Exhibit 4.14
THIRD SUPPLEMENTAL
INDENTURE
Third Supplemental Indenture (this
“ Supplemental Indenture ”), dated as of
July 2, 2009, among (i) Solo Cup Company, a Delaware
corporation (or its permitted successor) (the “
Company ”), (ii) Solo Cup Owings Mills Holdings,
a Delaware statutory trust and an indirect subsidiary of the
Company (the “ Guaranteeing Subsidiary ”),
(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
Existing Guarantors heretofore executed and delivered to the
Trustee an indenture (the “ Original 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 ”) and/or a supplemental indenture
(the “ First Supplemental Indenture ”), dated as
of June 18, 2004 and/or a second supplemental indenture (the
“ Second Supplemental Indenture ”), dated as of
June 30, 2005 (the Original Indenture, as supplemented by the
First Supplemental Indenture and Second Supplemental Indenture,
being hereinafter referred to as the “ Indenture
”);
WHEREAS, the Indenture provides that
under certain circumstances the Guaranteeing Subsidiary shall
execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall, subject to
Article Ten of the Indenture, unconditionally guarantee the Notes
on the terms and conditions set forth therein (the “ 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, the
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, the 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 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. The Guaranteeing Subsidiary agrees that this is a
guarantee of payment and not a guarantee of collection.
(b) The 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) The 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 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, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(e) The 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) The 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, 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.
2
(g) The 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.
(h) The Guaranteeing Subsidiary
confirms, pursuant to Section 10.02 of the Indenture, that it
is the intention of the Guaranteeing Subsidiary that the Note
Guarantee 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
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. To
effectuate the foregoing intention, the Guaranteeing Subsidiary and
the Trustee hereby irrevocably agree that the obligations will be
limited to the maximum amount as will, after giving effect to all
other contingent and fixed liabilities of the 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 the Guaranteeing Subsidiary
under the Note Guarantee not constituting a fraudulent transfer or
conveyance or such an unlawful shareholder distribution.
3. Execution and Delivery .
The Guaranteeing Subsidiary agrees that the Note Guarantee shall
remain in full force and effect notwithstanding any failure to
endorse on each Note a no
