EXHIBIT 4.4
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FIRST SUPPLEMENTAL INDENTURE
Dated as of June 24, 1997
AMONG
SILGAN CORPORATION,
SILGAN HOLDINGS INC.
AND
FLEET NATIONAL BANK, formerly SHAWMUT BANK, N.A., as Trustee
TO
INDENTURE
Dated as of June 29, 1992
BETWEEN
SILGAN CORPORATION, as Issuer
AND
FLEET NATIONAL BANK, formerly SHAWMUT BANK, N.A., as Trustee
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This FIRST SUPPLEMENTAL INDENTURE, dated as of June 24, 1997, is
entered into by and among Silgan Corporation, a Delaware corporation (the
"Company"), Silgan Holdings Inc., a Delaware corporation and the holder of all
of the outstanding capital stock of the Company ("Holdings"), and Fleet National
Bank, formerly Shawmut Bank, N.A., a national banking association, as Trustee
(the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee entered into an Indenture, dated
as of June 29, 1992 (the "Indenture"), pursuant to which the Company has
heretofore issued $135,000,000 in aggregate principal amount of the Securities
(such term and all other defined terms used herein and not otherwise defined
herein having the meanings set forth in the Indenture); and
WHEREAS, the Board of Directors of Holdings has determined that it is
in the best interests of Holdings to merge the Company with and into Holdings,
with Holdings being the surviving corporation (the "Holdings Merger"), to be
effective as of June 26, 1997 (the "Effective Date"), pursuant to the terms of
the Certificate of Ownership and Merger filed with the Secretary of State of the
State of Delaware on June 25, 1997; and
WHEREAS, in connection with the Holdings Merger, Holdings, by due
corporate action, has determined to assume all of the obligations of the Company
on all of the Securities and under the Indenture; and
WHEREAS, Section 5.01 of the Indenture provides, in pertinent part,
that the Company will not merge with or into any other Person unless (i) the
Company shall be the continuing Person, or the successor Person shall be a
corporation organized and validly existing under the laws of the United States
of America or any jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of the
obligations of the Company on all of the Securities and under the Indenture,
(ii) immediately after giving effect to such merger, no Default or Event of
Default shall have occurred and be continuing and (iii) immediately after giving
effect to such merger on a pro forma basis, the Interest Coverage Ratio of
Holdings (as the successor obligor on the Securities) is at least 1.75:1; and
WHEREAS, Section 5.02 of the Indenture provides, in pertinent part,
that in case of any such merger in accordance with Section 5.01, and following
such assumption by the successor corporation, such successor shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under the Indenture, with the same effect as if such successor corporation had
been named as the Company in the Indenture; and
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WHEREAS, Section 9.01 of the Indenture provides, in pertinent part,
that without notice to or the consent of any Holder, the Company, when
authorized by a resolution of its Board of Directors, and the Trustee may amend
or supplement the Indenture or the Securities to provide for Holdings'
assumption of the liabilities of the Company represented by the Securities
following the consummation of the Holdings Merger; and
WHEREAS, the Company and Holdings, by due corporate actions, have
determined to execute a supplemental indenture to effect the assumption by
Holdings of all of the obligations of the Company under the Securities and the
Indenture;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, and of other valuable
consideration the sufficiency of which is hereby acknowledged, the Company and
Holdings covenant and agree with the Trustee, for the equal and proportionate
benefit of all Holders, as follows:
ARTICLE I.
ASSUMPTION OF THE INDENTURE AND THE DEBENTURES
Section 1.1 Assumption as to Company. On the Effective Date,
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contemporaneous with the Holdings Merger, Holdings shall assume all of the
obligations of the Company under the Securities and the Indenture, including,
without limitation, the due and punctual payment of the principal of and
interest on all of the Securities and the performance of every covenant of the
Indenture on the part of the Company to be performed or observed.
ARTICLE II.
CLOSING DOCUMENTS
Section 2.1 Documents to be given to Trustee. Pursuant to the
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provisions of Section 5.01(v) of the Indenture, the Company will deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate, each dated as of the
Effective Date and each satisfying the provisions of Sections 5.01(v) and 11.04
of the Indenture.
ARTICLE III.
MISCELLANEOUS
Section 3.1 Trustee's Acceptance. The Trustee accepts the provisions
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of this First Supplemental Indenture upon the terms and conditions set forth in
the Indenture; provided, however,
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that the foregoing acceptance shall not make the Trustee responsible in any
manner whatsoever for the correctness of recitals or statements by other parties
herein.
Section 3.2 Indenture to Remain in Full Force and Effect. Except as
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hereby expressly provided, the Indenture, as supplemented and amended by this
First Supplemental Indenture, is in all respects ratified and confirmed and all
its terms, provisions and conditions shall be and remain in full force and
effect.
Section 3.3 Rights, Etc. of Trustee. All recitals in this First
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Supplemental Indenture are made by the Company and Holdings only and not by the
Trustee. All of the provisions contained in the Indenture in respect of the
rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect hereof as fully and with like effect as if set forth
herein in full.
Section 3.4 Successors and Assigns. All covenants and agreements in
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this First Supplemental Indenture made by the Company and Holdings shall bind
their respective successors and assigns, whether so expressed or not.
Section 3.5 Notices and Demands on Issuer. Any notice or demand
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which by any provision of this First Supplemental Indenture or the Indenture is
required or permitted to be given or served by the Trustee or by the Holders to
or on the Company may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein or in the
Indenture) addressed (until another address of the Issuer is filed by the Issuer
with the Trustee) to Silgan Holdings Inc., 4 Landmark Square, Suite 400,
Stamford, CT 06901, Attention: General Counsel.
Section 3.6 Conflict with Trust Indenture Act. If any provision of
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this First Supplemental Indenture limits, qualifies or conflicts with the duties
imposed by operation of Trust Indenture Act Section 318(c), the imposed duties
shall control.
Section 3.7 Governing Law. The laws of the State of New York shall
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govern this First Supplemental Indenture. The Trustee, Holdings and the Holders
agree to submit to the jurisdiction of the courts of the State of New York in
any action or proceeding arising out of or relating to this First Supplemental
Indenture.
Section 3.8 Titles, Headings, Etc. The Article and Section headings
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of this First Supplemental Indenture are for convenience only and shall not
affect the construction hereof.
Section 3.9 Separability Clause. In case any provision in this First
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Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the
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remaining provisions shall not in any way be affected or impaired thereby.
Section 3.10 Execution in Counterparts. This First Supplemental
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Indenture may be executed in any number of counterparts, each of which shall be
deemed an original, but such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date and year first above
written.
SILGAN CORPORATION
By: /s/ Harley Rankin, Jr.
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Harley Rankin, Jr.
Executive Vice President
SILGAN HOLDINGS INC.
By: /s/ Harley Rankin, Jr.
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Harley Rankin, Jr.
Executive Vice President
FLEET NATIONAL BANK
By: /s/ Michael Quaile
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Michael Quaile
Corporate Trust Officer
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