EXHIBIT 4.5
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE dated as of _____________, 2003, among
UNITED STATES CAN COMPANY, a Delaware corporation (the "Company"), U.S. CAN
CORPORATION, a Delaware corporation and the Company's sole stockholder (the
"Parent Guarantor"), the Subsidiary Guarantors (as defined in the Indenture
referred to herein) and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association, as trustee under the Indenture referred to below
(the "Trustee").
WHEREAS, the Company and the Guarantors (as defined in the Indenture
referred to herein) have heretofore executed and delivered to the Trustee an
indenture dated as of July 22, 2003 (the "Existing Indenture," and the Existing
Indenture, as it may from time to time be supplemented or amended by one or more
additional indentures supplemental thereto entered into pursuant to the
applicable provisions thereof, being hereinafter called the "Indenture"; and
capitalized terms used herein without definition having the meanings assigned to
them in the Indenture), providing for the issuance on the date thereof of an
aggregate principal amount of up to $125,000,000 of 10 7/8% Senior Secured Notes
due 2010 and the issuance thereafter of Additional Notes and Exchange Notes;
WHEREAS, the Company and the Guarantors propose to amend the Existing
Indenture as contemplated herein to elaborate on the requirements of Section
314(d) of the TIA and to enable the Company to rely on existing interpretations
of the Commission regarding the requirements of Section 314(d) of the TIA;
WHEREAS, pursuant to Section 9.01(6) of the Indenture, the Company and the
Guarantors may amend or supplement the Indenture as contemplated herein without
notice to or consent of any Holder;
WHEREAS, each of the Company and each Guarantor has been authorized by a
resolution of its respective board of directors to enter into this First
Supplemental Indenture;
WHEREAS, all other acts and proceedings required by law, by the Existing
Indenture and by the certificate of incorporation and by-laws of the Company and
the Guarantors to make this First Supplemental Indenture a valid and binding
agreement for the purposes expressed herein, in accordance with its terms, have
been duly done and performed;
WHEREAS, the Company and the Guarantors have delivered to the Trustee the
documents described in Section 9.06 of the Existing Indenture; and
WHEREAS, pursuant to Sections 9.01 and 9.06 of the Existing Indenture, the
Trustee is authorized to execute and deliver this First Supplemental Indenture;
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NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That, for and in consideration of the premises herein contained, the
Company and the Guarantors agree with the Trustee as follows:
ARTICLE 1
Amendment of Existing Indenture
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Section 1.01 Amendment of Existing Indenture. Pursuant to Sections 9.01(6)
and 9.06 of the Existing Indenture, Section 10.04 of the Existing Indenture is
hereby amended and restated in its entirety to read as follows:
"SECTION 10.04. Certificates of the Company.
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(a) To the extent applicable, the Company shall comply (or cause compliance)
with Section 313(b) of the TIA, relating to reports, and Section 314(d) of the
TIA, relating to the release of property or securities from the lien and
security interest of the Second Priority Security Documents and relating to the
substitution therefor of any property or securities to be subjected to the lien
and security interest of the Second Priority Security Documents. Any certificate
or opinion required by Section 314(d) of the TIA may be made by an Officer of
the Company except in cases where Section 314(d) of the TIA requires that such
certificate or opinion be made by an independent Person, which Person shall be
an independent engineer, appraiser or other expert selected or approved by the
Collateral Agent in the exercise of reasonable care.
