an amount, (2) U.S. Government Obligations that, through the
payment of interest and principal in respect thereof in
accordance with their terms, will provide, not later than one
day before the due date of any payment referred to in this
clause (A), money in an amount or (3) a combination thereof in
an amount sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, without consideration of the reinvestment of such
interest and after payment of all federal, state and local
taxes or other charges and assessments in respect thereof
payable by the Trustee, the principal of, premium, if any, and
interest on the outstanding Securities at the Stated Maturity
of such principal or interest; provided that the Trustee shall
have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to the payment of
such principal, premium, if any, and interest with respect to
the Securities;
(B) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which Holdings is a party
or by which it is bound;
(C) immediately after giving effect to such deposit
on a pro forma basis, no Default or Event of Default shall have
occurred and be continuing on the date of such deposit or
during the period ending on the 123rd day after such date of
deposit;
(D) Holdings shall have delivered to the Trustee (1)
either (x) a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders will
not recognize income, gain or loss for federal income tax
purposes as a result of Holdings' exercise of its option under
this Section 8.2 and will be subject to federal income tax on
the same amount and in the same manner and at the same times as
would have been the case if such option had not been exercised
or (y) an Opinion of Counsel to the same effect as the ruling
described in clause (x) above accompanied by a ruling to that
effect published by the Internal Revenue Service, unless there
has been a change in the applicable federal income tax law
since the date of this Indenture such that a ruling from the
Internal Revenue Service is no longer required and (2) an
Opinion of Counsel to the effect that (x) the creation of the
defeasance trust does not violate the Investment Company Act of
1940 and (y) after the passage of 123 days following the
deposit (except, with respect to any trust funds for the
account of any Holder who may be deemed to be an "insider" for
purposes of the United States Bankruptcy Code, after one year
following the deposit), the trust funds will not be subject
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to the effect of Section 547 of the United States Bankruptcy
Code or Section 15 of the New York Debtor and Creditor Law in a
case commenced by or against Holdings under either such
statute, and either (I) the trust funds will no longer remain
the property of Holdings (and therefore will not be subject to
the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally) or (II) if a court were to rule under any such law
in any case or proceeding that the trust funds remained
property of Holdings, (a) assuming such trust funds remained in
the possession of the Trustee prior to such court ruling to the
extent not paid to the Holders, the Trustee will hold, for the
benefit of the Holders, a valid and perfected security interest
in such trust funds that is not avoidable in bankruptcy or
otherwise except for the effect of Section 552(b) of the United
States Bankruptcy Code on interest on the trust funds accruing
after the commencement of a case under such statute, (b) the
Holders will be entitled to receive adequate protection of
their interests in such trust funds if such trust funds are
used in such case or proceeding, and (c) no property, rights in
property or other interests granted to the Trustee or the
Holders in exchange for, or with respect to, such trust funds
will be subject to any prior rights of holders of Senior
Indebtedness, including, without limitation, those arising
under Article 10 of this Indenture;
(E) if the Securities are then listed on a national
securities exchange, Holdings shall have delivered to the
Trustee an Opinion of Counsel to the effect that such deposit,
defeasance and discharge will not cause the Securities to be
delisted;
(F) the Successor Corporation, if any, shall not be
prohibited from making payments in respect of the Securities by
the provisions of Article 10 hereof; and
(G) Holdings has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein
relating to the defeasance contemplated by this Section 8.2
have been complied with.
Notwithstanding the foregoing, prior to the end of the 123-day
period referred to in clause (D)(2)(y) above, none of Holdings' obligations
under this Indenture shall be discharged. Subsequent to the end of such 123-day
period with respect to this Section 8.2, Holdings' obligations in Sections 2.2,
2.3, 2.4, 2.5, 2.6, 2.11, 4.1, 4.2, 7.6, 7.7, 8.5 and 8.6 of this Indenture
shall survive until the Securities are no longer outstanding. Thereafter, only
Holdings' obligations in Sections 7.6, 8.5 and 8.6 of this Indenture shall
survive. If and when a ruling from the Internal Revenue Service or an Opinion of
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Counsel referred to in clause (D)(l) above is able to be provided specifically
without regard to, and not in reliance upon, the continuance of Holdings'
obligations under Section 4.1 of this Indenture, then Holdings' obligations
under such Section 4.1 of this Indenture shall cease upon delivery to the
Trustee of such ruling or Opinion of Counsel and compliance with the other
conditions precedent provided for herein relating to the defeasance contemplated
by this Section 8.2.
After any such irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of Holdings' obligations under the
Securities and this Indenture except for those surviving obligations in the
immediately preceding paragraph.
SECTION 8.3 Defeasance of Certain Obligations. Holdings may
omit to comply with any term, provision or condition set forth in clauses (iii)
and (iv) of Section 5.1 and Sections 4.3 through 4.14 of this Indenture, and
clause (iii) of Section 6.1 of this Indenture with respect to such Sections and
clauses (iii) and (iv) of Section 5.1 and clauses (iv) and (v) of Section 6.1 of
this Indenture shall be deemed not to be Events of Default, and if the
defeasance is permitted under the Silgan Credit Agreement, Article 10 of this
Indenture shall not apply, in each case with respect to the outstanding
Securities, if:
(i) with reference to this Section 8.3, Holdings has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section 7.9
of this Indenture) and conveyed all right, title and interest to the
Trustee for the benefit of the Holders, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the
Trustee as trust funds in trust, specifically pledged to the Trustee
for the benefit of the Holders as security for payment of the principal
of, premium, if any, and interest, if any, on the Securities, and
dedicated solely to, the benefit of the Holders, in and to (A) money in
an amount, (B) U.S. Government Obligations that, through the payment of
interest and principal in respect thereof in accordance with their
terms, will provide, not later than one day before the due date of any
payment referred to in this clause (i), money in an amount or (C) a
combination thereof in an amount sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, the
principal of, premium, if any, and interest on the outstanding
Securities on the Stated Maturity of such principal or interest;
provided that the Trustee shall have been irrevocably instructed to
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apply such money or the proceeds of such U.S. Government Obligations to
the payment of such principal, premium, if any, and interest with
respect to the Securities;
(ii) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which Holdings is a party or by which it is
bound;
(iii) no Default or Event of Default shall have occurred and
be continuing on the date of such deposit;
(iv) Holdings has delivered to the Trustee an Opinion of
Counsel to the effect that (A) the creation of the defeasance trust
does not violate the Investment Company Act of 1940, (B) the Holders
have a valid first-priority security interest in the trust funds, (C)
the Holders will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and defeasance of certain
obligations and will be subject to federal income tax on the same
amount and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred and (D) after
the passage of 123 days following the deposit (except, with respect to
any trust funds for the account of any Holder who may be deemed to be
an "insider" for purposes of the United States Bankruptcy Code, after
one year following the deposit), the trust funds will not be subject to
the effect of Section 547 of the United States Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law in a case commenced
by or against Holdings under either such statute, and either (1) the
trust funds will no longer remain the property of Holdings (and
therefore will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally) or (2) if a court were to rule under any
such law in any case or proceeding that the trust funds remained
property of Holdings, (x) assuming such trust funds remained in the
possession of the Trustee prior to such court ruling to the extent not
paid to the Holders, the Trustee will hold, for the benefit of the
Holders, a valid and perfected security interest in such trust funds
that is not avoidable in bankruptcy or otherwise except for the effect
of Section 552(b) of the United States Bankruptcy Code on interest on
the trust funds accruing after the commencement of a case under such
statute, (y) the Holders will be entitled to receive adequate
protection of their interests in such trust funds if such trust funds
are used in such case or proceeding and (z) no property, rights in
property or other interests granted to the Trustee or the Holders in
exchange for, or with respect to, such trust funds will be subject to
any prior rights of holders of Senior Indebtedness, including, without
limitation, those arising under Article 10 of this Indenture;
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(v) if the Securities are then listed on a national
securities exchange, Holdings shall have delivered to the Trustee an
Opinion of Counsel to the effect that such deposit defeasance and
discharge will not cause the Securities to be delisted;
(vi) the Successor Corporation, if any, shall not be
prohibited from making payments in respect of the Securities by the
provisions of Article 10 hereof; and
(vii) Holdings has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.3 have been complied with.
In the event Holdings exercises its option to omit compliance
with certain covenants and provisions of this Indenture with respect to the
Securities as described in this Section 8.3 and the Securities are declared due
and payable because of the occurrence of an Event of Default that remains
applicable and the amount of money and/or U.S. Government Obligations on deposit
with the Trustee will be sufficient to pay amounts due on the Securities at the
time of their Stated Maturity but are not sufficient to pay amounts due on the
Securities at the time of the acceleration resulting from such Event of Default,
Holdings shall remain liable for such payments.
SECTION 8.4 Application of Trust Money. Subject to Section 8.6
of this Indenture, the Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 8.1, 8.2 or 8.3 of
this Indenture, as the case may be, and shall apply the deposited money and the
money from U.S. Government Obligations in accordance with the Securities and
this Indenture to the payment of principal of, premium, if any, and interest on
the Securities; but such money need not be segregated from other funds except to
the extent required by law.
SECTION 8.5 Repayment to Holdings. Subject to Sections 7.6,
8.1, 8.2 and 8.3 of this Indenture, the Trustee and the Paying Agent shall
promptly pay to Holdings upon request set forth in an Officers' Certificate any
excess money held by them at any time and thereupon shall be relieved from all
liability with respect to such money. The Trustee and the Paying Agent shall pay
to Holdings upon request any money held by them for the payment of principal,
premium, if any, or interest that remains unclaimed for two years; provided that
the Trustee or such Paying Agent before being required to make any payment may
cause to be published at the expense of Holdings once in a newspaper of general
circulation in the City of New York or mail to each Holder entitled to such
money at such Holder's address (as set forth in the Security Register) notice
that such money remains unclaimed and that after a date specified therein (which
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shall be at least 30 days from the date of such publication or mailing) any
unclaimed balance of such money then remaining will be repaid to Holdings. After
payment to Holdings, Holders entitled to such money must look to Holdings for
payment as general creditors unless an applicable law designates another Person,
and all liability of the Trustee and such Paying Agent with respect to such
money shall cease.
SECTION 8.6 Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
Section 8.01, 8.02 or 8.03 of this Indenture, as the case may be, by reason of
any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, Holdings' obligations under this Indenture and the Securities shall
be revived and reinstated as though no deposit had occurred pursuant to Section
8.01, 8.02 or 8.03 of this Indenture, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 8.01, 8.02 or 8.03 of this Indenture, as
the case may be; provided that, if Holdings has made any payment of principal
of, premium if any, or interest on any Securities because of the reinstatement
of its obligations, Holdings 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, Supplements and Waivers
SECTION 9.1 Without Consent of Holders. Holdings, when
authorized by a resolution of its Board of Directors, and the Trustee may amend
or supplement this Indenture or the Securities without notice to or the consent
of any Holder;
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5 of this Indenture;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
(4) to provide for uncertificated Securities in addition
to or in place of certificated Securities; or
(5) to make any change that does not adversely affect the
rights of any Holder.
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SECTION 9.2 With Consent of Holders. Subject to Sections 6.4
and 6.7 of this Indenture and without prior notice to the Holders, Holdings,
when authorized by its Board of Directors (as evidenced by a Board Resolution),
and the Trustee may amend this Indenture and the Securities with the written
consent of the Holders of not less than a majority in aggregate principal amount
of the Securities then outstanding, and the Holders of a majority in aggregate
principal amount of the Securities then outstanding by written notice to the
Trustee may waive future compliance by Holdings with any provision of this
Indenture or the Securities.
Notwithstanding the provisions of this Section 9.2, without
the consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.4, may not:
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or adversely affect any right of repayment
at the option of any Holder of any Security, or change any place of
payment where, or the currency which, any Security or any Premium or
the interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date);
(ii) reduce the percentage in principal amount of the
outstanding Securities required for any such supplemental indenture,
for any waiver of compliance with certain provisions of this Indenture
or certain defaults and their consequences provided for in this
Indenture;
(iii) waive a default in the payment of principal of,
premium, if any, or interest on, any Security;
(iv) modify any of the provisions of this Section 9.2, except
to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby; or
(v) modify any of the provisions of Article 10 in a manner
adverse to the Holders in any material respect; provided, however, that
no such modification of any provision of Article 10 of this Indenture
shall affect adversely the rights of any holder of Senior Indebtedness
of Holdings or the Successor Corporation, or any Indebtedness that
becomes Senior Indebtedness of Holdings or the Successor Corporation
(in the event that the Securities were to become obligations of any
Successor Corporation whether as a result of (i) a Holdings Merger,
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(ii) the sale of all or substantially all of the property and assets of
Silgan or its successors to Holdings, and the assumption by Holdings of
all or substantially all of the liabilities of Silgan or its successors
or (iii) the assumption by Silgan or its successors of Indebtedness
represented by the Securities), at the time outstanding to the benefits
of subordination hereunder without the consent of such holder.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.2 becomes effective, Holdings shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. HoldIngs will
mail supplemental indentures to Holders upon request. Any failure of Holdings to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental Indenture or waiver.
SECTION 9.3 Revocation and Effect of Consent. Until an
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to its
Security or portion of its Security. Such revocation shall be effective only if
the Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver shall
become effective on receipt by the Trustee of written consents from the Holders
of the requisite percentage in principal amount of the outstanding Securities.
Holdings may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
two sentences of the immediately preceding paragraph, those persons who were
Holders at such record date (or their duly designated proxies) and only those
persons shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such persons continue to
be Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder unless it is of the type described in any of clauses (i)
through (v) of Section 9.2 of this Indenture. In case of an amendment or waiver
of the type described in clauses (i) through (v) of Section 9.2 of this
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Indenture, the amendment or waiver shall bind each Holder who has consented to
it and every subsequent Holder of a Security that evidences the same
indebtedness as the Security of the consenting Holder.
SECTION 9.4 Notation on or Exchange of Securities. If an
amendment, supplement or waiver changes the terms of a Security, the Trustee may
require the Holder to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Security
thereafter authenticated. Alternatively, if Holdings or the Trustee so
determines, Holdings in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms.
