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EXHIBIT 4.4
FIRST SUPPLEMENTAL INDENTURE
First Supplemental Indenture (this "SUPPLEMENTAL INDENTURE"),
dated as of June 18, 2004, among (i) Solo Cup Company, a Delaware corporation
(or its permitted successor) (the "COMPANY"), (ii) Solo Cup (UK) Limited,
Insulpak Holdings Limited and Solo Cup Europe Limited, each a company organized
under the laws of England and Wales (each a "GUARANTEEING SUBSIDIARY"), each of
which is an indirect subsidiary of the Company, (iii) each of the other
subsidiaries of the Company listed on the signature pages hereto (collectively,
the "EXISTING GUARANTORS") and (iv) U.S. Bank National Association, a nationally
chartered banking association (or its permitted successor), as trustee under the
Indenture referred to below (the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company and the other Guarantors party thereto
have heretofore executed and delivered to the Trustee an indenture (the
"INDENTURE"), dated as of February 27, 2004 providing for the issuance of the
Company's 8 1/2% Senior Subordinated Notes due 2014 (the "NOTES");
WHEREAS, the Indenture provides that under certain
circumstances each Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which such Guaranteeing Subsidiary
shall, subject to Article Ten of the Indenture, unconditionally guarantee the
Notes on the terms and conditions set forth therein (a "NOTE GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Company, each Guaranteeing Subsidiary, the Existing Guarantors and the
Trustee agree as follows for the equal and ratable benefit of the Holders of the
Notes:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE.
(a) Subject to Article Ten of the Indenture, such Guaranteeing
Subsidiary, jointly and severally with all other Guarantors, fully and
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of the Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that:
(i) the principal of, premium, if any, and interest and
Liquidated Damages, if any, on the Notes will be promptly paid in full
when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of, premium, if any,
and interest and Liquidated Damages, if any, on the Notes, if lawful
(subject in all
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cases to any applicable grace period provided herein), and all other
obligations of the Company to the Holders or the Trustee hereunder
or thereunder will be promptly paid in full, all in accordance with
the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, the same will be promptly
paid in full when due in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed for whatever
reason, the Guarantors shall be jointly and severally obligated to pay
the same immediately. Such Guaranteeing Subsidiary agrees that this is
a guarantee of payment and not a guarantee of collection.
(b) Such Guaranteeing Subsidiary hereby agrees that, to the
maximum extent permitted under applicable law, its obligations hereunder shall
be unconditional, irrespective of the validity, regularity or enforceability of
the Notes or the Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor.
(c) Such Guaranteeing Subsidiary, subject to Section 6.06 of
the Indenture, hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice and
all demands whatsoever and covenants that the Note Guarantee of such
Guaranteeing Subsidiary shall not be discharged except by complete performance
of the obligations contained in the Notes and the Indenture.
(d) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any custodian, trustee,
liquidator or other similar official acting in relation to any of the Company or
the Guarantors, any amount paid by any of them to the Trustee or such Holder,
the Note Guarantee of such Guaranteeing Subsidiary, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(e) Such Guaranteeing Subsidiary agrees that it shall not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
(f) Such Guaranteeing Subsidiary agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six of the Indenture for the purposes of the Note Guarantee
of such Guaranteeing Subsidiary, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article Six of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of the Note Guarantee of such Guaranteeing
Subsidiary.
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(g) Such Guaranteeing Subsidiary shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Note Guarantee of such
Guaranteeing Subsidiary.
(h) Such Guaranteeing Subsidiary confirms, pursuant to Section
10.02 of the Indenture, that it is the intention of such Guaranteeing Subsidiary
that the Note Guarantee of such Guaranteeing Subsidiary not constitute (i) a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law or law of the United Kingdom (or any political subdivision
thereof) to the extent applicable to the Note Guarantee of such Guaranteeing
Subsidiary or (ii) an unlawful distribution under any applicable state law or
law of the United Kingdom (or any political subdivision thereof) prohibiting
shareholder distributions by an insolvent subsidiary to the extent applicable to
the Note Guarantee of such Guaranteeing Subsidiary. To effectuate the foregoing
intention, such Guaranteeing Subsidiary and the Trustee hereby irrevocably agree
that the obligations of such Guaranteeing Subsidiary will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guaranteeing Subsidiary that are relevant under such laws,
and after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article Ten of the Indenture, result
in the obligations of such Guaranteeing Subsidiary under the Note Guarantee of
such Guaranteeing Subsidiary not constituting a fraudulent transfer or
conveyance or such an unlawful shareholder distribution.
