Exhibit 4.2
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SWEETHEART CUP COMPANY INC., as successor to
Cup Acquisition Corporation,
as Issuer,
SWEETHEART HOLDINGS INC., as successor to
SHI Holding Company, L.L.C.,
as Guarantor,
and
THE BANK OF NEW YORK, as successor to
U.S. Trust Company of Texas, N.A.,
as Trustee
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THIRD SUPPLEMENTAL INDENTURE
Dated as of March 12, 2003
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12% Senior Subordinated Notes due 2003
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THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE, dated as of March 12, 2003 (the
"Supplemental Indenture"), is made and entered into by and among SWEETHEART CUP
COMPANY INC., a Delaware corporation and successor to Cup Acquisition
Corporation (the "Issuer"), SWEETHEART HOLDINGS INC., a Delaware corporation and
successor to SHI Holding Company, L.L.C. (the "Guarantor"), and THE BANK OF NEW
YORK, a New York banking corporation and successor to U.S. Trust Company of
Texas, N.A. (the "Trustee"), under and pursuant to an Indenture dated as of
August 30, 1993, by and among the Issuer, the Guarantor and the Trustee, as
amended by the First Supplemental Indenture dated as of August 30, 1993, as
further amended by the Second Supplemental Indenture dated as of March 22, 2002
(the "Original Indenture"). All capitalized terms used in this Supplemental
Indenture that are defined in the Original Indenture, either directly or by
reference therein, have the respective meanings assigned to them therein, except
to the extent such terms are otherwise defined in this Supplemental Indenture or
the context clearly requires otherwise.
WHEREAS, Section 9.02 of the Original Indenture provides, among other
things, that, with the consent of the Holders of at least a majority in
principal amount of the Securities then outstanding, the Issuer, any Guarantor
and the Trustee may amend or supplement the Original Indenture and the
Securities; and
WHEREAS, the Issuer desires to amend and supplement the Original Indenture
and the Securities by way of the adoption of the amendments set forth in this
Supplemental Indenture (the "Proposed Amendments"); and
WHEREAS, the Holders of at least a majority in aggregate principal amount
outstanding of the Securities have consented to the Proposed Amendments; and
WHEREAS, the Boards of Directors of the Issuer and the Guarantor each has
adopted resolutions authorizing and approving the Proposed Amendments, and the
Issuer, the Guarantor and the Trustee are executing and delivering this
Supplemental Indenture in order to provide for such amendments;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Supplemental
Indenture hereby agree as follows:
ARTICLE I
AMENDMENTS TO ORIGINAL INDENTURE
Section 1.01. Original Indenture.
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(a) The last paragraph of Section 3.01 of the Original Indenture is
hereby deleted in its entirety.
(b) The last paragraph of Section 3.02 of the Original Indenture is
hereby deleted in its entirety.
(c) The first paragraph of Section 3.03 is hereby amended to read in
its entirety as follows:
"At least 30 days but not more than 60 days before a redemption
date, the Issuer shall mail a notice of redemption to each Securityholder whose
Securities are to be redeemed at its registered address."
(d) Section 3.09 of the Original Indenture is hereby deleted in its
entirety and is replaced with the following: "Reserved."
(e) Sections 4.02 through 4.14 of the Original Indenture, inclusive,
and Sections 4.16 through 4.20, inclusive, are hereby deleted in their entirety
and each Section is replaced with the following: "Reserved."
(f) Article 5 of the Original Indenture is hereby deleted in its
entirety and replaced with the following: "Reserved."
(g) Section 6.01(2) of the Original Indenture is hereby amended to read
in its entirety as follows:
"(2) the Issuer defaults in the payment of the principal of any
Security (whether or not prohibited by Article 10 of this Indenture) when the
same becomes due and payable at maturity, upon acceleration, redemption or
otherwise, including without limitation payments due upon a Change of Control;"
(h) Clauses (3) through (9) of Section 6.01 of the Original Indenture,
inclusive, are hereby deleted in their entirety and each clause is replaced with
the following: "Reserved."
(i) The last paragraph of Section 7.07 of the Original Indenture is
hereby amended to read in its entirety as follows:
"When the Trustee incurs expenses or renders services after Sweetheart
Inc., the Issuer or any of their respective Significant Subsidiaries is adjudged
a bankrupt or an insolvent or an order for relief is entered with respect to
Sweetheart Inc., the Issuer or any of their respective Significant Subsidiaries
under any Bankruptcy Law, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law,"
(j) Section 8.04(d) of the Original Indenture is hereby amended to read
in its entirety as follows:
"(d) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit."
(k) Section 9.01(2) of the Original Indenture is hereby amended to read
in its entirety as follows:
"(2) to comply with Sections 11.03 and 11.05;"
(l) The last sentence of Section 10.03(b) of the Original Indenture is
hereby amended to read in its entirety as follows:
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"The consolidation of Sweetheart Inc. or the Issuer with, or the
merger of Sweetheart Inc. or the Issuer with or into, another entity or
liquidation or dissolution of Sweetheart Inc. or the Issuer following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another person shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section."
(m) Section 11.02 of the Original Indenture is hereby deleted in its
entirety and replaced with the following: "Reserved."
Section 1.02. Definitions. The definition of the following terms are
hereby deleted from Article I of the Original Indenture:
"Affiliate Transaction"
"AIP"
"AIPM"
"Cn. $"
"Management Services Agreement"
"Permitted Liens"
"Refinanced Indebtedness"
"Refinancing Indebtedness"
"Replacement Assets"
"Weighted Average Life to Maturity"
Section 1.03. Deletion of Certain References. All references in the
Indenture and the Securities to the Article, Sections and definitions of the
Indenture and the Securities deleted pursuant to Article I of this Third
Supplemental Indenture are hereby deleted.
Section 1.04. The Securities. Clauses (iii) through (viii) of the first
sentence of Section 12 of the Securities are hereby deleted in their entirety.
ARTICLE II
GENERAL PROVISIONS
Section 2.01. Effectiveness and Operativeness. This Supplemental Indenture
shall become effective and the amendments provided for in Article I of this
Supplemental Indenture shall become operative, immediately upon consummation of
the exchange offer and consent solicitation conducted by the Issuer pursuant to
the prospectus dated February 27, 2003. This Supplemental Indenture shall
terminate automatically if such exchange offer and consent solicitation is not
consummated.
Section 2.02. Ratification of Indenture. The Original Indenture is in all
respects acknowledged, ratified and confirmed, and shall continue in full force
and effect in accordance with the terms thereof and as supplemented by this
Supplemental Indenture. The Original Indenture and this Supplemental Indenture,
shall be read, taken and construed as one and the same instrument.
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Section 2.03. Certificate and Opinion as to Conditions Precedent.
Simultaneously with and as a condition to the execution of this Supplemental
Indenture, the Issuer and Guarantor are delivering to the Trustee:
(a) an Officers' Certificate in the form attached hereto as Exhibit
A-1 or A-2, respectively; and
(b) an Opinion of Counsel covering the matters described in Exhibit
B attached hereto.
Section 2.04. Effect of Headings. The Article and Section headings in this
Supplemental Indenture are for convenience only and shall not affect the
construction of this Supplemental Indenture.
Section 2.05. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS, OTHER THAN GENERAL OBLIGATION LAW
SECTIONS 5-1401 AND 5-1402.
Section 2.06. Multiple Counterparts. This Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
Section 2.07. Trustee's Disclaimer. The recitals contained in this
Supplemental Indenture shall be taken as the statements of the Issuer and the
Guarantor, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity, enforceability or
sufficiency of this Supplemental Indenture.
Section 2.08. Successors and Assigns. All agreements of the Issuer and the
Guarantor in this Supplemental Indenture shall bind its successors and assigns.
All agreements of the Trustee in this Supplemental Indenture shall bind its
successors and assigns.
[Remainder of Page Left Blank Intentionally; Signature Page Follows]
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IN WITNESS WHEREOF, the parties to this Supplemental Indenture have caused
the Supplemental Indenture to be duly executed as of day and year first above
written.
SWEETHEART CUP COMPANY INC.
By:________________________
Name:
Title:
SWEETHEART HOLDINGS INC.,
as Guarantor
By:________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:________________________
Name:
Title:
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EXHIBIT A-1
SWEETHEART CUP COMPANY INC.