SECTION 9.5 Trustee to Sign Amendments, Etc. The Trustee shall
be entitled to receive, and shall be fully protected in relying upon an Opinion
of Counsel, reasonably acceptable to the Trustee, stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article 9 is
authorized or permitted by this Indenture. Subject to the preceding sentence,
the Trustee shall sign such amendment, supplement or waiver if the same does not
adversely affect the rights of the Trustee. The Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.6 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article 9 shall conform to the
requirements of the TIA as then in effect.
ARTICLE 10.
Subordination of Securities
SECTION 10.1 Securities Subordinated to Senior Indebtedness of
Holdings or the Successor Corporation. Notwithstanding the provisions of Section
6.1 of this Indenture, Holdings covenants and agrees and the Trustee and each
Holder, by its acceptance thereof, likewise covenant and agree that all
Securities shall be issued subject to the provisions of this Article 10; and
each Person holding any Security, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that (i) all payments of
Subordinated Obligations by Holdings or the Successor Corporation (in the event
that the Securities become obligations of any Successor Corporation, whether as
a result of (A) a Holdings Merger, (B) the sale of all or substantially all of
the property and assets of Silgan or its successors to Holdings, and the
assumption by Holdings of all or substantially all of the liabilities of Silgan
or its successors or (C) the assumption by Silgan or its successors of
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of Indebtedness represented by the Securities) shall, to the extent and in the
manner set forth in this Article 10, be subordinated in right of payment to the
prior payment in full, in cash or cash equivalents, of all amounts payable under
Senior Indebtedness of Holdings or the Successor Corporation, as the case may be
(including any interest accruing subsequent to an event specified in clause (vi)
or (vii) of Section 6.1 of this Indenture, whether or not such interest is an
allowed claim enforceable against the debtor under the United States Bankruptcy
Code), existing on the date of such transaction or assumed or incurred
thereafter and (ii) other than as set forth in clause (i) above, the Securities
will not be subordinated by their terms to any other existing or future
indebtedness of Holdings or its successors.
SECTION 10.2 No Payment on Securities in Certain
Circumstances. (a) No direct or indirect payment by or on behalf of Holdings or
a Successor Corporation of Subordinated Obligations, whether pursuant to the
terms of the Securities or upon acceleration or otherwise, shall be made if, at
the time of such payment, there exists a default in the payment of all or any
portion of the obligations on any Senior Indebtedness and such default shall not
have been cured or waived or the benefits of this sentence waived by or on
behalf of the holders of such Senior Indebtedness.
(b) During the continuance of any other event of
default with respect to (i) the Silgan Credit Agreement pursuant to which the
maturity thereof may be accelerated and (a) upon receipt by the Trustee of
written notice from the Bank Agent or (b) if such event of default under the
Silgan Credit Agreement results from the acceleration of the Securities, from
and after the date of such acceleration, no payment of Subordinated Obligations
may be made by or on behalf of Holdings or a Successor Corporation upon or in
respect of the Securities for a period (a "Payment Blockage Period") commencing
on the earlier of the date of receipt of such notice or the date of such
acceleration and ending 159 days thereafter (unless such Payment Blockage Period
shall be terminated by written notice to the Trustee from the Bank Agent or such
event of default has been cured or waived) or (ii) any other Designated Senior
Indebtedness pursuant to which the maturity thereof may be accelerated, upon
receipt by the Trustee of written notice from the trustee or other
representative for the holders of such other Designated Senior Indebtedness (or
the holders of at least a majority in principal amount of such other Designated
Senior Indebtedness then outstanding), no payment of Subordinated Obligations
may be made by or on behalf of Holdings or a Successor Corporation upon or in
respect of the Securities for a Payment Blockage Period commencing on the date
of receipt of such notice and ending 119 days thereafter (unless, in each case,
such Payment Blockage Period shall be terminated by written notice to the
Trustee from such trustee or other representatives for such holders). Not more
than one Payment Blockage Period may be commenced with respect to the Securities
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during any period of 360 consecutive days; provided that, subject to the
limitations set forth in the next sentence, the commencement of a Payment
Blockage Period by the representatives for, or the holders of, Designated Senior
Indebtedness other than under the Silgan Credit Agreement or under clause (i)(b)
of this paragraph shall not bar the commencement of another Payment Blockage
Period by the Bank Agent within such period of 360 consecutive days.
Notwithstanding anything in this Indenture to the contrary, there must be 180
consecutive days in any 360-day period in which no Payment Blockage Period is in
effect. For all purposes of this Section 10.2(b), no event of default (other
than an event of default pursuant to the financial maintenance covenants under
the Silgan Credit Agreement) that existed or was continuing (it being
acknowledged that any subsequent action that would give rise to an event of
default pursuant to any provision under which an event of default previously
existed or was continuing shall constitute a new event of default for this
purpose) on the date of the commencement of any Payment Blockage Period with
respect to the Designated Senior Indebtedness initiating such Payment Blockage
Period shall be, or be made, the basis for the commencement of a second Payment
Blockage Period by the representative for, or the holders of, such Designated
Senior Indebtedness, whether or not within a period of 360 consecutive days,
unless such event of default shall have been cured or waived for a period of not
less than 90 consecutive days.
(c) In the event that, notwithstanding the
foregoing, any payment shall be received by the Trustee or any Holder when such
payment is prohibited by Section 10.2(a) or 10.2(b) of this Indenture, the
Trustee shall promptly notify the holders of Senior Indebtedness of such
prohibited payment and such payment shall be held in trust for the benefit of,
and shall be paid over or delivered to, the holders of Senior Indebtedness or
their respective representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Senior Indebtedness may have been
issued, as their respective interests may appear, but only to the extent that,
upon notice from the Trustee to the holders of Senior Indebtedness that such
prohibited payment has been made, the holders of the Senior Indebtedness (or
their representative or representatives or a trustee) within 30 days of receipt
of such notice from the Trustee notify the Trustee of the amounts then due and
owing on the Senior Indebtedness, if any, and only the amounts specified in such
notice to the Trustee shall be paid to the holders of Senior Indebtedness.
SECTION 10.3 Payment over of Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets or securities of Holdings or a
Successor Corporation of any kind or character, whether in cash, property or
securities, upon any dissolution or winding up or total or partial liquidation
or reorganization of Holdings or a Successor Corporation, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings, all
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amounts due or to become due upon all Senior Indebtedness (including any
interest accruing subsequent to an event specified in Sections 6.1(vi) and
6.1(vii) of this Indenture, whether or not such interest is an allowed claim
enforceable against the debtor under the United States Bankruptcy Code) shall
first be paid in full, in cash or cash equivalents, before the Holders or the
Trustee on behalf of the Holders shall be entitled to receive any payment by
Holdings or a Successor Corporation on account of Subordinated Obligations, or
any payment to acquire any of the Securities for cash, property or securities,
or any distribution with respect to the Securities of any cash, property or
securities. Before any payment may be made by or on behalf of Holdings or a
Successor Corporation of any Subordinated Obligations upon any such dissolution,
winding up, liquidation or reorganization, any payment or distribution of assets
or securities of the Successor Corporation of any kind or character, whether in
cash, property or securities, to which the Holders or the Trustee on behalf of
the Holders would be entitled, but for the provisions of this Article 10, shall
be made by Holdings or a Successor Corporation or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person making such
payment or distribution, or by the Holders or the Trustee if received by them or
it, directly to the holders of the Senior Indebtedness (pro rata to such holders
on the basis of the respective amounts of Senior Indebtedness held by such
holders) or their representatives, or to the trustee or trustees under any
indenture pursuant to which any such Senior Indebtedness may have been issued,
as their respective interests appear, to the extent necessary to pay all such
Senior Indebtedness in full, in cash or cash equivalents, after giving effect to
any concurrent payment, distribution or provision therefor, to or for the
holders of such Senior Indebtedness.
(b) To the extent any payment of Senior Indebtedness
(whether by or on behalf of Holdings, a Successor Corporation, as
proceeds of security or enforcement of any right of setoff or otherwise) is
declared to be fraudulent or preferential, set aside or required to be paid to
any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or
similar law, then, if such payment is recovered by, or paid over to, such
receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
Person, the Senior Indebtedness or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred. To the extent the obligation to repay any Senior Indebtedness
is declared to be fraudulent, invalid or otherwise set aside under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then
the obligations so declared fraudulent, invalid or otherwise set aside (and all
other amounts that would come due with respect thereto had such obligations not
been so affected) shall be deemed to be reinstated and outstanding as Senior
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Indebtedness for all purposes hereof as if such declaration, invalidity or
setting aside had not occurred.
(c) In the event that, notwithstanding the
foregoing provision prohibiting such payment or distribution, any payment or
distribution of assets or securities of the Successor Corporation of any kind or
character, whether in cash, property or securities, shall be received by the
Trustee or any Holder at a time when such payment or distribution is prohibited
by Section 10.3(a) of this Indenture and before all obligations in respect of
Senior Indebtedness are paid in full, in cash or cash equivalents, such payment
or distribution shall be received and held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Indebtedness (pro rata
to such holders on the basis of the respective amount of Senior Indebtedness
held by such holders) or their representatives, or to the trustee or trustees
under any other indenture pursuant to which any such Senior Indebtedness may
have been issued, as their respective interests appear, for application to the
payment of Senior Indebtedness remaining unpaid until all such Senior
Indebtedness has been paid in full, in cash or cash equivalents, after giving
effect to any concurrent payment, distribution or provision therefor to or for
the holders of such Senior Indebtedness.
