Exhibit 4.1
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SF HOLDINGS GROUP, INC.,
as Issuer,
and
THE BANK OF NEW YORK,
as Trustee
------------------------
FIRST SUPPLEMENTAL INDENTURE
Effective as of January 25, 2002
--------------------------
12 3/4% Series A Senior Secured Discount Notes due 2008
and
12 3/4% Series B Senior Secured Discount Notes due 2008
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FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, effective as of January 25, 2002 (the
"First Supplemental Indenture"), is made and entered into by and between SF
HOLDINGS GROUP, INC., a Delaware corporation (the "Company"), and THE BANK OF
NEW YORK, a New York banking corporation (the "Trustee"), under and pursuant to
an Indenture dated as of March 12, 1998, by and between the Company and the
Trustee (the "Original Indenture"). All capitalized terms used in this First
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 First
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 (a) at least a majority in
principal amount at maturity of the Senior Secured Discount Notes then
outstanding or (b) with respect to certain matters, at least two-thirds in
aggregate principal amount at maturity of the Senior Secured Discount Notes then
outstanding, the Company and the Trustee may amend or supplement the Original
Indenture and the Collateral Documents and the Senior Secured Discount Notes;
and
WHEREAS, the Company desires to amend and supplement the Original
Indenture and the Collateral Documents and the Senior Secured Discount Notes by
way of the adoption of the amendments set forth in Article I (relating to the
Original Indenture) and Article II (relating to the Senior Secured Discount
Notes), respectively, of this First Supplemental Indenture (the "Proposed
Amendments"); and
WHEREAS, the Holders of at least two-thirds in aggregate principal amount
at maturity of the Senior Secured Discount Notes outstanding have consented to
the Proposed Amendments; and
WHEREAS, the Board of Directors of the Company has adopted resolutions
authorizing and approving the Proposed Amendments, and the Company and the
Trustee are executing and delivering this First 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 First
Supplemental Indenture hereby agree as follows:
ARTICLE I
AMENDMENTS TO ORIGINAL INDENTURE
Section 1.01. Original Indenture--Global Reference Changes.
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(a) All references to the term "Series A Senior Secured Discount Note"
shall be amended to "Series A Senior Discount Note", and all references to the
term "Series A Senior Secured Discount Notes" shall be amended to "Series A
Senior Discount Notes".
(b) All references to the term "Series B Senior Secured Discount Note"
shall be amended to "Series B Senior Discount Note", and all references to the
term "Series B Senior Secured Discount Notes" shall be amended to "Series B
Senior Discount Notes".
(c) All references to the term "Senior Secured Discount Note" shall be
amended to "Senior Discount Note", and all references to the term "Senior
Secured Discount Notes" shall be amended to "Senior Discount Notes".
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:
(a) The definition of "Collateral" is hereby amended in its entirety to
read as follows:
"Collateral" means the shares of Capital Stock in, and the
intercompany notes issued by, Restricted Subsidiaries of the Company
that at the time in question are pledged to the Collateral Agent
pursuant to the Pledge Agreement (excluding any such shares and
intercompany notes that are released from the Pledge Agreement in
accordance with this Indenture or the Pledge Agreement).
(b) The definition of "Collateral Agent" is hereby amended in its entirety
to read as follows:
"Collateral Agent" means the Trustee, or any other Person
appointed by the Trustee as a collateral agent hereunder.
(c) The definition of "Obligations" is hereby amended in its entirety to
read as follows:
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing the Senior Discount Notes.
(d) The definition of "Permitted Liens" is hereby amended in its entirety
to read as follows:
"Permitted Liens" means (i) Liens on Indebtedness of the
Company's Restricted Subsidiaries that was permitted by the terms of
this Indenture to be incurred; (ii) Liens in favor of the Company or
any of its Restricted Subsidiaries; (iii) Liens on property of a
Person existing at the time such Person is merged into or
consolidated with the Company or any Restricted Subsidiary of the
Company; provided that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or
consolidated with the Company or any Restricted Subsidiary; (iv)
Liens on property existing at the time of acquisition thereof by the
Company or any Restricted Subsidiary of the Company, provided that
such Liens were in existence prior to the contemplation of such
acquisition; (v) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of
business; (vi) Liens to secure Indebtedness represented by Capital
Lease Obligations, mortgage financings or purchase money
obligations, in each case incurred for the purpose of financing all
or any part of the purchase price or cost of construction or
improvement of property, plant or equipment used in the business of
the Company or such Restricted Subsidiary, and in
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each case covering only the assets acquired, constructed or
improved, as the case may be, with the proceeds of such
Indebtedness; (vii) Liens existing on the date of this Indenture;
(viii) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in
good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate
provision as shall be required in conformity with GAAP shall have
been made therefor; (ix) Liens incurred in the ordinary course of
business of the Company or any Restricted Subsidiary of the Company
with respect to obligations that do not exceed $2.5 million at any
one time outstanding and that (a) are not incurred in connection
with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (b)
do not in the aggregate materially detract from the value of the
property or materially impair the use thereof in the operation of
business by the Company or such Restricted Subsidiary; (x) Liens in
favor of the Holders of Senior Discount Notes; and (xi) renewals or
refundings of any Liens referred to in clauses (iii) through (x)
above provided that any such renewal or refunding does not extend to
any assets or secure any Indebtedness not securing or secured by the
Liens being renewed or refinanced.
