Exhibit 4.1
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as of
March 31, 2000, among FRANKLIN PLASTICS HOLDINGS LLC (the "GUARANTEEING
SUBSIDIARY"), a subsidiary of Consolidated Container Company LLC (the "COMPANY")
and a Delaware limited liability company, the Issuers (as defined in the
Indenture referred to herein), the other Subsidiary Guarantors a party hereto
and The Bank of New York, a New York banking corporation, as trustee under the
indenture referred to below (the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Issuers have heretofore executed and delivered to the
Trustee an indenture (the "INDENTURE") dated as of July 1, 1999 among the
Issuers, the Subsidiary Guarantors and the Trustee providing for the issuance of
an aggregate principal amount of up to $300,000,000 of 10 1/8% Senior
Subordinated Notes due 2009 (the "UNREGISTERED NOTES");
WHEREAS, the Issuers issued $185,000,000 in aggregate principal
amount of their Unregistered Notes, guaranteed on an unsecured, senior
subordinated basis by the Subsidiary Guarantors on a joint and several basis in
a transaction exempt from the registration requirements of the Securities Act of
1933, as amended (the "SECURITIES ACT"), under Rule 144A thereof and have
exchanged such Unregistered Notes for notes, guaranteed on an unsecured, senior
subordinated basis by the Subsidiary Guarantors on a joint and several basis
which were covered by a registration statement filed and declared effective
under the Securities Act (such registered notes, the "REGISTERED NOTES" and,
together with the Unregistered Notes, the "NOTES");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee on an unsecured, senior subordinated basis all of the Issuers'
Obligations under the Notes and the Indenture on the terms and conditions set
forth herein (the "SUBSIDIARY GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all Subsidiary Guarantors named in the Indenture,
to jointly and severally guarantee on an unsecured, senior subordinated
basis to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, the Notes or the
obligations of the Issuers hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be
promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all
other obligations of the Issuers to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal
of any Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the
Subsidiary Guarantors shall be jointly and severally obligated to
pay the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or
the Indenture, the absence of any action to enforce the same, any waiver
or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Issuers, any
action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
(c) The following is hereby waived: diligence, presentment,
demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Issuers, any right to require a proceeding
first against the Issuers, protest, notice and all demands whatsoever.
(d) This Subsidiary Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes and the
Indenture, and the Guaranteeing Subsidiary accepts all obligations of a
Subsidiary Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Issuers, the Subsidiary Guarantors, or any
Custodian, Trustee, liquidator or other similar official acting in
relation to either the Issuers or the Subsidiary Guarantors, any amount
paid by either to the Trustee or such Holder, this Subsidiary Guarantee,
to the extent theretofore discharged, shall be reinstated in full force
and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any
right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
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(g) As between the Subsidiary Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6
of the Indenture for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such obligations as
provided in Article 6 of the Indenture, such obligations (whether or not
due and payable) shall forthwith become due and payable by the Subsidiary
Guarantors for the purpose of this Subsidiary Guarantee.
(h) The Subsidiary Guarantors shall have the right to seek
contribution from any non-paying Subsidiary Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the
Guarantee.
(i) Pursuant to Section 11.02 of the Indenture, after giving
effect to any maximum amount and any other contingent and fixed
liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf
of any other Subsidiary Guarantor in respect of the obligations of such
other Subsidiary Guarantor under Article 11 of the Indenture, this new
Subsidiary Guarantee shall be limited to the maximum amount permissible
such that the obligations of such Subsidiary Guarantor under this
Subsidiary Guarantee will not constitute a fraudulent transfer or
conveyance under either federal or state law.
