SUPPLEMENTAL INDENTURE
This
SUPPLEMENTAL INDENTURE (this “Supplemental
Indenture”) is dated as of February 5, 2008, among XXXXX PLASTICS
CORPORATION (or its successor) (the “Company”), XXXXX
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as trustee
under the indenture referred to below (the “Trustee”), CAPTIVE
HOLDINGS, INC., CAPTIVE PLASTICS, INC., CAPLAS NEPTUNE, LLC, CAPLAS LLC, and
GRAFCO INDUSTRIES LIMITED PARTNERSHIP (each, a “New Guarantor” and
collectively, the “New
Guarantors”).
W I T N E
S S E T H :
WHEREAS,
the Company has heretofore executed and delivered to the Trustee an indenture
dated as of September 20, 2006 (as amended, supplemented or otherwise modified
from time to time, the “Indenture”),
providing for the issuance of the Company’s 8 7/8 % Second Priority Senior
Secured Fixed Rate Notes due 2014 (the “Fixed Rate Notes”) in
the aggregate principal amount of $525,000,000 and Second Priority Senior
Secured Floating Rate Notes due 2014 (the “Floating Rate Notes”)
in the aggregate principal amount of $225,000,000 (the Fixed Rate Notes and
Floating Rate Notes being collectively referred to as the “Securities”);
WHEREAS,
the Company has entered into that certain Stock Purchase Agreement dated as of
December 21, 2007, among Captive Holdings, Inc., Captive Holdings, LLC and the
Company, as amended from time to time (the “Stock Purchase
Agreement”) pursuant to which the Company purchased (the “Stock Purchase”) all
of the issued and outstanding capital stock of Captive Holdings,
Inc.;
WHEREAS,
upon the effectiveness of the Stock Purchase, each New Guarantor shall be a
Restricted Subsidiary of the Company;
WHEREAS,
Section 4.11 of the Indenture provides 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 (i) to execute
and deliver to the Trustee a supplemental indenture pursuant to which such
Restricted Subsidiary shall guarantee payment of the Securities and (ii) to
become a party to the Security Agreement and to execute and file all documents
and instruments necessary to grant to the Collateral Agent a perfected security
interest in the Collateral owned by such Restricted Subsidiary;
WHEREAS,
as of the date hereof, each New Guarantor will guarantee indebtedness of the
Company under the following agreements: (i) the Senior Secured Bridge Loan
Credit Agreement dated as of February 5, 2008, among the Company, the Lenders
party hereto from time to time, Bank of America, N.A., as Administrative Agent
and Collateral Agent for the Lenders, and the other financial institutions party
thereto; (ii) the Amended and Restated Revolving Credit Agreement dated as of
April 3, 2007 among the Company, Xxxxx Plastics Group, Inc. (“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, (iii)
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, Cayman Islands Branch, as Collateral Agent and Administrative
Agent and the other financial institutions party thereto, (iv) the indenture
among the Company (as successor to Covalence Specialty Materials Corp.), certain
subsidiaries of the Company party thereto and Xxxxx Fargo Bank, N.A., as
trustee, dated as of February 16, 2006 (as amended, supplemented or otherwise
modified from time to time), providing for the issuance of 10¼% Senior
Subordinated Notes due 2016 in the aggregate principal amount of $265,000,000,
and (v) the indenture between the Company and Xxxxx Fargo Bank, N.A., as trustee
dated as of September 20, 2006 (as amended, supplemented or otherwise modified
from time to time), providing for the issuance of the Company’s 11% Senior
Subordinated Notes due 2016 in the aggregate principal amount of $425,000,000,
and therefore is required to guarantee payment of the Securities;
WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the New
Guarantors are 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 New Guarantors,
the Company, and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Securities 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. Each New Guarantor hereby agrees, jointly and
severally with all existing Guarantors, to unconditionally guarantee the
Company’s obligations under the Securities and the Indenture on the terms and
subject to the conditions set forth in Article 12 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. Notices. All
notices or other communications to the New Guarantors shall be given as provided
in Section 13.02 of the Indenture.
4. 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.
5. Governing
Law. THIS
SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
6. Trustee Makes No
Representation. The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture.
7. 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.
8. 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.
THE NEW
GUARANTORS:
CAPTIVE
HOLDINGS, INC.
CAPTIVE
PLASTICS, INC.
CAPLAS
NEPTUNE, LLC
CAPLAS
LLC
By: /s/ Xxxxxxx
Thompson________
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
GRAFCO
INDUSTRIES LIMITED PARTNERSHIP
By:
Caplas Neptune, LLC
its
General Partner
By:
/s/ Xxxxxxx
Thompson________
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
XXXXX
PLASTICS CORPORATION
By:/s/ Xxxxxxx
Thompson___________
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Signatory
XXXXX
FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE
By: /s/ Xxxxxx X.
X’Xxxxxxx
Name:
Xxxxxx X. X’Xxxxxxx
Title:
Vice President