(e) The definition of "Unrestricted Subsidiary" is hereby amended in its
entirety to read as follows:
"Unrestricted Subsidiary" means (i) any Subsidiary (other than
Fonda or Sweetheart or any successor to any of them) that is
designated by the Board of Directors as an Unrestricted Subsidiary
pursuant to a Board Resolution; but only to the extent that such
Subsidiary: (a) has no Indebtedness other than Non-Recourse Debt;
(b) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the
Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or
such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Company; (c) is a
Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional Equity Interests or (y) to maintain or
preserve such Person's financial condition or to cause such Person
to achieve any specified levels of operating results; (d) has not
guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted
Subsidiaries; and (e) has at least one director on its board of
directors that is not a director or executive officer of the Company
or any of its Restricted Subsidiaries and has at least one executive
officer that is not a director or executive officer of the Company
or any of its Restricted Subsidiaries. Any such designation by the
Board of Directors shall be evidenced to the Trustee by filing with
the Trustee a certified copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing conditions. If, at any
time, any Unrestricted Subsidiary would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it shall thereafter
cease to be an Unrestricted Subsidiary for purposes of this
Indenture and any Indebtedness of such Subsidiary shall be deemed to
be incurred by a Restricted Subsidiary of the Company as of such
date. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence
of Indebtedness by a Restricted Subsidiary of the
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Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if no
Default or Event of Default would be in existence following such
designation.
Section 1.03. Section 1.01 of the Original Indenture--Deleted Definitions.
Each of the following defined terms, and each such defined term's definition, is
hereby deleted from Section 1.1 of the Original Indenture:
(a) "Acquired Debt".
(b) "Asset Sale".
(c) "Cash Equivalents".
(d) "CEG".
(e) "Consolidated Cash Flow".
(f) "Consolidated Net Income".
(g) "Consolidated Net Worth".
(h) "Disqualified Stock".
(i) "Eligible Institution".
(j) "Equity Offering".
(k) "Existing Indebtedness".
(l) "Fixed Charges".
(m) "Fixed Charge Coverage Ratio".
(n) "Four M".
(o) "Investments".
(p) "Net Income".
(q) "Net Proceeds".
(r) "Offering".
(s) "Permitted Business".
(t) "Permitted Investments".
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(u) "Permitted Refinancing Indebtedness".
(v) "Restricted Investment".
(w) "Subsidiary Debt Instruments".
(x) "Subsidiary Intercompany Notes".
(y) "Units".
(z) "Weighted Average Life to Maturity".
(aa) "Wholly Owned Restricted Subsidiary".
Section 1.04. Section 1.02 of the Original Indenture. Section 1.02 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 1.02. OTHER DEFINITIONS.
"Authentication Order" as defined in Section 2.02
"Bank" as defined in Section 10.11
"Bankruptcy Law" as defined in Section 4.01
"Event of Default" as defined in Section 6.01
"Legal Defeasance" as defined in Section 8.02
"Paying Agent" as defined in Section 2.03
"Registrar" as defined in Section 2.03
Section 1.05. Section 2.06 of the Original Indenture. Section 2.06(g)(iv)
of the Original Indenture is hereby amended to read in its entirety as follows:
(iv) Pre-Separation Date Legend. Each Senior Discount
Note issued prior to the Separation Date shall bear the following
legend on the face thereof:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED
AS PART OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSIST OF $1,000
PRINCIPAL AMOUNT AT MATURITY OF SENIOR DISCOUNT NOTES AND TWO (2)
SHARES (THE "SHARES") OF CLASS C COMMON STOCK, PAR VALUE $.001 PER
SHARE, OF THE COMPANY. PRIOR TO THE CLOSE OF BUSINESS UPON THE
EARLIEST TO OCCUR OF (I) 90 DAYS FROM THE DATE OF THE INDENTURE;
(II) SUCH EARLIER DATE AS THE INITIAL PURCHASES MAY DETERMINE; AND
(III) THE OCCURRENCE OF A CHANGE OF CONTROL. THE SECURITIES
EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED
SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER
WITH, THE SHARES."
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Section 1.06. Section 3.01 of the Original Indenture. Section 3.01 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Senior Discount Notes pursuant
to the optional redemption provisions of Section 3.07 hereof, it
shall furnish to the Trustee, at least 45 days but not more than 60
days before a redemption date, an Officers' Certificate setting
forth (i) the clause of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Senior Discount Notes to be redeemed and (iv)
the redemption price.
Section 1.07. Section 3.07 of the Original Indenture. Section 3.07 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 3.07. OPTIONAL REDEMPTION.
(a) The Senior Discount Notes shall not be redeemable at the
Company's option prior to March 15, 2003. Thereafter, the Senior
Discount Notes shall be subject to redemption at any time at the
option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice, at the redemption prices (expressed
as percentages of principal amount) set forth below plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the
applicable redemption date, if redeemed during the twelve-month
period beginning on March 15 of the years indicated below:
Year Percentage
---- ----------
2003 106.375%
2004 104.250%
2005 102.125%
2006 and thereafter 100.000%
(b) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 1.08. Section 3.09 of the Original Indenture. Section 3.09 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 3.09. INTENTIONALLY OMITTED.
Section 1.09. Section 4.07 of the Original Indenture. Section 4.07 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 4.07. INTENTIONALLY OMITTED.
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Section 1.10. Section 4.08 of the Original Indenture. Section 4.08 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 4.08. INTENTIONALLY OMITTED.
Section 1.11. Section 4.09 of the Original Indenture. Section 4.09 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 4.09. INTENTIONALLY OMITTED.
Section 1.12. Section 4.10 of the Original Indenture. Section 4.10 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 4.10. INTENTIONALLY OMITTED.
Section 1.13. Section 4.11 of the Original Indenture. Section 4.11 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 4.11. INTENTIONALLY OMITTED.
Section 1.14. Section 4.12 of the Original Indenture. Section 4.12 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 4.12. INTENTIONALLY OMITTED.
Section 1.15. Section 4.13 of the Original Indenture. Section 4.13 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 4.13. INTENTIONALLY OMITTED.
Section 1.16. Section 4.15 of the Original Indenture. Section 4.15 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 4.15. INTENTIONALLY OMITTED.
Section 1.17. Section 4.16 of the Original Indenture. Section 4.16 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 4.16. INTENTIONALLY OMITTED.
Section 1.18. Section 4.17 of the Original Indenture. Section 4.17 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 4.17. INTENTIONALLY OMITTED.
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Section 1.19. Section 4.18 of the Original Indenture. Section 4.18 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 4.18. INTENTIONALLY OMITTED.
Section 1.20. Section 5.01 of the Original Indenture. Section 5.01 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 5.01. INTENTIONALLY OMITTED.
Section 1.21. Section 5.02 of the Original Indenture. Section 5.02 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 5.02. SUCCESSOR CORP0RATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or
substantially all of the assets, the successor corporation formed by
such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so
that from and after the date of such consolidation, merger, sale,
lease, conveyance or other disposition, the provisions of this
Indenture referring to the "Company" shall refer instead to the
successor corporation and not to the Company), and may exercise
every right and power of the Company under this Indenture with the
same effect as if such successor Person had been named as the
Company herein; provided, however, that the predecessor Company
shall not be relieved from the obligation to pay the principal of
and interest on the Senior Discount Notes except in the case of a
sale, assignment, transfer, lease, conveyance or other disposition
of all or substantially all of the Company's assets to a
corporation, partnership, limited liability company or other legal
entity that (i) is organized or existing under the laws of the
United States, any state thereof or the District of Columbia, and
(ii) assumes all of the obligations of the Company under the
Registration Rights Agreement, the Senior Discount Notes, the Pledge
Agreement and this Indenture pursuant to supplemental agreements in
a form reasonably satisfactory to the Trustee.
Section 1.22. Section 6.01 of the Original Indenture.
--------------------------------------
(a) Section 6.01(c) of the Original Indenture is hereby amended to
read in its entirety as follows:
(c) [intentionally omitted];
(b) Section 6.01(d) of the Original Indenture is hereby amended to
read in its entirety as follows:
(d) failure by the Company for 30 days after notice to comply
with any of its other agreements in (i) this Indenture, (ii) the
Senior Discount Notes or (iii) the Pledge Agreement (but only prior
to the termination thereof);
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(c) Section 6.01(e) of the Original Indenture is hereby amended to
read in its entirety as follows:
(e) [intentionally omitted];
(d) Section 6.01(f) of the Original Indenture is hereby amended to
read in its entirety as follows:
(f) [intentionally omitted];
(e) Section 6.01(g) of the Original Indenture is hereby amended to
read in its entirety as follows:
(g) [intentionally omitted];
(f) Section 6.01(h) of the Original Indenture is hereby amended to
read in its entirety as follows:
(h) the Company, pursuant to or within the meaning of
Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a custodian of
it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of
its creditors, or
(v) generally is not paying its debts as they become
due; or
(g) Section 6.01(i) of the Original Indenture is hereby amended to
read in its entirety as follows:
(i) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company,
(ii) appoints a custodian of the Company or for all
or substantially all of the property of the Company, or
(iii) orders the liquidation of the Company,
and such order or decree remains unstayed and in effect for a period
of sixty (60) consecutive days.
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Section 1.23. Section 7.07 of the Original Indenture. Section 7.07 of the
Original Indenture is hereby amended to read in its entirety as follows:
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and the Collateral
Documents and services in accordance with any provision of this
Indenture or any Collateral Document as the parties shall agree from
time to time. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services in accordance with any
provision of this Indenture or any Collateral Document. Such
expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under
this Indenture and under the Collateral Documents, including the
costs and expenses of enforcing this Indenture and the Collateral
Documents against the Company (including this Section 7.07) and
defending itself against any claim (whether asserted by the Company
or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder
or resulting from modifications contained in any amendment or
supplement hereto, except to the extent any such loss, liability or
expense may be attributable to its negligence or bad faith. The
Trustee shall notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The
Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture and any
amendment or supplement to this Indenture.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Senior Discount Notes on
all money or property held or collected by the Trustee, except that
held in trust to pay principal and interest on particular Senior
Discount Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(i) or (j) hereof occurs,
the expenses and the compensation for the services (including the
fees and expenses of its agents and counsel) are intended to
constitute expenses of administration under any Bankruptcy Law.
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The Trustee shall comply with the provisions of TIA ss.
313(b)(2) to the extent applicable.
Section 1.24. ARTICLE 8 of the Original Indenture. Article 8 of the
Original Indenture is hereby amended to read in its entirety as follows:
ARTICLE 8
LEGAL DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at
any time, elect to have Section 8.02 hereof be applied to all
outstanding Senior Discount Notes upon compliance with the
conditions set forth below in this Article Eight.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company shall, subject
to the satisfaction of the conditions set forth in Section 8.04
hereof, be deemed to have been discharged from its obligations with
respect to all outstanding Senior Discount Notes, and any Collateral
Documents to which it is a party, on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness
represented by the outstanding Senior Discount Notes, which shall
thereafter be deemed to be "outstanding" only for the purposes of
Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its
other obligations under such Senior Discount Notes and this
Indenture (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same),
except for the following provisions which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Senior Discount Notes to receive payments in
respect of the principal amount at maturity or Accreted Value (as
applicable) of, and premium, if any, interest and Liquidated
Damages, if any, on such Senior Discount Notes when such payments
are due from the trust described in Section 8.04 hereof, as more
fully set forth in such Section, (b) the Company's obligations with
respect to the Senior Discount Notes concerning issuing temporary
Senior Discount Notes, registration of Senior Discount Notes,
mutilated, destroyed, lost or stolen Senior Discount Notes and the
maintenance of an office or agency for payment and money for
security payments held in trust, (c) the rights, powers, trusts,
duties and immunities of the Trustee, and the Company's obligations
in connection therewith and (d) this Article Eight.
SECTION 8.03. INTENTIONALLY OMITTED.
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SECTION 8.04. CONDITIONS TO LEGAL DEFEASANCE.
