Exhibit 4.4
EXECUTION COPY
SECOND SUPPLEMENTAL INDENTURE (this "Second
Supplemental Indenture") dated as of November 20,
2003, among XXXXXX PLASTICS, INC., an Illinois
corporation (the "New Guarantor"), a subsidiary of
XXXXX PLASTICS CORPORATION (or its successor), a
Delaware corporation (the "Company"), the Company,
BPC HOLDING CORPORATION, XXXXX IOWA CORPORATION,
PACKERWARE CORPORATION, KNIGHT PLASTICS, INC., XXXXX
XXXXXXXX CORPORATION, XXXXX PLASTICS DESIGN
CORPORATION, POLY-SEAL CORPORATION, XXXXX PLASTICS
ACQUISITION CORPORATION III, VENTURE PACKAGING, INC.,
VENTURE PACKAGING MIDWEST, INC., XXXXX PLASTICS
TECHNICAL SERVICES, INC., CPI HOLDING CORPORATION,
AEROCON, INC., PESCOR, INC., XXXXX TRI-PLAS
CORPORATION, XXXXX PLASTICS ACQUISITION CORPORATION
V, XXXXX PLASTICS ACQUISITION CORPORATION VI, XXXXX
PLASTICS ACQUISITION CORPORATION VII, XXXXX PLASTICS
ACQUISITION CORPORATION VIII, XXXXX PLASTICS
ACQUISITION CORPORATION IX, XXXXX PLASTICS
ACQUISITION CORPORATION X, XXXXX PLASTICS ACQUISITION
CORPORATION XI, XXXXX PLASTICS ACQUISITION
CORPORATION XII, XXXXX PLASTICS ACQUISITION
CORPORATION XIII, each a Delaware corporation, XXXXX
PLASTICS ACQUISITION CORPORATION XIV, LLC and XXXXX
PLASTICS ACQUISITION CORPORATION XV, LLC, each a
Delaware limited liability company, and CARDINAL
PACKAGING, INC., an Ohio corporation (each, an
"Existing Guarantor" and, collectively the "Existing
Guarantors"), and U.S. BANK TRUST 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 the Company and BPC HOLDING CORPORATION, XXXXX IOWA
CORPORATION, PACKERWARE CORPORATION, KNIGHT PLASTICS, INC., XXXXX XXXXXXXX
CORPORATION, XXXXX PLASTICS DESIGN CORPORATION, POLY-SEAL CORPORATION, XXXXX
PLASTICS ACQUISITION CORPORATION III, VENTURE PACKAGING, INC., VENTURE PACKAGING
MIDWEST, INC., XXXXX PLASTICS TECHNICAL SERVICES, INC., CPI HOLDING CORPORATION,
AEROCON, INC., PESCOR, INC., XXXXX TRI-PLAS CORPORATION, CARDINAL PACKAGING,
INC. have heretofore executed and delivered to the Trustee an Indenture (the
"Indenture") dated as of July 22, 2002, providing for the issuance of an
unlimited aggregate principal amount of 10-3/4% Senior Subordinated Notes due
2012 (the "Notes");
WHEREAS the Indenture was amended and supplemented pursuant to
the terms of a Supplemental Indenture dated as of August 6, 2002 causing XXXXX
PLASTICS
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ACQUISITION CORPORATION IV, a Delaware corporation ("BPAC IV"), XXXXX PLASTICS
ACQUISITION CORPORATION IV, XXXXX PLASTICS ACQUISITION CORPORATION V, XXXXX
PLASTICS ACQUISITION CORPORATION VI, XXXXX PLASTICS ACQUISITION CORPORATION VII,
XXXXX PLASTICS ACQUISITION CORPORATION VIII, XXXXX PLASTICS ACQUISITION
CORPORATION IX, XXXXX PLASTICS ACQUISITION CORPORATION X, XXXXX PLASTICS
ACQUISITION CORPORATION XI, XXXXX PLASTICS ACQUISITION CORPORATION XII, XXXXX
PLASTICS ACQUISITION CORPORATION XIII, XXXXX PLASTICS ACQUISITION CORPORATION
IV, LLC, and XXXXX PLASTICS ACQUISITION CORPORATION XV, LLC, to become Note
Guarantors (as defined in the Indenture).
WHEREAS, BPAC IV has on this date merged with and into New
Guarantor;
WHEREAS, Section 5.01(b) of the Indenture requires New
Guarantor to expressly assume the obligations of BPAC IV under the Indenture;
and
WHEREAS pursuant to Section 9.01 of the Indenture, the
Trustee, the Company and the Existing Guarantors are authorized to execute and
deliver this Second 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 Guarantor, the Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the Notes
as follows:
1. Agreement to Guarantee and Assumption of Obligations.
The New Guarantor hereby expressly assumes all obligations of BPAC IV under the
Indenture and agrees, jointly and severally with all the Existing Guarantors, to
unconditionally guarantee the Company's obligations under the Notes on the terms
and subject to the conditions set forth in Articles 11 and 12 of the Indenture
and to be bound by all other applicable provisions of the Indenture and the
Notes.
2. Ratification of Indenture; Supplemental Indentures
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 Second Supplemental
Indenture shall form a part of the Indenture for all purposes, and every holder
of Notes heretofore or hereafter authenticated and delivered shall be bound
hereby.
3. Governing Law. THIS SECOND 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.
4. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Second Supplemental
Indenture.
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5. Counterparts. The parties may sign any number of
copies of this Second Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
6. Effect of Headings. The Section headings herein are
for convenience only and shall not effect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the date first above written.
XXXXXX PLASTICS, INC.,
By:/s/ Xxxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: EVP & CFO
XXXXX PLASTICS CORPORATION,
By:/s/ Xxxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: EVP & CFO
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BPC HOLDING CORPORATION,
XXXXX IOWA CORPORATION,
PACKERWARE CORPORATION,
KNIGHT PLASTICS, INC.,
XXXXX XXXXXXXX CORPORATION,
XXXXX PLASTICS DESIGN CORPORATION,
POLY-SEAL CORPORATION,
XXXXX PLASTICS ACQUISITION CORPORATION III,
VENTURE PACKAGING, INC.,
VENTURE PACKAGING MIDWEST, INC.,
XXXXX PLASTICS TECHNICAL SERVICES, INC.,
CPI HOLDING CORPORATION,
AEROCON, INC.,
PESCOR, INC.,
XXXXX TRI-PLAS CORPORATION,
CARDINAL PACKAGING, INC.,
XXXXX PLASTICS ACQUISITION CORPORATION V,
XXXXX PLASTICS ACQUISITION CORPORATION VI,
XXXXX PLASTICS ACQUISITION CORPORATION VII,
XXXXX PLASTICS ACQUISITION CORPORATION VIII,
XXXXX PLASTICS ACQUISITION CORPORATION IX,
XXXXX PLASTICS ACQUISITION CORPORATION X,
XXXXX PLASTICS ACQUISITION CORPORATION XI,
XXXXX PLASTICS ACQUISITION CORPORATION XII,
XXXXX PLASTICS ACQUISITION CORPORATION XIII,
XXXXX PLASTICS ACQUISITION CORPORATION XIV, LLC,
XXXXX PLASTICS ACQUISITION CORPORATION XV, LLC,
By:/s/ Xxxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: EVP & CFO
X.X.XXXX TRUST NATIONAL ASSOCIATION,
as Trustee,
By:/s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice-President
