Exhibit 4.1
------------------------------------------------------------------------------
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
------------------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of March 22, 2002
--------------------------
10 1/2% Senior Subordinated Notes due 2003
------------------------------------------------------------------------------
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of March 22, 2002 (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 (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 Guarantors
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 Article
I (relating to the Original Indenture) and Article II (relating to the
Securities), respectively, of 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--Global Reference Changes.
(a) All references to the "10 1/2 Senior Subordinated Notes due 2003"
shall be amended to "12% Senior Subordinated Notes due 2003."
Section 1.02. Section 1.01 of the Original Indenture--Amended
Definitions. The following definitions in Section 1.01 of the Original Indenture
are hereby amended as follows:
1
(a) The definition of "Change of Control" is hereby amended in its
entirety to read as follows:
""Change of Control" means such time as (i) prior to the initial public
offering by Sweetheart Inc. of its common stock (other than on Form S-8), Xxxxxx
Xxxxxx and his Related Parties (as defined below) cease to be the beneficial
owners (as defined in Rule 13d-3 under the Exchange Act), in the aggregate, of
at least 51% of the voting power of the voting capital stock of Sweetheart Inc.
and the Issuer, or (ii) after the initial public offering by Sweetheart Inc. of
its common stock (other than on Form S-8), (A) any Schedule 13D, Form 13F or
Schedule 13G under the Exchange Act, or any amendment to any such Schedule or
Form, is received by Sweetheart Inc. or the Issuer which indicates that, or
Sweetheart Inc. or the Issuer otherwise becomes aware that, a "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act)
has become the "beneficial owner", by way of merger, consolidation or otherwise,
of 35% or more of the voting power of the voting capital stock of Sweetheart
Inc. or the Issuer, and (B) such person or group has become the beneficial owner
of a greater percentage of the voting capital stock of Sweetheart Inc. or the
Issuer than that beneficially owned by Xxxxxx Xxxxxx and his Related Parties, or
(iii) the sale, lease or transfer of all or substantially all of the assets of
Sweetheart Inc. or the Issuer to any person or group (other than Xxxxxx Xxxxxx
and his Related Parties), or (iv) during any period of two consecutive calendar
years following the date of the Supplemental Indenture, individuals who at the
beginning of such period constituted the Board of Directors of Sweetheart Inc.
or the Issuer (together with any new directors whose election by the Board of
Directors of Sweetheart Inc. or the Issuer, as the case may be, or whose
nomination for election by the Board of Directors of Sweetheart Inc. or the
Issuer, as the case may be, was approved by a vote of a majority of the
directors then still in office who either were 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 directors of
Sweetheart Inc. or the Issuer, as the case may be, then in office. "Related
Party" means any (A) spouse or immediate family member of Xxxxxx Xxxxxx or (B)
trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or person beneficially holding an 80% or more
controlling interest of which consist of Xxxxxx Xxxxxx and/or such other person
referred to in the immediately preceding clause (A)."
ARTICLE II
AMENDMENTS TO SENIOR SECURED DISCOUNT NOTES
Section 2.01. Securities--Global Reference Change. All references to
the term "10 1/2% Senior Subordinated Note due 2003" shall be amended to "12%
Senior Subordinated Notes due 2003."
Section 2.02. Paragraph 1 of the Securities. Paragraph 1 of each
Security, whether heretofore issued pursuant to the Original Indenture or
hereafter issued pursuant to the Indenture, is hereby amended by deleting "10
1/2%" in the first sentence of the second paragraph thereof and replacing it
with "12%".
ARTICLE III
GENERAL PROVISIONS
Section 3.01. Effectiveness and Operativeness. The provisions of this
Supplemental Indenture shall become effective, and the amendments provided for
in Articles I, and II of this Supplemental Indenture shall be operative,
immediately upon the consummation of the merger of The Xxxxx Group, Inc.
2
with and into the Issuer (the "Merger"). This Supplemental Indenture shall
terminate automatically if the Merger is not consummated.
Section 3.02. 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.
Section 3.03. 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 3.04. 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 3.05. 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 3.06. 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 3.07. 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 3.08. 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]
3
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: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
SWEETHEART HOLDINGS INC.,
as Guarantor
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signer
4