3. EXECUTION AND DELIVERY. Such Guaranteeing Subsidiary agrees
that its Note Guarantee shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Note Guarantee.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS.
(a) Such Guaranteeing Subsidiary may not sell or otherwise
dispose of all or substantially all of its assets to, or consolidate with or
merge with or into (whether or not such Guaranteeing Subsidiary is the surviving
Person), another Person, other than the Company or another Guarantor, unless:
(i) immediately after giving effect to that transaction, no
Default or Event of Default exists; and
(ii) either:
(A) the Person acquiring the property in any such
sale or disposition or the Person formed by or surviving any
such consolidation or merger (if other than such Guaranteeing
Subsidiary) is organized or existing under the laws of the
United States, any state thereof or the District of Columbia
and assumes all the obligations of that Guaranteeing
Subsidiary under the Indenture, this Supplemental Indenture,
the Note Guarantee of such Guaranteeing Subsidiary and the
Registration Rights Agreement pursuant to a supplemental
indenture reasonably satisfactory to the Trustee; or
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(B) such sale or other disposition or consolidation
or merger complies with Section 4.10 of the Indenture.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Note Guarantee of such Guaranteeing Subsidiary endorsed upon the
Notes and the due and punctual performance of all of the covenants and
conditions of the Indenture to be performed by such Guaranteeing Subsidiary,
such successor Person shall succeed to and be substituted for such Guaranteeing
Subsidiary with the same effect as if it had been named herein as a Guaranteeing
Subsidiary. Such successor Person thereupon may cause to be signed any or all of
the Note Guarantees of such Guaranteeing Subsidiary or its successors hereunder
to be endorsed upon all of the Notes issuable under the Indenture which
theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Note Guarantees so issued shall in all respects have the same
legal rank and benefit under the Indenture as the Note Guarantees theretofore
and thereafter issued in accordance with the terms of the Indenture as though
all of such Note Guarantees had been issued at the date of the execution of the
Indenture.
(c) Except as set forth in Article Five of the Indenture, and
notwithstanding clauses (i) and (ii) of Section 4(a) above and clauses (i) and
(ii) of Section 10.04(a) of the Indenture, nothing contained in the Indenture or
in any of the Notes shall prevent any consolidation or merger of a Guaranteeing
Subsidiary with or into the Company or another Guarantor, or shall prevent any
sale or conveyance of the property of a Guaranteeing Subsidiary as an entirety
or substantially as an entirety to the Company or another Guarantor.
5. RELEASE.
(a) Such Guaranteeing Subsidiary will be released and relieved
of any obligations under its Note Guarantee, (i) in connection with any sale or
other disposition of Capital Stock of such Guaranteeing Subsidiary to a Person
that is not (either before or after giving effect to such transaction) a
Subsidiary of the Company such that, immediately after giving effect to such
transaction, such Guaranteeing Subsidiary would no longer constitute a
Subsidiary of the Company, if the sale of such Capital Stock of such
Guaranteeing Subsidiary complies with Section 4.10 and Section 4.07 of the
Indenture; (ii) if the Company properly designates such Guaranteeing Subsidiary
as an Unrestricted Subsidiary under the Indenture; or (iii) solely in the case
of a Note Guarantee of such Guaranteeing Subsidiary created pursuant to the
second sentence of Section 4.18(a) of the Indenture, upon the release or
discharge of the Guarantee which resulted in the creation of the Note Guarantee
of such Guaranteeing Subsidiary pursuant to Section 4.18(b) of the Indenture,
except a discharge or release by or as a result of payment under such Guarantee.
Upon delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that one of the foregoing requirements has been
satisfied and the conditions to the release of such Guaranteeing Subsidiary
under this Section 5 have been met, the Trustee shall execute any documents
reasonably required in order to evidence the release of such Guaranteeing
Subsidiary from its obligations under its Note Guarantee.