(d) For purposes of this Section 10.3, the words
"cash, property or securities" shall not be deemed to include, so long as the
effect of this clause is not to cause the Securities to be treated in any case
or proceeding or similar event described in this Section 10.3 as part of the
same class of claims as the Senior Indebtedness or any class of claims pari
passu with, or senior to, the Senior Indebtedness for any payment or
distribution, securities of Holdings or the Successor Corporation, as the case
may be, or any other corporation provided for by a plan of reorganization or
readjustment that are subordinated at least to the extent that the Securities
are subordinated to the payment of all Senior Indebtedness then outstanding;
provided that (1) if a new corporation results from such reorganization or
readjustment, such corporation assumes the Senior Indebtedness and (2) the
rights of the holders of the Senior Indebtedness are not, without the consent of
such holders, altered by such reorganization or readjustment. The consolidation
of Holdings or the Successor Corporation, as the case may be, with, or the
merger of Holdings or the Successor Corporation, as the case may be, with or
into, another corporation or the liquidation or dissolution of Holdings or the
Successor Corporation, as the case may be, following the sale, conveyance,
transfer, lease or other disposition of all or substantially all of its property
and assets to another corporation upon the terms and conditions provided in
Article 5 of this Indenture shall not be deemed a dissolution, winding up,
liquidation or reorganization for the purposes of this Section 10.3 if such
other corporation shall, as a part of such consolidation, merger, sale,
conveyance, transfer, lease or other dispotition, comply with the conditions
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stated in Article 5 of this Indenture.
SECTION 10.4 Subrogation. (a) Upon the payment in full of all
Senior Indebtedness in cash or cash equivalents, the Holders shall be subrogated
to the rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of Holdings or the Successor
Corporation, as the case may be, made on such Senior Indebtedness until the
principal of, premium, if any, and Interest on the Securities shall be paid in
full; and, for the purposes of such subrogation, no payments or distributions to
the holders of the Senior Indebtedness of any cash, property or securities to
which the Holders or the Trustee on their behalf would be entitled except for
the provisions of this Article 10, and no payment pursuant to the provisions of
this Article 10 to the holders of Senior Indebtedness by Holders or the Trustee
on their behalf shall, as between the Successor Corporation, its creditors other
than holders of Senior Indebtedness and the Holders, be deemed to be a payment
by Holdings or the Successor Corporation, as the case may be, to or on account
of the Senior Indebtedness. It is understood that the provisions of this Article
10 are intended solely for the purpose of defining the relative rights of the
Holders on the one hand, and the holders of the Senior Indebtedness, on the
other hand.
(b) If any payment or distribution to which the
Holders would otherwise have been entitled but for the provisions of this
Article 10 shall have been applied, pursuant to the provisions of this Article
10, to the payment of all amounts payable under Senior Indebtedness, then, and
in such case, the Holders shall be entitled to receive from the holders of such
Senior Indebtedness any payments or distributions received by such holders of
Senior Indebtedness in excess of the amount required to make payment in full, in
cash or cash equivalents, of such Senior Indebtedness of such holders.
SECTION 10.5 Obligations of Holdings and the Successor
Corporation Unconditional. (a) Nothing contained in this Article 10 or elsewhere
in this Indenture or in the Securities is intended to or shall impair, as among
Holdings or the Successor Corporation, as the case may be, and the Holders, the
obligation of Holdings or the Successor Corporation, as the case may be, which
is absolute and unconditional, to pay to the Holders the principal of, premium,
if any, and interest on the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of Holdings or the Successor
Corporation, as the case may be, other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Holders or the
Trustee on their behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article 10 of the holders of the Senior Indebtedness in respect of
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cash, property or securities of Holdings or the Successor Corporation, as the
case may be, received upon the exercise of any such remedy.
(b) Without limiting the generality of the
foregoing, nothing contained in this Article 10 will restrict the right of the
Trustee or the Holders to take any action to declare the Securities to be due
and payable prior to their Stated Maturity pursuant to Section 6.1 of this
Indenture or to pursue any rights or remedies hereunder; provided, however, that
all Senior Indebtedness then due and payable or thereafter declared to be due
and payable shall first be paid in full, in cash or cash equivalents, before the
Holders or the Trustee are entitled to receive any direct or indirect payment
from the Successor Corporation of Subordinated Obligations.
SECTION 10.6 Notice to Trustee. (a) Holdings or the Successor
Corporation, as the case may be, shall give prompt written notice to the Trustee
of any fact known to Holdings or the Successor Corporation, as the case may be,
that would prohibit the making of any payment to or by the Trustee in respect of
the Securities pursuant to the provisions of this Article 10. The Trustee shall
not be charged with knowledge of the existence of any default or event of
default with respect to any Senior Indebtedness or of any other facts that would
prohibit the making of any payment to or by the Trustee unless and until the
Trustee shall have received notice in writing at its Corporate Trust Office to
that effect signed by an Officer of Holdings or the Successor Corporation, as
the case may be, or by a holder of Senior Indebtedness or trustee or agent
therefor; and prior to the receipt of any such written notice, the Trustee
shall, subject to Article 7 of this Indenture, be entitled to assume that no
such facts exist; provided that, if the Trustee shall not have received the
notice provided for in this Section 10.6 at least two Business Days prior to the
date upon which, by the terms of this Indenture, any monies shall become payable
for any purpose (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Security), then, notwithstanding anything
herein to the contrary, the Trustee shall have full power and authority to
receive any monies from Holdings or the Successor Corporation, as the case may
be, and to apply the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary that may be received by it on or
after such prior date except for an acceleration of the Securities prior to such
application. Nothing contained in this Section 10.6 shall limit the right of the
holders of Senior Indebtedness to recover payments as contemplated by this
Article 10. The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself or itself to be a holder of any
Senior Indebtedness (or a trustee on behalf of, or other representative of, such
holder) to establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or representative on behalf of any such holder.
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(b) In the event that the Trustee determines in
good faith that any evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article 10, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such person under this Article 10 and, if such
evidence is not furnished to the Trustee, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 10.7 Reliance of Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets or securities
referred to in this Article 10, the Trustee and the Holders shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which bankruptcy, dissolution, winding up, liquidation or reorganization
proceedings are pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person making such
payment or distribution, delivered to the Trustee or to the Holders for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of
Holdings or the Successor Corporation, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10.
SECTION 10.8 Trustee's Relation to Senior Indebtedness. (a)
The Trustee and any paying Agent shall be entitled to all the rights set forth
in this Article 10 with respect to any Senior Indebtedness that may at any time
be held by it in its individual or any other capacity to the same extent as any
other holder of Senior Indebtedness and nothing in this Indenture shall deprive
the Trustee or any Paying Agent of any of its rights as such holder.
(b) With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article 10, and
no implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness (except to the extent that it may hold funds for the benefit of the
holders of Senior Indebtedness as provided in Sections 10.2(c) and 10.3(c) of
this Indenture).
SECTION 10.9 Subordination Rights Not Impaired by Acts or
Omissions of Holdings or the Successor Corporation or Holders of Senior
Indebtedness. No right of any present or future holders of any Senior
Indebtedness to enforce subordination as provided in this Article 10 will at
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any time in any way be prejudiced or impaired by any act or failure to act on
the part of Holdings or the Successor Corporation or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by Holdings or
the Successor Corporation with the terms of this Indenture, regardless of any
knowledge thereof that any such holder may have or otherwise be charged with.
The provisions of this Article 10 are intended to be for the benefit of, and
shall be enforceable directly by, the holders of Senior Indebtedness.
SECTION 10.10 Holders Authorize Trustee to Effectuate
Subordination of Securities. Each Holder by his acceptance of any Securities
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article 10 and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up, liquidation or
reorganization of Holdings or the Successor Corporation, as the case may be
(whether in bankruptcy, insolvency, receivership, reorganization or similar
proceedings or upon an assignment for the benefit of creditors or otherwise),
tending towards liquidation of the property and assets of Holdings or the
Successor Corporation, the filing of a claim for the unpaid balance of its
Securities in the form required in those proceedings. If the Trustee does not
file a proper claim or proof of indebtedness in the form required in such
proceeding at least 30 days before the expiration of the time to file such claim
or claims, each holder of Senior Indebtedness is hereby authorized to file an
appropriate claim for and on behalf of the Holders.
SECTION 10.11 Not to Prevent Events of Default. The failure to
make a payment on account of principal of, premium, if any, or interest on the
Securities by reason of any provision of this Article 10 will not be construed
as preventing the occurrence of an Event of Default.
SECTION 10.12 Trustee's Compensation Not Prejudiced. Nothing
in this Article 10 will apply to amounts due to the Trustee pursuant to other
Sections of this Indenture.
SECTION 10.13 No Waiver of Subordination Provisions. Without
in any way limiting the generality of Section 10.9 of this Indenture, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders, without incurring
responsibility to the Holders and without impairing or releasing the
subordination provided in this Article 10 or the obligations hereunder of the
Holders to the holders of Senior Indebtedness, do any one or more of the
following: (a) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
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outstanding or secured; (b) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness; (c)
release any Person liable in any manner for the collection of Senior
Indebtedness; and (d) exercise or refrain from exercising any rights against
Holdings or the Successor Corporation and any other person.
SECTION 10.14 Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article 10 or elsewhere in this Indenture shall
prevent (i) Holdings or the Successor Corporation, as the case may be, except
under the conditions described in Section 10.2 or 10.3 of this Indenture, from
making payments of principal of, premium, if any, and interest on the
Securities, or from depositing with the Trustee any money for such payments, or
(ii) the application by the Trustee of any money deposited with it for the
purpose of making such payments of principal of, premium, if any, and interest
on the Securities to the holders entitled thereto unless, at least two Business
Days prior to the date upon which such payment becomes due and payable, the
Trustee shall have received the written notice provided for in Section 10.2(b)
(or there shall have been an acceleration of the Securities prior to such
application) or in Section 10.6 of this Indenture. Holdings or the Successor
Corporation, as the case may be, shall give prompt written notice to the Trustee
of any dissolution, winding up, liquidation or reorganization of Holdings or the
Successor Corporation, as the case may be.
