SECOND SUPPLEMENTAL INDENTURE
Exhibit
10.1(i)
SECOND
SUPPLEMENTAL INDENTURE
This
SECOND SUPPLEMENTAL INDENTURE (this “Supplemental
Indenture”)
is
dated as of April 3, 2007, among XXXXX PLASTICS HOLDING CORPORATION (or its
successor) (the “Company”),
the
existing guarantors identified on the signature pages hereto (the “Existing
Guarantors”),
the
new guarantors identified on the signature pages hereto (the “New
Guarantors”,
and
together with the Existing Guarantors, the “Guarantors”),
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as
trustee under the indenture referred to below (the “Trustee”).
W
I T N E
S S E T H :
WHEREAS,
BPC Acquisition Corp. has heretofore executed and delivered to the Trustee
an
indenture dated as of September 20, 2006 (as amended, supplemented or otherwise
modified, the “Indenture”),
supplemented by the First Supplemental Indenture dated as of September 20,
2006
by and among the Company (formerly known as BPC Holding Corporation), BPC
Acquisition Corp., the Existing Guarantors and the Trustee, providing for the
issuance of the Company’s 11% Senior Subordinated Notes due 2016 (the
“Securities”)
in the
aggregate principal amount of $425,000,000;
WHEREAS,
Covalence Specialty Materials Holding Corp. (“Covalence
Holdings”),
the
parent entity of Covalence Specialty Materials Corp. (“Covalence”),
and
Xxxxx Plastics Group, Inc. (“Xxxxx
Holdings”),
the
parent entity of the Company, have entered into a business combination under
an
Agreement and Plan of Merger and Corporate Reorganization (the “Merger
Agreement”)
dated
March 9, 2007 pursuant to which (i) immediately prior to the effectiveness
of
this Supplemental Indenture, Xxxxx Holdings merged with and into Covalence
Holdings, which shall be renamed Xxxxx Plastics Group, Inc. (as the surviving
corporation, “Holdings”),
(ii)
immediately prior to the effectiveness of this Supplemental Indenture, Holdings
contributed all of the capital stock of the Company to Covalence (the
“Contribution”),
and
(iii) substantially simultaneously with the effectiveness of this Supplemental
Indenture, Covalence is merging with and into the Company (the “Merger”),
the
separate existence of Covalence shall cease and the Company shall survive and
continue as the continuing company (the “Successor
Company”);
WHEREAS,
Section 5.01(a) of the Indenture provides, in part, that Covalence may merge
into the Company provided that (i) the Company is the Successor Company; (ii)
immediately after giving effect to such transaction (and treating any
Indebtedness which becomes an obligation of the Successor Company or any of
its
Restricted Subsidiaries as a result of such transaction as having been Incurred
by the Successor Company or such Restricted Subsidiary at the time of such
transaction) no Default or Event of Default shall have occurred and be
continuing; (iii) immediately after giving pro forma effect to such transaction,
as if such transaction had occurred at the beginning of the applicable
four-quarter period, either (A) the Successor Company would be permitted to
Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.03(a), or (B) the Fixed Charge
Coverage Ratio for the Successor Company and its Restricted Subsidiaries would
be
greater
than such ratio for the Company and its Restricted Subsidiaries immediately
prior to such transaction; (iv) each Existing Guarantor, unless it is the other
party to the transactions described above, shall have by supplemental indenture
confirmed that its Guarantee shall apply to such Person’s obligations under the
Indenture and the Securities; and (v) the Company shall have delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indentures (if
any)
comply with the Indenture;
WHEREAS,
Section 9.01(a) of the Indenture provides that the Company and the Trustee
may
amend the Indenture or the Securities without notice or consent of any Holder
to, among others, comply with Article 5;
WHEREAS,
upon the effectiveness of the Merger, the New Guarantors shall be subsidiaries
of the Successor Company;
WHEREAS,
Sections 4.11 and 11.06 of the Indenture provide that the Company shall cause
each Restricted Subsidiary that is a Domestic Subsidiary that guarantees any
indebtedness of the Company or any of its Restricted Subsidiaries, to execute
and deliver to the Trustee a supplemental indenture pursuant to which such
Restricted Subsidiary shall guarantee payment of the Securities;
WHEREAS,
the New Guarantors will guarantee indebtedness of the Company under the
following agreements: (i) the Amended and Restated Revolving Credit Agreement
dated as of April 3, 2007 among the Company, Holdings, certain domestic
subsidiaries of the Company party thereto from time to time, the lenders party
thereto from time to time, Bank of America, N.A., as Collateral Agent and
Administrative Agent and the other financial institutions party thereto and
(ii)
the Second Amended and Restated Term Loan Credit Agreement dated as of April
3,
2007, among the Company, Holdings, the lenders party thereto from time to time,
Credit Suisse as Collateral Agent and Administrative Agent and the other
financial institutions party thereto, and therefore are required to guarantee
payment of the Securities;
WHEREAS,
the Company has delivered to the Trustee, or caused to be delivered to the
Trustee on its behalf, an Opinion of Counsel and an Officers’ Certificate
stating that the Merger and this Supplemental Indenture comply with Sections
4.11, 5.01(a), 9.01(a), and 11.06 of the Indenture, that all conditions
precedent provided for in the Indenture relating to the Merger and the execution
and delivery of this Supplemental Indenture have been complied with, and that
execution and delivery of this Supplemental Indenture is authorized or permitted
under the Indenture;
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Existing
Guarantors, the New Guarantors, the Company and the Trustee mutually covenant
and agree as follows:
1. Definitions.
Capitalized terms used herein and not defined herein have the meanings ascribed
to such terms in the Indenture.
2. Agreement
to Guarantee.
The New
Guarantors hereby agree, jointly and severally with all existing Guarantors,
to
unconditionally guarantee the Company’s obligations under the Securities on the
terms and subject to the conditions set forth in Article 11 of the Indenture
and
to be bound by all other applicable provisions of the Indenture and the
Securities and to perform all of the obligations and agreements of a Guarantor
under the Indenture.
3. Confirmation
of Guarantee.
Each of
the Existing Guarantors hereby confirms that its Guarantee shall apply to the
Successor Company’s obligations under the Indenture and the
Securities.
4. Notices.
All
notices or other communications to the Guarantors shall be given as provided
in
Section 13.02 of the Indenture.
5. Ratification
of Indenture; Supplemental Indenture Part of Indenture.
Except
as expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain
in
full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of Securities heretofore or
hereafter authenticated and delivered shall be bound hereby.
6. Governing
Law.
THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
7. Trustee
Makes No Representation.
The
Trustee makes no representation as to the validity or sufficiency of this
Supplemental Indenture.
8. 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.
9. Effect
of Headings.
The
Section headings herein are for convenience only and shall not effect the
construction thereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed as of the date first above written.
XXXXX
PLASTICS HOLDING CORPORATION
By:
Name:
Title:
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE
By:
Name:
THE
EXISTING GUARANTORS:
Xxxxx
Plastics Corporation
AeroCon,
Inc.
Xxxxx
Iowa Corporation
Xxxxx
Plastics Design Corporation
Xxxxx
Xxxxxxxx Corporation
Xxxxx
Plastics Technical Services, Inc.
Cardinal
Packaging, Inc.
CPI
Holding Corporation
Knight
Plastics Inc.
Xxxxxx
Plastics, Inc.
Packerware
Corporation
Pescor,
Inc.
Poly-Seal
Corporation
Venture
Packaging, Inc.
Venture
Packaging Midwest, Inc.
Xxxxx
Plastics Acquisition III
Xxxxx
Plastics Acquisition V
Xxxxx
Plastics Acquisition VII
Xxxxx
Plastics Acquisition VIII
Xxxxx
Plastics Acquisition IX
Xxxxx
Plastics Acquisition X
Xxxxx
Plastics Acquisition XI
Xxxxx
Plastics Acquisition XII
Xxxxx
Plastics Acquisition XIII
Xxxx
Group, Inc.
Saffron
Acquisition Corp.
Sun
Coast
Industries, Inc.
By:
Name:
Title:
XXXXX
PLASTICS ACQUISITION CORPORATION
XV,
LLC
By: Xxxxx
Plastics Corporation,
its
sole
member
By: __________________________________
Name:
Title:
SETCO,
LLC
By: Xxxx
Group, Inc.,
its
sole
member
By: __________________________________
Name:
Title:
TUBED
PRODUCTS, LLC
By: Xxxx
Group, Inc.,
its
sole
member
By: __________________________________
Name:
Title:
THE
NEW
GUARANTORS:
COVALENCE
SPECIALTY ADHESIVES LLC
By: Xxxxx
Plastics Holding Corporation,
its
sole
member and manager
By: ____________________________________
Name:
Title:
COVALENCE
SPECIALTY COATINGS LLC
By: Xxxxx
Plastics Holding Corporation,
its
sole
member and manager
By: ____________________________________
Name:
Title:
