EXHIBIT 4.3
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SECOND SUPPLEMENTAL INDENTURE
Dated as of April 23, 2002
BETWEEN
SILGAN HOLDINGS INC.
AND
BANK ONE TRUST COMPANY, N.A.
(as successor in interest to THE FIRST NATIONAL BANK OF CHICAGO), as Trustee
TO
INDENTURE
Dated as of June 9, 1997
BETWEEN
SILGAN HOLDINGS INC.
(as successor to SILGAN CORPORATION), as Issuer
AND
BANK ONE TRUST COMPANY, N.A.
(as successor in interest to THE FIRST NATIONAL BANK OF CHICAGO), as Trustee
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This SECOND SUPPLEMENTAL INDENTURE, dated as of April 23, 2002
(the "Second Supplemental Indenture"), is entered into by and between Silgan
Holdings Inc., a Delaware corporation ("Holdings"), and Bank One Trust Company,
N.A. (as successor in interest to The First National Bank of Chicago), a
national banking association, as Trustee (the "Trustee").
RECITALS
WHEREAS, Silgan Corporation, a Delaware corporation (the
"Company"), and the Trustee entered into an Indenture, dated as of June 9, 1997
(the "Indenture"), pursuant to which the Company initially issued $300,000,000
in aggregate principal amount of the Debentures (such term and all other defined
terms used herein and not otherwise defined herein having the meanings set forth
in the Indenture); and
WHEREAS, the Company, Holdings and the Trustee entered into the
First Supplemental Indenture, dated as of June 24, 1997 (the "First Supplemental
Indenture"), to provide for the assumption by Holdings of all obligations of the
Company under the Debentures and the Indenture;
WHEREAS, in accordance with Section 2.03 of the Indenture, the
Trustee may at any time and from time to time, upon receipt of a Company Order,
authenticate for original issue Debentures in the aggregate principal amount
specified in such Company Order, provided that certain conditions set forth in
Section 2.03 of the Indenture are satisfied;
WHEREAS, in accordance with Section 2.03 of the Indenture,
subject to Article Four of the Indenture and applicable law, the aggregate
principal amount of Debentures which may be authenticated and delivered under
the Indenture is unlimited;
WHEREAS, in accordance with Section 2.15 of the Indenture,
Holdings may issue additional Debentures subsequent to the Closing Date,
provided that certain conditions set forth in Section 2.15 of the Indenture are
satisfied;
WHEREAS, in accordance with Section 9.01 of the Indenture,
Holdings may amend certain terms of the Indenture without the consent of the
Holders to make any change that does not materially and adversely affect the
rights of any Holder;
WHEREAS, the Board of Directors has, as evidenced by a Board
Resolution, authorized the amendment of the Indenture pursuant to this Second
Supplemental Indenture to clarify certain definitions in the Indenture in
connection with any issuance of additional Debentures after the Closing Date;
and
WHEREAS, all things necessary to make this Second Supplemental
Indenture a valid supplement to the Indenture according to its terms have been
done;
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
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For and in consideration of the premises, and of other valuable
consideration the sufficiency of which is hereby acknowledged, Holdings
covenants and agrees with the Trustee, for the equal and proportionate benefit
of all Holders, as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Amendment to Definitions. Each of the following
defined terms in Section 1.01 of the Indenture is amended and restated as
follows:
"Closing Date" means the date on which the initial Debentures
were originally issued under the Indenture on June 9, 1997.
"Debentures" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture. For all purposes of this Indenture, the term "Debentures" shall
include the Debentures initially issued on the Closing Date, any other
Debentures authenticated and delivered after the Closing Date under this
Indenture and any Registered Debentures to be issued and exchanged for any
Debentures pursuant to a Registration Rights Agreement and this Indenture. For
purposes of this Indenture, all Debentures shall vote together as one series of
Debentures under this Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of June 9, 1997, between the Company and Xxxxxx Xxxxxxx &
Co. Incorporated and any other Registration Rights Agreement executed in
connection with the issuance of Debentures after the Closing Date.
"Registration Statement" means the Registration Statement as
defined and described in the relevant Registration Rights Agreement.
ARTICLE II
CLOSING DOCUMENTS
Section 2.1. Documents to Be Given to Trustee. Pursuant to the
provisions of Section 11.03 of the Indenture, Holdings will deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate, each dated as of
April 26, 2002, and each satisfying the provisions of Sections 9.01, 11.03 and
11.04 of the Indenture.
ARTICLE III
MISCELLANEOUS
Section 3.1. Trustee's Acceptance. The Trustee accepts the
provisions of this Second Supplemental Indenture upon the terms and conditions
set forth in the Indenture;
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provided, however, that the foregoing acceptance shall not make the Trustee
responsible in any manner whatsoever for the correctness of recitals or
statements by other parties herein.
Section 3.2. Indenture to Remain in Full Force and Effect. Except
as hereby expressly provided, the Indenture, as supplemented and amended by the
First Supplemental Indenture and by this Second Supplemental Indenture, is in
all respects ratified and confirmed and all its terms, provisions and conditions
shall be and remain in full force and effect.
Section 3.3. Rights, Etc. of Trustee. All recitals in this Second
Supplemental Indenture are made by Holdings only and not by the Trustee. All of
the provisions contained in the Indenture and in the First Supplemental
Indenture in respect of the rights, privileges, immunities, powers and duties of
the Trustee shall be applicable in respect hereof as fully and with like effect
as if set forth herein in full.
Section 3.4. Successors and Assigns. All covenants and agreements
in this Second Supplemental Indenture made by Holdings shall bind their
respective successors and assigns, whether so expressed or not.
Section 3.5. Notices and Demands on Issuer. Any notice or demand
which by any provision of this Second Supplemental Indenture, the First
Supplemental Indenture or the Indenture is required or permitted to be given or
served by the Trustee or by the Holders to or on Holdings (as successor to the
Company) may be given or served by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein or in the Indenture)
addressed (until another address of the Issuer is filed by the Issuer with the
Trustee) to Silgan Holdings Inc., 0 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX
00000, Attention: General Counsel.
Section 3.6. Conflict with Trust Indenture Act. If any provision
of this Second Supplemental Indenture limits, qualifies or conflicts with the
duties imposed by operation of Trust Indenture Act Section 318(c), the imposed
duties shall control.
Section 3.7. Governing Law. The laws of the State of New York
shall govern this Second Supplemental Indenture. 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 Second
Supplemental Indenture.
Section 3.8. Titles, Headings, Etc. The Article and Section
headings of this Second Supplemental Indenture are for convenience only and
shall not affect the construction hereof.
Section 3.9. Separability Clause. In case any provision in this
Second Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 3.10. Execution in Counterparts. This Second Supplemental
Indenture may be executed in any number of counterparts, each of which shall be
deemed an original, but such counterparts shall together constitute but one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the date and year first above
written.
SILGAN HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxx, III
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Xxxxx X. Xxxxx, III
Senior Vice President, General Counsel and
Secretary
BANK ONE TRUST COMPANY, N.A. (as
successor in interest to THE FIRST NATIONAL
BANK OF CHICAGO)
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Vice President