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(b) If such Guaranteeing Subsidiary is not released from its
obligations under its Note Guarantee it shall remain liable for the full amount
of principal of and interest and Liquidated Damages, if any, on the Notes and
for the other obligations of any Guarantor under the Indenture as provided in
Article Ten of the Indenture.
6. NO RECOURSE AGAINST OTHERS. Pursuant to Section 13.07 of
the Indenture, no director, officer, employee, incorporator or stockholder of
such Guaranteeing Subsidiary shall have any liability for any obligations of
such Guaranteeing Subsidiary under the Notes, the Indenture, this Supplemental
Indenture, the Note Guarantees, the Pledge Agreement or for any claim based on,
in respect of, or by reason of, such obligations or their creation. This waiver
and release are part of the consideration for the Note Guarantee of such
Guaranteeing Subsidiary.
7. SUBORDINATION OF NOTE GUARANTEE. Payments under the Note
Guarantees pursuant to this Supplemental Indenture shall be subordinated to the
prior payment in full of all Senior Debt of such Guarantor, including Senior
Debt incurred after the date of this Supplemental Indenture, on the same basis
as the payments by the Company on the Notes are subordinated to the prior
payment in full of Senior Debt of the Company. For the purposes of the foregoing
sentence, the Trustee and the Holders shall have the right to receive and/or
retain payments by such Guaranteeing Subsidiary only at such times as they may
receive and/or retain payments in respect of the Notes pursuant to the
Indenture, including Article Twelve thereof.
8. NEW YORK LAW TO GOVERN. THE LAWS OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE AND THE NOTE
GUARANTEE OF EACH GUARANTEEING SUBSIDIARY.
9. 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.
10. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
11. TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever 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 recitals are made solely by each Guaranteeing Subsidiary, the
Existing Guarantors and the Company.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
SOLO CUP (UK) LIMITED, a company organized under the
laws of England and Wales
By: /s/ Ronald L. Whaley
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Name: Ronald L. Whaley
Title: Director
INSULPAK HOLDINGS LIMITED, a company organized under
the laws of England and Wales
By: /s/ Ronald L. Whaley
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Name: Ronald L. Whaley
Title: Director
SOLO CUP EUROPE LIMITED, a company organized under the
laws of England and Wales
By: /s/ Ronald L. Whaley
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Name: Ronald L. Whaley
Title: Director
SOLO CUP COMPANY, a Delaware corporation
By: /s/ Susan H. Marks
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Name: Susan H. Marks
Title: EVP,CFO
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SOLO CUP COMPANY, an Illinois corporation
By: /s/ Susan H. Marks
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Name: Susan H. Marks
Title: EVP,CFO
SOLO MANAGEMENT COMPANY, an Illinois corporation
By: /s/ Susan H. Marks
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Name: Susan H. Marks
Title: EVP,CFO
P.R. SOLO CUP, INC., an Illinois corporation
By: /s/ Ronald L. Whaley
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Name: Ronald L. Whaley
Title: President
SOLO TEXAS, LLC, a Texas limited liability company
By: Solo Cup Company, an Illinois corporation, its sole
member
By: /s/ Susan H. Marks
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Name: Susan H. Marks
Title: EVP,CFO
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SF HOLDINGS GROUP, INC., a Delaware corporation
By: /s/ Susan H. Marks
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Name: Susan H. Marks
Title: EVP,CFO
SWEETHEART CUP COMPANY INC., a Delaware corporation
By: /s/ Susan H. Marks
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Name: Susan H. Marks
Title: EVP,CFO
LILY-CANADA HOLDING CORPORATION, a Delaware corporation
By: /s/ Susan H. Marks
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Name: Susan H. Marks
Title: EVP,CFO
CUPCORP, INC., a Delaware corporation
By: /s/ Susan H. Marks
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Name: Susan H. Marks
Title: Treasurer
EMERALD LADY INC., a Delaware corporation
By: /s/ Susan H. Marks
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Name: Susan H. Marks
Title: Treasurer
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NEWCUP, LLC, a Delaware limited liability company
By: /s/ Ronald L. Whaley
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Name: Ronald L. Whaley
Title: Sole Manager
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Frank P. Leslie III
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Name: Frank P. Leslie III
Title: Vice President