EXHIBIT 4.3
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of February 7, 2003 (the
"Supplemental Indenture"), among BWAY Corporation, a Delaware corporation
("BWAY"), BWAY Finance Corp., a Delaware corporation ("BWAY Finance"), BWAY
Manufacturing, Inc., a Delaware corporation ("BWAY Manufacturing") and The Bank
of New York, as trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, BWAY Finance and the Trustee heretofore executed and delivered an
Indenture, dated as of November 27, 2002 (as heretofore amended and
supplemented, the "Indenture"), providing for the issuance of the 10% Senior
Subordinated Notes due 2010 of BWAY Finance (the "Securities") (capitalized
terms used herein but not otherwise defined have the meanings ascribed thereto
in the Indenture);
WHEREAS, Section 5.01(d) of the Indenture provides that upon the execution
and delivery by BWAY to the Trustee of this Supplemental Indenture, BWAY shall
be the successor Company under the Indenture and the Securities and shall
succeed to, and be substituted for, and may exercise every right and power of,
BWAY Finance under the Indenture and the Securities and BWAY Finance shall be
discharged from all obligations and covenants under the Indenture and the
Securities;
WHEREAS, pursuant to the Indenture, upon execution and delivery by BWAY
Manufacturing to the Trustee of this Supplemental Indenture, BWAY Manufacturing
shall be a Guarantor under the Indenture and the Securities;
WHEREAS, Section 9.01 of the Indenture provides that BWAY Finance, BWAY,
BWAY Manufacturing and the Trustee may execute and deliver this Supplemental
Indenture without notice to or consent of any Holders of the Securities in order
to comply with Article Five of the Indenture; and
WHEREAS, this Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of each of BWAY, BWAY Manufacturing and
BWAY Finance.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is hereby acknowledged, BWAY, BWAY
Manufacturing, BWAY Finance and the Trustee agree as follows:
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ARTICLE I
Assumption by Successor Company, Guarantee
Section 1.1. Assumption of the Securities. BWAY hereby expressly assumes
and agrees promptly to pay, perform and discharge when due each and every debt,
obligation, covenant and agreement incurred, made or to be paid, performed or
discharged by BWAY Finance under the Indenture and the Securities.
BWAY hereby agrees to be bound by all the terms, provisions and conditions
of the Indenture and the Securities and that it shall be the successor Company
and shall succeed to, and be substituted for, and may exercise every right and
power of, BWAY Finance, as the predecessor Company, under the Indenture and the
Securities.
BWAY Manufacturing hereby agrees to guarantee the obligations of BWAY being
assumed pursuant to the terms of this Supplemental Indenture.
Section 1.2. Discharge of BWAY Finance. BWAY Finance is hereby expressly
discharged from all debts, obligations, covenants and agreements under the
Indenture and the Securities.
Section 1.3. Guarantee. BWAY Manufacturing hereby agrees, fully and
unconditionally, to guarantee the Guaranteed obligations under the Indenture and
the Securities on the terms and subject to the conditions set forth in Article
Eleven of the Indenture and to be bound by (and shall be entitled to the
benefits of) all other applicable provisions of the Indenture as a Guarantor.
The Guarantee of BWAY Manufacturing is subject to the subordination provisions
of the Indenture, and shall terminate and be of no further force and effect, and
BWAY Manufacturing shall be released and discharged from all obligations in
respect of such Guarantee, as and when provided in Section 11.04 of the
Indenture.
ARTICLE II
Miscellaneous
Section 2.1. Effect of Supplemental Indenture: Upon the execution and
delivery of this Supplemental Indenture by BWAY, BWAY Finance, BWAY
Manufacturing and the Trustee, the Indenture shall be supplemented in accordance
herewith, and this Supplemental Indenture shall form a part of the Indenture for
all purposes, and every Holder of Securities heretofore or hereafter
authenticated and delivered under the Indenture shall be bound thereby.
Section 2.2. Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
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Section 2.3. Indenture and Supplemental Indenture Construed Together. This
Supplemental Indenture is an indenture supplemental to and in implementation of
the Indenture, and the Indenture and this Supplemental Indenture shall
henceforth be read and construed together.
Section 2.4. Confirmation and Preservation of Indenture. The Indenture as
supplemented by this Supplemental Indenture is in all respects confirmed and
preserved.
Section 2.5. Conflict with Trust Indenture Act. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with any provision of the
TIA that is required under the TIA to be part of and govern any provision of
this Supplemental Indenture, the provision of the TIA shall control. If any
provision of this Supplemental Indenture modifies or excludes any provision of
the TIA that may be so modified or excluded, the provision of the TIA shall be
deemed to apply to the Indenture as so modified or to be excluded by this
Supplemental Indenture, as the case may be.
Section 2.6. Severability: In case any provision in this 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 2.7. Benefits of Supplemental Indenture. Nothing in this
Supplemental Indenture or the Securities, express or implied, shall give to any
Person, other than the parties hereto and thereto and their successors hereunder
and thereunder and the Holders of the Securities, any benefit of any legal or
equitable right, remedy or claim under the Indenture, this Supplemental
Indenture or the Securities.
Section 2.8. Successors. All agreements of BWAY in this Supplemental
Indenture shall bind it successors.
Section 2.9. Certain Duties and Responsibilities of the Trustee. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture and the Securities relating to the
conduct or affecting the liability or affording protection to the Trustee,
whether or not elsewhere herein so provided.
Section 2.10. Governing Law. This Supplemental Indenture shall be governed
by, and construed in accordance with, the laws of the State of New York but
without giving effect to applicable principles of conflicts of law to the extent
that the application of the laws of another jurisdiction would be required
thereby.
Section 2.11. Multiple Originals. The parties may sign any number of copies
of this Supplemental Indenture, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
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Section 2.12. Headings. The Article and Section headings herein are
inserted for convenience of reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions
hereof.
Section 2.13. The Trustee. The Trustee shall not be responsible in any
manner 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
are made by BWAY, BWAY Finance and BWAY Manufacturing.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first written above.
BWAY CORPORATION
BY: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
BWAY FINANCE CORP.
BY: /s/ Xxxxx X. Xxxxxxx XX
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Name: Xxxxx X. Xxxxxxx XX
Title: Vice President and Secretary
BWAY MANUFACTURING, INC.
BY: /s/ Xxxxxxx X. X'Xxxxxxx
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Name: Xxxxxxx X. X'Xxxxxxx
Title: Vice President and Secretary
THE BANK OF NEW YORK
BY: /s/ Xxxx XxXxxxxx
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Name: Xxxx XxXxxxxx
Title: Vice President