The following shall be the conditions to the application of
Section 8.02 hereof to the outstanding Senior Discount Notes:
In order to exercise Legal Defeasance:
(i) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Senior Discount Notes,
cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent public
accountants, to pay the principal amount at maturity of or Accreted
Value (as applicable), premium, if any, interest and Liquidated
Damages, if any, on the outstanding Senior Discount Notes on the
stated maturity or on the applicable redemption date, as the case
may be, and the Company must specify whether the Senior Discount
Notes are being defeased to maturity or to a particular redemption
date;
(ii) the Company shall have delivered to the Trustee an
opinion of counsel in the United States confirming that (A) the
Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this
Indenture, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such
opinion of counsel shall confirm that, the Holders of the
outstanding Senior Discount Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(iii) [intentionally omitted];
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or
Event of Default resulting from the borrowing of funds to be applied
to such deposit) or insofar as Events of Default from bankruptcy or
insolvency events are concerned, at any time in the period ending on
the 91st day after the date of deposit;
(v) such Legal Defeasance will not result in a breach or
violation of, or constitute a default under any material agreement
or instrument (other than this Indenture) to which the Company or
any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(vi) the Company must have delivered to the Trustee an opinion
of counsel to the effect that after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(vii) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders of
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Senior Discount Notes over the other creditors of the Company with
the intent of defeating, hindering, delaying or defrauding creditors
of the Company or others; and
(viii) the Company must deliver to the Trustee an Officers'
Certificate and an opinion of counsel, each stating that all
conditions precedent provided for under this Indenture relating to
the Legal Defeasance have been complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the "Trustee") pursuant to Section
8.04 hereof in respect of the outstanding Senior Discount Notes
shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Senior Discount Notes and this
Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as Paying Agent), to the Holders
of such Senior Discount Notes of all sums due and to become due
thereon in respect of principal, premium, if any, interest and
Liquidated Damages, if any, but such money need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section
8.04 hereof or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Senior Discount
Notes.
Anything in this Article Eight to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon the request of the Company any money or
non-callable Government Securities held by it as provided in Section
8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered
under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent
Legal Defeasance.
SECTION 8.06. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal
of, premiums, if any, interest on, and Liquidated Damages on, if
any, any Senior Discount Note and remaining unclaimed for two years
after such principal, premiums, if any, interest, and Liquidated
Damages, if any, has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Senior Discount
Note shall thereafter, as a secured creditor, look only to the
Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before
being required to make
13
any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal
(national edition), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than
30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance
with Section 8.02 hereof by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under
this Indenture and the Senior Discount Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section
8.02 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02
hereof; provided, however, that, if the Company makes any payment of
principal of, premium, if any, or interest on any Senior Discount
Note following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Senior
Discount Notes to receive such payment from the money held by the
Trustee or Paying Agent.
SECTION 8.09. SENIOR DISCOUNT NOTE COLLATERAL.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to Section 8.02 hereof, any Collateral at the time
securing all or any part of the Obligations, except the funds in the
trust funds described in Section 8.04 hereof, shall be released
pursuant to Section 10.03 hereof.
Section 1.25. Section 10.03 of the Original Indenture.
---------------------------------------
(a) Section 10.03(a) of the Original Indenture is hereby amended to
read in its entirety as follows:
(a) Subject to subsections (b), (c) and (d) of this Section
10.03, Collateral may be released in whole or in part from the Lien
and security interest created by the Collateral Documents (and any
one or more of the Collateral Documents, other than this Indenture,
may be discharged and terminated) at any time or from time to time
in accordance with the provisions of the applicable Collateral
Documents or with the consent of the Holders of at least a majority
in aggregate principal amount at maturity of the Senior Discount
Notes then outstanding. Upon the request of the Company pursuant to
an Officers' Certificate certifying (i) that no Event of Default has
occurred and is continuing, and (ii) either (A) that all conditions
precedent to the release of such Collateral from the Lien created
under each Security Document from which such release is requested,
as set forth in each such Security Document, have been, or
simultaneously with or immediately following such release will be,
satisfied, and, if termination and discharge of any Collateral
Document is requested, that all conditions precedent to such
termination and discharge, as set forth in such Collateral Document
for which termination and discharge is requested, have been, or
simultaneously with or
14
immediately following such termination and discharge will be,
satisfied, or (B) that the Holders of at least a majority in
aggregate principal amount at maturity of the Senior Discount Notes
then outstanding have consented to the release of such Collateral
and/or to the termination and discharge of such Collateral Document,
the Collateral Agent shall, at the sole cost and expense of the
Company, (1) release the Collateral that is requested by the Company
to be released from the Lien and security interest created by the
Collateral Documents, and (2) terminate and discharge any Collateral
Document, other than this Indenture, that is requested by the
Company to be terminated and discharged. Upon receipt of such
Officers' Certificate, the Collateral Agent shall execute, deliver
or acknowledge any necessary or proper instruments of termination,
discharge, satisfaction or release to evidence the release of any
Collateral permitted to be released pursuant to the terms of this
Indenture or the Collateral Documents and the termination and
discharge of any Collateral Document permitted to be terminated and
discharged pursuant to the terms of this Indenture or such
Collateral Document.
(b) Section 10.03(b) of the Original Indenture is hereby amended to
read in its entirety as follows:
(b) No Collateral shall be released from the Lien and security
interest created by the Collateral Documents pursuant to the
provisions of the Collateral Documents or this Indenture unless
there shall have been delivered to the Collateral Agent the
Officers' Certificate required by Section 10.03(a) and, if and to
the extent applicable, any certificate or opinion referenced in
Section 10.03(d) or Section 10.04.
(c) Section 10.03(c) of the Original Indenture is hereby amended to
read in its entirety as follows:
(c) No Collateral shall be released from the Lien and security
interest created by the Collateral Documents pursuant to the
provisions of the Collateral Documents or this Indenture at any time
when an Event of Default shall have occurred and be continuing.
(d) Section 10.03(d) of the Original Indenture is hereby amended to
read in its entirety as follows:
(d) To the extent applicable, the Company shall cause TIA ss.
313(b), relating to reports, and TIA ss. 314(d), relating to the
release of property or securities from the Lien and security
interest of the Collateral Documents or this Indenture and relating
to the substitution therefor of any property or securities to be
subjected to the Lien and security interest of the Collateral
Documents or this Indenture, to be complied with. Any certificate or
opinion required by TIA ss. 314(d) may be made by an Officer of the
Company except in cases where TIA ss. 314(d) requires that such
certificate or opinion be made by an independent Person, which
Person shall be an independent engineer, appraiser or other expert
selected by the Company in the exercise of reasonable care.
(e) Section 10.03 of the Original Indenture is hereby amended to add a new
subsection (e) immediately following Section 10.03(d) to read in its entirety as
follows:
15
(e) Any release of Collateral, and any termination and
discharge of any Collateral Document, made in compliance with the
provisions of this Section 10.03 will not, and shall be deemed not
to, impair the security under this Indenture in contravention of the
provisions of this Indenture.
Section 1.26. Section 10.04 of the Original Indenture. Section 10.04 of
the Original Indenture is hereby amended to read in its entirety as follows:
SECTION 10.04. CERTIFICATES OF THE COMPANY.
The Company shall furnish to the Trustee, prior to each
proposed release of Collateral from the Lien and security interest
of the Collateral Documents or this Indenture, and prior to each
proposed termination and discharge of any Collateral Document, (i)
all documents required by TIA ss. 314(d) and (ii) an Opinion of
Counsel, which may be rendered by internal counsel to the Company,
to the effect that such accompanying documents constitute all
documents required by TIA ss. 314(d). The Trustee may, to the extent
permitted by Sections 7.01 and 7.02 hereof, accept as conclusive
evidence of compliance with the foregoing provisions the appropriate
statements contained in such documents and such Opinion of Counsel.
Section 1.27. Section 10.05 of the Original Indenture. Section 10.05 of
the Original Indenture is hereby amended to read in its entirety as follows:
SECTION 10.05. CERTIFICATES OF THE TRUSTEE.
In the event that the Company wishes to release Collateral
from the Lien and security interest of the Collateral Documents or
this Indenture and has delivered the certificates and documents
required by the Collateral Documents and Sections 10.03 and 10.04
hereof, the Trustee shall determine whether it has received all
documentation required by TIA ss. 314(d) in connection with such
release and, based on such determination and the Opinion of Counsel
delivered pursuant to Section 10.04(ii), shall deliver a certificate
to the Collateral Agent setting forth such determination.
Section 1.28. Section 11.02 of the Original Indenture. Section 11.02 of
the Original Indenture is hereby amended to read in its entirety as follows:
SECTION 11.02. NOTICES.
Any notice or communication by the Company or the Trustee to
the others is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing
next day delivery, to the others' address:
16
If to the Company:
SF Holdings Group, Inc.
115 Stevens Avenue
Valhalla, New York 10595
Telecopier No.: (914) 747-9293
Attention: Harvey L. Friedman
With a copy to:
Kramer, Levin, Naftalis & Frankel
919 Third Avenue
New York, NY 10022
Telecopier No.: (212) 715-8000
Attention: Michael S. Nelson
If to the Trustee:
The Bank of New York
5 Penn Plaza, 13th Floor
New York, NY 10001
Telecopier No.: (212) 328-7629
Attention: Corporate Trust Administrator
The Company or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices
or communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when
answered back, if telecopied; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA ss. 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not
the addressee receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 1.29. Exhibits B, C and D to the Original Indenture. Each of
Exhibits B, C and D to the Original Indenture is hereby amended to change the
address of The Bank of New York, in each
17
instance in which it is set forth therein, from "101 Barclay Street, 21 West New
York, New York 10286" to "5 Penn Plaza, 13th Floor, New York, New York 10001."