ARTICLE 11.
Miscellaneous
SECTION 11.1 Trust Indenture Act of 1939. This Indenture is
subject to the provisions of the TIA that are required to be a part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 11.2 Notices. Any notice or communication shall be
sufficiently given if in writing and delivered in person or mailed by first
class mail addressed as follows:
if to Holdings:
Silgan Holdings Inc.
4 Landmark Square
Stamford, CT 06901
Attention: Harley Rankin, Jr.
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if to the Trustee:
Fleet National Bank
111 Westminster Street
Mail Code 199
Providence, RI 02903
Attention: Corporate Trust Department
Holdings or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed
to him at his address as it appears on the Security Register by first class mail
and shall be sufficiently given to him if so mailed within the time prescribed.
Copies of any such communication or notice to a Holder shall also be mailed to
the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
Except for a notice to the Trustee, which is deemed given only when received,
and except as otherwise provided in this Indenture, if a notice or communication
is mailed in the manner provided above, it is duly given, whether or not the
addressee received it.
SECTION 11.3 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by Holdings to the Trustee to take
any action under this Indenture Holdings shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of
such Counsel, all such conditions precedent have been complied with.
SECTION 11.4 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in the Indenture shall include:
(i) a statement that the person making such certificate or
opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
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(iii) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with, and such
other opinions as the Trustee may reasonably request; provided,
however, that, with respect to matter of fact, an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public
officials.
SECTION 11.5 Rules by Trustee, Paying Agent or Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.6 Payment Date Other Than a Business Day. If an
Interest Payment Date, Redemption Date, Stated Maturity or date of maturity of
any Security shall not be a Business Day at any place of payment, then payment
of principal of, premium, if any, or interest on such Security as the case may
be, need not be made on such date, but may be made on the next succeeding
Business Day at such place of payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity or
date of maturity of such Security; provided that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date, Stated
Maturity or date of maturity, as the case may be.
SECTION 11.7 Governing Law. The laws of the State of New York
shall govern this Indenture and the Securities. The Trustee, Holdings and the
Holders agree to submit to the jurisdiction of the courts of the State of New
York in any action or proceeding arising out of or relating to this Indenture or
the Securities.
SECTION 11.8 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of Holdings or any Subsidiary of Holdings. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.9 No Recourse Against Others. No recourse for the
payment of the principal of, premium, if any, or interest on any of the
Securities, or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of Holdings
contained in this Indenture, or in any of the Securities, or because of the
creation of any Indebtedness represented thereby, shall be had against any
incorporator or against any past, present or future shareholder, officer,
director, employee or controlling person of Holdings or of any successor Person,
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either directly or through Holdings or any successor Person, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the
Securities.
SECTION 11.10 Successors. All agreements of Holdings in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 11.11 Duplicate Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
SECTION 11.12 Separability. In case any provision in this
Indenture or in the Securities 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 11.13 Table of Contents, Headings, Etc. The Table of
Contents, Cross-Reference Table and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
SILGAN HOLDINGS INC.,
as Issuer
By:/s/ Harley Rankin, Jr.
-----------------------------
Harley Rankin, Jr.
Executive Vice President,
Chief Financial Officer and
Treasurer
FLEET NATIONAL BANK,
as Trustee
By:/s/ Frank Kimball
-----------------------------
Name: Frank Kimball
Title: Vice President
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STATE OF CONNECTICUT)
) ss.:
COUNTY OF FAIRFIELD)
On this 28th day of October, 1996, before me personally came Harley
Rankin, Jr., to me known, who, being by me duly sworn, did depose and say that
he resides at 66 Stanton Road, Darien, CT 06820, that he is Executive Vice
President, Chief Financial Officer and Treasurer of Silgan Holdings Inc., one of
the corporations described in and that executed the above instrument; and that
he signed his name thereto by authority of the Board of Directors of said
corporation.
/s/ Sharon Budds
--------------------------------
Notary Public
(Notarial Seal)
STATE OF RHODE ISLAND)
) ss.:
COUNTY OF PROVIDENCE )
On this 23rd day of October, 1996, before me personally came Frank
Kimball to me known, who, being by me duly sworn, did depose and say that he
resides at , that he is a Vice President of Fleet National Bank, a national
banking association described in and that executed the above instrument; and
that he signed his name thereto by authority of the Board of Directors of said
association.
/s/ Vincenza D. Williams
---------------------------------
Notary Public
(Notarial Seal)