OFFICERS' CERTIFICATE
The undersigned, Xxxx X. Xxxxxxx, Senior Vice President and Chief
Financial Officer, and Xxxxxx Xxxxxx, the Chief Executive Officer, of Sweetheart
Cup Company Inc., a Delaware corporation (the "Issuer"), do hereby certify,
pursuant to Section 9.06 of that certain Indenture, dated as of August 30, 1993,
as amended, by and between the Issuer, the Guarantor and the Trustee, as follows
(capitalized terms herein being used with the meanings assigned to them in the
Third Supplemental Indenture dated as of the date hereof (the "Supplemental
Indenture"), unless otherwise defined herein):
1. The undersigned have read Section 9.02 of the Original Indenture.
2. The Issuer has received consents ("Consents") from the Holders of at
least a majority in aggregate principal amount outstanding of the Securities to
the Proposed Amendments.
3. In our opinion, we have made such examination and investigation as
is necessary to enable us to express an informed opinion as to whether or not
the conditions precedent in the Original Indenture requiring compliance by the
Issuer prior to or concurrently with the execution and delivery by the Issuer of
the Supplemental Indenture have been complied with.
4. In our opinion, each of the conditions precedent in the Indenture
requiring compliance by the Issuer prior to or concurrently with the execution
and delivery by the Issuer of the Supplemental Indenture have been complied
with, and the Trustee is authorized or permitted, pursuant to Section 9.02 of
the Original Indenture, to execute the Supplemental Indenture.
[Signature Page follows]
IN WITNESS WHEREOF, the undersigned have executed this Officers'
Certificate as of ______________, 2003.
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Xxxx X. Xxxxxxx, Senior Vice President and
Chief Financial Officer of Sweetheart
Cup Company Inc.
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Xxxxxx Xxxxxx, Chief Executive
Officer of Sweetheart Cup Company Inc.
EXHIBIT A-2
SWEETHEART HOLDINGS INC.
OFFICERS' CERTIFICATE
The undersigned, Xxxx X. Xxxxxxx, Senior Vice President and Chief
Financial Officer, and Xxxxxx Xxxxxx, the Chief Executive Officer, of Sweetheart
Holdings Inc., a Delaware corporation (the "Guarantor"), do hereby certify,
pursuant to Section 9.06 of that certain Indenture, dated as of August 30, 1993,
as amended, by and between the Issuer, the Guarantor and the Trustee, as follows
(capitalized terms herein being used with the meanings assigned to them in the
Third Supplemental Indenture dated as of the date hereof (the "Supplemental
Indenture"), unless otherwise defined herein):
1. The undersigned have read Section 9.02 of the Original Indenture.
2. In our opinion, we have made such examination and investigation as
is necessary to enable us to express an informed opinion as to whether or not
the conditions precedent in the Original Indenture requiring compliance by the
Guarantor prior to or concurrently with the execution and delivery by the
Guarantor of the Supplemental Indenture have been complied with.
3. In our opinion, each of the conditions precedent in the Indenture
requiring compliance by the Guarantor prior to or concurrently with the
execution and delivery by the Guarantor of the Supplemental Indenture have been
complied with, and the Trustee is authorized or permitted, pursuant to Section
9.02 of the Original Indenture, to execute the Supplemental Indenture.
[Signature Page follows]
IN WITNESS WHEREOF, the undersigned have executed this Officers'
Certificate as of ____________, 2003.
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Xxxx X. Xxxxxxx, Senior Vice President and
Chief Financial Officer of Sweetheart
Holdings Inc.
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Xxxxxx Xxxxxx, Chief Executive
Officer of Sweetheart Holdings Inc.
EXHIBIT B
Matters to be Covered by Opinion of Counsel to the Issuer and Guarantor
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1. The Supplemental Indenture has been duly authorized, executed
and delivered by the Issuer and Guarantor and will be valid and binding
upon the Issuer and the Guarantor in accordance with its terms.
2. Each of the conditions precedent in the Indenture requiring
compliance by the Issuer or Guarantor, as the case may be, prior to or
concurrently with the execution and delivery by the Issuer or Guarantor,
as the case may be, of the Supplemental Indenture has been complied with
by the Issuer or Guarantor, as the case may be, and the Trustee is
authorized or permitted, pursuant to Section 9.02 of the Original
Indenture, to execute the Supplemental Indenture.