ARTICLE II
AMENDMENTS TO SENIOR SECURED DISCOUNT NOTES
Section 2.01. Senior Secured Discount Notes--Global Reference Changes.
-------------------------------------------------------
(a) All references to the term "Series A Senior Secured Discount Note"
shall be amended to "Series A Senior Discount Note", and all references to the
term "Series A Senior Secured Discount Notes" shall be amended to "Series A
Senior Discount Notes".
(b) All references to the term "Series B Senior Secured Discount Note"
shall be amended to "Series B Senior Discount Note", and all references to the
term "Series B Senior Secured Discount Notes" shall be amended to "Series B
Senior Discount Notes".
(c) All references to the term "Senior Secured Discount Note" shall be
amended to "Senior Discount Note", and all references to the term "Senior
Secured Discount Notes" shall be amended to "Senior Discount Notes".
Section 2.02. Paragraph 4 of the Senior Secured Discount Notes. Paragraph
4 of each Senior Secured Discount Note, whether heretofore issued pursuant to
the Original Indenture or hereafter issued pursuant to the Indenture, is hereby
amended by adding a new sentence to be inserted at the end of Paragraph 4 of
each Senior Secured Discount Note, as follows:
Reference is made to the provisions of the Indenture and the
Collateral Documents, including, without limitation, the provisions
of Article 10 of the Indenture, governing and setting forth the
terms and conditions on which the Company is entitled, at any time
and from time to time, to have all or any portion of the Collateral
released from the Lien and security interest of the Collateral
Documents and the Indenture and to have any one or more of the
Collateral Documents, other than the Indenture, terminated and
discharged.
Section 2.03. Paragraph 5 of the Senior Secured Discount Notes.. Paragraph
5 of each Senior Secured Discount Note, whether heretofore issued pursuant to
the Original Indenture or hereafter issued pursuant to the Indenture, is hereby
amended to read in its entirety as follows:
5. OPTIONAL REDEMPTION.
The Senior Discount Notes shall not be redeemable at the
Company's option prior to March 15, 2003. Thereafter, the Senior
Discount Notes shall be subject to redemption at any time at the
option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice, at the redemption prices (expressed
as percentages of principal amount) set forth below plus accrued and
unpaid interest and Liquidated Damages, if any, to the applicable
redemption date, if redeemed during the twelve-month period
beginning on March 15 of the years indicated below:
18
Year Percentage
---- ----------
2003 106.375%
2004 104.250%
2005 102.125%
2006 and thereafter 100.000%
Section 2.04. Paragraph 7 of the Senior Secured Discount Notes.. Paragraph
7 of each Senior Secured Discount Note, whether heretofore issued pursuant to
the Original Indenture or hereafter issued pursuant to the Indenture, is hereby
amended to read in its entirety as follows:
7. INTENTIONALLY OMITTED.
Section 2.05. Paragraph 12 of the Senior Secured Discount Notes.. The
first sentence of Paragraph 12 of each Senior Secured Discount Note, whether
heretofore issued pursuant to the Original Indenture or hereafter issued
pursuant to the Indenture, is hereby amended to read in its entirety as follows:
12. DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 days in the payment when due of interest on the
Senior Discount Notes; (ii) default in payment when due of the
principal of or premium, or Liquidated Damages, if any, on the
Senior Discount Notes; (iii) [intentionally omitted]; (iv) failure
by the Company for 30 days after notice to comply with any of its
other agreements in the Indenture, the Senior Discount Notes or the
Pledge Agreement (but only prior to the termination thereof); (v)
intentionally omitted]; (vi) [intentionally omitted]; and (vii)
certain events of bankruptcy or insolvency with respect to the
Company. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount at
maturity of the then outstanding Senior Discount Notes may declare
all the Senior Discount Notes to be due and payable.
Section 2.06. Form of Option of Holder to Elect Purchase contained in the
Senior Secured Discount Notes. Each Senior Secured Discount Note, whether
heretofore issued pursuant to the Original Indenture or hereafter issued
pursuant to the Indenture, is hereby amended to delete the form of Option of
Holder to Elect Purchase therefrom in its entirety .
