Exhibit 4.3
SWEETHEART CUP COMPANY INC.
as successor to
THE XXXXX GROUP, INC.
$120,000,000 9 1/2% Senior Subordinated Notes Due 2007
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 25, 2002
to
INDENTURE
Dated as of February 27, 1997
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The Bank of New York, Trustee
FIRST SUPPLEMENTAL INDENTURE, dated as of March 25, 2002 (the "First
Supplemental Indenture"), between Sweetheart Cup Company Inc., a Delaware
corporation (the "Company"), and The Bank of New York, a New York banking
corporation, as Trustee under the Indenture referred to below (the "Trustee").
WHEREAS, The Xxxxx Group, Inc., a Delaware corporation (the
"Issuer"), and the Trustee executed an Indenture, dated as of February 27, 1997
(the "Indenture"), in respect of $120,000,000 in aggregate principal amount of 9
1/2% Senior Subordinated Notes due 2007 (the "Notes"); and
WHEREAS, in connection with the merger of the Issuer with and into
the Company pursuant to the Agreement and Plan of Merger, dated as of March 25,
2002 (the "Merger Agreement"), between the Issuer and the Company, the Company
has agreed to assume all of the Issuer's obligations in respect of the Indenture
and the Notes; and
WHEREAS, the Company desires by this First Supplemental Indenture,
pursuant to and as contemplated by Article V and Section 9.01(c) of the
Indenture, to expressly assume the due and punctual payment of the principal of,
and premium, if any, and interest on the Notes and the performance of every
covenant of the Notes and the Indenture on the part of the Issuer to be
performed or observed;
WHEREAS, all conditions and requirements necessary to make this
First Supplemental Indenture a valid, binding and legal instrument in accordance
with its terms have been performed and fulfilled and the execution and delivery
hereof have been in all respects duly authorized;
WHEREAS, for all purposes of this First Supplemental Indenture,
except as otherwise defined or unless the context otherwise requires, terms used
in capitalized form in this First Supplemental Indenture and defined in the
Indenture have the meanings specified in the Indenture;
NOW, THEREFORE, in consideration of the above premises, each party
agrees, for the benefit of the other parties and for the equal and ratable
benefit of the Holders of the Notes, as follows:
ARTICLE ONE
ASSUMPTION OF OBLIGATIONS OF THE COMPANY
Section 1.1. Assumption. The Company hereby expressly assumes the
due and punctual payment of the principal of (and premium, if any) and interest
on all the Notes and the performance of every covenant of the Indenture on the
part of the Company to be performed or observed as if the Company were the party
that executed the Indenture on the date of its original execution and delivery
by the Issuer and as if it were the original issuer of the Notes under the
Indenture. Any Notes delivered after the date of this First Supplemental
Indenture, including Notes delivered in substitution or exchange for any
outstanding Notes, as provided in the Indenture, may be executed and delivered
by the Company in its own name, with such notations, legends or endorsements
required by law, stock exchange rules or usage, and each such Note
along with all Notes issued on or prior to the date of this First Supplemental
Indenture shall constitute the obligation of the Company.
ARTICLE TWO
MISCELLANEOUS
Section 2.1. Indenture. Except as amended hereby, the Indenture and the
Notes are in all respects ratified and confirmed and all their terms shall
remain in full force and effect.
Section 2.2. Governing Law. THIS FIRST 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 2.3. Successors and Assigns. All agreements of the Company in
this First Supplemental Indenture shall bind its successors and assigns. All
agreements of the Trustee in this First Supplemental Indenture shall bind its
successors and assigns.
Section 2.4. Multiple Counterparts. This First Supplemental Indenture
may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
Section 2.5. Effectiveness and Operativeness. The provisions of this
First Supplemental Indenture shall become effective, and the amendments provided
for in Article I of this First Supplemental Indenture shall be operative,
immediately upon the consummation of the transactions contemplated by the Merger
Agreement.
Section 2.6. Trustee's Disclaimer. Except for the first recital
contained herein, the recitals contained herein shall be taken as the statements
of the Company and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
First Supplemental Indenture.
[Signature Page follows]
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INWITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the date first written above.
SWEETHEART CUP COMPANY INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxx Xxxxxxxxx-Xxxxxx
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Name: Xxxxx Xxxxxxxxx-Xxxxxx
Title: Vice President
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