3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that
the Subsidiary Guarantees shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Subsidiary Guarantee.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) The Guaranteeing Subsidiary may not sell or otherwise
dispose of all or substantially all of its assets to, or consolidate with or
merge with or into (whether or not such Subsidiary Guarantor is the surviving
Person) another corporation, Person or entity whether or not affiliated with
such Subsidiary Guarantor unless:
(i) subject to Section 11.06 of the Indenture, either (i)
the Person acquiring the property in such sale or disposition or the
Person formed by or surviving any such consolidation or merger (if other
than a Subsidiary Guarantor or the Company) unconditionally assumes all
the obligations of such Subsidiary Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee,
under the Notes, the Indenture and the Subsidiary Guarantee on the terms
set forth herein or therein or (ii) the Net Proceeds of such a sale or
other disposition are applied in accordance with Section 4.10 of the
Indenture; and
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(ii) if such merger or consolidation is with a Person other
than either of the Issuers or a Restricted Subsidiary immediately after
giving effect to such transaction, no Default or Event of Default exists.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Subsidiary Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions of the Indenture to
be performed by the Subsidiary Guarantor, such successor corporation shall
succeed to and be substituted for the Subsidiary Guarantor with the same effect
as if it had been named herein as a Subsidiary Guarantor. Such successor
corporation thereupon may cause to be signed any or all of the Subsidiary
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Subsidiary Guarantees so issued shall in all respects have the
same legal rank and benefit under the Indenture as the Subsidiary Guarantees
theretofore and thereafter issued in accordance with the terms of the Indenture
as though all of such Subsidiary Guarantees had been issued at the date of the
execution hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture,
and notwithstanding clauses (a) and (b) above, nothing contained in the
Indenture or in any of the Notes shall prevent any consolidation or merger of a
Subsidiary Guarantor with or into the Company or another Subsidiary Guarantor,
or shall prevent any sale or conveyance of the property of a Subsidiary
Guarantor as an entirety or substantially as an entirety to the Company or
another Subsidiary Guarantor.
5. RELEASES.
(a) In the event of (i) a sale or other disposition of all or
substantially all of the assets of any Subsidiary Guarantor, by way of merger,
consolidation or otherwise, or (ii) a sale or other disposition of all of the
Capital Stock of any Subsidiary Guarantor, in each case to a Person that is not
(either before or after giving effect to such transactions) a Restricted
Subsidiary of the Company, then such Subsidiary Guarantor (in the event of a
sale or other disposition, by way of merger, consolidation or otherwise, of all
of the Capital Stock of such Subsidiary Guarantor) or the corporation acquiring
the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Subsidiary Guarantor) will be released
and relieved of any obligations under its Subsidiary Guarantee; PROVIDED that
the Net Proceeds of such sale or other disposition are applied in accordance
with the applicable provisions of this Indenture, including without limitation
Section 4.10 of the Indenture. In addition, in the event that the Company
properly designates any Restricted Subsidiary that is a Subsidiary Guarantor as
an Unrestricted Subsidiary, such Subsidiary Guarantor will be released and
relieved of any obligations under its Subsidiary Guarantee. Upon delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion of Counsel to
the effect that such sale or other disposition was made by the Company in
accordance with the provisions of this Indenture, including without limitation
Sections 3.09 and 4.10 of the Indenture, or notification by the Company that a
Restricted Subsidiary was designated as an Unrestricted Subsidiary, the Trustee
shall execute any documents reasonably required in order to evidence the release
of any Subsidiary Guarantor from its obligations under its Subsidiary Guarantee.
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(b) Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations of any
Subsidiary Guarantor under the Indenture as provided in Article 11 of the
Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future manager,
director, officer, employee, incorporator, stockholder, member or agent of the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Issuers or any Guaranteeing Subsidiary under the Notes, any Subsidiary
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
7. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
8. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Issuers.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
CONSOLIDATED CONTAINER COMPANY LLC
By: Consolidated Container Holdings LLC,
as its Sole Member and Manager
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
CONSOLIDATED CONTAINER CAPITAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
XXXX PLASTICS GROUP LLC
By: Consolidated Container Company LLC,
as its Sole Member and Manager
By: Consolidated Container Company Holdings,
as its Sole Member and Manager
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
PLASTICS CONTAINERS LLC
By: Consolidated Container Company LLC, as its
Sole Member and Manager
By: Consolidated Container Holdings LLC, as
its Sole Member and Manager
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
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Title: Senior Vice President, Chief
Financial Officer and Secretary
CONTINENTAL PLASTIC CONTAINERS LLC
By: Plastic Containers LLC, as its Sole
Member and Manager
By: Consolidated Container Company, as its
Sole Member and Manager
By: Consolidated Container Holdings LLC, as
its Sole Member and Manager
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
CONTINENTAL CARIBBEAN CONTAINERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
FRANKLIN PLASTICS HOLDINGS LLC
By: Consolidated Container Company LLC, as its
Sole Member and Manager
By: Consolidated Container Company Holdings, as
its Sole Member and Manager
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
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