ARTICLE III
CONFORMING AMENDMENTS
Section 3.01. As to Deletions All references in the Original Indenture and
the Senior Secured Discount Notes to the Articles, Sections, subsections and
definitions of the Original Indenture and/or the Senior Secured Discount Notes
deleted pursuant to Article I and/or Article II of this First Supplemental
Indenture are hereby deleted.
19
ARTICLE IV
GENERAL PROVISIONS
Section 4.01. Effectiveness and Operativeness. The provisions of this
First Supplemental Indenture shall become effective, and the amendments provided
for in Articles I, II and II of this First Supplemental Indenture shall be
operative, immediately upon the execution and delivery by the Trustee of this
First Supplemental Indenture.
Section 4.02. 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
First Supplemental Indenture. The Original Indenture and this First Supplemental
Indenture, shall be read, taken and construed as one and the same instrument.
Section 4.03. Certificate and Opinion as to Conditions Precedent.
Simultaneously with and as a condition to the execution of this First
Supplemental Indenture, the Company is delivering to the Trustee:
(a) an Officers' Certificate in the form attached hereto as
Exhibit A; and
(b) an Opinion of Counsel covering the matters described in
Exhibit B attached hereto.
Section 4.04. Effect of Headings. The Article and Section headings in this
First Supplemental Indenture are for convenience only and shall not affect the
construction of this First Supplemental Indenture.
Section 4.05. 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 4.06. Multiple Counterparts. This First 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 4.07. Trustee's Disclaimer. The recitals contained in this First
Supplemental Indenture 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, enforceability or sufficiency of this First
Supplemental Indenture.
Section 4.08. 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.
[Remainder of Page Left Blank Intentionally; Signature Page Follows]
20
IN WITNESS WHEREOF, the parties to this First Supplemental Indenture have
caused the Supplemental Indenture to be duly executed as of day and year first
above written.
SF HOLDINGS GROUP, INC.
Attest: /s/ Dennis Mehiel By: /s/ Hans H. Heinsen
------------------ -----------------------
Dennis Mehiel, Hans H. Heinsen,
Chairman Senior Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Julie Salovitch-Miller
-----------------------------
Julie Salovitch-Miller,
Vice President
21
EXHIBIT A
SF HOLDINGS GROUP, INC.
OFFICERS' CERTIFICATE
The undersigned, _______________, _________________, and
______________________, ________________________, of SF Holdings Group, Inc., a
Delaware corporation (the "Company"), do hereby certify, pursuant to Section
____ of that certain First Supplemental Indenture, dated as of January ___, 2002
(the "Supplemental Indenture"), by and between the Company and The Bank of New
York, as Trustee (the "Trustee"), and Section ___ of that certain Indenture,
dated as of March 12, 1998, as amended, by and between the Company and the
Trustee, as follows (capitalized terms herein being used with the meanings
assigned to them in the Supplemental Indenture, unless otherwise defined
herein):
1. The undersigned have read Section 9.02 of the Original Indenture.
2. The Company has received consents ("Consents") from the Holders of at
least two-thirds in aggregate principal amount at maturity of the Senior Secured
Discount Notes outstanding to the Proposed Amendments.
3. In our opinion, we have made such examination and investigation as is
necessary to enable us to express an informed opinion as to whether or not the
conditions precedent in the Original Indenture requiring compliance by the
Company prior to or concurrently with the execution and delivery by the Company
of the Supplemental Indenture have been complied with.
4. In our opinion, each of the conditions precedent in the Indenture
requiring compliance by the Company prior to or concurrently with the execution
and delivery by the Company of the Supplemental Indenture have been complied
with, and the Trustee is authorized or permitted, pursuant to Section 9.02 of
the Original Indenture, to execute the Supplemental Indenture.
IN WITNESS WHEREOF, the undersigned have executed this Certificate as of
January ___, 2002.
______________, _______________________ of
SF Holdings Group, Inc.
______________, _______________________ of
SF Holdings Group, Inc.
EXHIBIT B
Matters to be Covered by Opinion of Counsel to the Company
----------------------------------------------------------
1. The Supplemental Indenture has been duly authorized, executed and
delivered by the Company.
2. Each of the conditions precedent in the Indenture requiring compliance
by the Company prior to or concurrently with the execution and delivery by the
Company of the Supplemental Indenture has been complied with by the Company, and
the Trustee is authorized or permitted, pursuant to Section 9.02 of the Original
Indenture, to execute the Supplemental Indenture.