(b) With respect to the Company's obligations under Section 10.04(a) relating
to delivery of certificates or opinions required by Section 314(d) of the TIA,
the Company and each Subsidiary, as the case may be, may:
(1) abandon, sell, assign, transfer, lease, license or otherwise
dispose of in the ordinary course of business any personal property
the use of which is no longer necessary or desirable in the proper
conduct of the business of the Company and is not material to the
conduct of the business of the Company and its Subsidiaries taken as a
whole;
(2) grant in the ordinary course of business, rights-of-way and
easements over or in respect of any of the Company's or such
Subsidiary's real property, provided that such grant will not, in the
reasonable opinion of an Officer of the Company, impair the usefulness
of such property in the conduct of the Company's business;
(3) sell, transfer or otherwise dispose of inventory in the
ordinary course of business;
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(4) sell, collect, liquidate, factor or otherwise dispose of
accounts receivable in the ordinary course of business;
(5) make cash payments (including for the scheduled repayment of
Indebtedness) from cash that is at any time part of the Collateral in
the ordinary course of business that are not otherwise prohibited by
this Indenture, the Second Priority Security Documents and the
Intercreditor Agreement;
(6) release any Collateral in accordance with the terms of the
Credit Agreement, this Indenture, the Intercreditor Agreement and the
other Security Documents; and
(7) engage in any other release of any Collateral as to which
release any Commission regulation or interpretation (including any
no-action letter issued by the Staff of the Commission or exemption
order issued by the Commission or pursuant to its delegated
authority), whether issued to the Company or any other Person)
provides that delivery of such opinions or certificates need not be
made;
in each case, without the delivery of any such opinions or certificates upon any
such release; provided that the Company shall deliver to the Trustee, within 15
days after each of the six-month periods ended January 15 and July 15 in each
year an Officers' Certificate to the effect that all releases of Collateral as
to which such opinions or certificates were not delivered in reliance upon this
Section 10.04(b) by the Company or any Subsidiary, as the case may be, during
the preceding six-month period were in the ordinary course of the Company's or
such Subsidiary's business or otherwise in accordance with Section 10.04(b)(6)
or Section 10.04(b)(7) and that all proceeds therefrom were used by the Company
or such Subsidiary as permitted herein.
(c) The fair value of Collateral released from the Liens of the Second Priority
Security Documents as to which opinions or certificates are not delivered in
reliance upon this Section 10.04(b) shall not be considered in determining
whether the aggregate fair value of Collateral released from the Liens of the
Second Priority Security Documents in any calendar year exceeds the 10%
threshold specified in Section 314(d)(l) of the TIA; provided that the Company's
right to rely on this sentence at any time is conditioned upon the Company
having furnished to the Trustee the Officers' Certificates described in Section
10.04(b) that were required to be furnished to the Trustee at or prior to such
time. It is expressly understood that Section 10.04(b) and this Section 10.04(c)
relate only to the Company's obligations under the TIA and shall not affect the
Company's and its Subsidiaries' rights or abilities to release Collateral.
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ARTICLE 2
The Trustee
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Section 2.01. Privileges and Immunities of Trustee. The Trustee accepts the
amendment of the Indenture effected by this First Supplemental Indenture but
only upon the terms and conditions set forth in the Indenture, including the
terms and provisions defining and limiting the liabilities and responsibilities
of the Trustee, which terms and provisions shall in like manner define and limit
its liabilities and responsibilities in the performance of the trust created by
the Indenture as hereby amended. As contemplated by the last sentence of Section
9.06 of the Existing Indenture, the Trustee shall not be responsible for the
adequacy or sufficiency of this First Supplemental Indenture, for the due
execution, delivery or performance thereof by the Company and the Guarantors or
for the recitals contained herein, all of which are the Company's and the
Guarantors' responsibilities.
ARTICLE 3
Miscellaneous Provisions
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Section 3.01. Instruments to be Read Together. This First Supplemental
Indenture is an indenture supplemental to and in implementation of the Existing
Indenture, and said Existing Indenture and this First Supplemental Indenture
shall henceforth be read together.
Section 3.02. Confirmation. The Indenture as amended and supplemented by
this First Supplemental Indenture is in all respects confirmed and preserved.
Section 3.03. Multiple Originals. The parties may sign any number of copies
of this First 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 First Supplemental Indenture.
Section 3.04. Headings. The headings of the Articles and Sections of this
First Supplemental Indenture have been inserted for convenience of reference
only, are not intended to be considered part hereof and shall not modify or
restrict any of the terms or provisions hereof.
Section 3.05. Effectiveness. The provisions of this First Supplemental
Indenture will take effect immediately upon execution thereof by the parties
hereto.
Section 3.06. Governing Law. This First Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New York
but without giving effect to applicable principles of conflicts of law to the
extent that the application of the laws of another jurisdiction would be
required thereby.
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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.
UNITED STATES CAN COMPANY,
AS ISSUER
By: ___________________________________
Name:
Title:
U.S. CAN CORPORATION,
AS PARENT GUARANTOR
By: ___________________________________
Name:
Title:
USC MAY VERPACKUNGEN HOLDING INC.,
AS SUBSIDIARY GUARANTOR
By: ___________________________________
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
AS TRUSTEE
By: ___________________________________
Name:
Title:
