Exhibit 4.4
ANCHOR GLASS CONTAINER CORPORATION,
as Issuer
and
The Bank of New York,
as Trustee
--------------------------------
First Supplemental Indenture
Dated as of August 30,2002
to
Indenture
Dated
as of April 17, 1997
--------------------------------
$150,000,000
1 l-1/4% First Mortgage Notes due 2005
FIRST SUPPLEMENTAL INDENTURE, dated as of August 30,2002 (this
"Supplemental Indenture"), between ANCHOR GLASS CONTAINER CORPORATION, a
Delaware corporation (the "Company"), and THE BANK OF NEW YORK, a New York
banking corporation, as trustee (the "Trustee"). All capitalized terms used
herein and not defined are used herein as defined in the Indenture (as defined
below).
WITNESSETH:
WHEREAS, the Company, the Parent Guarantor and the Trustee executed
and delivered an Indenture, dated as of April 17, 1997 (the "Indenture"),
providing for the issuance of $150,000,000 in aggregate principal amount of the
Company's 11 l/4% First Mortgage Notes due 2005 (the "Notes");
WHEREAS, on April 15,2002, the Company filed a voluntary petition
for relief under Chapter 11 of the United States Code (the "Bankruptcy Code"),
in the United States Bankruptcy Court for the Middle District of Florida (the
"Bankruptcy Court"), commencing the Company's Chapter 11 case;
WHEREAS, by order dated August 8,2002 (the "Confirmation Order"),
entered by the Bankruptcy Court pursuant to Section 1129 of the Bankruptcy Code,
the Bankruptcy Court confirmed the Company's amended reorganization plan, dated
June 13, 2002, as modified by the Confirmation Order (the "Plan");
WHEREAS, Article VII.C.2 of the Plan provides, among other things,
that the Indenture shall be amended as set forth herein;
WHEREAS, Article VII.C.2 of the Plan and paragraph 3 of the
Confirmation Order direct the Company to enter into this Supplemental Indenture
to effectuate the amendments required by the Plan;
WHEREAS, the holders of Notes retain the legal, equitable and
contractual rights, including all rights relating to security interests and
liens or mortgages, to which such holder is entitled under the Indenture, except
as amended and supplemented by this Supplemental Indenture;
WHEREAS, the Company and the Trustee desire to amend and supplement
certain terms and conditions of the Notes and the Indenture and to release the
Parent Guarantor from its obligations as a guarantor of the Company's
obligations under the Indenture and the Notes and its other obligations under
the Indenture, including the termination of the Security Document relating to
the Parent Guarantor Collateral; and
WHEREAS, the execution and delivery of this Supplemental Indenture
has been duly authorized by the parties hereto, and all other acts necessary to
make this Supple-
mental Indenture a valid and binding supplement to the Indenture effectively
amending the Indenture as set forth herein have been duly taken;
NOW THEREFORE, in consideration of the above premises, each party
hereto agrees as follows:
SECTION 1. AMENDMENTS TO THE INDENTURE. The Indenture is hereby
amended as follows:
(a) The definition of "Change of Control" in Section 1.Ol of the
Indenture is hereby amended and restated in its entirety as follows:
"Change of Control" means: (A) the sale, lease, transfer,
conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all
or substantially all of the assets of the Company and its Restricted
Subsidiaries taken as a whole to any "person" (as such term is used
in Section 13(d)(3) of the Exchange Act), (B) the consummation of
any transaction (including any merger or consolidation) the result
of which is that (1) any "person" (as defined above) other than a
Permitted Holder becomes the beneficial owner (as determined in
accordance with Rules 13d-3 and 13d-5 under the Exchange Act, except
that a person will be deemed to have beneficial ownership of all
shares that such person has the right to acquire, whether such right
is exercisable immediately or only after a passage of time),
directly or indirectly, of more than 40% (or after a Qualified
Public Offering, 25%) of the Fully Diluted Voting Stock of the
Company and the beneficial ownership of such "person" is equal to or
greater than that held by the Permitted Holders or (2) the holders
of voting stock of the Company become entitled to receive less than
50% of the voting power of holders of the equity securities of the
surviving entity, (C) the first day on which a majority of the
members of the Board of Directors of the Company are not Continuing
Directors or (D) the adoption of a plan relating to the liquidation
or dissolution of the Company.
(b) The definition of "Continuing Directors" in Section 1.Ol of
the Indenture is hereby amended and restated in its entirety as follows:
"Continuing Directors" means, as of any date, any member of
the Board of Directors who (A) is a member of the Board of Directors
as of August 30, 2002 or (B) is nominated for election to the Board
of Directors with the approval of at least two-thirds of the
Continuing Directors who were members of the Board of Directors at
the time of such nomination or election.
(c) The definition of "Permitted Holders" in Section 1.Ol of the
Indenture is hereby amended and restated in its entirety as follows:
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"Permitted Holder" means Cerberus Capital Management, L.P. or
any affiliate thereof.
(d) Section 4.15(a) of the Indenture is hereby amended and
restated in its entirety as follows:
(a) Upon the occurrence of a Change of Control, the Company
shall make an offer to repurchase all outstanding Notes
pursuant to the offer described in paragraph (b) below (the
"Change of Control Offer") at a purchase price in cash equal
to 100% of the principal amount thereof plus accrued and
unpaid interest, if any, thereon to the date of repurchase.
(e) Section 6 of the Notes is hereby amended and restated in its
entirety as follows:
6. Redemption.
(a) Optional Redemption. The Notes will be redeemable,
at the Company's option, in whole at any time or in part from
time to time, upon not less than 30 nor more than 60 days'
notice, at a redemption price of 100% of the principal amount
thereof, plus accrued and unpaid interest, if any, thereon to
the date of redemption.
(b) Optional Redemption Upon a Change of Control.
Within 90 days of the consummation of any Change of Control
Offer pursuant to which the Company has repurchased at least
90% of the Notes outstanding immediately prior to such Change
of Control Offer, the Company may, at its option, redeem all
of the remaining Notes at a redemption price equal to 100% of
the principal amount thereof, plus accrued and unpaid
interest, if any, thereon to the date of redemption.
SECTION 2. TERMINATION OF GUARANTY OF PARENT GUARANTOR. The parties
acknowledge that the Parent Guarantor is hereby released from all obligations
under the Indenture, and that the Security Document relating to the Parent
Guarantor Collateral is terminated, without any further action required on the
part of the Trustee or any Holder.
SECTION 3. RATIFICATION. Except as hereby expressly amended, the
Indenture is in all respects ratified and confirmed and all the terms,
provisions and conditions thereof shall be and remain in full force and effect.
SECTION 4. EFFECTIVENESS. This Supplemental Indenture shall be
effective upon execution hereof by the Company and the Trustee and the
occurrence of the Effective Date (as defined in the Plan).
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SECTION 5. GOVERNING LAW. This Supplemental Indenture and the
Indenture as supplemented and amended hereby and the Notes shall be governed by,
and shall be construed and enforced in accordance with, the laws of the State of
New York without regard to principles of conflicts of laws.
SECTION 6. COUNTERPARTS. The parties may sign any number of copies
of this Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement. One signed copy is enough to
prove this Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first above written.
ANCHOR GLASS CONTAINER CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
S-l
